Investigatory Powers Bill

(Limited Text - Ministerial Extracts only)

Report: 2nd sitting: House of Commons
Tuesday 7th June 2016 Commons Chamber

[Anne McLaughlin]

Part 6 of the Bill, on bulk powers, is perhaps one of its most controversial parts. The Scottish National party is calling for part 6 to be shelved along with part 7 until such time as an argument for their inclusion has been demonstrated by an independent review of their proportionality and operative necessity—that is to say that we believe that the powers in part 6 should be removed from the Bill until a satisfactory operational case is made for them.

The review the Government have agreed to is most welcome but they must get it right. It must be conducted properly if it is to be of any value to the process of parliamentary scrutiny or is to secure the public’s confidence in its conclusions. Yesterday we had sight of some more detail about the review, in a letter from the Minister to the hon. and learned Member for Holborn and St Pancras (Keir Starmer). We were particularly pleased to note that one of the review team will be a barrister who has a great deal of experience working as a special advocate acting against the Government in terrorism cases. That degree of balance is good and is to be welcomed.

The review needs to be given the time to do a thorough job, however, and we simply do not believe that three months is long enough. Even if it were, it would not be the first time we have been promised a date by which a report will be published, only then to be given another, and another.

[The Minister for Security (Mr John Hayes)]

I thank the hon. Lady for the warm words she is offering, which reflect the spirit in which this debate has been conducted throughout. The review will be conducted in the timeframe she describes because the Government are clear that it should take place while the Bill is live and is enjoying its passage through both Houses of Parliament. It would have been quite inappropriate to have a review once the Bill had passed into law.

[Anne McLaughlin]

I would argue that the review should have happened before now. Even if it is completed within three months, that will not be while scrutiny of the Bill is taking place here by elected Members; the scrutiny will be in the other place by Members of the House of Lords, who are not elected.

We are also confident that the review’s findings will not be significantly different from those of the reviews carried out by other countries, which I will come on to in a moment. In other words, it is likely to find that bulk powers are not necessary and give us no unique information that could not be garnered by other investigative techniques. Regarding those other techniques, the Government are arguing that new clause 5 will mean that bulk powers will be used only when other investigative techniques show up nothing, because the new clause recognises the importance of privacy to the individual—indeed, new clause 5 has been dubbed the privacy clause.

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[Anne McLaughlin]

I wonder how the hon. Lady believes we will do that. The evidence reviewed by the Committee showed that bulk powers are counter-productive because the sheer scale of the data makes them impossible to analyse adequately. In fact, I believe the Government used the limited capacity of the security services to analyse bulk quantities of data as a form of assurance, which was strange to say the least.

[Mr John Hayes]

I say this to be helpful to the hon. Lady. I fear that the debate has moved on and she has not. The truth of the matter is that the bulk powers she describes were considered by the Intelligence and Security Committee, which is chaired by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). It established that there was both validity and necessity. She is arguing a general case on bulk rather than the case for safeguards. The debate we ought to be having is about safeguards, is it not?

[Anne McLaughlin]

I thank the Minister for that advice and will pass it on to my constituents, who have the same concerns as I do and whose concerns I am expressing.

As we know, the Bill is supposed to be a basis for the use of those techniques for quite some time, and we are not future-proofing the Bill if we say that it is absolutely fine to have intrusive bulk techniques because now, in 2016, we do not have the technical capabilities to analyse all the data. Some present-day practices are reliant on 32-year-old laws—they date back to 1984, of all years. If we get the measure wrong, there is every possibility that we will enshrine in law invasive practices that will become feasible only at some point in the next 32 years.

Perhaps the most worrying powers of part 6 refer to bulk equipment interference, which the Government helpfully outline as follows:

“bulk equipment interference is not targeted against particular person(s), organisation(s) or location(s) or against equipment that is being used for particular activities”.

It is therefore an indiscriminate form of interference that leaves systems vulnerable, not only to our own security services using their powers sparingly and proportionately, but to those looking to cause harm and to profit from broken security. If the front door of someone’s house has been kicked in by the police, criminals are not prevented from entering after their departure.

Our concerns regarding the bulk powers provisions in part 6 are connected to many of our concerns regarding the use of bulk datasets. At the heart of the matter is the retention of intimate personal details regarding the tens of millions of ordinary citizens of this country who do not merit such information being held by the state. We welcome the review of the use of bulk powers and recognise that other parts of the Bill impact on part 6 —it cannot stand in isolation. If bulk datasets are acquired by other mechanisms in the Bill, how are they to be dealt with and properly handled? Therefore, as we have stressed throughout, the Bill should be easy to understand, and should clarify what is permitted and what is not. We should not provide a mechanism whereby we rubber stamp practices that were never previously debated.

Again, the offline analogy is instructive. If we were asked by the state to deposit our membership forms for various organisations—political parties, campaign groups, golf clubs—or forms with our direct debit details, health records and other such bulk information into a big safe on the understanding that only the security services would have access to it, we would rightly baulk at such a proposal. Just because such a system is being proposed online and without the consent of the individuals concerned does not make it acceptable—in many ways, it makes it much worse. I hope the Minister will address that comparison.

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[Mr Grieve]

Yes, I agree entirely. I am afraid that, because human society is not perfect, eradicating every instance of misconduct by public servants is likely to be impossible. We therefore have to ensure proper safeguards and ethics. Here I simply repeat what I said before. My own experience is that the ethical standards of the agencies are very high; that is not to say that one does not have to be vigilant about maintaining those standards, or that there might not have been instances where their ethical standards slipped, but everything I and, I think, my fellow members of the ISC have seen has constantly reassured us that those ethical standards are at the heart of what they do. I recollect Sir Iain Lobban saying that if he had asked his staff at GCHQ to do something unethical, they simply would not have done it. He said they would have refused, had he made the request of them.

I simply say that about the framework. I now turn to our amendments, the first group of which consists of amendments 9 to 12 and deals with an issue that goes to the heart of bulk powers: operational purposes. In the ISC’s report on the draft Bill, we were critical of what appeared to us to be the lack of transparency around operational purposes, which are of the utmost importance—this picks up on what the hon. Member for Glasgow North East said—as they provide the justification for examining material collected using bulk powers. If it falls outside legitimate operational purposes, one cannot examine it. We therefore recommended that in some form and in a manner consistent with safeguarding security—the two things are often difficult to reconcile—the list ought, so far as possible, to be published. We also recommended that the ISC have a role on behalf of Parliament in scrutinising the full classified list of operational purposes.

We were also concerned, when we investigated the matter further, that in some cases the nature of the list of operational purposes lacked clarity, as did the procedures for managing it, which seemed largely informal, particularly those for adding an operational purpose to the list. As matters stand now, that can effectively be done by a senior officer in the organisation. Our amendments are therefore intended to give effect to our original recommendations for greater scrutiny and transparency, while also trying to create a formal mechanism for the establishment, management, modification and review of the list of operational purposes.

[Mr John Hayes]

I anticipated that my right hon. and learned Friend would raise this matter, given that he puts such emphasis on his report. I am absolutely committed to considering the matter in the way he describes, and I am prepared to say now that we will go away and consider his amendments, with a view to introducing further amendments to the Bill to satisfy him and his Committee on this issue.

[Mr Grieve]

I am grateful to the Minister and will keep that in mind, but so that the House might understand, I will just take it through what we proposed.

Amendment 9 sets out:

“The operational purposes specified in the warrant must be ones specified, in a list maintained by the heads of the intelligence services, as purposes which they consider are operational purposes for which intercepted content or secondary data obtained under bulk interception warrants may be selected for examination.”

That is to formalise the process, which at the moment we think is too informal. Under amendment 10, an

“operational purpose may be specified in the list…only with the approval of the Secretary of State.”

We think that when an operational purpose is added to the list, it should go through the Secretary of State and be signed off by her. My understanding—I hope that the Minister will confirm this in due course—is that the Government do not see any significant problem with introducing such a system.

[Mr Hayes]

indicated assent.

[Mr Grieve]

I see the Minister nodding; I am grateful to him.

Amendment 10 also states:

“The Secretary of State may give such approval only if satisfied that the operational purpose is specified in a greater level of detail than the descriptions contained in section 121”.

That is to ensure that the Minister understands what the agency is asking for in adding an operational purpose to its list.

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[Mr Grieve]

I do not think the list should be too prescriptive. It will clearly be flexible. From my understanding of the list and what I know about the existing lists, they do have flexibility and can be added to and subtracted from. They are the day-to-day operational purposes for examining bulk data. That is what should be there. At the moment, it is something of an informal process; there is no suggestion that it is not being followed properly, but I think it needs to be formalised a bit more, which is what the amendments are intended to do. Amendment 11 states:

“The list of operational purposes…must be reviewed at least annually by the Prime Minister.”

