The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I am very grateful to all noble Lords who have commented on David Anderson QC’s review. I take this opportunity to thank Mr Anderson for undertaking that review and I welcome his comprehensive report. The history of events leading up to the commissioning of that report was well rehearsed by the noble Lord, Lord Rosser. Mr Anderson was supported by an expert, security-cleared team of his own choosing. The Government, and in particular the security and intelligence agencies, provided Mr Anderson and his team with all necessary information, access and assistance for them to undertake the review effectively. As the report itself makes plain, almost 250 members of the security and intelligence agencies have been involved in the review, dedicating over 2,000 man-hours to support it. This has ensured that Mr Anderson has had the necessary resources to undertake a detailed assessment of the operational case for bulk powers in sufficient time to inform today’s debate.
As has been said today, the report sets out in extensive detail the review’s working methods and the sources of evidence that have been used to determine whether the operational case for bulk powers has been made. As noble Lords will have observed, these sources of evidence include: 60 detailed and highly classified case studies; internal security and intelligence agency documents considering the utility of bulk powers, which address shortcomings and failures as well as successes; statistical information on the extent of the use of bulk powers; allegations made by Edward Snowden; and a number of previous reviews, including in the UK and overseas. In fact, David Anderson found that previous reviews were either supportive of the need for the bulk powers or that they were in some cases not relevant to the UK context.
In their consideration of all this evidence, the review team critically appraised the need for bulk capabilities, including considering whether the same result could have been achieved through alternative investigative methods. This question has not just been taken on trust. The expertise of the review team has meant that, in the words of Mr Anderson, the security and intelligence agencies have been put,
“to strict proof of what they assert”.
In relation to the scope of the review, David Anderson was specifically asked to consider the operational case for bulk powers. The sensitive nature of those powers means that this task rightly had to be conducted by a security-cleared review team. But the safeguards that apply to those powers are, rightly, a matter for Parliament to consider as part of our ongoing scrutiny of the Bill’s provisions. The Government are clear that the Bill ensures that robust safeguards and world-leading oversight will apply to the exercise of bulk powers. For example, every bulk warrant will be subject to the double lock; any subsequent examination of material collected must be considered necessary and proportionate for an operational purpose approved by the Secretary of State and a judicial commissioner; and before issuing a bulk warrant, the Secretary of State must consider whether the same result could be achieved through less intrusive means.
The noble Lord, Lord Campbell, pointed out that the review did not specifically consider whether the use of bulk powers is proportionate. That is true; but it is also true that the question of whether alternative methods could achieve the same result was examined in detail. This question is equally important to the consideration of whether these powers are proportionate and necessary. The review has concluded that in the great majority of cases, there will be no effective alternative to the use of bulk powers and that where alternatives exist,
“they were likely to produce less comprehensive intelligence and were often more dangerous … more resource-intensive, more intrusive or—crucially—slower”.
I turn now to the conclusions of the review in a bit more detail. Taken together, they show that bulk powers are crucial. The report concludes that these powers,
“have a clear operational purpose”,
that they,
“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”,
and that the contributions made by bulk powers could not be replicated by other means. The review also concludes that bulk powers are vital across the full range of security and intelligence agency activity, including counterterrorism, cyberdefence, child sexual exploitation, organised crime and the support of military operations, and that they have been used to disrupt terrorist activity, prevent bomb attacks, facilitate the rescue of hostages, thwart cyberattacks and save lives.
This is a vital point. Mr Anderson is clear that questions of necessity cannot be entirely divorced from questions of proportionality. The noble Baroness, Lady Hamwee, rather neatly brought us into the domain of moral philosophy. The review concludes beyond all doubt that, were it not for the bulk powers, there would be more successful terrorist attacks, more successful cyberattacks, more dead hostages and military personnel, and more abused and exploited children. It is now for Parliament to decide whether the powers that have prevented such atrocities are proportionate, given the threats faced by the UK and our European and other allies around the world, given the extensive safeguards and oversight provided in this Bill, and given the review’s conclusions that there are no effective alternatives. The Government firmly believe that they are.
Turning briefly to the individual powers under review, the report concludes that there is a,
“proven operational case for three of the bulk powers”,
with reference to bulk interception, bulk acquisition of communications data and bulk personal datasets.
In relation to bulk interception, the report concludes that it is of “vital utility” to the security and intelligence agencies and that alternative methods, alone or in combination, fall short of providing the same results.
The review finds that the bulk acquisition of communications data is,
“crucial in a variety of fields, including counter-terrorism, counter-espionage and counter proliferation”.
In addition, the review states that case studies provided to the review team demonstrated that,
“bulk acquisition has contributed significantly to the disruption of terrorist operations and, through that disruption, almost certainly the saving of lives”.
On bulk personal datasets, Mr Anderson states:
“I have no hesitation in concluding that BPDs are of great utility to the SIAs. The case studies that I examined provided unequivocal evidence of their value”.
He goes on to conclude that in “vital” areas of work, such as pattern analysis and anomaly detection, there is “no practicable alternative”.
Mr Anderson’s conclusion in relation to bulk equipment interference, which I will come to in more detail in a second, is differentiated from the other powers under review in that he finds that there is a,
“distinct (though not yet proven) operational case”,
for its use. The reason for this difference is that bulk equipment interference has not yet been exercised. That is not to say that bulk equipment interference is a new power. While it has not yet been deployed, activity that would be classed as bulk equipment interference under the Bill could be authorised under existing legislation but, to date, GCHQ has carried out only equipment interference operations which would have been authorised under a targeted equipment interference warrant under the Bill. While acknowledging that bulk equipment interference has not yet been used, the review still concludes that,
“an operational case for bulk EI has been made out in principle”,
and that there are likely to be cases where,
“no effective alternative is available”.
In summary, the conclusions of this detailed and thorough independent review mean that there can now be absolutely no question that the operational case for the bulk powers in the Bill has been comprehensively made out. It now falls to us to decide whether to continue to provide our security and intelligence agencies with these vital powers to counter the threats we face.
