Investigatory Powers Bill (Twelfth sitting)

John Hayes Excerpts

Committee Debate: 12th sitting: House of Commons
Tuesday 26th April 2016 Public Bill Committees

[Keir Starmer (Holborn and St Pancras) (Lab)]

I, too, welcome you back to the chair, Mr Owen. This bulk power is, like the others, very wide. Equipment interference includes what is commonly known as hacking, which can be done remotely or by attaching monitoring devices to computers or communications equipment. As has been mentioned, equipment is defined very broadly, covering anything that produces electromagnetic or other emissions. The power is therefore very wide.

It is unsurprising that the ISC was initially sceptical and that David Anderson has raised a number of concerns. I will not repeat the points made by the hon. and learned Member for Edinburgh South West, who spoke for the SNP, but I want to draw attention to the relationship between this bulk power and thematic warrants, which was one of the concerns raised by David Anderson.

If one looks at the structure of clause 154(1), skipping for the moment subsections (2) and (3), and lays it alongside clause 88, the similarities in the description of the warrant are apparent. Part 5 deals with equipment interference and targeted warrants; chapter 3 of part 6 deals with bulk equipment interference warrants. Clauses 154 and 88 are very similar in structure and scope—the difference is that clause 90 qualifies clause 88. The difference we are discussing is that we have, in essence, the same power for equipment interference, but we do not have the qualification of the subject matter that is clause 90. We have already discussed clause 90 at some length and, for a targeted power, it is itself extremely wide.

[The Minister for Security (Mr John Hayes)]

On the specific point made by the hon. and learned Gentleman in relation to the connection between clauses 90 and 88, in contrast with the matters we are now discussing, the whole point about clause 90 is that it deals with the particularity associated with warrants that are by their nature targeted, whether individually or thematically as a group some of which are known to the intelligence services. Bulk matters are by their nature less particular, so could not be subject to the same qualification.

[Keir Starmer]

I am not making the argument that those warrants should be subject to the same qualification. I am drawing attention to the fact that clause 90 is what, in essence, turns clause 88 into a targeted or thematic warrant, rather than a bulk warrant. The qualification is left out in connection with clause 154, which deals with a bulk power. I am not suggesting that one borrows clause 90 into this chapter, because otherwise we would simply be rewriting the same provision.

The point I am making is that the concern about clause 90 in relation to themed warrants was that it was a very wide provision in its own right. I think David Anderson went as far as to say that it was hard to see what could not, in truth, be caught within a thematic warrant under clause 90. We have a very wide power there, drawing attention to the breadth of the power under clause 154, which is everything over and above what is already a thematic warrant power under clause 90. That indicates why an operational case is so important in relation to the bulk power. One has a very wide bulk power that is distinguished from what is already a very wide thematic power. That reinforces the need for an independent evaluation of an operational purpose that makes the case for this even wider power.

As far as the safeguards are concerned, clause 156 is, in familiar terms, referencing necessity and proportionality, but to the wide national security grounds falling under subsection (2)—the familiar phrasing. It is the same scheme for these warrants. Then, skipping forward to clause 161, there are the same limits on operational cases, so one has a very wide necessity and proportionality test for the warrant in the first place, then a reference back, in essence, to the same test when getting to the requirements that must be met by warrants. I have made this case this morning and, I think, last Thursday, so I will not repeat it further.

I want to draw attention to the breadth of the power and to underscore why a better and evaluated operational case is needed when one is going on beyond what is already a very wide thematic warrant.

[Mr Hayes]

We had a lengthy debate on these matters this morning, but it is worth repeating. It was Proust who said:

“A powerful idea communicates some of its strength to him who challenges it.”

On that basis, I am hoping to communicate still more of the strength of my argument as a result of amplifying it, but with appropriate brevity, I hope. Let us be clear: bulk powers matter. They matter for the reasons I set out earlier, and that case is made—convincingly, in my judgment—in “Operational Case for Bulk Powers”, which was published by the Government in response to the criticisms of those who considered these matters early on and felt there was a need for greater explanation of the case for them.

Bulk equipment interference is particularly addressed on page 6 of that document. It says:

“This involves the acquisition of communications and equipment data directly from computer equipment overseas. Historically, this data may have been available during its transmission through bulk interception”.

This is the key point:

“The growing use of encryption has made this more difficult and, in some cases, equipment interference may be the only option for obtaining crucial intelligence. As with bulk interception this is an overseas collection capability.”

We are here talking about a power that is used at present, and is of growing significance to our agencies in combating the threat that they face.

The Investigatory Powers Tribunal, has made clear that

“the requirement for a balance to be drawn between the urgent need of the Intelligence Agencies to safeguard the public and the protection of an individual’s privacy and/or freedom of expression”

matters. It also stated:

“We are satisfied that with the new E I Code, and whatever the outcome of Parliamentary consideration of the IP Bill, a proper balance is being struck in regard to the matters we have been asked to consider.”

The evidence that we have before us suggests, and I use that judgment as an example, that those who oversee these matters gauge what is already happening, and what is proposed, to be appropriate. Having said that, it is important that we test those arguments closely in this Committee—that is part of the Committee’s purpose, after all.

The hon. and learned Gentleman and the hon. and learned Lady drew attention to David Anderson’s remarks. David Anderson asked why equipment interference warrants were required, given the possible breadth of targeted thematic warrants of the kind that have been discussed. I say this: clear and important distinctions between bulk equipment interference and targeted thematic operations are set out in paragraph 4.38 of the draft equipment interference of the code of practice.

Members will be able to study that code in detail, but for their convenience, bulk equipment interference includes the additional safeguards of the bulk regime and is an important capability in its own right. Both bulk equipment interference and targeted thematic equipment interference operations can take place at scale if the relevant criteria are met. However, targeted equipment interference warrants are limited by the need to assess proportionality at the outset. A bulk equipment interference warrant is likely to be required in circumstances where the Secretary of State is not able to assess the extent of every interference to a sufficient degree at the time of issuing the warrant. The additional access controls at the examination stage are required to ensure the necessity and proportionality of any interferences that cannot be assessed fully at the outset.

It seems to me that that is the essence of this argument. Both have their place, and both are subject to checks and balances, and to safeguards and protections. In terms of the effect of those safeguards, I think we can all conclude, based on the evidence before us and what we know is already happening and is proposed in the Bill, not only that what is happening now is proportionate and reasonable, but that the Bill goes even further in adding to those safeguards.

In essence, my argument is pentadactyl—it has five fingers. First, this power is necessary; secondly, it is already in existence; thirdly, those who oversee these things have gauged it to be necessary and proportionate; fourthly, the Government have responded to early scrutiny by tightening safeguards through the codes of practice and explaining them more fully; and fifthly, the Bill goes still further than all the existing good practice. That seems to me to be a persuasive argument.

[Keir Starmer]

rose—

[Mr Hayes]

I give way to the hon. and learned Gentleman to explain why it is not.

[Keir Starmer]

My purpose is not to explain why it is not. That is not always the purpose of these interventions. We are probing the adequacy of the safeguards, which is the proper role of the Committee.

I had marked up that paragraph in the operational case, because, as the Minister has said, it makes the case that, at the outset, certain assessments of necessity and proportionality cannot be made. It says in terms:

“The additional access controls at the examination stage are required to ensure the necessity and proportionality of any interference that cannot be assessed fully at the outset.”

I know that I have said this before, but I really want to make it clear. At the outset, the test of necessity and proportionality is against the operational case and the operational case is specified in the terms in clause 161(5), which takes a familiar form: the operational case cannot be so general that it is merely national security, but it can be general. We have been around that circle, but that is the test at the outset and I have made my comments about that.

The problem is that the test is the same when it comes to examination. Under clause 170, which deals with the safeguards in relation to examination, selection is defined as proportional and necessary so far as it is in accordance with the test in clause 161. This point is central to what is said in the operational case. If the test were different at each stage, I would accept that the argument was logically right, but the test is in fact the same. I see that as a deficiency and I am probing for clarity.

[Mr Hayes]

I acknowledge that it is certainly true that much rests on the operational case. In all our sermocinations, it has been clear to me that the hon. and learned Gentleman has identified that as crucial in advancing his argument that we need to provide still more transparency. He has done so in a reasonable way, because he acknowledges that there is a line to be drawn between the explanation of that case and revealing what cannot reasonably be said publicly because it would compromise the work of the agencies. I acknowledge that.

Of course, what the hon. and learned Gentleman did not say, although he knows it—perhaps he felt that there was no need to say it—is that the warrant must be deemed to be necessary for one of the core reasons: national security, serious crime or, where it is linked to national security, economic wellbeing. Access to the data must be deemed to be necessary on the grounds of the operational purposes. There is a test at each stage of the process and, in my judgment, that test is robust, but I again acknowledge that there may be a virtue in being clearer about the operational case. I was making a point about existing power—that power is currently available through the Intelligence Services Act 1994. Therefore, it is not new, but the safeguards are. Drawing those together in a single place, and therefore allowing the more straightforward exploration of both their purpose and their effect, is certainly new.

Above and beyond that, the oversight that is given additional strength in the later part of the Bill is there to ensure that all that is done meets the test that we have set, in terms of protecting private interests and so on. I acknowledge the argument about the operational case being a powerful one, but I think the structure of what we have put together stands scrutiny.

There is another argument that has not been used much in the Committee. In a sense, I hesitate to explore it now because in doing so I may be opening a hornets’ nest, but I am not a timid Minister, so why would I not want to face the stings that I might unleash? It is necessary to make the language future-proof, as far as one reasonably can. One of the criticisms of what we are doing—bringing the powers together in a single Bill, creating safeguards of the type we are building, trying to be as comprehensive as we can in this legislation—is that, because of the rapidly changing character of technology and the resultant effect that that has on both the threat and our ability to counter it, this legislation may be relatively short-lived.

If we look, albeit with the benefit of hindsight, at what has happened previously, we see that the legislation that the Bill replaces has, for the most part, been iterative—it has been a response to that dynamism. The language in the Bill is designed to be as carefully constructed as possible to allow the Bill to stand the test of time. Central to that is the advent of the double-lock mechanism, which should ensure that the powers are not misused by a future Government. That relates to something the hon. and learned Member for Edinburgh South West said in a previous sitting of the Committee. I think she argued that I cannot bind the future, and I said, with some reluctance, that that was true.

[Joanna Cherry]

Jo Cavan from IOCCO—the Interception of Communications Commissioner’s Office—told us on 24 March that the double lock and warrantry applies to only 2% of authorisations under the Bill. Does the Minister agree that he should be very cautious praying in aid the double lock as a safeguard when it applies only to such a small percentage of authorisations?