Amendment 12, which has caused the Government greater—and understandable—difficulty, would put in place the following requirement:

“The Investigatory Powers Commissioner and Intelligence and Security Committee”—

that is us—

“will be kept informed of any changes to the list of Operational Purposes in a timely manner.”

I always stress that the Committee is not there to monitor the activities of the intelligence agencies in real time; it is outside our remit to do so, as the Executive has to get on with its decision making, but we have the power to look at virtually everything we want—unless the Prime Minister denies us access, which has never happened in my time as Chairman—and the right to ask for material and to be briefed on what has happened in the past.

My impression is that the Government have no great objection to letting us see, on an annual basis, how the list has been reviewed, but we took the view that “timely” meant a bit more frequently than that. To make our position clear to the Minister and the Treasury Bench, we think that we ought to be kept informed of any changes not necessarily the day after they happen but certainly within a reasonable timeframe so that we might follow the changes that take place. The merit is that because we can, if necessary, call an evidence session and ask the head of an agency to come and explain to us what has been going on, we could provide reassurance to the House that the system was being operated correctly. I want to emphasise that that is the purpose of the amendment.

I do not expect the Minister to give me a completely positive response to amendment 12 today—he has kindly intervened already—but I would like him to provide an assurance that the Government will give this careful consideration and come up with a solution that enables the ISC to do its job. If he cannot, I might have to press the amendment to a vote, which I do not particularly want to do

[Mr John Hayes]

My right hon. and learned Friend is right to anticipate that this is the issue that has troubled us most of all his Committee’s many sensible proposals. From what he has said, I know he will understand that the balance to be struck is between that kind of proper scrutiny and ongoing security operations, which clearly require that consideration of operational purposes be a dynamic matter. It is critical that we strike that balance, but I hear the tone and tenor of his remarks and I am happy to say that the Government will consider the matter carefully and continue our discussions with him.

[Mr Grieve]

I am grateful to the Minister. On that basis, I think that these will be probing amendments, but I hope the matter can be properly resolved as the Bill goes through another place.

Amendment 12 states that the

“Investigatory Powers Commissioner must include in his Annual Report a summary of those Operational Purposes”.

Those would likely be more limited than the full list, but it would help to have some broad understanding.

I must take a moment on new clause 3, given that it deals with such an important matter. In the ISC’s report, we recommended that class bulk personal dataset warrants be removed from the Bill on the basis that the potential intrusion into privacy was sufficient to require that each distinct dataset should require specific approval by Ministers. However, we then had further evidence—as has happened in the dialogue with the Government and the agencies—in particular from the Secret Intelligence Service, about the rationale for retaining class warrants in the Bill. In particular, the evidence highlighted the fact that many of these datasets covered the same information or type of information. In those circumstances, we considered that a class warrant would be appropriate, as the privacy considerations were identical.

However, were we to accept class warrants for bulk personal datasets, we would need safeguards to ensure that their use was limited. We therefore proposed three restrictions. The first relates to the most sensitive personal data, using the definitions in the Data Protection Act 1998, and would prohibit the retention of any dataset containing a significant quantity of data relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life. The second restriction relates to bulk personal datasets that are somehow novel or out of the ordinary. In those circumstances, we would not consider a class warrant to be appropriate, so subsection (1)(b) of new clause 3 is designed to ensure that such cases will be referred to the Secretary of State and the commissioners by way of a specific warrant.

Finally, we express concern that we should not end up with bulk personal dataset inflation and have suggested that bulk personal dataset warrants should be limited to 20 individual datasets. I emphasise to the House that that is a completely arbitrary figure in many ways. If the Government have an alternative approach, I am more than happy to listen. I accept that if we impose a limit of 20, it is possible that the Home Secretary might be asked to sign two identical bulk personal dataset warrants in one go, if they are expecting to pick up 40. However, it seems to me that there needs to be some numerical cap, above all to ensure that the Home Secretary or Foreign Secretary, depending on who it is, is aware of what is being collected.

I would emphasise that we have seen the entire list of bulk personal datasets and we have never been of the opinion that anything is being collected that is not legitimate, and some of it, I can tell the House, is pretty mundane as well. That said, it is right that the House should exercise some caution about the expansion of those datasets, because one can see that in some circumstances they could touch upon information that is regarded as highly sensitive.

[Mr Hayes]

I hesitate to intervene again, but I hope these exchanges are proving helpful to the House, as well as to my right hon. and learned Friend and me—and to you, Mr Deputy Speaker. My right hon. and learned Friend touches on an important issue. I think he will acknowledge that it would be undesirable to set an arbitrary figure, but it is certainly the case that the Home Secretary, the Foreign Secretary and the Northern Ireland Secretary would want to take into account the numbers. It seems to me that the numerical case that my right hon. and learned Friend is making is not without merit. I am not sure that this is a matter to be dealt with on the face of the Bill, but it certainly should be dealt with.

[Mr Grieve]

I am again most grateful to the Minister. I entirely accept that if he can produce, for example, an assurance before the passage of this Bill through Parliament that there will be a protocol in place—which we, for example, have access to—that sets out exactly how the process will be managed in practice and that we can provide the House with the reassurance that that is being followed, that would satisfy my concerns.

However, I do think there is an issue here, because frankly the world is made up of more and more bulk personal datasets, largely being collected in digital form, and there needs to be a process in place to ensure that what is there is legitimately held and is not just being added to in a way that could be outside Ministers’ line of vision altogether, unless they specifically started asking questions. That is the sort of approach I am talking about, so on that basis I am happy to accept the Minister’s assurance.

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Let me now deal with the bulk powers themselves. As has been pointed out by the hon. Member for Glasgow North East (Anne McLaughlin), they are very wide. What concerns her constituents and mine—and, indeed, many other constituents—is that inevitably the bulk powers will be applied to, and will have an impact on, people who are not themselves suspected of any wrongdoing. That worries everyone who has spoken to me, and I am sure that it worries members of the public who have spoken to many other MPs.

[Mr John Hayes]

I sense that the hon. and learned Gentleman is about to move on to wider issues. Before he does so, let me deal with the issue of the application of the content of the manuscript amendment, which, as he said, specified a part of the Bill. He is right to say that the principles that underpin the amendment should apply to the whole Bill, and I will ensure, as the Bill proceeds, that that is the case legislatively. If we need to table further amendments to make the position categorically clear, we will do so.

[Keir Starmer]

I am grateful to the Minister for clarifying the position, because that is an important additional measure in relation to bulk powers. We will, of course, support whatever amendments are necessary to achieve that end.

As I have said, the bulk powers are very wide. They will inevitably have an impact on people who are not suspected of doing anything wrong, and they will inevitably have an impact—or, at least, it is impossible to ensure that they will not—on legally privileged material, or material that involves journalistic material or journalistic sources, or, indeed, MPs’ correspondence. It would be good if a way could be found of excluding such material from the operation of bulk powers, but it is not possible to do so, and that is why there is concern about bulk powers. [Interruption.] I will give way to the right hon. Member for Haltemprice and Howden (Mr Davis) in a moment.

Bulk powers involve ordinary members of the public who have never done anything wrong, and they involve the potential to capture legally privileged material, journalistic material and MPs’ correspondence. I shall come on to the safeguards, but it is important to understand first why there is that concern about the bulk powers.

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[Keir Starmer]

There is a case for frequent review, but what form that would take is a matter for us to discuss during the debate on the next group of amendments. I take the point that, in many senses, most of the bulk powers are currently available and being used. As I said yesterday, however, that does not mean that we should not scrutinise them now through the passage of the Bill. This is the first time that Parliament has had the chance to examine and scrutinise the provisions, because they simply were not avowed. The change of position on the avowal of the powers over the past three or four years and the fact that they are in statute are quite extraordinary. It would be wrong to say that as they existed and were used under more general provisions in the past, we should not ask for the operational case to be made now and have that properly scrutinised. This is the right way of doing things, even though one might say that it should have been done five, 10 or 15 years ago when things were different.

[Mr John Hayes]

That is why the focus on necessity and not merely utility is so important. It would have been easy to have focused on utility. As the hon. and learned Gentleman emphasised earlier, this is about establishing to the satisfaction of independent people that the powers are necessary.

[Keir Starmer]

That word necessary is important in all of this. As I say, the review team’s ability to assess whether the same result could have been achieved through alternative investigative methods is important to that exercise and the confidence that we can have in the outcome.

Pressing on, the letter goes on to say that

“all necessary information, access and assistance as is needed for the review”

will be provided. It then states:

“We are absolutely clear that there is nothing to be gained, and much to be lost, by in any way restricting the review team’s access to sensitive and classified material where this is necessary to inform the review process.”

On timing, it states

“you are correct that the review will be concluded in time to inform Parliament’s consideration of Parts 6 and 7 of the Bill at the Lords Committee.”