Let me turn to some of the specific questions and points that noble Lords have raised. First, I turn to the issue of bulk personal datasets, which a number of noble Lords referred to. A bulk personal dataset is a dataset containing information about a range of people, most of whom are not of interest to the security and intelligence agencies, for example a telephone directory. A list of people who have a passport is another good example of such a dataset. It includes personal information about a large number of individuals, the majority of which will relate to people who are not of security or intelligence interest. Analysis of bulk personal datasets is an essential way for the security and intelligence agencies to focus their efforts on individuals who threaten our national security. The use of bulk personal datasets is not new, and the Bill does not provide new powers for acquiring them; rather, it provides robust transparent safeguards around bulk personal datasets, including a requirement for warrants to authorise the retention and use of them. The safeguards are comparable to those provided in relation to other powers in the Bill, including the double lock, for example.
The noble Lord, Lord Rosser, pursued these issues, and in particular raised the point in the review where Mr Anderson says that some bulk personal datasets may contain,
“material that is comparable to the content of communications”,
and, in rare cases, even material subject to legal professional privilege. He went on to say it is imperative that,
“consideration be given to the introduction of additional safeguards to the Bill and Code of Practice”.
We are carefully considering whether changes should be made to the Bill and code of practice to address the rare occasions when a bulk personal dataset may contain material comparable to the content of communications or subject to legal professional privilege, and discussions on that are going on at the moment. As David Anderson’s report also makes clear, in considering the sources of evidence, the review team specifically questioned whether similar results could have been achieved by other, less intrusive methods, I do not believe that anyone who has read this detailed and comprehensive report in full could come away with the impression that it did not consider hard evidence on that point.
The noble Lord, Lord Rosser, also flagged David Anderson’s comment that the Government’s operational case for bulk powers,
“categorises the purposes served by the powers under review in ways which lack coherence and consistency”.
The Government’s operational case for bulk powers was published in response to the recommendation of the Joint Committee that scrutinised the draft Bill, but we acknowledged that there was a need for the operational case to be subjected to independent scrutiny. That is why we commissioned David Anderson’s review, and the conclusions of the review are clear that,
“bulk powers have a clear operational purpose”.
The question was raised about bulk powers as distinct from targeted thematic powers. As noble Lords will remember, this issue was looked at by the Intelligence and Security Committee, and I will just quote a short passage from the speech of my right honourable friend Dominic Grieve MP, who is chair of the ISC, because it helps to inform this question. He said:
“The second issue concerns the agencies’ use of equipment interference. Our concerns focused on the way in which the use of this capability is authorised, rather than on the need for it, which is clear to us. In particular, we were not initially provided with evidence that explained the need for a bulk power, as opposed to a targeted thematic one. That is why we reported in the way we did. Following publication of our report, we received additional evidence from the agencies as to why they need bulk equipment interference warrants to remain in the Bill and they actually made a persuasive case. More importantly, the Committee was reassured that information obtained by such means will be treated in exactly the same way, with exactly the same controls, as data acquired under a bulk interception warrant. The Committee is therefore broadly content that there is a valid case for the power to remain in the Bill, but, just as with bulk interception warrants, we want to see the safeguards and controls in detail and hope to do so in the near future”.—[Official Report, Commons, 15/3/16; col. 838.]
I hope noble Lords will appreciate that we have been around this course before. There is a need for both powers, as I hope will now be accepted.
Lord Rooker (Lab)
The noble Lord, Lord Carlile, made the case for going a bit wider than the narrow wording of the recommendation. Will the Government have a look at recommendation 6 of the RUSI report? We recommended an advisory council for digital technology and engineering to cover some of these exact points. The recommendation goes somewhat wider—it is probably too wide for the purposes of the Bill—but it met the point about providing research on engineering technology and being answerable to the Secretary of State, so the process is open and we keep abreast of technical measures. Advancing public education is what we get from David Anderson’s reports from time to time; that is what they are about. I ask for recommendation 6 of the RUSI report to be considered in conjunction with David Anderson’s recommendation to see whether consensus can emerge.
Lord Strasburger
The noble Earl spoke at some length about the utility of bulk personal datasets to the intelligence agencies, but he did not answer my question, which was generated by the revelation in Mr Anderson’s report that bodies other than the intelligence agencies have access to bulk personal datasets. Which other bodies have access to bulk personal datasets?
Earl Howe
Almost anyone has access to bulk personal datasets. Many of us have a telephone directory. A very wide range of public bodies and commercial organisations have access to bulk personal datasets, because that expression describes a wide range. I cannot be specific to the noble Lord, but if I am able, on advice, I will write to him to elucidate further.
Lord Rosser
Before I wind up—and I shall, of course, withdraw the amendment—does the noble Earl anticipate that the Government will come forward with an amendment on Report on the recommendation in the report on the technology panel, or not?
Lord Rosser
I thank the Minister for his detailed response and thank all noble Lords who have participated in this debate, as well as thanking the Committee for its indulgence in allowing us to have a general debate on the Anderson report, even though my amendment related only to one specific part of it. It is very useful to have had the debate that we have had. I am sure that other noble Lords will do so, but I shall certainly want to read again in Hansard the full details of the Minister’s response and the replies that he has given to the questions that have been raised. Once again, I thank him for his detailed response and beg leave to withdraw the amendment.
Lord Beith (LD)
My Lords, my noble friend has very helpfully referred to the qualification of economic well-being as a justification by reference to national security and he rightly probed why it appears in that form. It gave me some satisfaction, in a sense, that it was qualified in this way because, in my years on the Intelligence and Security Committee, I occasionally thought that the concept of economic well-being was capable of extraordinarily wide interpretation. If it was being interpreted very widely in order to support actions which might in some way touch upon economic well-being, it is appropriate that it should be qualified if the powers engaged are sufficiently wide as potentially to affect the rights and liberties of other people. In this legislation we are talking about powers which can impinge upon the lives and liberties of other people unintentionally or not as part of the purpose but as a necessary consequence of being able to use things such as bulk datasets or equipment interference. Therefore, I hope that the reason that economic well-being is qualified by reference to national security is a recognition that some of the powers given in this Bill require particularly stringent qualification to be permissive and used. If that is so, I welcome it.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I am obliged to the noble Lord, Lord Paddick, for making it clear that these are essentially probing amendments and I respond to them in that light. These amendments relate to the issuing, approval and modification of warrants under Parts 6 and 7 of the Bill.