[Mr Hayes]

Yes, but the hon. and learned Lady knows well that the double lock applies to some of the most contentious parts of the process and, at the end of the day, is the involvement of the judiciary in a process that has been exercised at the sole discretion of the Executive up until now. The significance of that marriage between Executive authority and judicial involvement is considerable. All but the most mean-spirited of critics would want to warmly acknowledge that, and I see the warmth emanating from the hon. and learned Lady as she rises.

[Joanna Cherry]

I am not going to be mean-spirited. I acknowledge that the Government have made a significant step in the right direction by introducing judges into the warrantry process. I have my reservations about the degree of the introduction—I would like to see full-blown judicial warrantry—but my point is about how far that double-lock process can be seen as a safeguard when it applies to only 2% of the authorisations under the Bill. My point is not that it is not a safeguard but that it applies to only 2% of authorisations.

[Mr Hayes]

The double lock applies to all the most intrusive powers. We can have a debate about whether—I do not want to put words into the hon. and learned Lady’s mouth—she wanted to rob the Executive, rob the people’s representatives, of all their authority. She may have felt that it was unnecessary for those accountable to the people—the personification, as I hope I am, of the people’s will—to have any involvement in these matters, but I do not take that view. I believe in representative government and I think we have got absolutely right the marriage between Parliament and the judiciary—but we stray, I sense, from the precise detail of this part of the Bill.

My judgment is that we have reached the place that we need to get to in order to get the marriage between safeguard and effectiveness right, with the caveat that I have already introduced on the operational case, and in the knowledge that a bulk equipment interference warrant can be used to authorise the selection and examination of material obtained by the warrant and does not require a separate examination warrant and permits the disclosure of material acquired in the manner described in the warrant. I think that this is an important additional power and on that basis I hope that the Committee will agree to this part of the Bill.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

These amendments are intended to tighten up clause 156. I will not take up a great deal of time on them. These amendments go to the intervention that I was making which was too lengthy to do justice to the point, but it was such an important point that I want to go through it one more time. If I am right about it, I hope that others will listen and take this away. If I am wrong about it, I will not repeat the argument. The proposition about which I am concerned is as follows. If one looks at subsection 156(1) then, as set out in the “Operational Case for Bulk Powers”, the test that the Secretary of State is applying at the outset will be applied in some,

“circumstances where the Secretary of State or Judicial Commissioner is not able to assess the necessity and proportionality to a sufficient degree at the time of issuing the warrant.”

So that is the test. To issue a bulk equipment interference warrant, the Secretary of State must be satisfied that it is to “obtain overseas-related communications”, as set out in clause 156(1)(a); that it is necessary on the broad grounds—of which the Minister just reminded me—of national security, preventing crime and promoting economic wellbeing, as set out in paragraph (b); and, as paragraph (c) sets out, that it is proportionate. Clause 156(1)(d) continues the stages that the Secretary of State must carry out, and requires that the Secretary of State considers that,

“(i) each of the specified operational purposes (see section 161) is a purpose for which the examination of material obtained under the warrant is or may be necessary, and

(ii) the examination of such material for each such purpose is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary”.

So at the outset the Secretary of State is considering necessity against the broad canvas of national security. She is also considering the operational purposes and asking herself whether such a warrant is necessary against those operational purposes, and going on to the examination of whether it is necessary on any of the grounds on which the Secretary of State considers the warrants to be necessary. The Secretary of State is taking into account the operational purposes and applying a necessity test to this. That is the test applied at the outset, and that is the test that the operational case understandably says may be difficult to apply in certain circumstances. I do not quarrel with that, and I understand why that might be the case.

Going on to clause 161, what are the operational purposes which the Secretary of State is to take into account and test necessity against? There the operational purposes are requirements of the warrant, and they go beyond the provisions in clause 156(1)(b) or (2) and may be general. So the Secretary of State has in mind a very broad national security issue, and then the operational purposes, and asks herself whether it comes under both of those heads. The second head can be a general one. We have quarrelled about that—or argued about it or made points about it—but those points remain as good or as bad as they were the last time they were made. The point I am seeking to make is that the “Operational Case” suggests—and this may indeed be the case in practice—that at the examination stage some higher or different test is applied, and that that adds a safeguard. Again, if there is something in that then I hope that somebody will take this away and think about it, and if there is not then I will not repeat it. My concern is that clause 170(1), on the safeguards relating to examination of materials, states:

“For the purposes of section 168, the requirements of this section are met in relation to the material obtained under a warrant if—”

which is followed by a number of requirements, including:

“(b) the selection of any of the material for examination is necessary and proportionate in all the circumstances”.

Clause 170(2) states:

“The selection of material obtained under the warrant is carried out only for the specified purposes if the material is selected for examination only so far as is necessary for the operational purposes specified in the warrant in accordance with section 161”.

So the test for selection for examination is curtailed by the provision in sub-paragraph (ii) that it is only so far as is necessary for the operational purposes specified in the warrant, as set out in clause 161. I accept that “specified” means the warrant at the time of selection of material, as set out underneath. For the record, I therefore acknowledge the possibility that the operational case may be differently described at the time of the second test. However, on the face of it, the same test is being applied at the examination stage as was applied by the Secretary of State. That is the cause of my concern and the reason why, in my argument, some further thought must be given to strengthening the threshold when it comes to the access provision. Because the only way that the operational case can be different at the point of selection of material from the point at which the Secretary of State is involved, is if it has been modified, which means it has not gone through the same procedure as the warrant in the first place. That is the real cause of concern. I have labelled it that but I do not think that on the intervention I made it as clear as I should have done.

If there is a material difference in the test, that ought to be spelled out in the Bill and it is not. The amendments are intended to tighten up the specifics in clause 156. I will not press them to a vote but I have read this into the record because it is a matter of concern. There is either an answer, which means I am wrong about this and should stop repeating my submission, or it is something that others need to take away and have a serious look at in terms of the test.

[Mr Hayes]

I am not sure that we need to rehearse the general arguments in respect of bulk again—they have been well covered in earlier considerations—except to say this. It is critically important that the agencies maintain the ability to use these powers for economic wellbeing, where, according to the Bill, these are tied to national security. That was a point that was made by my hon. and learned Friend the Member for South East Cambridgeshire at a very early stage on Second Reading.

On that basis alone, one would want to resist the proposed amendment. However, the hon. and learned Gentleman has made some more tailored arguments that deserve an answer. Let us just deal with the tests. There are two tests. There is the test contained in clause 158, where the Secretary of State and the commissioner must be satisfied that it is necessary for data required under the warrant to be examined for specific and specified operational purposes.

In clause 170, the analyst examining the data must be satisfied that the examination of a particular piece of data is necessary for a particular operational purpose. So there are two tests that are designed to be appropriate at different points in the process. That is why the list is written as it is. Does that satisfy the hon and learned Gentleman?

[Keir Starmer]

I hear what the Minister says and I will be brief. The only reference to operational purposes in clause 170 is to the operational purposes on the warrant. Therefore, they will be the same operational purposes as were before the Secretary of State, unless the warrant has been modified. Maybe I should just have said that in the first place and made it a lot shorter, but that is the nub of the problem as I see it.

[Mr Hayes]

Yes, the point of that further analysis is that the analyst must be confident that the particular work relates to those specified operational purposes. The reason that that further work is done down the line, as it were, is to ensure that there is no digression from the stated operational purposes, and that in that sense this is an important further safeguard.

Let me give an example to illustrate. The Secretary of State may consider that it is necessary for the data required under the warrant to be examined for two or three purposes. The analyst needs to say which particular purposes relate to a particular search. Therefore this is a refinement of the work of the analyst to ensure that it is true to the intention of the Secretary of State in authorising the process. This is an illustration of Committees of this House at their best: we are digging deep down, in very fine-grained detail. With those assurances, I hope that the hon. and learned Gentleman will be convinced by what we are trying to achieve.

--- Later in debate ---

Safeguards relating to examination of material etc.

[Mr Hayes]

I beg to move amendment 624, in clause 170, page 132, line 7, leave out from beginning to “is” and insert “the selection of any of the material obtained under the warrant for examination”.

This amendment makes a minor drafting correction.

[The Chair]

With this it will be convenient to discuss Government amendment 625.

[Mr Hayes]

These minor drafting amendments are self-explanatory.

Amendment 624 agreed to.

Amendment made: 625, in clause 170, page 132, line 14, after “warrant”, insert “for examination”—(Mr John Hayes.)

This amendment makes a minor drafting correction.

Question put, That the clause, as amended, stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

I am grateful for that intervention. I am concerned about that issue; that is why we need to give particular care and attention to the operation of these bulk powers in relation to sensitive personal data—and mental health data are among the most sensitive. In a sense, the second set of modifications that we will come to later is aimed at putting in the Bill what is in fact current practice. Therefore it would not inhibit what the security and intelligence services are doing, but would make it clear to citizens that a safeguard is in place and reduce their anxiety about the extent of the use of these bulk powers.

I will say more about that when I get to the amendments, but they are issues that go to the breadth of the bulk personal datasets that we are now dealing with.

[Mr Hayes]

On the issue of medical records and the very sensitive data associated with them, and mindful of the remarks of the hon. and learned Lady and the hon. and learned Gentleman, we will be dealing with that issue when we discuss amendment 715. I do not want to spend too much time on it now, except to say that I, too, am aware of the obvious and profound issues associated with intrusion in that area. We will discuss them at greater length when we discuss the amendment, but I hear what is said. It is important that we study those matters with appropriate care, given that they are of such profound sensitivity.

Moving to the thrust of the argument and the content of the debate, the thrust of the argument is in two parts. First, why do we have this power and how is it used? Secondly, what are the safeguards—the measures in the Bill and those that already exist—that constrain the exercise of those powers, in the ways we all want, in the interests of good practice, privacy and so on? Let us deal with those in turn.

To deal with the first, it might be appropriate to start with the ISC, because it has been cited. It said in its privacy and security report that the powers in part 7 of the Bill are an

“increasingly important investigative tool for the Agencies”.

It is important to point out that this part of the Bill does not provide any powers to the security and intelligence agencies. Bulk personal datasets may be acquired through investigatory powers such as interception and they may be shared by Government Departments or industry. The only purpose of part 7 is to ensure that where agencies hold bulk personal datasets, the data are subject to robust privacy safeguards as information acquired under the bulk powers in the Bill. That is an important new step and an important safeguard.

It is probably fair to say that, in that sense, this is not a power at all but a process. The powers are about the safeguards. The Bill introduces important new requirements in that sense, but it would be more accurate to describe bulk personal datasets as a matter of process and a matter of practice rather than as a power.