There is a complete and instructive response to the request in my letter and that will help a great deal in how the review is received.

The review is important. It is not just an exercise for us in this House or those in the other place; it is for the public. As the right hon. and learned Member for Beaconsfield said, some Members of this House have had access to some of the powers and have seen them in operation either in previous roles or in briefings to the members of various Committees. However, it is no longer enough, nor should it be, for members of the public for politicians to stand up and say, “I have had it demonstrated to me that these powers are necessary or have been used in a particular way.” They have the right to as much information as possible to make decisions for themselves.

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[Keir Starmer]

I agree with those sentiments. Conventions and attitudes change. To take an example from my past, it was once a convention that a prosecuting authority would not give reasons for its decisions, but that has changed and for the better. The days of politicians with access to particular information assuring the public simply by saying that they have had access and that they are satisfied are well and truly over. That presents problems and difficulties in relation to what must be put in the public domain.

[Mr John Hayes]

The intervention of the right hon. Member for Slough (Fiona Mactaggart) has been helpful in aiding me to frame my own. She is right that operational concerns are sensitive, delicate and, of course, secret matters. The hon. and learned Member for Holborn and St Pancras (Keir Starmer) is absolutely right that we should put as much information as possible in the report. He is also right that there will be access to security-cleared information of a highly sensitive nature, but that should not prevent us from being as clear as we can to this House, and more widely, about why it has been decided whether certain powers are necessary.

[Keir Starmer]

I am grateful for that intervention, which I will take in the spirit with which it was put forward. We want maximum publicity within the constraints that apply when highly sensitive information is considered. The first point of the review is to inform their lordships so that they can perform their scrutiny function, but they will be unable to do that if the report is not available to assist them in their deliberations. The review and its terms are a material and important step forward, and I am grateful for the indication about its publication when it is complete.

That takes me to the subject of medical records, which I can deal with swiftly.

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[Mr Carmichael]

I can only regret the tone of the remarks of the hon. Member for North Dorset (Simon Hoare). Had he said anything about the content of the Bill or the amendment, I might have regretted that as well.

There are a number of matters on which I wish to touch today. I should like to speak first of all in relation to the review, which has formed so much of today’s debate. I very much welcome the appointment of David Anderson, QC. He commands respect and confidence in all parts of the House. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer) said earlier, it is significant and important that, first of all, he has a remit that looks at the necessity of these provisions and also that he has been able to select for himself the team with which he will be working.

I very much hope that the report will be produced in time for the Bill to be given the benefit of it when it is considered in the other place. I say to the Minister that if it is a question of a week or two here or there, notwithstanding the deadlines to which we are all working, it would be proper for the Government to take the view that it is best to get this report right rather than to get it out quickly. For my part, I am disinclined to think that David Anderson would have taken on this job if he were not able to do it in the time that is allowed to him, but, as we all know with these matters, sometimes the unexpected happens and sometimes it is not always easy to get to the truth of things. I do hope that there will be a degree of flexibility among the Government’s business managers, not least if we need a Government day to debate the report, so that the House has its voice heard.

[Mr John Hayes]

I will, if I may, suggest to the right hon. Gentleman, whom I worked with in government and whom I know very well, that the scope of the report should be a matter for David Anderson. For example, if he were to want to take into account the experience of other countries—this is something that the right hon. Gentleman and the SNP spokesperson called for—that would be a matter for David Anderson. We are not attempting to tie his hands in any way. As the right hon. Gentleman knows, it is my view that we need to get this review completed, so that we do not pass something into legislation without the information that emanates from it.

[Mr Carmichael]

I am grateful to the Minister for that. We are now best served by allowing Mr Anderson to get on and do the job that we have given him. I merely say in passing that it would have been better if we had given him that job some time ago, so that this House might have had the benefit of his conclusions when debating this whole matter. None the less, I welcome the conversion of the Government, however late in the day it may have come, to the need and to the acceptance of what even the Labour party has said, which is that the operational case for the extent of the bulk powers that the Government have sought to introduce in this Bill has not yet been made. The operational case that they have published has been vague, to be kind to it, and it has certainly been lacking in any persuasiveness.

We will look very closely at David Anderson’s conclusion with regard to the necessity of these powers, because that should have been the first test that was set and that was required to be met. I take very little issue with the right hon. and learned Member for Beaconsfield (Mr Grieve), or indeed the hon. and learned Member for Holborn and St Pancras, when they talk about the protections that they think should be built into the Bill. Protections are necessary only if the powers are first judged to be necessary, which comes to the very heart of the points made by the hon. Member for North Dorset. The Bill has very much been a work in progress and I wonder whether we would have had the 104 Government amendments we had yesterday and the 20 that we have today, never mind those tabled by the Intelligence and Security Committee, by those on the Opposition Front Bench and by the Scottish National party, if the House had taken the approach to the Bill and its scrutiny that was being urged on us a few minutes ago.

On the question of bulk personal datasets, I share the substantial concerns that have already been expressed. That brings me back to the objection that I have already spoken about—to the operational case. That is another aspect of the Bill that the Government have failed to explain. The operational case is perhaps even more opaque than anything else in the Bill. Although the abuses—let us use that term—outlined by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and acknowledged by the right hon. and learned Member for Beaconsfield might be at the lower end of the scale, I have a strong suspicion that it was because they were at the lower end of the scale that they came into the public domain in the first place. When we are dealing with something that strikes in such a fundamental way at the relationship between the citizen and the state, there is, frankly, no such thing as a trivial abuse. Any abuse is serious, any abuse is to be taken seriously, and that is why I thought that the hon. and learned Lady was right to bring them to the House’s attention.

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[Gavin Robinson]

I am grateful to the shadow Minister for that clarification, which is very helpful.

On bulk data collection generally, the correspondence that was shared yesterday was incredibly useful. I do not recall getting correspondence between a shadow Minister and the Minister, which was shared with us all and made available in the Vote Office so quickly. It was useful and defused many of the fears and concerns that had been raised with Members of Parliament about the consequences of passing the Bill. It is important, as the right hon. Member for Orkney and Shetland (Mr Carmichael) said, that we let that process commence and that we engage in it thoughtfully.

Having made the point that there was no Northern Ireland representation during scrutiny of the Bill in Committee, I hope there is a mechanism whereby Members, be they Democratic Unionists, Ulster Unionists, Social Democratic and Labour party Members or others, get the opportunity to engage thoughtfully and purposefully in the conversation because, as we all know in the House, the history and legacy of Northern Ireland means that these are acutely live issues for us daily.

[Mr John Hayes]

Just before the hon. Gentleman finishes, I am more than happy to give him the assurance that my door is open to him, his colleagues and other parties during the whole passage of the legislation. When it leaves this House it will go to the other place, but I will continue to be engaged and involved with all parties who want to contribute in the way that he has described, and I thank him for it.

[Gavin Robinson]

I am extremely grateful to the Minister. With that—

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[Tom Tugendhat]

No, I am afraid I will not. I have given way enough.

It would be baffling to look at that list and accuse people of such integrity of having anything other than the best intentions. The important thing, however, is that we not only trust them, but supervise them. We trust but verify, as the old diplomatic phrase goes. The verification comes from the commissioners, which were listed yesterday, with their explanations, which the right hon. Member for Knowsley (Mr Howarth) was talking about yesterday. The supervision also comes from the Minister, and ultimately and eventually from the House.

I am therefore reassured that the Bill is not a snoopers charter or a grubby attempt to procure the information of the private citizens of these islands. On the contrary, this is an extremely effective Bill. It has been through months of discussion, and hours of detailed and deliberate interrogation. It has satisfied the extremely demanding standards of the Chair of the Intelligence and Security Committee, and the exemplary work of the former Director of Public Prosecutions, the hon. and learned Member for Holborn and St Pancras, whom I am pleased to see on the Opposition Front Bench.

The Bill comes to the House as a nigh-on complete work. Even so, the Government have considered and accepted amendments and further changes. We have not only a final but a polished copy of a Bill that is designed to do exactly what this country vitally needs. It does exactly what the Government are here to do. It keeps the people of these islands safe, whatever their background, origins, occupation or duties.

Fundamentally, it also protects the freedoms that we enjoy. Those freedoms are not, as the Americans put it, free. They are fought for every day, by the people on the list in schedule 4 that I have identified—our armed forces and our intelligence services. That is why I am so proud to be here today to speak up for the intelligence services who have asked for those powers; for the armed forces who require them; for the police who use them; and most importantly for the Government and, in this case, the official Opposition, who have so carefully crafted a legal document that will hold water today and for long into the future.