Amendments 194J, 201B and 210B would remove from the Bill an important safeguard which requires that a bulk interception, acquisition or equipment interference warrant may be issued only if doing so is in the interest of national security. The Bill provides for a warrant under Part 6 to be issued where it is necessary on three statutory grounds: in the interests of national security; for the prevention and detection of serious crime; or in the interests of the economic well-being of the United Kingdom where those interests are also relevant to national security.
Clause 129(1)(b)(ii), Clause 146(1)(a)(ii) and Clause 164(1)(b)(ii), which these amendments seek to remove, ensure that one of those statutory grounds must always be national security. This is clearly an important safeguard which recognises the particular sensitivity of bulk powers and therefore limits their use to the most tightly drawn circumstances. In other words, the Bill says that a bulk warrant provided for in Part 6 of the Bill must have,
“in the interests of national security”,
as one of the statutory purposes to authorise collection. However, collection can also be authorised to prevent serious crime and to protect the economic well-being of the United Kingdom in addition to being authorised to protect national security.
The inclusion of the additional statutory grounds relating to serious crime and economic well-being remains vital. There will be circumstances where it is necessary and proportionate to select for examination data collected under a bulk warrant in order to, for example, prevent and detect serious crime, such as to detect and disrupt child sexual exploitation. However, the Bill ensures that the initial collection of data could be authorised only if doing so is necessary to protect national security, albeit that it may be necessary for one of the other two purposes that I have already described. In other words, there is a relationship between the statutory requirements for the bulk warrant and the operational purposes which will be specified in the same warrant application, some of which may relate to the prevention of serious crime or economic interest.
On that last point of economic interest, it has been asked how that can be distinguished from national security. In a sense, it is a matter of emphasis at the end of the day. The ISC looked at this in detail, and at the need to retain it as a statutory purpose in its own right. It took extensive evidence from the agencies and, indeed, from the Foreign Secretary. I believe that Dominic Grieve was the chair at that time. He made it clear during Report in the Commons that the ISC had been persuaded that there remained a need for safeguarding the UK’s economic well-being to continue to exist as a statutory purpose for the use of the investigatory powers in the Bill in their own right. Therefore, I accept that it is linked to national security but it is a matter of underlining the need to have in mind the cases in which economic well-being will be the prevailing factor.
Lord King of Bridgwater
I recall that with the noble Lord, Lord Beith, we went round this course a number of times in the ISC trying to work out where the economic well-being issue could be distinguished from national security. Will my noble and learned friend give a few illustrations now or at a later stage of the Bill to show exactly why this is the case? I think we were persuaded on this. My noble and learned friend said that the current ISC and the current chairman are persuaded. However, will he illustrate why they were persuaded?
Lord Keen of Elie
If I had those illustrations to hand, I would, of course, deliver them this very moment. I regret that I do not have them to hand. However, I will undertake to consider the illustrations that were given previously and write to the noble Lord. If it is necessary, I will elaborate on the examples already given by giving further examples. However, I regret that I am not in a position to cite those earlier examples.
I underline that the reference to national security in the context of the clauses to which I referred—that is, Clauses 129, 146 and 164—operates as an important safeguard. That is what has to be emphasised. In these circumstances I invite the noble Lord, Lord Paddick, not to press these amendments.
I turn to bulk personal datasets and health records and Amendment 223B. This amendment would limit the circumstances in which the intelligence agencies can retain and examine a bulk personal dataset which contains health records under a specific BPD warrant. The Bill already requires the Secretary of State and a judicial commissioner to consider whether the retention and examination of a bulk personal dataset is necessary and proportionate for certain defined operational purposes. Following consideration in the other place, the Bill was amended, limiting the test for granting a warrant for the retention and examination of a bulk personal dataset containing health records to cases where there are “exceptional and compelling” circumstances. These are already extremely high tests.
Amendment 223B would limit the Bill even further so that retention and examination is permitted only in exceptional and compelling circumstances related to national security. By their very nature, exceptional and compelling circumstances are very rare. Restricting the use of such datasets to circumstances where national security concerns are engaged would rule out their use for any other statutory purpose, including the prevention and detection of serious and organised crime. If we were to agree to this amendment, we would be signalling, in effect, that in no circumstances do we believe that it could ever be appropriate that such data should be used for serious and organised crime investigations even when the Secretary of State and a judicial commissioner consider this is necessary and proportionate and that there are exceptional and compelling circumstances. We do not consider that this is appropriate. It is long-standing government policy not to comment on intelligence matters. However, as the then Security Minister explained in the other place, in that specific instance only he was willing to confirm that the security and intelligence agencies did not hold a bulk personal dataset of medical records, which illustrates that there would need to be exceptional circumstances for an agency to do so.
However, the Minister and the Solicitor-General rightly emphasised that we would not want to rule out the possibility of there ever being such a scenario. They gave a hypothetical example in which a group of terrorists are involved in an explosion and sustain burns. Medical evidence about where they attended—the fact that they had attended a local A&E, for example—could be relevant to that particular operation and provide the only lead to find the individuals concerned. The same circumstances could arise if criminals were similarly injured in an explosion at, for example, an illegal drugs laboratory. This would not be a matter of national security but would relate to the prevention and detection of serious crime. I therefore emphasise that no Secretary of State or judicial commissioner, who would both have to approve a specific BPD warrant to retain medical records, would underestimate the seriousness of their duty in this regard. “Exceptional and compelling” is a high test to be met; restricting this further is not regarded as necessary. Therefore, again I invite the noble Lord to withdraw this amendment.
Lord Paddick
I am grateful to the noble and learned Lord for his explanations. On Amendments 194J, 201B and 210B, I accept what he said. I am grateful for the intervention of the noble Lord, Lord King of Bridgwater, and I look forward to the illustrations. While the Minister has his artistic streak going, perhaps he could also provide an example with regard to some of the other amendments, where, again, an illustration would be helpful.
Lord Keen of Elie
That plea to my artistic streak would require a somewhat abstract response, so perhaps the noble Lord could be a little more specific.