The reason that that information is stored in such a way is pretty clear. It can help to identify individuals who threaten our national security or may be of other intelligence interest and, significantly, to eliminate suspicion of the innocent without using more intrusive techniques. As with so many of the bulk issues that we have debated, that is often about the use of techniques that are, by their nature, subject to stringent safeguards and that obviate the need to use more intrusive methods to reach the same destination. Of course, that can establish links between subjects of interest to better understand a subject of interest’s behaviour and, in the course of an investigation, we can verify facts that lead us to identify those who seek to do us harm.

It is simply the case that the security and intelligence agencies would not be able to keep pace with the scale of events that are occurring in an increasingly interconnected world if we did not have access to those datasets. It would take longer to exploit lead intelligence and increase the risk of something being missed or misunderstood. It would lead to intelligence failures and, in the worst cases, to the loss of life.

It is unquestionably the case that curbing the use of bulk personal datasets would hinder the agencies, but I would go further. I think it is fair to say that doing so would endanger this country and its people. I know that that is not the intention of anyone on this Committee or anyone considering the Bill, but it is important to emphasise that these are powers for a purpose, and that purpose is the safety of the British people through the effectiveness of those missioned to keep them secure.

--- Later in debate ---

[Lucy Frazer]

Does my right hon. Friend think that sometimes putting tests in very specific terms in primary legislation gives a certain rigidity, whereas greater flexibility would be possible if they were in a code of practice? As we heard—as the hon. and learned Member for Holborn and St Pancras said—the test is already being carried out in practice. Does my right hon. Friend agree that to create additional rigidity by putting the test in primary legislation might hamper the security services in due course?

[Mr Hayes]

With a certain power of prophecy, I made it known at the beginning of our considerations that it was likely that there would be a continuing debate that would have at its heart, considerations about what should be on the face of the Bill and what should be in supporting documentation. I did so perhaps not so much as a prophet as an experienced Member of this House, because I have never served, either as a shadow Minister or as a Minister, on any Bill Committee where that has not been a matter of debate. How far one goes in putting specific matters on the face of legislation is always a matter of fine judgment. Hon. Members know the argument very well.

[Sir Simon Burns (Chelmsford) (Con)]

My right hon. Friend raises a very important point. All too often, too many people have a tendency to put things on the faces of Bills that are not altogether relevant and which could be done by secondary legislation. His point, therefore, is extremely valid.

[Mr Hayes]

My right hon. Friend, who is a distinguished Member of this House, a former Minister of note, a sagacious figure now on the Back Benches, bringing that experience and quality to our considerations—what a delight it is to have him join us on this Committee—is right.

I was responding to my hon. and learned Friend the Member for South East Cambridgeshire accordingly that the debate about whether material is put in the Bill or in supporting documentation comes down to this point: those who wish to place things in the Bill do so because they want to firm them up, to make them more sure and certain. Of course, for much of what we wish to do it is vital that we pursue that course. Those who argue for material in supporting documentation do so on the basis exactly as my right hon. Friend says: that it allows greater flexibility. In an area as dynamic as this—I hinted at this earlier, but will make the point once more—I would have thought the argument for flexibility holds a great deal of water.

The last thing I want is to pass the Bill into law and for it to become an Act of which we can all be justly proud—every member of the Committee will deserve a certain credit—only to find that events have moved on and we are stuck with an excessively rigid Act incapable of being changed easily as needed.

[Keir Starmer]

Just to put this in context, when we talk about legal professional privilege, journalistic material and MPs’ correspondence, it is absolutely clear the Government have thought this through and put it on the face of the Bill, where they think it is relevant. We cannot get away with it—nobody can backslide into an argument that, in other areas, it is more flexible to put the measures in statutory instruments. Things like legal professional privilege have been thought through. Moves have been made by the Government—and I have acknowledged them—and it should be on the face of the Bill. I think the Minister knows that, because he has put it in the Bill in other areas and that is the right way to deal with that sort of material. Of course, it is more flexible, but in the end we would have a very thin, short, one section Act if we really wanted full flexibility. That is not the way forward.

[Mr Hayes]

The hon. and learned Gentleman is right. I do not want to be patronising in any way. I think for a beginner he has made a very promising start. That has been in part characterised by the consistency of his argument. One of the arguments he has used since we began this consideration is that the Bill needs, throughout its clauses, to be consistent. He is right in saying that, while we have made considerable progress in considering and dealing with the issue of the legal profession, there may be more work to do in respect of journalists and Members of Parliament.

With that thought—I do not want to exhaust the patience of the Committee any longer—I will sit down.

Question put, that the clause stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

I foreshadowed these amendments when we were discussing clause 174. The way we have sought to deal with records—“patient information”, as it is defined under the National Health Service Act 2006—is to take them out of consideration altogether, which would prevent a warrant that would cover those records being issued. Amendment 721 simply leaves out subsection (3)(a)(iii) and amendment 722 removes the corresponding subsection in clause 178. There is very little I can add to the argument that I put before in relation to those. I will say more when we get to the second group of amendments about the test that is to be applied.

[Mr Hayes]

The hon. and learned Gentleman may take it, in the spirit that I made my earlier remarks, that the Government are always happy to consider these matters carefully. All of this section of the Bill requires us to be mindful of the sensitivity of the material with which we are dealing, and I think the purpose of the amendment is to explore that sensitivity—I understand that. While I am not minded to accept the amendments, I am clear that in gauging all of those things, we are open to argument, willing to listen and determined to frame a Bill that reflects the considerations of the Committee, that is capable of uniting this House in a shared purpose, that is credible with the wider public, and that provides those missioned to keep us safe with the powers they need. With that reassurance, I hope the hon. and learned Gentleman will withdraw his amendment.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Keir Starmer]

These amendments are on material relating to patient information as defined in section 251(10) of the National Health Service Act 2006 or to mental health, adult social care, child social care or health services as defined by the Health and Social Care Act 2012. They would subject material in those categories to the higher test set out in amendment 718. We have had interventions on what the test should be, why people should be concerned and so on.

A number of Committee members will have had the opportunity—I have, in my work—to see mental health records, adult social care records, child social care records and health service records. Those records often contain highly confidential material and information. I will take an example from child social care. A child may be reporting and having recorded some of the most grotesque offences that have happened to them, in an environment where it is hoped that the right relationship will be built up through the process of child social care—in other circumstances, adult social care—so that they obtain the best care possible. Persuading people into that sort of relationship, so that they can get the support they need, is not easy, as anyone who has experience in this area will know.

Unless those who are most vulnerable see protection for them on the face of the Bill, there is a real likelihood that they will not feel sufficiently protected to even come forward. Getting children to engage with child social care is the devil’s own business in many difficult cases. There are many reasons why children do not engage. If children, vulnerable adults and those with mental health problems cannot see clear protection on the face of the Bill that applies to them—not in a flexible way—it would be a retrograde step in relation to all the good work going on in other parts of the forest on offences such as child sexual exploitation.

To be clear, the amendments are not intended to prevent the security and intelligence services from accessing those records if, in certain circumstances, they are needed. The amendments require that a higher threshold is applied and that a better case is made for the circumstances being exceptional and compelling. As I am sure the Minister for Security and Solicitor General have observed, the language in the amendments is borrowed from the protection in the Bill elsewhere for legally privileged material. I therefore hope the test is workable and applicable to this sensitive information.

I stress just how sensitive the material within some of these records will be and how important it is that people see on the face of the Bill protection for them. I have heard the way the Minister for Security and Solicitor General have dealt with this, and I will listen to what they say now, but I do not think that what is said about this protection in the code of practice is either in the right place or sufficient. Paragraph 4.11 is very general in its guidance, even in the code of practice. In my argument, the test should be set out in the Bill and then the code of practice would give guidance as to how the test is to be applied on a day-to-day basis as and when it arises.

[Mr Hayes]

The amendments relate to the question of whether warrants under this part of the Bill should ever allow the retention or examination of bulk personal datasets relating to various forms of medical information. The hon. and learned Gentleman qualified that to some degree by saying that he could see how there might be occasions on which health data were relevant to an investigation, but he rightly asked whether the safeguards were adequate and whether constraints on storage and use of that kind of information were in place.

Let us look first at the safeguards that are already contained in the Bill. These safeguards already ensure that no bulk personal datasets would be retained or examined unless it was appropriate to do so. Specifically, under the Bill, the security and intelligence agencies may retain and examine a bulk personal dataset only for the statutory purposes outlined in the Bill. Each warrant is subject to the double lock, and so must be approved by both a Secretary of State and a judicial commissioner. Each retention of a bulk personal dataset by the intelligence agencies is considered individually based on a strict consideration of necessity and proportionality. The Investigatory Powers Commissioner will also oversee the acquisition, retention, use or disclosure of bulk personal datasets by the agencies. The draft code of practice, as the hon. and learned Gentleman has said, makes clear that, when considering whether to retain and examine bulk personal datasets, the agencies will assess the degree or extent of the intrusiveness which retaining and examining the datasets would involve—that is to say, the degree or extent of interference with individuals’ right to privacy.

The draft code says more than that, though. It also makes clear that when considering whether to apply for a warrant in this class, agencies must consider factors such as whether the nature or the provenance of the dataset raises particularly novel or contentious issues, or whether it contains a significant component of intrusive data—I mentioned this in an earlier discussion. An agency would need to apply for a specific bulk personal dataset warrant if it sought to retain such a dataset comprised of medical records. None the less, notwithstanding those safeguards, which I felt it was important to outline, I can see why this matter warrants careful consideration. Before I go into that consideration, however, I want to say the following. I am prepared in this specific instance to confirm that the security and intelligence agencies do not hold a bulk personal dataset of medical records. Furthermore, I cannot currently conceive of a situation where, for example, obtaining all NHS records would be either necessary or proportionate.

That is where my note so far prepared ends, but I want to go further. Before I do, in order to build anticipation and excitement, I give way to the hon. and learned Lady.

[Joanna Cherry]

The Minister may be about to answer this question, but I am very interested, as I am sure all hon. members of the Committee and people outwith this room will be very interested, in what he has just said—that the security agencies do not currently hold a bulk personal dataset in relation to medical information. As the Bill stands, unamended, does he not agree that there is nothing in it to prevent them acquiring such a bulk personal dataset in future, if they were able to make a case for it?

[Mr Hayes]

I may fall foul of my officials, which I would never choose or seek to do, except where I felt that it was right in the national interest, with the benefit of the wisdom of the Committee—enhanced, as I have said it is, with the addition of my right hon. Friend the Member for Chelmsford—and where I feel that the public expect us to go further. The hon. and learned Lady is right that we need to go further. Let me rehearse some of the ways in which we might do that—I will commit to none today, but I offer them to the Committee for further thought.