[Mr John Hayes]

What an interesting and important debate we have had. This group of amendments addresses bulk powers. It is right that we should consider these matters in considerable detail because, as has been said by Members from across the Chamber, they are matters of profound importance and public concern. The public want to be assured that the safeguards we put in place for these vital powers are right, adequate, properly considered and properly reviewed. Many hon. Members have contributed to the debate. Tellingly, the hon. Member for Belfast East (Gavin Robinson), my hon. Friend the Member for South Ribble (Seema Kennedy) and the hon. Member for Fermanagh and South Tyrone (Tom Elliott) spoke with personal experience of terror.

We all know the scale and nature of the threat we face, but though we know it, that does not mean that it should not be explored again and again in this House. For to explore it is to realise what we need to counter it. That is precisely what was done in speeches by hon. Members from all sides of the House. The threat is real, imminent and unprecedented in character. Our opponents are increasingly adaptable and flexible. Although their aims may be barbarically archaic, their means are up to date. They are entirely modern. They are prepared to use every device and every kind of communications medium to go about their wicked work, which is precisely why the Bill does what it does, why bulk powers matter and why the amendments that stand in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry), which I will deal with in a moment, are not ones I can accept—that will not come as any surprise to her, by the way.

An argument has been made that the operational case for bulk powers needs to be fleshed out more fully. Hon. Members will know that the Government did just that when they published the operational case for bulk. That informed the Committee consideration, which has been referred to several times during our short debate today, and has been a helpful way of establishing why bulk powers really count.

We are dealing with powers that have played a significant part in every major counter-terrorism investigation over the past decade, including in each of the seven terror attacks disrupted since November 2014. These powers enabled over 90% of the UK’s targeted military operations during the campaign in south Afghanistan, and they have been essential to identifying 95% of the cyberattacks on people and businesses in the UK discovered by the security and intelligence agencies over the past six months. My hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) is right to say that this is about real life operational necessity. I congratulate my hon. Friend the Member for Fareham (Suella Fernandes) on the role she played both on the Joint Committee and the Bill Committee. The threat she described so vividly is, as she said, worldwide and of a kind that would allow us to do nothing other than take the necessary steps to counter it in the defence of our freedoms.

I was perhaps a little unkind to the hon. Member for Glasgow North East (Anne McLaughlin) who spoke for the Scottish National party, although I make no apology for reprising what I said. Frankly, her contribution missed the point. The point is not whether the powers are necessary; it is whether we can put in place sufficient safeguards to ensure that they are used only when, how and where they should be. That was the point made by the Chair of the ISC and by the ISC when it had the chance to consider these matters. As the Chair of the ISC said, it then also had a chance to reconsider them, having been given further information of a secure kind—that is its function after all—and its members were persuaded that the powers were indeed necessary. It is right to have an informed, thoughtful debate about safeguards, checks and balances, and constraints, but we cannot have a grown-up debate about whether the powers count, because they are not new; they are existing powers. The Bill simply introduces additional safeguards, which I would have thought any reasonable Member would welcome.

[Joanna Cherry]

I gently suggest to the Minister that, as we have seen already this afternoon, patronising those of us who have taken the trouble to scrutinise the Bill, speak on it in detail and try to understand it does not get us anywhere. If the Government’s operational case for investigatory powers is so convincing and overwhelming, why have they now conceded the need for an independent review?

[Mr Hayes]

Let me repeat two things I said yesterday. First, the members of the Bill Committee all made a useful contribution, and the hon. and learned Lady is of course one of them. Secondly, the Government, in wanting to get the Bill right, are prepared to listen and learn, as Governments should be. I have been in the House for a number of years, and there has not been a single piece of legislation that has not been better for having received proper scrutiny, that has not altered during its passage and that has not been a better Act as a result of consideration by the House. We should be proud of that. I was simply saying that to focus on some of the detail around safeguards seems to be absolutely right, whereas the debate about the necessity of the powers has already been had. I think there is a general acceptance that the powers are necessary.

[Joanna Cherry]

No, it has not.

[Mr Hayes]

I do not know if the hon. and learned Lady was listening, but I read out three things: 90% of operations in Afghanistan, 95% of cyber-attacks, every single major counter-terrorism investigation over the last decade. I cannot be plainer about the necessity, but because the Government are so determined to ensure adequate safeguards, we have agreed to a further review. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer), generously said, the review is to be completed in exactly the form that emerged as a result of the discussions between the Opposition and the Government—an illustration of the House behaving at its best. The review, chaired by David Anderson, will be able to look not just at utility—the point I made to the Chair of the ISC—but at necessity, and it will be independent.

[Anne McLaughlin]

So the Minister is saying that all these counter-terrorism activities were helped by bulk powers, but now we are going to have a review to see whether that is true. As I said, there were two independent reviews in the US. The NSA argued—much as he is arguing now—that all 54 counter-terrorism events had relied on bulk powers, but both independent committees said, “Absolutely not. Not at all. There were other techniques.” What will he do if this review finds the same as the two reviews in the US? Will he then remove the bulk powers from the Bill?

[Mr Hayes]

It is a bit rich to say, “We want a review and we want the Government to listen and agree”, and then, when they do listen and agree, to say, “You haven’t agreed enough or soon enough.” I accept that the review should be entirely independent—I made that clear in my letter to the shadow Minister. I accept that it will be for David Anderson to decide exactly how he goes about his work. I have further accepted today that he should look at international comparisons, which I think is perfectly reasonable. It will be for David Anderson to decide whether he does that; if he wants to, that will certainly be within his scope. This will be an independent review, with as much information as possible made public, and it will be able to range, in the way the hon. Lady has described, across these powers.

[Mr Grieve]

I have no doubt at all that the review done by David Anderson will be valuable and I hope it will also inform the House about how bulk powers work. In that context—and because I have picked this up—there has been a suggestion that the examination of material under a bulk warrant is somehow a free-for-all that is left to the discretion of the official, and it plainly is not. It is subject to the operational purposes in clause 125, and if they are departed from, the official concerned would be acting unlawfully.

[Mr Hayes]

My hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) made the point, which my right hon. and learned Friend has now amplified, that these powers are subject to a range of safeguards. Let me be clear: the analysis of data intercepted in bulk is subject to automated filtering to ensure that data not of intelligence value are automatically discarded. This is a safeguard set out in the code of practice. There are rigorous safeguards in the Bill for examination, and the suggestion that there are not is, frankly, simply wrong and based on a confusion between the collection of material, as my right hon. and learned Friend has implied, and its examination.

[Lucy Frazer]

rose—

[Mr Hayes]

It is right, therefore, that we emphasise—as my hon. and learned Friend, who is about to intervene on me, did—that the safeguards are clearly set out both on the face of the Bill and in the supporting material; and, indeed, that they have evolved as a result of the scrutiny we enjoyed in Committee and through the pre-legislative scrutiny.

[Lucy Frazer]

My right hon. Friend is responding to a point, which the SNP has made on a number of occasions, about the US. Does he, like me, remember when the hon. and learned Member for Edinburgh South West (Joanna Cherry) put that point to David Anderson on the very first day of our Committee? He said:

“It is difficult, of course, to read across from section 215 in the US to what we have here, which is rather different…I cannot speak for the US…different power, different circumstances”.––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 8, Q7.]

[Mr Hayes]

My hon. and learned Friend, with an assiduity that is matched by her intellect, has identified the fundamental flaw in the argument of our critics, which is that those who have looked at these matters most carefully have concluded both that these powers are necessary and that the safeguards we are introducing in this Bill—and by the way, these powers have existed for a long time; this is the first chance we have had to debate the legislative safeguards—are not only numerous but rigorous, in the way she has described. That was precisely the point that David Anderson made.

However, the hon. and learned Member for Holborn and St Pancras, in Committee and since, has said we need to do more. There are two ways for Governments to handle Oppositions, just as there are two ways for Oppositions to handle Governments: we can either do it antagonistically or we can do it co-operatively. The way I go about my work is inspired perhaps by Samuel Johnson—the great Dr Johnson, the man who said, by the way, that the devil was the first Whig, and I agree with him on that. Samuel Johnson said:

“Life cannot subsist in society but by reciprocal concessions.”

This Bill has been a model of that kind of reciprocal approach. And by the way, these concessions have not been climbdowns. They have not been given reluctantly, they have not been turnarounds and they have not been in any sense wrung out of the Government. Nevertheless, they have been given on the basis of the proper pressure exerted by the hon. and learned Member for Holborn and St Pancras and other hon. Members for the Government to do more. Good government is about listening and learning, as I said yesterday, and that is precisely what we have done in respect of this review. I look forward to it and I anticipate its outcome with the same kind of interest that I know the hon. and learned Gentleman and others share.

[Keir Starmer]

I am grateful to the Minister, and I feel that I should put on record my gratitude to him for the way in which he has dealt with the demands that I have made on behalf of the Labour party. They have been considerable demands.

[Mr Hayes]

I thank the hon. and learned Gentleman for his support. I know that the Government Whips will take careful note of it. [Laughter.]