Lord Paddick
Yes, for example, with regard to the health records in Amendment 223B, I did not find the example of criminals engaged in manufacturing drugs an exceptional and compelling circumstance. Perhaps there is a better example than that. The absolutely intrusive nature of health records and the acknowledgement of that by way of the exceptional notification that the intelligence services do not hold any bulk personal datasets of health records tend to reinforce the argument that access to them should be restricted to national security grounds. I would be grateful if a more compelling example could be thought of, although obviously not at the moment.
Lord Keen of Elie
I will be quite content to formulate and intimate a more compelling example.
Lord Paddick
I am grateful. On Amendment 194L and a warrant issued only for the purpose of gathering evidence for use in legal proceedings, I will have to read carefully what the Minister said, as I came to completely the opposite conclusion to the one he gave. However, at this time I beg leave to withdraw the amendment.
Lord Paddick
My Lords, Amendment 194M stands in my name and that of my noble friend Lady Hamwee. I shall also speak to our Amendment 194N in this group.
Clause 130 relates to the additional requirements in respect of warrants affecting overseas operators giving assistance to UK intelligence agencies to enable bulk interception. Subsection (3) lists matters that the Secretary of State must take into account before issuing a warrant that requires an overseas operator to give assistance. We believe that an important omission to this list is,
“the domestic law of the operator’s place of business”—
that is, that the Secretary of State should not require overseas operators to break the law in the country where the request for assistance is being made.
As far as Amendment 194N is concerned, Clause 131 refers to the approval of bulk interception warrants by judicial commissioners. Subsection (1) states that a judicial commissioner must review the Secretary of State’s conclusions as to the granting of the warrant. Our amendment suggests that this should go further and that both the Secretary of State’s reasoning and their conclusions should be considered.
In previous sessions of this Committee, we heard the view that the judiciary should not make decisions on the issuing of warrants—that is for politicians to decide—but simply review the decisions. But if the judicial commissioner has to decide whether to “approve a decision” and indeed decides not to approve a decision of the Secretary of State, surely the judicial commissioner has made a decision on the issuing of a warrant. Surely a judicial commissioner should review the reasoning behind the Secretary of State’s decision and not simply the conclusion. Without knowing the reasons why the Secretary of State came to their conclusion, how can a judicial commissioner decide whether the conclusion is valid? I beg to move.
Lord Keen of Elie
My Lords, these amendments relate to a judicial commissioner’s consideration of a bulk warrant that is to be served on an overseas provider and what the commissioner is required to take into account when considering the Secretary of State’s decision to issue a bulk warrant. There is also a government amendment in this group which is technical in nature, and I shall address that in a moment.
Amendment 194M seeks to insert a requirement that, where an overseas telecommunications operator is likely to be required to provide assistance in giving effect to a bulk interception warrant, the Secretary of State must—before the warrant is issued—take into account the domestic law of the operator’s place of business.
I suggest that this amendment is not necessary. The Bill already provides, at Clause 139(5), that Clause 41, which deals with the duty of operators to assist with implementation, applies in relation to a bulk interception warrant in the same way as it applies to a targeted warrant. Clause 41 makes it absolutely clear that a telecommunications operator may be required only to take “reasonably practicable” steps to give effect to a warrant. It also makes clear, at subsection (5), that for an overseas operator consideration must be given to the law of the relevant country and the extent to which it is reasonably practicable to give effect to the warrant without breaching it. So I suggest that this amendment is not necessary and, in these circumstances, I invite the noble Lord to withdraw it.
Amendment 194N seeks to alter the test that a judicial commissioner applies when considering whether to approve a decision to issue a bulk interception warrant. This topic has been the subject of intense scrutiny by three committees, the other House and, in the context of the targeted powers within the Bill, this House. As a result of that debate, the Government have already made considerable amendments to the Bill.
This amendment would require the judicial commissioner to consider the reasons given for the decision to issue a bulk interception warrant. The amendment is, I think, based on a misunderstanding of how warrants operate. The Secretary of State will receive a detailed application setting out the necessity and proportionality considerations. If he or she agrees, the Secretary of State will issue the warrant. He or she does not have to give reasons for that decision beyond confirming that he or she personally considers that the warrant is necessary and proportionate.
The judicial commissioner will then review the Secretary of State’s decision based on the evidence that was provided to the Secretary of State in the application. If the commissioner thinks that the evidence in the application is not a sufficient basis for the decision that has been made, he or she will refuse to approve the decision. In these circumstances, there are no reasons per se to be reviewed by the judicial commissioner. Given that, and given the progress that has already been made on this issue, I invite the noble Lord not to press this amendment.
(a) ”
“(4) The operational purposes specified in the warrant must be ones specified, in a list maintained by the heads of the intelligence services (“the list of operational purposes”), 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.”
Earl Howe
My Lords, I shall speak also to Amendments 198, 207, 208, 213, 214, 227, 228 and 223, all of which relate to operational purposes on bulk warrants.
The amendments tabled by the Government add significant detail to the provisions in the Bill on operational purposes—that is, the purposes for which data collected under a bulk warrant may be selected for examination. Operational purposes are an important new safeguard and we are committed to ensuring that the Bill includes as much detail as possible about how they will operate in practice. These amendments respond to amendments tabled in the House of Commons by the Intelligence and Security Committee, and they address concerns raised during the Committee stage in the Commons that operational purposes could be “general”.
The amendments would do a number of key things. They would create a requirement that the heads of the intelligence services must maintain a list of all operational purposes. The maintenance of this list would ensure that the security and intelligence agencies are able to assess and review all the operational purposes that are, or could be, specified across the full range of their bulk warrants at a particular time. This would ensure that these purposes remain up to date and relevant to the current threat picture, better enabling the agencies to identify warrants that need to be modified, adding or removing operational purposes. The maintenance of the central list would also make sure that the Investigatory Powers Commissioner is able to oversee, in one place, the full range of purposes for which a bulk warrant could authorise the examination of material.
The amendments would apply robust controls to the addition of an operational purpose to the central list, requiring that any such addition must be approved by the Secretary of State. They make clear that the Secretary of State may approve the addition of an operational purpose to that list only if satisfied that it contains more detail than the statutory grounds on which the warrant was issued, such as in the interests of national security.