--- Later in debate ---

[Keir Starmer]

I am grateful to the Minister and glad he finds the amendment persuasive, although I suspect not persuasive enough to vote for it. I will therefore withdraw it, but I appreciate the spirit in which he makes his submissions in this important and sensitive area. I will withdraw it with a view to working with the Minister to see whether—

[Mr Hayes]

I think the hon. and learned Gentleman has said this, but just for the record, I think he agrees with me—I am delighted he is going to withdraw his amendment—that it is conceivable that there are circumstances in which access to some health data might be helpful to the agencies. We can agree that as a baseline against which we can chart the rest of this process.

[Keir Starmer]

From memory, the services could not at the moment envisage a circumstance in which they would need it, but they would not want to rule out the possibility that it might arise at a future date.

Investigatory Powers Bill (Eleventh sitting)

John Hayes Excerpts

Committee Debate: 11th sitting: House of Commons
Tuesday 26th April 2016 Public Bill Committees

[Keir Starmer]

It is a pleasure to continue to serve under your chairmanship, Ms Dorries. I, too, welcome the right hon. Member for Chelmsford and thank him for helping the Committee with its work.

We turn to clause 138, which deals with the second of the bulk warrants that we are discussing, the bulk acquisition warrants. I will start where I started with the last bulk power by observing the breathtakingly broad nature of this one. The communications data that can be subject to a bulk warrant are the what, where and how of a communication without disclosure of the content, as well as a person’s location, the type of equipment used and the duration of its use. The data can therefore paint a detailed picture of somebody’s life, so accessing it is a significant interference with privacy.

Clause 138 involves the bulk acquisition power that was first avowed in November last year, only about six months ago, making it one of the more recent avowals. At the time, David Anderson told the BBC that

“the law was so broad and the information was so slight that nobody knew it was happening”,

adding that it was

“so vague that anything could be done under it”.

David Anderson and others are concerned about the breadth of the power. For that reason among others, I repeat the call for more work on the operational case. I will not go over the points I made last Thursday in your absence, Ms Dorries, but where a newly avowed power is as broad as this one, the need for an operational case is heightened.

The power is not limited to those overseas, which is a material difference from the bulk power that we considered at the tail end of last week. If there is to be such a bulk power, the safeguards are extremely important, but here we run straight into the same problem as we did with the last bulk power: although clause 138 includes a necessity and proportionality test, it bites on very broad objectives. In clause 138(1)(a), we see that the Secretary of State can issue a bulk warrant if she

“considers that the warrant is necessary—

(i) in the interests of national security, or”,

under subsection (2),

“(a) for the purpose of preventing or detecting serious crime, or

(b) in the interests of the economic well-being of the United Kingdom”.

The same very broad powers apply to the issuing of a very wide bulk warrant.

Last time we considered bulk powers, I was able to go to the code of practice, which gave more detail about the necessity and proportionality test. In this case, paragraph 4.5 of the code of practice does not add much to what is on the face of the Bill. The Government might want to consider whether necessity and proportionality are dealt with consistently in the codes for each of the bulk powers. There is more detail in paragraphs 9.3 and 9.7, the latter of which is telling:

“More than one operational purpose may be specified on a single bulk warrant; this may, where the necessity and proportionality test is satisfied, include all operational purposes currently in use. In the case of bulk acquisition, BCD relevant to a number of operational purposes may be acquired on a single warrant. In the majority of cases, it will therefore be necessary for bulk acquisition warrants to specify the full list of operational purposes.”

This is another case where, in truth, few warrants will cover many operational purposes, yet the constraints of clause 138 are simply by reference to the interests of national security, to preventing or detecting serious crime and to the interests of economic wellbeing so far as they touch on the interests of national security.

I repeat and reassert the points made on the previous bulk warrant measure. Lifting some of the more detailed analysis of the safeguard and test from the code into the Bill is required to make clause 138 meaningful. That is made good in clause 141, which states:

“In specifying any operational purposes, it is not sufficient simply to use the descriptions contained in section 138(1)(a) or (2), but the purposes may still be general purposes.”

The other point made about this warrant is that it applies not only to the retention or obtaining of data but to the examination of those data. I repeat the point I made last week about the Tom Watson and David Davis case, which is currently being heard. The question in that case is whether there are specific safeguards for access when data are retained, and the proposition accepted by the divisional court is that the safeguard should be for serious crime and that there should be a degree of judicial oversight. The Court of Appeal will now form its own view on that, but the Bill’s safeguard for examination is without any teeth, because the test for examination is the test of necessity, as set out in clause 138, coupled with the test of clause 141, which says that simply citing the national interest, preventing crime, et cetera, is not enough, but that general purposes may be sufficient.

Clause 151—I am skipping beyond clause 138, but one has to see these three things together—is shorter than clauses in other parts of the Bill that address bulk powers, and it simply sets out:

“For the purposes of section 150 the requirements of this section are met in relation to the communications…obtained under a warrant if any selection…is carried out…for the specified purposes…and the selection…is necessary and proportionate in all the circumstances.”

Those purposes relate back to clause 141, which says that, although someone seeking a warrant cannot get away with simply citing national security and serious crime, they do not have to go much further. On analysis, the test for examining for selection data that have been obtained under this wide bulk power is, in fact, a necessity and proportionality test that is no different from the test applied to the holding of the data in the first place. In other words, there is no differentiation between the test for holding, retaining or acquiring the data and the test for examining it at some later stage. I made that point last week, and it arises again in relation to this very wide bulk power.

The only other thing I will say at this preliminary stage is that I think I am right in saying that, in relation to this bulk warrant, there are no specific provisions for legal professional privilege, for the correspondence of MPs or for journalistic material. That has cropped up in our previous discussions and I think the Solicitor General is giving further consideration to whether, in some circumstances, the fact that there is a communication with a lawyer, even though the content is not there, may need at least some reconsideration in terms of how it is dealt with in the Bill.

Therefore, I will not go into long submissions on legal professional privilege, but it is essentially the same point, namely the assumption that if it is not pure content no privilege attaches and no concerns arise may be misplaced. I have asked the Solicitor General and the Security Minister, to take this point under the umbrella of consideration when he looks again at legal professional privilege.

Against that background, the amendments really speak for themselves. They are tightening amendments intended to sharpen the test in clause 138, which, as I say, at the moment is breathtakingly wide.

[The Minister for Security (Mr John Hayes)]

I again welcome you to the Chair, Ms Dorries.

I will start by saying that it is vital that the whole Committee understands two points—I think it does, but I will amplify them for the sake of the record. The first is that access to communications data is vital to securing our safety. Communications data play a critical role in almost all the major investigations in respect of terrorism and a very large part in the work of the law enforcement, security and intelligence services. That much is a given.

The second point is that the powers in the clause are not new; they are routinely used for the purposes that I have described. When you were last in the Chair, Ms Dorries, the shadow Minister said:

“As the Minister has said, it is a good thing that the powers that had previously been exercised by the security and intelligence services are now avowed on the face of the Bill.”––[Official Report, Investigatory Powers Public Bill Committee, 12 April 2016; c. 92.]

He is right: it is important that, for the first time, these powers are brought together in a single piece of legislation, making them more understandable, more transparent and more comprehensible.

As the hon. and learned Gentleman also said, it is vital that there are appropriate safeguards in place. Consideration of the clause and the amendments this morning enables us to explore the adequacy of the safeguards and, as we have discussed in previous debates, whether what is already in the Bill is sufficient. In that context, he is right to draw attention to the code of practice. Paragraphs 9.7 and 9.8 describe the particular circumstances that might apply in respect of a bulk acquisition. The code of practice emphasises that a test of necessity and proportionality must be applied to all these matters, but also makes it clear that the operational purposes of the warrant are salient, too.

Ms Dorries, we had a debate in your absence about whether the operational case should be explored in more detail at the outset. Like the hon. and learned Gentleman, I will not reprise that debate, but for your benefit I will say that, in essence, the case he made was that there should be some independent means by which we test the validity of that operational case. The hon. and learned Member for Edinburgh South West, who speaks for the Scottish National party, made essentially the same case. My hon. and learned Friend the Solicitor General and I, having listened to what they said last week, reflected upon it and discussed it, can see that there is some merit in that argument. I will not say more than that today, but I thought their case was reasonable and we might want to look at it.

Of course these matters are sensitive, because as soon as we start to explore operational matters related to the security and intelligence services, we get into that area of what we can and cannot put in the public domain. That is a challenging tightrope—I suppose all tightropes are challenging by definition, but to walk the one between protecting the public interest and protecting the capacity and effectiveness of our security services is particularly challenging. Nevertheless, the case that the hon. and learned Gentleman made about the need for greater scrutiny is interesting.

When it comes to the work we are considering today, it will be beneficial for the Committee to look again at the operational case for bulk powers, which sets out how bulk data are used. Not only does paragraph 5.1 clearly make the case that

“The power to acquire and analyse bulk data is crucial to the security and intelligence agencies’ effectiveness”,

but it also says that those powers are used alongside others, and where others are more appropriate, bulk is not used as a default position—an important point to make, because I think there is a misassumption that that may not be the case. It also says that the capabilities are used to deal with

“high-priority and…emerging threats from individuals not previously known to the security and intelligence agencies”

and that they are vital to disrupting threats of that kind. Fundamentally, it says that they are

“often the only means to acquire intelligence about overseas and online threats to the UK.”

The code of practice then sets out the essential character of those powers, which I will sum up by saying that often in dealing with those threats and deciding how best to counter them, the intelligence and security agencies will have mere fragments of information; they will need to search widely to piece together from those fragments sufficient information to clarify the nature of the threat and to put into place the measures to deal with it; and the collection of data in that respect is fundamental to the work of GCHQ in particular. The idea that that is done without specificity, in a capricious way, is completely at odds with the mission of those organisations, with the safeguards in place here and with common sense. It is not in the interests of anyone to collect data beyond the purpose that I have described, to piece together information, to facilitate better investigation of threats to our national security.

[Keir Starmer]

I am grateful to the Minister for laying out the background and the way in which the warrants will operate. He makes a powerful case for putting some of that detail in the Bill, because if that is the actual operation, nothing could impede its effectiveness if something more specific is put in the Bill—obviously not the specifics of every operation, but something better than the very general test in the Bill. That would not cut across the operation of the warrants and would be consistent with their use as the Minister describes it.