We have listened to the call for independent validation. David Anderson QC will undertake the review, so I will say no more about that.

We have debated at some length, today and previously, the amendments tabled by the Chairman of the Intelligence and Security Committee, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), which contain a number of proposals. I am grateful for his contribution to the debate, generally and, more specifically, today. I am pleased that my right hon. and learned Friend has explained the purposes behind new clause 3 and amendment 24. The Government certainly accept in principle the argument that we should provide further restrictions on the use of class bulk personal dataset warrants. We also accept much of the detail contained in the ISC’s draft clause, including reference to the need for restrictions relating to sensitive personal data.

I have dealt with the issue about which—as my right hon. and learned Friend knows—we are least happy, namely the timescale within which these matters are reported to the ISC. I think that more could be done, and I think that a protocol of the kind that my right hon. and learned Friend described in his brief contribution might provide a way of doing it. We will take that suggestion away and do further work, in the spirit to which he referred.

My hon. Friend the Member for Stevenage (Stephen McPartland), who is no longer present but who is an old friend of mine, raised issues relating to modifications. I want to make it absolutely clear that in all modifications, a warrant will require the same double lock. Yesterday and in Committee, the hon. and learned Member for Holborn and St Pancras argued that a double lock that applies when a warrant is originally sought must apply to modifications. I entirely accept that point. My hon. Friend made it again today, and I can assure him that the double lock will apply to bulk powers as well.

The hon. and learned Member for Holborn and St Pancras raised the issue of medical records. It is right for particularly sensitive data to be handled in a particularly sensitive way, and I am pleased that he noted the Government amendment which, I think, deals with that. We will consider the technical points that he raised about social care and mental health, but I am confident that we can find a way forward.

I do not want to delay the House unduly—as you know, Madam Deputy Speaker, that is not my habit, and we have other important matters to consider—but I do want to say that one of my regrets is that we have not had more Proust today, or during our consideration of the Bill more generally. Marcel Proust said:

“The only real voyage of discovery consists not in seeking new landscapes, but in having new eyes”.

The consideration of this Bill has been extensive. Three reports before its publication in draft, three parliamentary Committees once the draft Bill was published, and a very thorough examination in Committee following Second Reading have allowed us to have “new eyes”, and to see more clearly both the need to secure our people and counter the very real threats that we face, and the need to deal with the checks and balances which ensure that the powers we give those who are missioned to keep us safe are used proportionately, and only where necessary. Achieving that balance—a balance that lies at the heart of the Bill—has required the House to take a balanced approach. As I said a few moments ago, Parliament is at its best when it puts national interest beyond party interest, and this is common ground for the common good.

[Anne McLaughlin]

I have to say that the Minister’s tone does not really reflect that which some of his hon. Friends used when addressing this debate. I have felt completely patronised at times today, because people on the Government Benches have been shouting, “You don’t understand this Bill.” Just because we take a different view or come at things from a different angle does not mean that we do not understand. The right hon. Member for Rutland and Melton (Sir Alan Duncan) shakes his head, but it was offensive to have to listen to that nonsense, particularly when it was directed at my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who is a learned QC and certainly does know what she is talking about.

--- Later in debate ---

16:13

Division 10

Ayes: 66

---

Scottish National Party: 49
Liberal Democrat: 8
Labour: 4
Social Democratic & Labour Party: 2
Plaid Cymru: 2
Independent: 2
Green Party: 1

Noes: 285

---

Conservative: 276
Democratic Unionist Party: 7
Ulster Unionist Party: 2

--- Later in debate ---

[Stephen McPartland]

I speak in support of all the amendments that I have tabled in this group. First, new clause 18 and amendment 207 are designed to try to restrict the powers in the Bill to the intelligence agencies and law enforcement only. Schedule 4 currently includes the Food Standards Agency and the Gambling Commission, and I am not clear what evidence there is for including those organisations and granting them access to such intrusive powers when other organisations will not have that access.

The Bill gives incredibly wide-ranging powers and there is clear nervousness about that on both sides of the House. I completely respect the integrity of the security services and the police, but a lot of the fear seems to stem from the behaviour of some local authorities in the past and how they have used anti-terrorism powers to spy on people to see whether or not they have been recycling correctly and so on. As a result, those local authorities are not included in the Bill.

Let me give an example from Hertfordshire. The child protection unit of Hertfordshire County Council does not have access to communications data or the powers in the Bill in order to catch paedophiles, but the Gambling Commission and the Food Standards Agency would do so. I am unclear why a body that we would want to have access to such powers so that it can catch paedophiles and break up rings around the world cannot have access, when organisations such as the Gambling Commission or Food Standards Agency can have access.

I want to understand that difference. In the oral evidence sessions, when Ministers were questioning witnesses and when witnesses were providing evidence, there was a lot of talk about intelligence agencies, paedophilia and the problems in that regard. Ministers made it clear that a range of organisations had made robust cases to be included. The amendments are intended to tease out of Ministers why those cases were accepted when others were not. Frankly, I would much rather that Hertfordshire County Council’s child protection unit had access to some of the powers in the Bill than the Food Standards Agency, the Gambling Commission or some other organisation. The purpose of my amendment is to try to identify why we are where we are at the moment.

[The Solicitor General (Robert Buckland)]

My hon. Friend and I have indeed spoken about these matters in some detail. I recognise his abiding concern and that of others with regard to this issue, which is why I will commit to publishing a detailed case for the minor public authorities ahead of these provisions being further considered in the other place. I hope that gives him some reassurance about the points that he has consistently raised.

[Stephen McPartland]

I am grateful to the Solicitor General. That is evidence of the work of the two Ministers over the past 12 months in negotiations with me and Opposition Members throughout to try to make the Bill workable for all of us. As I said, all my amendments are probing amendments and none are designed to be pressed to a vote. Their purpose is to gain information. I accept the Solicitor General’s undertaking and thank him.

--- Later in debate ---

[Andy Burnham (Leigh) (Lab)]

This final group of amendments covers three of the seven substantial concerns that I set out in a letter to the Home Secretary after Second Reading: first, protection of journalistic material and sources; secondly, the definition of internet connection records, and the threshold for their use; and thirdly, the independent review of the operational case for bulk powers. Let me take each in turn.

I will deal with journalistic material and the protection of sources briefly, as the matter was debated at length yesterday. Protecting the ability of whistleblowers in private or public sector organisations to speak to journalists without fear of identification is one of the important checks and balances on state and corporate power. Many journalists and the National Union of Journalists have real concerns that clause 68 weakens the existing protections in law for journalistic sources operated under the Police and Criminal Evidence Act 1984. They point to an incident in 2014 when police secretly accessed the mobile phone records and call data from a national newspaper, bypassing the PACE protections. Rightly, there are now worries that that has set a new precedent. Furthermore, they feel that the Bill might be about to enshrine that new precedent in law.

Under PACE, journalists are notified when the authorities want to access material and sources, so that they have the ability to challenge that in open court. The worry is that the Bill removes those protections. The National Union of Journalists makes the point that there is no real difference between physical notebooks and communications data held electronically; both could reveal the identity of a source. Labour shares those concerns; they were ably raised by my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) in Committee, and they were also raised on Second Reading.

The Government have gone some way towards addressing our concerns, tabling amendments 51 and 52, which we welcome. The amendments will ensure that judicial commissioners, when considering a warrant, must give weight to the overriding public interest in a warrant being granted for the use of investigatory powers against journalists and that they must ensure that that is in keeping with wider and more general privacy points. That is a significant move. It takes points that would otherwise have been in codes underpinning the Bill and puts them on the face of the Bill.

Labour will accept these amendments, but we will do so while being clear that they do not go far enough. Indeed, they cover only the award of warrants, not general access to communications data. We therefore support the amendments tabled by my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) on behalf of the Joint Committee on Human Rights—amendments 143 to 145—which seek to extend the same level of protection to journalists as is currently the case under PACE.

We accept that this is a difficult area to get right, particularly when the definition of who is and who is not a journalist is changing in the digital world. We accept the difficulty facing Ministers. However, we think that the general principle, enshrined in PACE, of allowing journalists to challenge in open court any attempt to access material that could reveal sources is a good one. It would allow those public interest arguments to be heard and tested in court. We hope that the Government will today commit to working with us and the NUJ to find a wording that in the end does the job.

[Mr John Hayes]

The right hon. Gentleman has made his case in a measured way. He acknowledges that it is difficult to define journalists because the modern media include many bloggers who are part time, occasional and so forth. However, he is absolutely right that a solution needs to be found, and I am happy to say that we will look at this issue with him and others in greater detail as the Bill enjoys its passage through this House and the other place.