The amendments would also enhance the oversight and transparency of the use of operational purposes. As well as the rigorous independent oversight that the Investigatory Powers Commissioner will apply to the exercise of bulk powers, these amendments would also require the following: that the list of operational purposes must be reviewed annually by the Prime Minister; that the list must be provided to the Intelligence and Security Committee every three months; and that the Investigatory Powers Commissioner must publish a summary of the use of operational purposes in each of his or her annual reports.
The amendments would also take out references in the Bill to operational purposes being able to be “general purposes”. This provision was inserted in the Bill to ensure that operational purposes do not have to be drawn so tightly that they are operationally unworkable. While it has never been the case that this language meant operational purposes could be vague or lacking in detail, the Government have listened to concerns that this language could be misinterpreted and that is why these amendments would remove it.
These amendments would significantly enhance the Bill’s provisions on operational purposes, adding absolute clarity as to how this important safeguard will operate in practice. I hope that the Committee will approve them. I beg to move.
Lord Paddick
My Lords, I am very grateful to the Minister for those amendments. They bring a significant improvement to the Bill and are extremely welcome. We were faced previously with the situation in which operational purposes were to be part of the Bill but we would never know what those operational purposes were. I appreciate that they are not going to become public knowledge, but at least we will now have a review by the Intelligence and Security Committee every three months and the annual review by the Prime Minister as well. Removal of the term “general” is greatly reassuring and we wholeheartedly support these amendments.
(5A) An operational purpose may be specified in the list of operational purposes only with the approval of the Secretary of State.(5B) 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 129(1)(b) or (2).(5C) At the end of each relevant three-month period the Secretary of State must give a copy of the list of operational purposes to the Intelligence and Security Committee of Parliament.(5D) In subsection (5C) “relevant three-month period” means—(a) the period of three months beginning with the day on which this section comes into force, and(b) each successive period of three months.(5E) The Prime Minister must review the list of operational purposes at least once a year.”
Earl Howe
My Lords, Amendments 201ZA, 210ZB, 217A and 231ZA seek to insert a provision into the clauses that enable the modification of bulk interception, acquisition, equipment interference or bulk personal dataset warrants. The amendments would require that persons who can make a minor modification to remove an operational purpose from a warrant must keep under review the operational purposes on each bulk warrant. The intended effect of these amendments, as I understand it, is that such persons will be aware when one of those purposes is no longer necessary and can remove it from the warrant.
These amendments are not necessary because the relevant draft codes of practice, which were published when the Bill was introduced to Parliament, already make clear that the security and intelligence agencies must keep bulk warrants under ongoing review. In addition, the draft codes set out specific requirements in relation to operational purposes. This includes a requirement that the security and intelligence agencies will need to ensure that bulk warrants are relevant to the current threat picture and will therefore need to identify operational purposes that need to be added to or removed from bulk warrants.
Further to the requirements in the draft codes, the government amendments, as I explained earlier, would create a requirement in the Bill that the heads of the intelligence services must maintain a list of all operational purposes. I set out the rationale and utility of that list in the preceding group of amendments. The provisions in the Bill and the detailed requirements set out in the draft codes of practice already make clear that the operational purposes on any bulk warrant will be kept under review. This will ensure that where an operational purpose is no longer necessary on a particular warrant it can be identified and removed. I hope the noble Lord will feel able to withdraw these amendments.
Amendments 201ZB, 210ZC, 217B and 231ZB make a modification to remove an operational purpose from a bulk warrant a major modification. Currently, a modification removing an operational purpose is a minor modification, meaning that it may be made by a Secretary of State or a senior official acting on their behalf. This amendment intends that such a modification would instead be subject to the double lock and must therefore be made by a Secretary of State and approved by a judicial commissioner before taking effect. That would be entirely unnecessary. A modification removing an operational purpose from a bulk warrant reduces the scope of the conduct that the warrant authorises, conduct that will already have been approved by the Secretary of State and a judicial commissioner. Subjecting such a modification to the double lock is superfluous. Accordingly, I invite the noble Lord to withdraw these amendments.
Amendments 201ZC and 217C relate to the modification of bulk warrants for the purpose of allowing examination of material after acquisition has ceased. These amendments would remove important technical provisions from the Bill. The Bill enables a bulk interception or bulk equipment interference warrant to be modified such that it no longer authorises the acquisition of any material but continues to authorise the selection of material for examination. This provision caters for limited circumstances where it may no longer be necessary or possible to continue the collection of data, such as where a communications service provider who is providing assistance in giving effect to the warrant goes out of business but where the data collected up to that point remain pertinent. In such circumstances, it may continue to be necessary and proportionate to examine data that have already been collected under the warrant.
The subsections that these amendments would remove simply clarify that a warrant that has been modified in this way remains a valid bulk warrant in spite of the provisions in Clauses 127(2) and 162(1). This is necessary because these clauses state that one of the conditions of the warrant is that its main purpose is to acquire data, but, of course, a warrant that has been modified in the manner I have described will no longer meet this condition, given that it will no longer authorise the collection of data. I hope the noble Lord will agree that these provisions are necessary and recognise that they serve only to reduce the activity that would have been authorised by the original unmodified warrant.
On Amendment 201ZJ, Clause 142 prohibits the selection for examination of intercepted content using criteria referable to an individual known to be in the British Islands, except where a targeted examination warrant—subject to the double lock—has been issued. I hope it is helpful if I draw the noble Lord’s attention to Clause 142(5), because there is one additional exception to this prohibition. That subsection addresses cases where there is a change of circumstances such that a person whose content is being selected for examination enters, or is discovered to be in, the British Islands. The subsection provides that selection for examination may continue in these circumstances for five working days with the approval of a senior official. This is vital to cater for circumstances such as where a member of an organised crime group travels into the British Islands. Any selection for examination after the five-day period will require the issuing of a targeted examination warrant.
I hope and believe that that explanation addresses the query the noble Lord, Lord Paddick, put to me. I understand his amendment as intended to capture the set of circumstances I just outlined, but it would also lead to a diminution in safeguards, given that it would enable selection for examination to continue for what I would judge to be an unnecessarily long period—in the absence of a targeted examination warrant—where there is a change of circumstances and someone has entered or is discovered to be in the UK. I hope that explanation will allow the noble Lord to feel comfortable in not pressing this amendment.