[Mr Hayes]

That is the essence of the case the hon. and learned Gentleman makes in his amendments, but before I come to that I want to take this opportunity to set out some of the broader arguments. I am sure that members of the Committee do not need to be disabused of this, because they are extremely well informed and have read the Bill with a scrupulous diligence that is quite impressive, but the wider public may have a misconception about the nature of the powers and what they are there for. I have already dealt with the misconception that these powers are new; they certainly are not, but let me put that into even sharper focus.

In 2010, a group of terrorists were plotting attacks on the UK, including on the London stock exchange. The use of bulk communications data played a key role in the MI5 investigation, allowing investigators to uncover the terrorists’ network and to understand their plans. That led to the disruption of their activities and successful convictions against all the group’s members. This is not an academic debate; it is not a common room discussion among civilised people who take due care of these matters. This is about the day-to-day threats we face and how we counter them. These powers have been and are used to disrupt threats precisely as I have described.

--- Later in debate ---

[Keir Starmer]

In a sense, we are on common ground here. Clause 141 adds to clause 138 and, as the Minister says, indicates that what is set out in clause 138(1)(a) and (2) is not sufficient, but if what comes after the comma—

“but the purposes may still be general purposes”—

is the case, there is no indication of the specific matters that must be listed. More is given in the code, and one has to remember that it is against that operational case that the judicial commissioner then conducts his or her analysis of necessity and proportionality. That is why it is so important. The question is really whether some of what is in the code of practice should not be lifted into the provisions of clause 141.

[Mr Hayes]

Let me draw my remarks to a conclusion so that we can move on with appropriate alacrity, having set out the broad argument. There are two points. The first is whether more of what is in the code should be put in the Bill and whether that would be helpful. The judgment to be made is whether the Bill is sufficient as it stands. Is the amendment unnecessary because of the requirement that a warrant be issued lawfully and the proper constraint that that places on those who make that decision? Secondly, going back to the hon. and learned Gentleman’s case about the operational case, given that there will be a stringent internal process to ensure that any warrant presented to the Secretary of State is compliant with the statutory requirements, could we say more about the operational purposes?

A combination of those two things would entirely satisfy the hon. and learned Gentleman. The Government are sensitive to all those considerations. Of course we understand the need to balance capability against safeguards, and as I said at the outset, I am mindful of the strength of the argument used when we last met about how we could be clearer about legitimising the operational case. I will leave it at that and invite him to withdraw his amendment.

[Keir Starmer]

I am grateful to the Minister for the way that he has set out his case and his indication of the Government’s approach. The question of safeguards is extremely important: it is vital for the Committee and the House to get it right. Rather than press these amendments, I will wait to see what response, if any, the Government make to the general case that I have made on a number of occasions about the balance between the code and the Bill and reserve my position for later stages of the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Mr Hayes]

I beg to move amendment 614, in clause 138, page 110, line 8, leave out subsection (4).

This amendment leaves out provision that is not relevant in the context of bulk acquisition warrants.

This is a technical amendment and I do not intend to make a great fuss of it unless anyone wants to ask me for more detail.

Amendment 614 agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

[Joanna Cherry (Edinburgh South West) (SNP)]

I wonder whether I might address the Scottish National party’s “leave out” amendments at this stage, Ms Dorries. On Friday, because the SNP had tabled “leave out” amendments to the whole of chapter 1 of part 6, I made some general comments about the overarching clause at the beginning of that chapter. With your forbearance and if it is acceptable to you, as clause 138 is the overarching clause at the beginning of chapter 2, I propose to do the same now.

--- Later in debate ---

[Keir Starmer]

The hon. and learned Lady, speaking for the SNP, made some important points and I want to pick up on one of them—a nagging concern on which clarification would be helpful. The bulk warrant process under this chapter and others presupposes two stages; first the acquisition of the data and then the examination of the data. I have already made my submission that, broadly speaking, the second stage ought to have a higher threshold than the first stage, for obvious reasons.

It is important to understand that there are actually four steps in a classic case. The first is obtaining data. The second is the first stage of the filtering or triage to deselect or not select all the data that are not needed. Jonathan Evans made a very powerful case on that stage, describing how clearing away all the data that the security and intelligence services do not need to consider, so that they can focus on what they do need to consider, is a major part of the task. The third stage is selecting the data they need to consider. The fourth stage is the examination of that selected material.

It is worrying that there is no reference at all in the Bill or in the code—I will be corrected, if I am wrong about the code, but I have looked—to the middle stage of filtering. We saw earlier that for comms data, when others had obtained them pursuant to a Secretary of State’s retention order, there were specific provisions for filtering. Here, for bulk powers, there are none—there is no mention of filtering in the Bill. Is it intended that the examination provisions serve two purposes—first, the filter purpose and secondly, the more specific access purpose? If so, what is to be specified in the warrant when it comes to operational purposes for examination? Is it the operational case for filter or the operational case for access? I suspect they would be different things. The operational case for filter would be, in the main, to move out of the way data that do not need to be looked at, and I am persuaded of the need for that. That would be one operational case, quite broad in nature; but the operational case for access would necessarily need to be more specific.

I am genuinely concerned that those steps are not apparent in the Bill. If they are implied, it would helpful to have on the record how the Minister sees that the provision covers the various steps. Without making the argument again, this point reinforces my argument that the test for examination of data ought to be higher than the test for acquisition or for filter. This is a very specific issue, but it is nagging because it is not in the Bill, whereas earlier on, there were clear provisions dealing with filter and how the filtering arrangements would work.

[Mr Hayes]

We have covered a lot of ground and rightly so, because this is an important part of the Bill and an important clause.

The hon. and learned Member for Holborn and St Pancras is right to say that there are several parts to the process. Paragraph 9.8 of the draft code of practice says:

“As well as being necessary for one of the operational purposes, any selection for examination of BCD must be necessary and proportionate.”

Paragraph 9.9 goes on to talk about the selection of those data, saying:

“In general, automated systems must, where technically possible, be used to effect the selection of BCD in accordance with section 151 of the Act.”

It talks about the filtering system and who should be authorised to be engaged in it, as well as the selection of data being categorised

“under the specified operational purposes”

and that the methodology used should remain

“up to date and effective.”

It then says that that process should be in accordance with the relevant provision of the legislation—clause 138, which is the point we are at in our considerations.

It may be that the code of practice could say something more about the stages the hon. and learned Gentleman described and set out the process slightly more chronologically, as he did, where that chronology is helpful to explanation. I understand that argument, but what is absolutely clear is that the whole of the process must be lawful and reinforced by both the fundamental test of necessity and the clarity provided by the operational purposes. I think that is the assurance that he seeks. I do not want to put words in his mouth, but I suspect that he was alluding to the possibility that the middle process—as he put it—might be less rigorous in respect of its relationship to the operational purpose. Perhaps that is not what he meant—but if it is, I can assure him that that is not the case.

[Keir Starmer]

I am grateful for that explanation. I read into the Minister’s observations and the code that triaging or filtering is part of the examination process—it must be, by definition—and is therefore subject to the further requirements of examination. It is helpful to have how it works on the record, but it would be helpful to have that set out in the code, so that it is clear. The remaining concern is that there is a danger that for filtering purposes what is said about the operational case may be fairly general, but for access it may not be. There are two aspects to examination and there is a danger that the warrant either says too little or too much, depending on which purpose one is dealing with. I suspect that that will happen in most cases, because this is going to be a common process.

[Mr Hayes]

That is an extremely well made point, because the case made for the warrant has to be sufficient to persuade the Secretary of State that it is right to issue it. The case made out for the warrant has to be sufficiently specific to colour the rest of what occurs, to help to define the process the hon. and learned Gentleman describes. However, to return to the argument I made in the earlier debate, by its very nature the collection of bulk material is about taking fragments of information that one then pieces together through this process. The hon. and learned Gentleman is right that a balance has to be struck between that specificity and the very virtue that comes from broader examination of data. Where we might be able to reach common ground, as he put it, is on the character of the explanation in the draft code of practice. Perhaps we can set down what I have just said and what the hon. and learned Gentleman has requested in a slightly different way, which would help the first examination of the information. I hope that is of assistance.

[Keir Starmer]

I am grateful.

[Mr Hayes]

The hon. and learned Member for Edinburgh South West has again added to our considerations with the thoroughness of her analysis, for which I am grateful. She quoted Burns, to which I shall return later.

Access to bulk communications will be limited to security and intelligence agencies; it must be for an operational purpose specified in the warrant and be necessary and proportionate. As the hon. and learned Gentleman said, it must be for one or more considerations of national security, serious crime or economic wellbeing where it is linked to national security. On that we agree, but the clause makes it crystal clear that the operational purposes must relate to one or more of the grounds for which the warrant is considered necessary. For example, if a bulk acquisition warrant is issued in the interests of national security and for the purposes of preventing or detecting serious crime, every specified operational purpose on that warrant must be necessary for one or both of those two broader purposes. Operational purposes must also include more detail than the statutory grounds, to ensure that the Secretary of State is provided with a granular understanding of the purposes for which the selection examination may take place. If the Secretary of State does not consider every operational purpose to be necessary, the warrant may not be issued. Therefore this is not a permissive process—far from it. It is designed to determine all that happens after the issuing of a warrant.

--- Later in debate ---

[Joanna Cherry]

I read last night very carefully what the Chair of the ISC, the right hon. and learned Member for Beaconsfield (Mr Grieve), said on Second Reading. He had three concerns, which were,

“the authorisation procedures for the examination of communications data… the agencies’ use of equipment interference”

and,

“the process for authorising the obtaining of bulk personal datasets”. —[Official Report, 15 March 2016; Vol. 607, c. 837-8.]

Does the Minister agree with me that a careful reading of the hon. and learned Gentleman’s remarks leads to the conclusion that he had outstanding concerns about the bulk powers?

[Mr Hayes]

In your absence, Ms Dorries, I have said that part of my mission was to take the hon. and learned Lady from the fog of doubt to the light of understanding, and earlier she herself described a chink of light. I am happy to consider what more we might do on the operational case. I do not want to go too far on that, because I have to look closely at walking the tightrope between what we can and cannot say publicly about the work of our intelligence and security services. Nonetheless, a powerful case was made on that subject and it is a matter of continuing interest to us.

The hon. and learned Lady quoted at length the evidence from America, but she will know that, in fact, the evidence from America is extremely mixed. A series of pieces of work has been done on these matters. In July 2014, the US Privacy and Civil Liberties Oversight Board said on bulk data collection that:

“Overall, the Board has found that the information the program collects has been valuable and effective in protecting the nation’s security and producing useful foreign intelligence…The program has proven valuable in the Government’s efforts to combat terrorism as well as in other areas of foreign intelligence…the program has led the Government to identify previously unknown individuals who are involved in international terrorism, and it has played a key role in discovering and disrupting specific terrorist plots”.