[Andy Burnham]

I am grateful for what the Minister has said. It must be possible to find a definition that excludes casual or voluntary bloggers from individuals who make their living from writing or who work for organisations regulated by the Independent Press Standards Organisation or other regulators.

--- Later in debate ---

[Mr Alistair Carmichael]

May I, through the right hon. Gentleman, tell the Minister that, when he says he will speak to people in the House and others, those others really must include the National Union of Journalists?

[Mr Hayes]

indicated assent.

[The Solicitor General]

indicated assent.

[Mr Carmichael]

Those are the people who will be better qualified than anyone else to define what a journalist is, and they do have something of a pedigree—going back to 1936—in terms of the definitions.

[Andy Burnham]

The right hon. Gentleman makes an important point, which I saw was accepted on the Government Front Bench. He has tabled a detailed amendment on this issue, and he is right to do so and to press the Government on this. All of us have to apply our minds to getting these definitions right for all three professions. There is still an open question, as we discussed yesterday, about Members of Parliament and the right level of scrutiny for any warrant against them, but there is equally more work to do on other fronts.

We should not pass a Bill that weakens these professions—as I said yesterday, this is not about preserving the special status of the individuals who work in them, but about protecting the public and their ability to raise issues through those individuals.

[Mr Hayes]

I have committed to writing to the NUJ and the Society of Editors, which I have met already. I have been waiting to do so until today’s debate so that my letter can be informed by it. However, I will happily write to them tomorrow, very much on the basis of taking these matters forward.

[Andy Burnham]

I very much appreciate what the Minister has said. I think that any colleague in any part of the House who has read the NUJ’s briefing for today’s debate will struggle to disagree with anything in it. If we want this Bill to leave Parliament with a high degree of consensus across society, it is right that these professional bodies feel, in the end, that the Bill is something they can support. That is a prize worth working for. Given his comments, I get the feeling that the Minister agrees.

--- Later in debate ---

Today, I am looking for an agreement in principle with the spirit of what I am saying: that there should be a general serious crime test for comms data and a higher threshold on top of that for the use of internet connection records. I will listen carefully to what the Minister has to say on that, but unless I am satisfied, I am prepared to press our more general amendments to a vote.

[Mr John Hayes]

I am sorry to interrupt the right hon. Gentleman in his flow. I have listened carefully to what he has said, and it has been the subject of discussion, as he knows, in Committee and elsewhere. I do not want to anticipate my hon. and learned Friend the Solicitor General in his summing up, and I mean him no discourtesy, but as the Bill Minister and the Security Minister, I commit to doing what the right hon. Gentleman asked. I do so because it is really important that we have a threshold that works, particularly on ICRs.

ICRs are, as the right hon. Gentleman says, qualitatively different. He is right about cases of harassment, and so on and so forth, which is why the matter is challenging and complex. He has made a powerful case here, following the powerful case made by the hon. and learned Member for Holborn and St Pancras (Keir Starmer), and I will bring the matter back to the House during our proceedings on the Bill in the form of an amendment, in the spirit that he has described.

[Andy Burnham]

I said at the start that I was looking for considerable comfort, and I think I have just received it from what the Minister has said. To be clear, I was saying that there should be a threshold of six months for the use of communications data, and a higher threshold on top of that for internet connection records. As the Minister just acknowledged, there is a qualitative difference between the two. If that is what we are agreeing, and if we are also agreeing that there should be no restriction on the use of internet connection records for the other serious purposes that I have outlined, the Opposition can probably move forward on that basis without pressing our amendments to a vote.

This is the area in which the Bill has the ability to lose public trust if we do not get it right, because it could affect every single citizen in the land. I am sure that as constituency MPs many of us have dealt with situations where an individual falls out with the police at a local level, and they perceive that they are being investigated for all kinds of things and that all aspects of their lives might be turned upside down. We have to put in place appropriate protections that would not allow personal information to be handed over freely in relation to more trivial offences.

[Andy Burnham]

I am grateful to the hon. Lady for making a point that will enable me to be absolutely clear about what I am saying. I am not arguing against the retention of the data, as I think I made clear at the beginning. I am not arguing against ICRs per se. I acknowledge that they could be a very important tool. In an age when communications have migrated online and people have fewer voice telephone calls, this information could be crucial in detecting serious crime. I am saying that while we should legislate to allow the data to be held, we must also legislate to put in place a very precise threshold, so that the circumstances in which those data can be accessed are explicitly clear. There is not a broad reasonableness or necessity test. What I am saying is that we need a very clear definition of what level of crime permits the authorities to access those records.

I believe that if we find that definition—I feel that the Minister has given a commitment that we will get it—it will enhance public trust in this legislation. In my view, it will knock out completely that lazy label of “snoopers charter”. That is why it is so important that the Government nail this point before the Bill concludes its passage.

[Mr John Hayes]

The right hon. Gentleman has looked at these matters very closely, as is illustrated by the fact that he has rightly said that there are some crimes, such as harassment, stalking and so on and so forth, that would not neatly fit into a simple category. He is also right that the threshold must be robust. This is not about minor crimes and it is not about snooping, as the less well-informed critics have sometimes described it. I have given the commitment that we will work with him and others during the passage of the Bill to move an amendment to address this issue. He was right to raise it today. He has asked for a commitment and he is getting one.

[Andy Burnham]

We have learned to admire the Minister greatly through this process, and we have learned that when he says something, it happens. I am reassured by the words that he has just put on the record.

If it helps—perhaps it does not, but I will say it anyway—I would favour quite a high test for ICRs, and significantly higher than six months. Alongside that, it might be possible to itemise the other individual occasions on which they could be used, be it online grooming or missing persons. The danger with trying to capture it all in a single time period is that we might open the net to other offences that we would not want to be included. I fully acknowledge that this is a complex area. That is why I want to give the Ministers leeway to see whether, working with us, they can find the right definition.

--- Later in debate ---

[Mr Grieve]

I say to the right hon. Member for Leigh (Andy Burnham) that, as far as the review is concerned, I have no doubt that the Intelligence and Security Committee will respond positively and provide input if David Anderson wants to discuss those matters with us. I certainly look forward to seeing his conclusions in the review on bulk powers, which I hope will be helpful to Parliament in identifying what improvements we can make.

Amendment 13, which is in my name and those of my colleagues on the Intelligence and Security Committee, concerns clause 54, on the additional restrictions on the grant of authorisations of communications data. In the Committee’s report into privacy and security published in March 2015, we recommended that, just like the police, the intelligence agencies should always ensure a separation of roles between those requesting access to communications data and those who provide the authorisation. Previously, that has not been the case. I am grateful that the Government accepted that principle, and that it is enshrined in clause 54(1). That is an important safeguard that the Government have added to the Bill.

I hope the Minister will forgive me, but notwithstanding that, the Committee, having looked carefully at the Government’s amendment, believe that, although it is 90% of the way there, 10% might do with some improvement. The Bill provides that there may be exceptional circumstances in which a separation is not required. I entirely accept that that is the case. There will be a small and probably very infrequent number of such examples where there is an imminent threat to life, which is provided for in clause 54(2) and (3). However, clause 54(3)(b) simply cites

“the interests of national security”,

which I should tell the Solicitor General is rather a broad concept, particularly as it features in all sorts of places in the Bill and can be extended to encompass almost anything that falls within the agencies’ remit.

The Committee believe that it is too vague and potentially too broad. Therefore, in amendment 13, we have proposed a measure that tries to narrow the matter down without in any way affecting operational effectiveness. The amendment would limit exceptional circumstances to those where the operation is so sensitive that knowledge of it must be kept to an absolute minimum, or where there is an unplanned, time-critical but very significant opportunity to obtain information that might be lost owing to any delay in obtaining a separate approval.

The Committee very much hopes that the Government are in a position to accept the amendment.

[The Solicitor General]

There is more debate to be had about whether the phrase “absolute minimum”, as opposed to plain “minimum”, should be used, but I am happy to assure my right hon. and learned Friend that, in principle, we accept the amendment. We will commit to returning with a technically adequate amendment in the other place.

[Mr Grieve]

I am grateful to the Solicitor General for his comments and I will not take up any more of the House’s time. I think that “minimum” might well be acceptable. The key thing is the next subsection, which I think tries to encapsulate very clearly the sort of exceptions we are talking about.

--- Later in debate ---

[Will Quince (Colchester) (Con)]

I rise to support new clause 19, which stands in my name. It is a scoping amendment, which I do not intend to press. A large number of amendments have been tabled so I will be extremely brief, but I want to pay tribute to my hon. and learned Friend the Solicitor General, who has been incredibly receptive to the concerns that I have raised throughout this process.

We all remember the examples of local authorities using powers inappropriately, whether that has involved rummaging through our bins or spying on paper boys to determine whether they have the right to work. I welcome the steps that the Government have taken to try to address that, including the creation of a new criminal penalty for the misuse of these powers. However, I believe that more needs to be done to ensure that the wider public can be confident that we will not see a repeat of history, and will not see councils misusing the powers in the future.