Lord Paddick
I am very grateful to the noble Earl for those explanations. Regarding Amendments 201ZA and that group, I am still concerned that the Minister or senior official is reliant on the security services flagging up to them that they need to withdraw operational purpose or even cancel a warrant. It is trusting the head of the intelligence services to flag that up. I will read very carefully what the noble Earl said about that.
I am grateful for his confirmation of when a bulk interception warrant is not a bulk interception warrant but still is. The only difference between us was that I asked whether it was right that analysis needs to continue after content is not being added to, whereas the correct term was “examination” continues. I think we are on all fours as far as that is concerned.
On Amendment 201ZJ, I accept that if there is a change in circumstances, whether a foreign terrorist or a foreign criminal arrives in the UK, the switch is not immediately flipped in that a five-day grace period is provided by Clause 142(5) for that content to continue to be allowed to be selected, even though the person is in the British Islands. However, it seems an unnecessary hurdle for the security services to have to apply for a targeted examination warrant in those circumstances, if it is a known terrorist coming into the UK. Presumably the five days are simply to allow enough time for a targeted examination warrant to be applied for, but I illiberally suggest that that is unnecessary bureaucracy for the security and intelligence services to go through. However, if the Government, the Home Office and others are content for the intelligence and security services to jump through that particular hoop, who am I to argue? On that basis, I beg leave to withdraw the amendment.
Lord Paddick
My Lords, I apologise; it is me again. In moving Amendment 201ZD in my name and that of my noble friend Lady Hamwee I shall speak to our Amendments 210ZD, 217D and 231ZC.
Clause 137 is about the approval of major modifications made in urgent cases to bulk interception warrants. These urgent requests for modification will be made by the Secretary of State alone. The judicial commissioner must approve any urgent change within a period ending with the fifth working day after the day on which the modification is made. Elsewhere in the Bill, the relevant period within which an urgent request for a warrant that has, for example, been granted by the Secretary of State alone and has then to be approved by a judicial commissioner—for example, in the case of the approval of interception warrants in urgent cases under Clause 24(3)—is the period ending with the third working day after the day on which the warrant was issued.
Our Amendment 201ZD would restore consistency to post-event approval of decisions by the Secretary of State in urgent cases by changing the relevant period within which judicial commissioner approval is needed in urgent cases of modification from five days to three days. Our Amendment 210ZD makes the same point relating to the urgent modification of bulk acquisition warrants in Clause 153; Amendment 217D to the urgent modification of bulk equipment interference warrants in Clause 173; and Amendment 231ZC to the urgent modification of bulk personal dataset warrants in Clause 196.
Will the Minister explain why, in the case of urgent major modifications of bulk interception warrants, the relevant period for judicial commissioner approval is five days and everywhere else in the Bill approval of urgent decisions is three days? I beg to move.
Lord Keen of Elie
My Lords, while we must ensure that judicial commissioners have sufficient time to scrutinise effectively the decisions of the Secretary of State, I am sympathetic to these amendments. Indeed, the Government have already amended the Bill such that when an urgent targeted warrant is issued the judicial commissioner must approve the decision to issue it within three working days, as opposed to five. On this basis, I am happy to commit to take away the amendment for further consideration and accordingly I invite the noble Lord to withdraw it.
Lord Paddick
I am very grateful to the noble and learned Lord for his encouraging words and on that basis I beg leave to withdraw the amendment.
Lord Paddick
I want briefly to add our support for the amendments tabled by the noble Lord, Lord Butler of Brockwell, and for his compelling arguments. I have never previously had contact with the security services but, in preparation for this Bill, I visited various places where they operate, and I am convinced that it is not simply a question of the high esteem in which James Bond is held: the perceived integrity of the people who work in the security services is a function of reality. These offences are of far more benefit to the public in reassuring them that, in the extraordinary circumstance that they were committed, such offences do indeed exist, rather than their being demonstrably necessary based on experience because the security services operate in this criminal way.
However, as the noble Lord, Lord Butler of Brockwell, has said, it is something of an anomaly that there is no serious criminal sanction for an abuse of the bulk powers provided by the Bill, yet there are significant criminal sanctions in relation to all the other powers. On that basis, I very much support these amendments.
Lord Keen of Elie
My Lords, I am conscious of the strength of feeling that has been expressed about this matter, but let me make it clear that we do not accept that there is what was termed “a gap” in the criminal sanctions with respect to bulk powers. This matter was discussed during earlier Committee sittings, as the noble Lord, Lord Butler of Brockwell, observed, under reference to Amendment 15, which proposed a new offence of unlawful use of investigatory powers. I understand the development that has taken place and the context of the amendments that have now been spoken to. On that earlier occasion, I referred to the civil penalties and criminal offences that apply in respect of the misuse of the powers in the Bill. In particular, I pointed out that a whole series of statutory offences is listed under Clause 1. But over and above that, it is important to bear in mind the availability of the offence of misconduct in public office, which is also referred to. I underline that because that offence would apply to instances of misuse of bulk powers in appropriate circumstances, and would certainly embrace circumstances in which there was a knowing or reckless misuse of such powers.
I also note in passing that, only two days ago, the Law Commission issued a consultation document entitled Reforming Misconduct in Public Office so that the matter could go out for further consideration. The Law Commission highlighted that the problem is that, often, there are overlapping offences which obscure the use of the offence of misconduct in public office. I rather fear that the introduction of a further statutory offence would simply create a further overlap with regard to such offences. We are at an early stage. The Law Commission has only just introduced that consultation document, but we will take account of it in this context. Although I quite understand the point that was raised by the noble Lord, Lord Butler, and indeed the ISC, in this context, we consider that misconduct in public office is available to deal with the instances that have been referred to.
Before the summer, in response to Amendment 15, we referred to the “inadvertent operational impact” that the creation of further statutory offences could have. The officers working within our intelligence agencies are entirely committed to the mission of keeping the country safe. They are professional and ethical in the way they conduct their work. We recognise the concerns raised about the potential misuse of investigatory powers but, as I say, the creation of new offences may unnecessarily inhibit agency staff and limit their ability to operate with confidence. We do not disagree that intelligence officers who are exercising these most sensitive and, indeed, intrusive powers should consider their actions carefully before using them, but we have seen no evidence that the dedicated men and women of our security and intelligence agencies give such matters anything less than the most careful consideration.