That builds on earlier work done in the United States to examine the powers. In 2012, the Senate looked at these matters and came to similar conclusions. It is not fair to say that international experience is at odds with what we are doing and with what we are cementing in the Bill. I know that the hon. and learned Lady, being scrupulously fair and reasonable, would want to put a balanced position on the American experience.

[Joanna Cherry]

I am grateful to the Minister for giving way so that I can put a balanced position. The Privacy and Civil Liberties Oversight Board’s report of January 2014 talks at page 11 specifically about the bulk telephone records programme, saying that:

“Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack”.

That is what the board concluded about the bulk telephone records programme in the United States of America, which is closest to what we are discussing at present in chapter 2.

[Mr Hayes]

Ms Dorries, I am sure that you will not permit me to stray too far into a detailed consideration of how the United States has viewed these matters, but I simply say to the hon. and learned Lady that the Senate Committee that I mentioned in 2012 described the,

“ability to collect information and act quickly against important foreign intelligence targets”,

as significant. The US National Academy of Sciences report, “Bulk Collection of Signals Intelligence: Technical Options”, said that:

“For investigations that have little or no prior targeting history, bulk collection may be the only source of useful information”.

I could go on and on, but to do so would tire the Committee and no doubt put me on the wrong side of the Chair, so I will not.

To conclude, we have had a long but important debate about this issue. The use of the powers under the Bill is subject to oversight by independent judges, the Interception of Communications Commissioner and the Intelligence and Security Committee, and none of them has raised concerns about the lawfulness of the powers. The hon. and learned Member for Holborn and St Pancras rightly said that, for the first time, we are considering these matters in a single piece of legislation and enjoying this debate. It is right that we should do so and that we should put safeguards into place, but it is just as right that we should maintain the capabilities necessary to deal with threats to our national security. I say without equivocation or hesitation that the powers are critical to that purpose and must continue to be used in our national interest.

Question put, That the clause, as amended, stand part of the Bill.

Investigatory Powers Bill (Tenth sitting)

John Hayes Excerpts

Committee Debate: 10th sitting: House of Commons
Thursday 21st April 2016 Public Bill Committees

[Keir Starmer (Holborn and St Pancras) (Lab)]

I will be brief. Members will have observed that the amendments in my name are in keeping with my previous amendments about implementation, service and extraterritoriality in relation to other warrants. I will not repeat the points I made then. The only one that is different is amendment 646, a simple proposed change to clause 109 that would add the provision:

“A warrant may be implemented only to the extent required for the purpose for which the warrant was issued.”

I think that may be implicit. If the Minister could indicate that that is his understanding, that might allay concerns and the amendment would not need to be pressed.

[The Minister for Security (Mr John Hayes)]

As the hon. and learned Gentleman says, we have been down this road before. I well recall discussing similar amendments to the targeted interception provisions in part 2. The Bill maintains the existing position in relation to extraterritorial jurisdiction and those obligations that apply to overseas companies. I am unhesitating in my view that overseas companies, because of their important role in communications, must do their bit to do the right thing, as I said previously and memorably. As a result, I will not tire the Committee by going into that argument in great detail.

Amendment 293 to clause 109 seeks to remove the ability to serve a warrant on an overseas provider and amendment 645 seeks to remove the ability to serve a warrant on an overseas provider when a mutual legal assistance agreement is in place. I draw the Committee’s attention once again to David Anderson’s comments in his report, in paragraph 11.26:

“There is little dispute that the MLAT route is currently ineffective.”

I will not quote it at length but he goes on to say that it is because it is too slow and so on. I do not think that those amendments are in line with either his view or mine.

The effect of accepting the first amendment is evident. It would mean we could serve an equipment interference warrant only on a provider based in the UK. The second amendment seeks to assert mutual legal assistance arrangements as the only route. For the reasons I have already given, that is not appropriate.

The hon. and learned Gentleman asked, in the context of his amendment, whether that matter was implicit. Yes, it is implicit and I can confirm what he thought might be the case.

The arguments have already been made and, on careful reconsideration, the hon. Member for Paisley and Renfrewshire North will realise that his amendment and argument are pseudodox and will withdraw on that basis.

[Gavin Newlands]

I thank the Minister for that response and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Gavin Newlands]

I can deal with this in fairly short order. The Scottish National party tabled an amendment to leave out the clause, which places a duty on telecoms operators to assist with the implementation of equipment interference warrants. We agree with those in the industry who are rightly concerned about being forced by the state to engage in the legal hacking of customers and other individuals and groups.

The Bill defines a telecoms operator as

“a person who…offers or provides a telecommunications service to persons in the United Kingdom, or…controls or provides a telecommunication system which is (wholly or partly)…in the United Kingdom, or…controlled from the United Kingdom.”

That flexible and all-encompassing definition means that not only online companies such as Google, Facebook, Twitter, Dropbox and Yahoo!, but private offices, businesses, law firms, the networks of Departments such as the NHS and institutional networks such as those of universities would be forced to comply with the Government’s instructions to interfere with or hack the communications of an individual or group. That was confirmed by the Home Secretary in her evidence to the Joint Committee that scrutinised the draft Bill. That power will place those companies, whose services most, if not all, of our constituents use, in a deeply unsettling and invidious position.

I am not convinced that any of our constituents would be pleased to hear that we were passing legislation that would allow their email accounts or Facebook pages to engage in illegal hacking on behalf of the state. The extraordinarily expansive power that the clause gives the Government will force companies to engage in highly controversial work on their behalf, which will no doubt be in conflict with the interests of cybersecurity and product security that the companies work hard to innovate in, protect and extend. Forcing these companies to engage in legal hacking could seriously harm their business and operations. It will also lead to some of their customers and users losing trust in their businesses. I am not surprised that companies have long expressed deep concern about the powers laid out in the clause, as it is in direct conflict with their business interests. For those reasons, the SNP would like to see the clause deleted from the Bill.

[Mr Hayes]

I have nothing to add.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

I have listened carefully to the hon. Gentleman’s comments. On the sharing of information with authorities that may engage in torture or other serious ill-treatment, can the Minister confirm the long-standing practice that our security and intelligence services do not share information where there is a risk of torture, because of their obligations under other international treaties, and that this provision sits within that framework of assurances?

[Mr Hayes]

I can confirm that, and I can say a little more. My residual generosity is such that I take the view that these amendments are well intentioned, but they are unnecessary. Let me say why.

Clause 113 already provides that the Secretary of State must ensure that satisfactory and equivalent handling arrangements are in place before sharing UK equipment interference material with an overseas authority. The Secretary of State must determine that they provide corresponding satisfactory protections. Furthermore, those obligations sit alongside those in, for example, the consolidated guidance to intelligence officers and service personnel on the detention and interviewing of detainees overseas, and on the passing and receipt of intelligence relating to detainees, as well as the gateway provisions that allow for intelligence sharing in the Intelligence Services Act 1994 and the Security Service Act 1989.

In addition, the overseas security and justice assistance guidance provides an overarching mechanism that sets out which human rights and international humanitarian law risks should be considered prior to providing justice or security sector assistance. This is supplemented by the draft code of practice on equipment interference, which is clear about the safeguards on the handling of information. It seems to me that the protections, absolutely necessary though they are, are comprehensively dealt with by that variety of means, rendering the amendment unnecessary. I invite the hon. Gentleman to withdraw it.

[Gavin Newlands]

I thank the Minister for his comments, and I am somewhat reassured, but I still do not understand the Government’s reticence about putting this in the Bill; it is only a sentence that is required. Nevertheless, we are minded to withdraw the amendment at this time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 113 ordered to stand part of the Bill.

Clause 114

Duty not to make unauthorised disclosures

--- Later in debate ---

[Joanna Cherry]

Forgive me, but the hon. Lady was out of the room when I said that I am not asking the Committee to look at Mr Binney’s evidence. I am asking the Committee to look at the evidence of the US President’s Review Group on Intelligence and Communications Technologies and of the Privacy and Civil Liberties Oversight Board, which led to the repeal of section 215 and its replacement with the USA Freedom Act. I am not asking the Committee to look at Mr Binney’s evidence; I am asking the Committee to consider and take into account the background of two high-level independent US reports—the USA is our closest ally—that found that similar bulk powers are not necessary or proportionate.

I will not be side tracked by a suggestion that I am criticising David Anderson, because I am not—I make that absolutely clear. His review, “A Question of Trust”, was published prior to the Joint Committee of these Houses saying that a sufficient case has not been produced for bulk powers. David Anderson’s report was taken into account by the Joint Committee. I know that some members of this Committee, including the hon. Member for Fareham, sat on the Joint Committee, and one of its conclusions, recommendation 23, was:

“We recommend that the Government should publish a fuller justification for each of the bulk powers alongside the Bill. We further recommend that the examples of the value of the bulk powers provided should be assessed by an independent body, such as the Intelligence and Security Committee or the Interception of Communications Commissioner.”

The Joint Committee said that in the full knowledge of David Anderson’s report, having read and considered it. My point is that such operational case as has been produced by the Government does not live up to the Joint Committee’s recommendation 23, and does not adequately provide an operational case for the powers.

[Mr Hayes]

I know that this will disappoint the Committee, but I shall try to reduce the length of my peroration by making two things clear by way of an intervention. First, David Anderson was clear in evidence to this Committee that further review was not necessary. Actually, I am not unpersuaded by the argument for some process, although the hon. and learned Lady is doing a good job of changing my mind. Secondly, the Joint Committee was extremely clear that we would benefit from the ISC’s conclusions, and the ISC said that the powers are necessary, so I do not understand on which journey the hon. Lady is travelling, or to which destination.

[Joanna Cherry]

David Anderson said the following in paragraph 1.12 of his report, “A Question of Trust”:

“Though I seek to place the debate in a legal context, it is not part of my role to offer a legal opinion (for example, as to whether the bulk collection of data as practised by GCHQ is proportionate). A number of such questions are currently before the courts, which have the benefit of structured and opposing legal submissions and (in the case of the IPT) the facility to examine highly secret evidence, and which are the only bodies that can authoritatively determine them.”

There we have the words of the man himself. Although David Anderson seeks to place the debate in a legal context, he does not see it as part of his role to offer a legal opinion on the proportionality of GCHQ’s bulk collection of data. At least two cases now before the courts will result in judgments on whether the powers are proportionate.