New clause 19 would introduce a requirement that when a judicial commissioner approves an authorisation for telecommunications data for a designated senior officer of a local authority, that senior officer must notify his or her chief executive before the authorisation has taken effect. I believe that that will help for two reasons. It will discourage over-zealous officers from applying for authorisations if they know that their chief executives will see those authorisations before they take effect, and, in the event that a council officer is found to have misused the powers, the chief executive will be accountable. Chief executives will never be able to say that they did not know what was happening in their authorities.

[The Solicitor General]

I have listened carefully to what my hon. Friend has said. The Government wish to consider the matter further, and return to it in the other place. I hope that that gives my hon. Friend some reassurance.

[Will Quince]

I am greatly comforted by that response, and, in the interests of time, I am happy to sit down now.

[Ms Harriet Harman (Camberwell and Peckham) (Lab)]

I rise to support amendments 143, 144 and 145, which were tabled in my name and those of the other members of the Joint Committee on Human Rights and relate to the protection of journalists’ sources. Since they were tabled, they have been supported by Labour’s Front Bench and the SNP, for which I am grateful.

Yesterday, we considered additional protections for MPs and lawyers and the question of legal professional privilege. Journalists are in the same group. We extensively considered protections for everybody against the abuse of power and the invasions of privacy by the state, which is right, but there are particular issues about protecting a part of the constitution from abuses of power by the Executive. The legislature obviously holds the Government to account, so it is wrong for the state to abuse its power to prevent us from doing that. The same goes for lawyers and the rule of law. Journalists are in a parallel situation in that it is vital in our democracy that the media are free to hold the Government to account, which is an important aspect of the right of freedom of expression that is guaranteed in article 10 of the European convention on human rights.

I appreciate from the start that there is a difficulty here. It is easy to work out what a lawyer is. It is easy to work out what an MP is. It is not quite so easy with journalists. Some people are evidently journalists and some people are evidently not journalists, but some people might or might not be journalists, so I say “Good luck” to the Solicitor General with that one. However, that difficulty must be surmounted, because we must ensure that the press’s ability to go about their business and to hold the Government to account is protected.

[The Solicitor General]

The right hon. and learned Lady is absolutely right to talk about the difficulty of definitions, but we should be focusing on journalistic material. That is the question at hand and that is what the Bill addresses. Focusing on that might actually help us to come to a solution.

[Ms Harman]

It sounds as though the Minister is well under way to solving that problem, so that is encouraging.

My next point was considered by the Joint Committee on Human Rights and has been echoed throughout the House. We do not want the provisions in this legislation to contain less protection for journalistic material than the Police and Criminal Evidence Act 1984 did. That Act relates to a very different world and refers to the journalist’s notebook, whereas we are considering communications data, but a key point is that the relevant journalist or media organisation is given notice when a warrant is being applied for so that they can make representations as to why one should not be granted in order to protect their sources. We are not talking about journalists who are up to their necks in criminal activity—that is not the issue. The issue arises from applications for material that relates not to any criminal activity but to a journalist’s work. Can we ensure that journalists are put on notice, because of the special status of journalistic material, so that the authorising authorities have the benefit of hearing from journalists or media organisations before a warrant is granted?

I appreciate that the Minister has already responded to those issues and has put in additional protections, such as taking the non-statutory code and putting it on the statute, but the issue of notice still remains, which is why we tabled our amendments and why they have gathered support. I welcome the Minister’s confirmation that he will look further at the matter, but other members of the Joint Committee on Human Rights in the House of Lords, and many other Members of the Lords, will want to consider it. Nobody wants an unjustified fettering of the ability of the security services and the police to keep us safe. The point in the intervention of my right hon. Friend the Member for Leigh (Andy Burnham) was absolutely spot on. We are all in favour of the same thing here, but we must ensure that, at the end of the process, we have the right balance not only for journalists but in many other respects.

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[Chris Philp (Croydon South) (Con)]

I want to speak briefly about clause 68, Government amendment 51 and amendment 145. Clause 68 is welcome and delivers the manifesto commitment to introduce judicial oversight of these investigatory powers over journalists. As the noble Lord Falconer has pointed out, no such protections exist under the Regulation of Investigatory Powers Act 2000. These new requirements for judicial consent by the commissioner are very welcome.

I very much welcome Government amendment 51, which explicitly acknowledges the public interest in protecting a journalist’s sources and makes it clear that the commissioner must weigh that against any other public interest, which must be overriding. I hope that gives the right hon. and learned Member for Camberwell and Peckham (Ms Harman) at least some comfort. Were we to adopt her amendment 145, I think the implication would be that the judgment would have to be made in open court, and given the difficult and potentially wide definition of journalistic material that now exists, that might impose a rather onerous requirement. Were the Government so minded, they might at some later time fine tune clause 68 to say that if the judicial commissioner found the situation slightly ambiguous, they could go to the journalist to seek clarification; if there were cases in which they were finding it difficult to make that judgment, they could seek further and better particulars. However, I think that Government amendment 51 is extremely helpful in addressing many of the concerns expressed about that important issue.

[The Solicitor General]

It is a pleasure to speak at the end of a wide-ranging but important debate about the new power on internet connection records. It is right to remind ourselves of the context of the debate. Only last week, two individuals received significant prison sentences in Britain’s biggest known gun smuggling operation. It was analysis of communications data that provided vital evidence in that case. It allowed the investigative team to attribute telephone numbers and SIM cards to the defendants and to identify key locations.

However, communications data are changing. The world in which the hon. and learned Member for Holborn and St Pancras (Keir Starmer) and I started out practising is no longer the world as it is today. Telephone calls are very often not the means by which criminals and terrorists conduct their activity. Much of that has moved on to the internet via WhatsApp, via internet chatrooms and via the electronic internet communications that have become the mainstay of many criminal enterprises. It is vital that the legislation that we pass in this House not only attempts to keep pace with this breathtaking change, but tries to get ahead of it as far as possible.

[Joanna Cherry]

The Solicitor General will be aware of an exchange that I had earlier with the right hon. and learned Member for Beaconsfield (Mr Grieve) about the fact that there are other ways in which law enforcement agencies can obtain internet connection records. Does the Solicitor General agree that that includes getting the data retrospectively for specific targets from operators who already temporarily store such data for their own business purposes? It would therefore be misleading to imply that the provisions in the Bill are the only way of getting at internet connection records for the purpose of solving specific crimes.

[The Solicitor General]

I take what the hon. and learned Lady says advisedly. It is not good enough to rely purely on third parties to provide the sources of evidential leads. Government must take a lead in this. We are not in the scenario of building our own database, which has rightly been rejected as unfeasible and an unacceptable increase in state power. This is about requiring third parties to retain for up to 12 months information that could provide the sort of evidential leads that up till now have conventionally been provided by observation evidence and via telephone and SMS evidence that is increasingly becoming obsolete. This is about the Government doing their duty to the people whom we serve and to the country that we are supposed to defend, and doing our duty to protect our citizens.

I shall deal as best I can with the amendments in turn. I am grateful to my hon. Friend the Member for Stevenage (Stephen McPartland), who spoke to the issue of the request filter. That is a filter that will be maintained by the Secretary of State. It does not hold data of itself; it is a safeguard. It is there to prevent collateral information being provided to the public authority. It is an innovation and it specifically limits the communications data retained to only that which is relevant.

I would argue that the measure is essential because it serves the interests of privacy that have formed such a part of the debates in this House, and it will help to reduce error. The filter will accept only communications data disclosed by communications service providers in response to specific requests from public authorities, each of which must be necessary and proportionate. Any irrelevant data that do not meet those criteria will be deleted and not made available to the public authority. My hon. Friend has tabled probing amendments, and I know that that is the spirit in which he has initiated debate.

On the question of review, I am entirely sympathetic with the desire for ongoing review of the Bill’s provisions, but that is already provided for. The operation of the Act is to be reviewed by the Secretary of State after five years, which is entirely appropriate. This Bill will need some time to bed in, and time will be needed to see what effect it has had. My concern is that a two-year review runs the risk that we will not be in a position to properly assess its impact. For those reasons, I urge hon. Members who have tabled amendments relating to the review to accept the argument that I submit and to withdraw the amendments.

We have had much debate about journalists. Quite rightly, we have sought to focus on journalistic material because there is a danger in this debate, as with MPs and as with lawyers, that we focus upon the individual and the role, as opposed to the interest to be served. Journalists serve a public interest—the vital importance of freedom of expression in our society, freedom of speech, freedom of thought, and that vital aspect of journalism, the non-disclosure of the source of journalists’ material.