While deliberate misuse of these data can already incur criminal liability—indeed, we suggest that reckless misuse would be sufficient—the creation of a new offence would send a powerful and potentially damaging message to the men and women of our intelligence services. It may be taken to imply that more is required of them than is already the case and that innocent mistakes will in future result in criminal prosecution; for example, if they are construed as the product of reckless behaviour. I appreciate that it is not the noble Lord’s intention that this should occur but we must consider not just the letter of the law but what it will be taken to mean by those on the front line. There is a real risk that this amendment, if accepted, would suggest that they are not trusted to do their jobs, and that it could foster a culture of risk aversion in the agencies at a time when they are dealing with complex and evolving threats. That is certainly the concern expressed by the heads of the intelligence agencies, which I know they have communicated directly to members of the Intelligence and Security Committee.
The Government are clear that if anyone in a public authority were to act contrary to their obligations under the Bill, the matter would be taken extremely seriously. The current commissioners already ensure that they investigate and report publicly on the very infrequent cases of errors that involve serious misuse. These matters are brought into the public domain. In appropriate cases disciplinary action may be taken, up to and including dismissal, or civil or criminal liability incurred. The extent of that criminal liability will be determined by the prosecution deciding what form of offence should be prosecuted, at what level and, indeed, at what level of court for the purposes of penalty. Although misuse is exceedingly rare, intelligence agency staff are conscious of their obligations; indeed, from time to time they have been dismissed for misusing systems.
When these points are considered together, I hope noble Lords will agree that this puts beyond doubt the severe penalties that would apply in the event of deliberate wrongdoing by a member of a public authority—or, indeed, reckless behaviour. We therefore suggest that new criminal offences are unnecessary and potentially confusing, and, on the face of it, would adversely affect the operation of the agencies. In these circumstances, I invite the noble Lord to withdraw his amendment.
Lord Paddick
If the Government are concerned about overlapping criminal offences, particularly the overlap with misconduct in a public office, why in Clause 56 have they created a new offence of making unauthorised disclosures? That seems to completely contradict the argument that the Minister has just offered the Committee.
Lord Keen of Elie
I do not for a moment accept that it contradicts the argument. The objective is to ensure that we minimise any overlap in the context of such criminal offences.
The Marquess of Lothian
In the interests of public confidence, can my noble and learned friend give an indication of what sorts of penalties there would be for the offence of misconduct in public office? It is important that the public know this is being taken seriously.
Lord Keen of Elie
The extent of the penalty would depend on the level at which the particular offence was prosecuted. I do not think I can give an absolute answer to that but I would be content to write to the noble Lord to set out the scope for such a prosecution.
“( ) The fact that the communications data which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary in the interests of national security or on that ground and a ground falling within subsection (2).”
Lord Paddick
My Lords, Amendment 203A is in my name and that of my noble friend Lady Hamwee. I shall also speak to Amendments 204A, 204B, 210ZE and 210ZF, which are in this group.
Our Amendment 203A seeks to put into the Bill that a bulk acquisition warrant will not include obtaining third-party data not already in the possession of the operator. We have debated a similar point before and the Minister addressed third-party data in his letter to the noble Lord, Lord Rosser, on 27 July this year. However, can the Minister elaborate on the position of third-party data in relation to bulk acquisition?
Amendment 204A seeks to get it on the record that Clause 146(7), by allowing the warrant to cover,
“data whether or not in existence at the time of the issuing of the warrant”,
does not allow for speculative surveillance without suspicion.
Amendment 204B would put into the Bill that,
“A bulk acquisition warrant may not require data which relates to or includes internet connection records”.
This was touched on in our opening debate this afternoon on the Anderson review. In footnote 85 on page 33 of his report, Anderson states:
“A ‘Bulk Communications Data’ factsheet published with the draft Bill on 4 November 2015 stated ‘The data does not include internet connection records …’. I am told however that this is no more than a statement of present practice and intention: neither the Bill nor the draft Code of Practice rules out the future use of the bulk acquisition power in relation to ICRs”.
The Committee will recall that we on these Benches oppose the storage of the internet connection records of every man, woman and child in the UK for 12 months, whether suspected of an offence or not, by internet service providers as required by the previous provisions of the Bill. We believe this to be a disproportionate intrusion into privacy, for the reasons that I have already explained at length to the Committee. Law enforcement agencies would, however, be able to access such internet connection records only if someone was suspected of an offence. The Government have introduced additional safeguards in the Bill to specify what sorts of offences would warrant such intrusion, but without this amendment it is open to the Government in the future to allow law enforcement agencies to store and have access to internet connection records. We believe that this is two steps too far.
As far as Amendment 210ZE is concerned, Clause 157 refers to the “Duty of operators to assist with implementation” of bulk acquisition warrants. This amendment seeks to clarify that the person to whom the warrant is issued—the implementing authority—cannot be held liable for a breach of the warrant because of the actions of the operator.
Amendment 210ZF seeks to ensure that, under Clause 158, “Safeguards relating to the retention and disclosure of data”, if internet connection records were subsequently stored, no such record could be disclosed unless the individual concerned was suspected of having committed an offence. I beg to move.
Lord Keen of Elie
My Lords, I agree with the noble Lord’s intention in Amendment 204 to ensure that communications data can be acquired in bulk and analysed in real time. Indeed, the Bill already permits this. I draw attention to Clause 146(5) and 146(6), which provide for such a scenario as he suggests in this amendment. These subsections specify the conduct which must be described in the warrant and any conduct that it is necessary to undertake to do what the warrant expressly requires. If it was therefore necessary to obtain bulk communications data in real time, these provisions would allow it.
Baroness Hamwee
My Lords, I think that the noble and learned Lord is speaking to Amendment 204, which has not in fact been spoken to.
Lord Keen of Elie
I had understood that the noble Lord, Lord Paddick, also referred to Amendment 204 but if he did not, I apologise.
I turn then to Amendment 203A, which seeks to exclude the ability for a bulk acquisition warrant to require a communication service provider to obtain third-party data where it is not already in its possession. I do believe that the noble Lord referred to that.