[Joanna Cherry]

Indeed; he is putting forward recommendations. I am advocating an independent review looking at the operational case for bulk powers. It would look at whether the powers are necessary and proportionate, and it would provide an opinion that could then be laid before both Houses, for us to see if the Government’s case has been made. I am concerned that the case is not sufficient at the moment. I say that against the background not of Mr Binney’s evidence, but of the findings of high-level USA investigatory bodies.

[Mr Hayes]

I hesitate to advise an advocate on the construction of her argument, but the hon. and learned Lady would do better not to cite David Anderson and pray him in aid, because he told this Committee on 24 March that he was

“not persuaded of the case for”

an additional independent review of bulk powers, as

“it would be very difficult to say that the ISC had not had an independent look at these issues.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 6, Q2.]

The quote from David Anderson that she is using comes from the very beginning of his report, in which he sets out his general approach to his work. In an effort to make her an even more accomplished advocate than she already is, my advice would be to drop Anderson from her argument.

[Joanna Cherry]

With all due respect, hon. Members sitting behind the Minister brought up David Anderson; I made it clear that I accepted that David Anderson had reached a different view from mine on bulk powers, but I read from his report to make the point that at an early stage in it, he says that it is not his objective to give a legal opinion on the legality of the bulk collection of data.

Those of us who sat through David Anderson’s evidence in Committee on 24 March might also remember that he discussed the different views held about the legality of bulk powers. He said that, ultimately, that will be determined by the courts. The thrust of my argument is that given the serious concerns expressed by two independent United States committees, and the serious concerns about the legality of the powers, we should not be gung-ho about putting them in legislation until we have a proper operational case and have seen the outcome of the litigation. That is a thoroughly respectable approach to part 6, and one that is in accordance with the rule of law.

--- Later in debate ---

[Joanna Cherry]

I will not recast it. I gave very detailed reasons on Second Reading as to why I felt that the Bill was not being given sufficient time. I am aware that hon. Members may feel that I have held the floor for too long; I have spoken at some length, but this is hugely important. Many people across these islands are very concerned about this part of the Bill—ordinary citizens, corporate entities—and we are not giving it enough time. There is not enough time to discuss its detail. I have taken up about 40 minutes giving just an overview of why I oppose part 6. I could have a go at every clause, but I will not do that, because we would be here forever and we have limited time, so I will draw my comments to a conclusion. The Scottish National party’s position is that each and every clause of part 6 should come out of the Bill until such time as there has been a proper independent review and a proper operational case has been made for these powers.

[Mr Hayes]

The hon. and learned Member for Holborn and St Pancras, who speaks for the official Opposition, spoke, not untypically, with welcome brevity and a palpable understanding of these issues, but the hon. and leaned Lady took us on a seemingly interminable journey to a place that is somewhere between intuitive hostility to these powers and confusion—a murky place that I do not want to spent too much time in. Some of the things she said warrant a response, because it seems to me that they were founded on a misunderstanding— I put that as generously as I can—of the use of the powers, their purpose and the safeguards that pertain in that regard.

Let me be clear: a Google search by a person in the UK is not overseas-related. Clause 119 deals with overseas-related communications. Warrants must be targeted at overseas communications. That will provide strong protections for people on these islands.

The ISC privacy and security report concluded that it is unlawful for GCHQ to conduct indiscriminate interception. It is also impractical for it to do so. The hon. and leaned Lady must understand, as most members of this Committee do, that it would be impossible, undesirable and unnecessary for GCHQ to deal with all but a fraction of internet communications. The peculiar view that somehow those missioned to keep us safe are interested in a whole range of communications that bear no relation whatever to their task is—again, I am trying to measure my words carefully—unusual. I say that because it is certainly not the view of the vast majority of people in this country, who want those so missioned to have the powers necessary to guard us against very real threats.

The hon. and leaned Lady spoke, quoting the hon. and learned Member for Holborn and St Pancras, of breathtaking powers. I shall come to that in a moment. She needs to understand that the threats we face are equally—actually, I would say far more—breathtaking. Unless we equip those in the security and intelligence services and the law enforcement agencies with what they need to do their job, we will pay a very dear price indeed. That is what bulk powers are about.

The collection of large volumes of information through bulk powers and the use of those data are essential. Of course they have to be filtered, and search criteria must be applied, so that fragments of intelligence can be gathered and pieced together during the course of an investigation. This is, in essence, about establishing patterns of behaviour and confirming networks. That is what GCHQ is about. Unless we collect those large volumes of information, we cannot move to the targeted regime that the hon. and leaned Lady seeks. Through a mix of misunderstanding and misjudgment, she is making an unhelpful case to those of us who want the safeguards to be as sure and certain as they need to be; I entirely take the point about “need”.

--- Later in debate ---

[Joanna Cherry]

Will the Minister give way?

[Mr Hayes]

I am about to sit down, so I will not give way. Perhaps the hon. Lady will forgive me. My endurance has been tested to its limit.

[The Chair]

Will respect, I think you have to give way, given what you have said.

--- Later in debate ---

[Mr Hayes]

I will say this. The Bill has been through an exhaustive process of consideration. The draft Bill was preceded by three reports on the basis of which—the hon. and learned Member for Holborn and St Pancras drew attention to this—the Government have gone further than originally set out, in the terms I described with publication of more information, explanation of the operational case and amendments to the codes of practice. The Bill was considered by three Committees of this House and I have referred to the Joint Committee’s views on bulk powers.

This Committee is now considering the Bill following publication in its final form on Second Reading. In the Second Reading debate the Chairman of the Intelligence and Security Committee, a senior Member of this House who chairs a very important Committee, said that he was convinced that these powers were necessary. The hon. and learned Member for Holborn and St Pancras has argued for perhaps going further on the operational case.

[Simon Hoare]

Will my right hon. Friend give way?

[Joanna Cherry]

Will the Minister give way?

[Mr Hayes]

I will just finish my sentence. I do not think anyone can say there has not been adequate debate about bulk powers. Before I give way to my hon. Friend and then the hon. Lady—I do not wish to put a further spoke in her wheel, or perhaps I do—I want to say that the US National Academy of Sciences could not identify any alternative that is appropriate to bulk powers.

[Simon Hoare]

I just want to put it on the record that I am sure my right hon. Friend shares my view that if the former Attorney General, our right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who chairs the Committee to which the Minister referred, had not been convinced, he would have had no problem whatever in telling the Government and anyone who wanted to listen that he was not convinced. Our right hon. Friend is not a patsy in this matter or a yea-sayer. If he disagreed, he would have told us.

[Mr Hayes]

Let me quote our right hon. and learned Friend. He said:

“The present Committee and its predecessor are satisfied that the Government are justified in coming to Parliament to seek in broad terms the powers that the Bill contains. None of the categories of powers in the Bill—including the principle of having powers of bulk collection of data, which has given rise to controversy in recent years—is unnecessary or disproportionate to what we need to protect ourselves.”—[Official Report, 15 March 2016; Vol. 607, c. 836.]

He said that on the basis of the information provided to him, but in the knowledge that robust safeguards will govern the examination of data that have been collected in bulk and that it will be possible to select such data for examination only when it is necessary and proportionate for a specific operational purpose. What is happening in other places is, of course, of interest to us and of course we consider other jurisdictions, but my job is to listen to those who have examined the Bill with considerable diligence and in considerable detail, and to be guided by their conclusions.

In that spirit and with that purpose, I hope that we can move on to the next clause, having been persuaded, I hope, that what the Government are doing is perfectly reasonable.

--- Later in debate ---

[The Chair]

Order. This is an intervention. We have noted the source. I call the Minister to respond.

[Mr Hayes]

I see now my mission; it has come to me in a flash. Part of my job is to clear the murk surrounding the hon. and learned Lady and guide her to the light. To that end, she needs to understand that there is a distinction between the position under the Regulation of Investigatory Powers Act 2000 and the definition of overseas-related warrants relating to bulk powers in the Bill. To quote what Charles Farr, with whom I worked at the Home Office, said about one does not really relate to the other. I hope we can move forward on our journey to the light.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

I am grateful for that indication, but I suppose it invites the comment that if that is the intention, it would surely be better to amend clause 125(4) to make it clear that the application must be specific, as set out in amendment 653, which would require the specific operation to be referred to. The amendment would take the spirit of the requirement in the code to set out the specific operational purposes and put it into the Bill so that everyone can see it.

Perhaps I am not making my point clearly enough. If in the end the necessity and proportionality requirements in the Bill for the bulk power and for access are no different, then no real distinction is being made between the two. I think a real distinction should be made in the Bill, to make it clear to everyone that at the point when material is to be accessed or examined, there is a higher threshold and a higher requirement to be specific. That would reflect what is in the code, and that is the spirit in which we tabled the amendments.

[Mr Hayes]

The spirit that the hon. and learned Gentleman describes is right. It is important that we specify the reasons for the use of these powers, as well as looking at specific operational cases in the way he set out in an earlier debate. The difference between us boils down to this: should that requirement be in the Bill or in the codes of practice? He has drawn attention to codes of practice, which are clear. He might also want to take a look at the operational case for bulk powers, paragraph 6.13 of which gives examples of operational purposes. They might include counter-terrorism operations to detect and disrupt threats to the UK, counter-terrorism operations to detect and disrupt threats overseas, cyber-defence operations, serious crime, security of agencies’ and allies’ operational capability, or security assurance to provide security awareness to the Government, members of the armed forces, Departments and so on. Therefore, there is more detail about what the purposes might be and why these powers are necessary. The hon. and learned Gentleman is right to say that there is more coverage of that in the draft codes of practice, so the discussion we are having is not about the spirit—I think he is right about that, as I said—but about where the details should be specified.

--- Later in debate ---

[Keir Starmer]

I listened carefully to what the Minister said. In the end, this comes back to a debate we have touched on a number of times in this Committee. I hope we have been clear and consistent in the view that safeguards should be set out in the Bill. The code of practice is the proper place for the detailed implementation and guidance on those safeguards. Therefore, for the same reason as in our previous debate, I wish to press the amendment to a vote.

[Mr Hayes]

Before the hon. and learned Gentleman does so, I might be able to dissuade him. I am not against what he said as a principle. Of course, it has to be gauged on a part-by-part basis, but the principle he has just outlined seems pretty persuasive to me. I will talk about it with my colleagues and my officials. He makes an interesting distinction between safeguards and other technical matters of the kind Anderson describes, and I am not unpersuaded by that.

[Keir Starmer]

I am grateful for that intervention, which was persuasive. Rather than pressing the amendment to a vote that I am not confident we would carry, I would rather continue dialogue that may lead to a changed approach, in whatever form, to how safeguards are dealt with in the Bill and the codes. I will say no more than that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

I beg to move amendment 661, in clause 122, page 98, line 44, at end insert—

‘(4) Material obtained via a warrant under this Part may only be shared with overseas authorities in accordance with the terms of an information sharing treaty”.