The Government are very cautious and careful about the way in which we seek to deal with these matters, which is why we have tabled the amendments that have already been spoken to by other Members. The placing of the stringent test in amendment 51—the public interest in protecting a source of journalistic information—is further evidence of our continued commitment to protecting the freedom of the press and freedom of expression in our country. As my right hon. Friend the Minister for Security and I have already said, we have listened to the strength of feeling on the matter and will consider whether further protections, over and above the significant protections that already exist under PACE in relation to journalists themselves, are appropriate where the collateral effect of warranted intrusion discloses their sources.

Let me therefore deal with the question of ICRs and their definitions. My right hon. Friend the Minister for Security, in an intervention on the shadow Home Secretary, has set out clearly the Government’s position on how we would view the threshold. The right hon. Gentleman quite rightly accepts that this is not an easy task and that we must get it right. We do not want to exclude offences such as stalking and harassment, for example. We want to ensure that the threshold is robust but actually makes sense in the context of the new powers of ICRs. I look forward to that work being ongoing.

Let me deal with the question of definition. I can be clear today once again that the Bill does not require companies to retain content, but I am willing to consider any amendments that further improve definitions in the Bill, as another opportunity for meaningful dialogue to take place so that we get the definition absolutely right. I know that that is a concern not only of the shadow Home Secretary, but of other right hon. and hon. Members.

Let me move on to the SNP amendments. I am grateful to the hon. Member for Paisley and Renfrewshire North (Gavin Newlands), who has been consistent in his argument today, as he was in Committee. With respect, however, I have to say that that consistency is misplaced. There is an important issue here about access to communications data that I think would be jeopardised in a way that would be prejudicial to the public if judicial commissioners became involved. I do not think that there is any utility or public interest to be served by the introduction of judicial commissioner approval for communications data acquisitions, because we are talking about a great volume of material. Also, the highly regarded single point of contact regime has already provided expert advice and guidance to authorising officers, and that is placed as a mandatory requirement in the Bill.

There are many other amendments that I could address, but time does not permit me, save to say that our commitment to protecting the public and ensuring that our legislation is up to pace with modern developments is clear, so I urge right hon. and hon. Members to support our amendments.

[Stephen McPartland]

I am grateful to the Solicitor General and to the Minister for Security for the time that they have given me over the past 12 months, to work with me on these amendments and in our negotiations. I am very happy to withdraw my new clause and not to press my other amendments, as they are probing amendments that were not intended to be pressed to a vote. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Clause 53

Power to grant authorisations

Amendment proposed: 320, page 42, leave out lines 14 and 15 and insert

“Subsection (2) applies if a designated senior officer of a relevant public authority considers—

(a) that a Judicial Commissioner may, on an application made by a designated senior officer at a relevant public authority, issue a communications data access authorisation where the Judicial Commissioner considers—”.—(Gavin Newlands.)

See amendment 327.

Question put, That the amendment be made.

--- Later in debate ---

17:59

Division 11

Ayes: 68

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Scottish National Party: 49
Liberal Democrat: 8
Labour: 5
Plaid Cymru: 3
Social Democratic & Labour Party: 2
Independent: 2
Green Party: 1

Noes: 285

---

Conservative: 275
Democratic Unionist Party: 8
Ulster Unionist Party: 2

--- Later in debate ---

18:12

Division 12

Ayes: 69

---

Scottish National Party: 51
Liberal Democrat: 7
Labour: 5
Plaid Cymru: 3
Social Democratic & Labour Party: 2
Independent: 2
Green Party: 1

Noes: 282

---

Conservative: 272
Democratic Unionist Party: 8
Ulster Unionist Party: 2

Ordered,

--- Later in debate ---

[The Secretary of State for the Home Department (Mrs Theresa May)]

I beg to move, That the Bill be now read the Third time.

The first duty of Government is the protection of their citizens, and the first duty of Parliament is to hold the Government to account for the way they protect those citizens. This landmark Bill will ensure that our police and security and intelligence agencies have the powers they need to keep us safe in an uncertain world. It provides far greater transparency, overhauls safeguards and adds protections for privacy. It also introduces a new and world-leading oversight regime. It is a vital Bill—on that, we are agreed across the House.

It is only right to afford such an important Bill proper scrutiny. Three independent reviews informed the Bill’s drafting: the independent reviewer of terrorism legislation, David Anderson QC: an expert panel convened by the Royal United Services Institute; and the Intelligence and Security Committee of Parliament. It was then scrutinised by not one, but three parliamentary Committees. We have now had a further report from the Joint Committee on Human Rights, which said:

“We welcome the introduction of a Bill as representing a significant step forward in human rights terms towards the objective of providing a clear and transparent legal basis for…investigatory powers”.

The reports produced on the Bill, when piled up, reach nearly 1 foot high of paper. It has proceeded through the House of Commons on the normal timetable and with the usual forensic line-by-line scrutiny applied by the House. I thank the right hon. and hon. Members who sat on the Public Bill Committee; those who sat on the Joint Committee that gave the Bill pre-legislative scrutiny with Members from another place; the Joint Committee on Human Rights and the Science and Technology Committee for their reports; the right hon. and hon. Members of the Intelligence and Security Committee, who scrutinised the more sensitive aspects of the Bill; and all those right hon. and hon. Members who contributed on Report. The scrutiny that they have given the Bill may well be unprecedented.

I extend particular thanks to the Security Minister, the Solicitor General and the hon. and learned Member for Holborn and St Pancras (Keir Starmer) for the detailed way in which they have worked on the Bill. I also thank the hard-working team in the Home Office who have supported the Bill, and all those who supported the Committees.

It is because the Bill is so important that it has received unprecedented scrutiny. It provides a clear and comprehensible legal basis for the powers used by our law enforcement and intelligence agencies. It introduces the most fundamental reform in investigatory powers since the avowal of those agencies with the introduction of judicial authorisation of the most sensitive powers. It puts the Wilson doctrine protections on to the statute book for the first time; creates one of the most senior and powerful judicial oversight posts in the country with the creation of the Investigatory Powers Commissioner; and brings the powers of our police and security and intelligence agencies up to date, making them fit for a digital age.

I have always said that I am willing to listen to constructive contributions from those on both sides of the House to get the Bill right, which is why the Government returned with amendments that I am grateful the House passed on Report. We have strengthened safeguards for journalists, for MPs and for the use of medical records, and added protections called for by communications service providers. Reflecting the cross-party support for the Bill, I am pleased that we have been able to agree the Opposition amendment to put beyond doubt the protections for trade union activity. We have welcomed amendments from the ISC to add clarity and strengthen safeguards.

Perhaps the most important change to the Bill is the new privacy clause, which places the protection of privacy at the heart of the Bill. The manuscript amendment that we tabled and passed yesterday will ensure not only that privacy is at the heart of the Bill, but that privacy must also be central to the decision to authorise the use of the most sensitive powers.

It is because we continue to listen that we have committed to make further changes when the Bill enters the Lords. Responding to another suggestion from the official Opposition, we will introduce a threshold for access to internet connection records, to put beyond doubt that those vital powers cannot be used to investigate minor crimes. We will introduce an amendment to respond to the Opposition proposal on the important appointment of the Investigatory Powers Commissioner. We have also committed to implement a number of further reforms proposed by the ISC.

I look forward to the continued careful scrutiny the Bill will receive in the other place, but the key message their lordships should take from the last two days of debate is that this House supports the Bill. We have before us a world-leading piece of legislation, which has been subject to unparalleled scrutiny, and which now, I hope, commands cross-party support. Being in government means taking the difficult decisions about the most fundamental questions that democratic societies face. It means striking the right balance between the need for privacy and the right to live in safety and security.

Being a responsible Opposition means scrutinising those decisions thoroughly, but fairly. I commend the Opposition for the constructive approach they have taken to these most important issues. I commend all those who have contributed to the scrutiny that we have seen today and throughout the passage of the Bill. I commend this vital Bill to the House.

--- Later in debate ---

19:00

Division 13

Ayes: 444

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Conservative: 269
Labour: 162
Democratic Unionist Party: 8
Independent: 3
Ulster Unionist Party: 2

Noes: 69

---

Scottish National Party: 50
Liberal Democrat: 8
Labour: 4
Plaid Cymru: 3
Social Democratic & Labour Party: 2
Independent: 2
Conservative: 1
Green Party: 1

[Greg Mulholland (Leeds North West) (LD)]

On a point of order, Madam Deputy Speaker. That was clearly an important vote, and one in which I wanted to take part. I turned up at St Stephen’s entrance only to be told that I was not allowed to go through to vote, with only a couple of minutes to go, because of filming in Westminster Hall. That is completely unacceptable when clearly the primary purpose of this place is to serve our democracy. Will you use your offices to look into the event and how this happened and ensure that never again will a Member of this House be turned away from an entrance and nearly prevented from voting?