Lord Keen of Elie
It will be recalled that the issue of third-party data was discussed during the last Committee session before the Summer Recess, when my noble friend Lord Howe explained that it is absolutely right that where a communication service provider holds or is able to obtain communications data, whether in relation to its own services or those provided by a third party, the data should be available to be acquired under the Bill. Put simply, data that already exist and are held or can reasonably be obtained which could save a life, convict a criminal, prevent a terrorist attack or provide an alibi should not be put out of the reach of law enforcement. The point we would make clear is this: a bulk warrant can require a communication service provider to obtain and disclose third-party data only where it is necessary and proportionate to do so, and where approved by a judicial commissioner. The provider is required to comply with a request to provide communications data in bulk, including third-party data, only where it is reasonably practicable for it to do so. Given these safeguards, I suggest that any further restriction on obtaining third-party data would not be appropriate.
This is of course a separate matter from the retention of third-party data, where the Prime Minister gave a clear commitment when she was Home Secretary that we will not require a telecommunications operator to retain third-party data. We are working on provisions to address that matter in the Bill.
We understand that the purpose of Amendment 204A is to limit the bulk acquisition of communications data to those which are held by the communication service provider only on the day that a warrant is served. The noble Lord, Lord Paddick, indicates otherwise.
Lord Paddick
If I can assist the noble and learned Lord, Amendment 204A is to probe and seek reassurance on the record that this is not simply to allow speculative surveillance without suspicion. I accept that a warrant has to authorise the acquisition of an ongoing stream of content but this would just assure the Committee that it does not mean speculative surveillance without suspicion.
Lord Keen of Elie
I do not think that there is any suggestion that it would involve speculative surveillance without suspicion but, technically, we should not require the agencies to make repeated applications for a warrant in order to maintain their access to such material. I hope that reassures the noble Lord, and I shall therefore move on. Perhaps I had misunderstood the extent of the noble Lord’s amendment, but there would be an unnecessary workload on the agencies if they had repeatedly to apply for warrants in this context. However, I am sure that that was never the noble Lord’s intention.
Amendment 210ZE seeks to ensure that the authority implementing a bulk acquisition warrant cannot be liable for a breach of that warrant as a result of an act or omission by the communications service provider on which it has served the warrant. The Bill outlines errors that must be reported to the Investigatory Powers Commissioner, and the draft Bulk Acquisition Code of Practice provides additional detail on error reporting processes. The code draws distinctions between errors made by the requesting agency and those made by a communications service provider on which the warrant is served. We believe it is clear that anyone implementing a warrant is responsible for any error they, and they alone, make, and that they are not responsible for any error made by anyone else. Therefore this amendment is unnecessary.
Amendments 210ZF and 204B would add to the current list of reasons for which it may be necessary to disclose or copy communications data obtained under a bulk acquisition warrant. Such disclosure and copying must, of course, be kept to the minimum necessary for a limited number of purposes. The amendment adds, in the case of internet connection records, a requirement of necessity in respect of an individual having committed an offence.
In tabling amendment 210ZF, I understand the noble Lord is seeking to understand whether a bulk acquisition warrant could require a communications service provider to provide internet connection records in bulk. The Government have been clear that one of the aims of the Bill is to provide technology-neutral legislation—a point referred to earlier by my noble friend Lord Howe—to take into account future changes in the way that we communicate. While we have been clear that internet connection records are not currently acquired in bulk, it is of course worth being clear that current legislation would allow the agencies to acquire internet connection records in bulk, where necessary and proportionate to do so.
I can confirm to the Committee that the agencies do not currently acquire internet connection records in bulk and have no current intention to do so. It is, however, important to ensure that we do not legislate against the possibility of internet connection records being acquired in bulk, should the agencies make a case which demonstrates that this might be necessary and proportionate in the interests of national security in the future.
We strongly believe that it is right that the intelligence agencies have the power to acquire communications data in bulk. Indeed, David Anderson, in his recent review of the utility of the bulk powers within the Bill, said:
“Bulk acquisition has been demonstrated to be crucial in a variety of fields”,
and that,
“bulk acquisition has contributed significantly to the disruption of terrorist operations and, through that disruption, almost certainly the saving of lives”.
Clause 158, which this amendment seeks to alter, outlines the safeguards relating to the acquisition of communications data under a bulk warrant. Any application to obtain communications data in bulk is subject to the strongest of the safeguards in the Bill, which we have discussed at length in relation to other provisions. A warrant to acquire communications data in bulk must be both necessary and proportionate for the interests of national security, must specify the operational purposes, which are the only reasons the data can be selected for examination, and will be subject to the double lock of Secretary of State and judicial commissioner approval.
It is in this context and in the context of these very strong safeguards that we think it right, as is currently the case, that the bulk acquisition power should remain technologically neutral, with the safeguards applying equally to all types of communications data defined by the Bill.
As David Anderson recommends in his report, the Government will also keep the bulk acquisition power under review in order to ensure that it remains necessary and proportionate alongside any other mechanisms which might be developed, such as the request filter. Taking into account the fact that the agencies require such clear authorisation from both the Secretary of State and the judicial commissioner, should they ever consider it necessary and proportionate and in the interests of national security to proceed with such bulk acquisition, I suggest that this amendment is unnecessary and I invite the noble Lord to withdraw it.
Lord Paddick
I am grateful to the noble and learned Lord for his explanation. As far as Amendment 204B and the potential for bulk acquisition of internet connection records are concerned, it is, to us, a rather alarming prospect which I do not think has yet been raised in the public consciousness. It is absolutely certain that we will return to this issue on Report. At this stage, I beg leave to withdraw the amendment.
(a) ”
“( ) The operational purposes specified in the warrant must be ones specified, in a list maintained by the heads of the intelligence services (“the list of operational purposes”), as purposes which they consider are operational purposes for which communications data obtained under bulk acquisition warrants may be selected for examination.”
(5A) An operational purpose may be specified in the list of operational purposes only with the approval of the Secretary of State.(5B) 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 146(1)(a) or (2).(5C) At the end of each relevant three-month period the Secretary of State must give a copy of the list of operational purposes to the Intelligence and Security Committee of Parliament.(5D) In subsection (5C) “relevant three-month period” means—(a) the period of three months beginning with the day on which this section comes into force, and(b) each successive period of three months.(5E) The Prime Minister must review the list of operational purposes at least once a year.”