I am sure it will be to the relief of many Committee members if I indicate that I anticipate that we will now move at greater speed, because each of the bulk powers sits within a framework of safeguards that is similar throughout the Bill. The amendment deals with warrants affecting overseas operators. We have rehearsed the arguments either way on more than one occasion, so I do not intend to repeat them.

[Mr Hayes]

The hon. and learned Gentleman’s brevity is matched by the Minister’s determination to move with alacrity. I, too, have made my arguments known so, like him, I have no wish to repeat them.

--- Later in debate ---

[Keir Starmer]

The amendments are in a familiar form as they are the same as the amendments I have tabled for all the clauses that deal with the approval of warrants by judicial commissioners. The arguments are the same so I shall not rehearse them, save to say that we are moving to a different kind of warrant—a bulk warrant—and where the power is now avowed and the safeguards are being put in place, it is particularly important that the judicial commissioners’ scrutiny is tight. The amendments would provide that tight scrutiny.

Nevertheless, I am not going to persuade anybody who is yet unpersuaded by repeating the arguments. They are essentially the same and they have been consistent throughout the Bill. If there is to be any change on the judicial test, it needs to be consistent throughout the Bill, one way or another.

[Mr Hayes]

We have had this debate before. It is essentially about the authorisation process, the role of the judicial commissioner and the basis on which the judicial commissioner exercises judgment. Should we make further progress on reaching a synthesis on that matter, it will apply across the Bill, as the hon. and learned Gentleman has said. On that basis, I have nothing more to add.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

I will not take time with this amendment. We have been round the block with durational warrants on more than one occasion. It is the same issue of whether the warrants should run for six months or a shorter period. I have made my position clear, as, in fairness, have the Government. I do not intend to press the amendment to a vote.

[Mr Hayes]

I have nothing to add to what the hon. and learned Gentleman has said; I think we have been round the block and the arguments are well rehearsed.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

Modification of warrants

[Mr Hayes]

I beg to move amendment 610, in clause 128, page 101, line 24, after “requires” insert “(to the extent that it did so previously)”.

This amendment makes a minor drafting clarification (to address the case where, before its modification by virtue of clause 128(2)(b), a bulk interception warrant authorised or required only one of the activities mentioned in that provision).

This is a technical amendment; it is self-explanatory. Obviously, if any colleague wants me to explain it, I will, but I think that for the sake of brevity I will leave it at that.

Amendment 610 agreed to.

[Keir Starmer]

I beg to move amendment 667, in clause 128, page 101, line 39, at end insert—

“(c) may only be made if the Secretary of State considers that it is proportionate to the operational purposes specified in the warrant.”

--- Later in debate ---

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Mr Hayes]

I beg to move amendment 611, in clause 128, page 102, line 16, leave out “(urgent cases)”.

This amendment is consequential on amendment 612.

[The Chair]

With this it will be convenient to discuss the Government amendments 612, 617, 618, 622 and 623.

[Mr Hayes]

The amendments relate to major modifications to bulk interception, acquisition and equipment interference warrants, to add or vary operational purposes. In essence, they provide clarity, enabling an instrument making a major modification to a bulk warrant to be signed by a senior official where it is not reasonably practicable for the Secretary of State to sign it. For example, the Secretary of State might be out of the country, working elsewhere or otherwise unavailable. Such a modification, however, must be personally and expressly authorised by the Secretary of State before the senior official may sign the instrument. We are talking about a practicality, rather than a difference of emphasis or authority. The amendment replicates accepted and understood language used in the Regulation of Investigatory Powers Act 2000. Hon. Members will understand that there may be occasions when the Secretary of State cannot actually sign the warrant and will delegate that to a senior official.

[Keir Starmer]

I do not stand in the way of the amendment, which I fully understand. To be clear, I think that the Minister said that the provision only applies when the Secretary of State has authorised the modification, but for whatever reason cannot actually sign it—being out of the country is an obvious example. Since the modification clauses may receive further attention, this may be dealt with anyway, but in the amendment I cannot see the provision that makes it clear that the Secretary of State will have authorised it, but that is probably my shortcoming rather than anything else. I understand the scheme and how it is supposed to work.

[Mr Hayes]

The principle remains the same—that the authorisation does not change. This is about the practicality of the signing of the warrant.

[Keir Starmer]

I am grateful. It is simply because I think we are in the territory where a senior official can make the modification, and therefore—

[Mr Hayes]

No. If the hon. and learned Gentleman looks at subsection (4)(a)—

“A major modification…must be made by the Secretary of State”—

he will see that the authority still rests with the Secretary of State.

--- Later in debate ---

[Keir Starmer]

These amendments deal with the implementation of warrants. The implementation scheme is similar to that for other warrants. The amendments, as with previous similar amendments, have been tabled to restrict the arrangements because of concerns raised by those who may be required to assist in the implementation of warrants. As the Committee will have observed, the amendments are of same type and species as those previously discussed in relation to implementation of warrants and, again, I will not repeat the arguments about them.

[Mr Hayes]

The Bill maintains the existing position in relation to extraterritorial jurisdiction and the obligations that apply to overseas companies. I have said before and I happily repeat that it is right that companies providing communications services to customers in the UK should comply with UK law. That remains our position. On that basis, I resist the amendments and invite their withdrawal.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

Safeguards relating to examination of material

[Mr Hayes]

I beg to move amendment 613, in clause 134, page 106, line 31, leave out “any selection” and insert “the selection of any”

This amendment makes a minor drafting correction.

This is a minor drafting correction to the clause. It is self-explanatory.

Amendment 613 agreed to.

Question put, That the clause, as amended, stand part of the Bill.

Investigatory Powers Bill (Ninth sitting)

John Hayes Excerpts

Committee Debate: 9th sitting: House of Commons
Thursday 21st April 2016 Public Bill Committees

[Keir Starmer (Holborn and St Pancras) (Lab)]

It is a pleasure to continue to serve under your chairmanship, Mr Owen. I echo your sentiments in relation to Her Majesty the Queen. [Hon. Members: “Hear, hear!”]

I have little to add to the hon. and learned Lady’s comments in support of the amendments, other then to outline why they were tabled. Clause 91(1) sets out the power to issue warrants, and paragraphs (a) and (b) outline the familiar necessity and proportionality tests, which bite on the very wide provisions of subsection (5). The Secretary of State therefore has to consider whether issuing a warrant is necessary for one of those broad purposes—

“national security…preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom”.

That is obviously a broad necessity test, and proportionality is assessed by reference to the same grounds. The provision is over-broad, which matters because the double lock works only if a judicial commissioner has scrutiny of the Secretary of State’s decision. If the Secretary of State’s decision is so wide, the judicial commissioner’s scrutiny will be correspondingly wide. That matters particularly in relation to the targeted examination warrants, which will be used where a wider bulk power has been exercised in the first place. The amendments would tighten the necessity and proportionality tests, giving them real practicality and effect.

[The Minister for Security (Mr John Hayes)]

It is a pleasure to serve under your chairmanship once again, Mr Owen, particularly on the auspicious occasion of Her Majesty’s birthday. The Solicitor General and I are members of a diminishing group who still hold to the spirit, and perhaps even the actuality, of the divine right of kings.

Chivalry forbids me from paying but scant attention to the fact that the hon. and learned Member for Edinburgh South West spoke to amendments not in this group. I will not spend too much time responding to what she said, but I might be able to respond to her a little when we come to the next group.

[Joanna Cherry]

I realised that I had done that inadvertently, for which I apologise. I will not add insult to injury by repeating my submission when we get to the next group. I look forward to hearing what the Minister has to say.

[The Chair]

There will be a lot of that today, because we have addressed many of these issues in greater detail previously and we will be moving on. Hopefully that will help, rather than hinder, proceedings.

[Mr Hayes]

That brings me to the amendments before the Committee. It is important at the outset to re-emphasise that these powers are essential to protect against cyber-attacks by serious criminals and hostile states, and it is because GCHQ and others have such powers that our data and cyber-security is safer. That is not merely my estimation; it is the estimation of a number of major businesses that are susceptible to such attacks. In the past two years, the security and intelligence agencies have disclosed vulnerabilities in every major mobile and desktop platform, including in some of the biggest businesses and organisations in this country.

It is sometimes said that although crime is declining, it is also changing—I think that has been said by right hon. and hon. Members in all parts of the House. That is certainly true, and the additional vulnerabilities as a result of technological change are something that Government must be conscious of and respond to with appropriate flexibility.

--- Later in debate ---

[Joanna Cherry]

The Minister is generous in giving way. I fully accept his good faith in saying that that is not the intention or purpose, but he cannot bind future Governments. In saying that it is not the intention or purpose, he clearly recognises that there is a weakness and that the provision could be interpreted in the way that has been suggested. That is our concern: we are putting on the statute book a measure that might be exploited by a less scrupulous Government.

[Mr Hayes]

I am happy to draw to the attention of any future Investigatory Powers Commissioner the fact that that is not the case and will not be under the Bill. Of course the hon. and learned Lady is right: whether this is a good or a bad thing I leave it to others to judge, but I cannot bind future Governments. However, we can certainly consider and reconsider ways in which the message can be reinforced during the passage of the Bill. I do not want to go too much further, but I think that the signal I am sending will have been seen by people on this Committee and elsewhere.

[Keir Starmer]

I am grateful to the Minister for putting that on the record, because there is concern. If the intention or purpose is not as has been suggested, will he give consideration to how that fact can find form in the Bill and be clear for all to see, just as the record will be clear?

--- Later in debate ---

[Mr Hayes]

Yes. It would absolutely not be permitted under the Bill. I do not want to go over it exhaustively, but that reinforces a series of pieces of legislation that deal with the question, many of which have been passed since the talisman case of the Shrewsbury 24, which has been raised in the House a number of times in different ways. However, I take the hon. and learned Gentleman’s point that there is a compelling case to be made for further consideration and assure him that we are engaged in that. I will not say more at this stage, but a signal has been broadcast to this Committee and elsewhere. My prejudices on these matters as a trade unionist are well known, although it is not my prejudices that shape legislation—heaven forbid.

To return to the amendment, it would restrict equipment interference warrants under clause 91 in circumstances

“where there is reasonable suspicion that a serious criminal offence has been or is likely to be committed”.

Again, I do not want to go over this exhaustively, but the problem with that is the character of investigations, which are by their nature dynamic; it is not always possible to anticipate the direction they might take or the material they might uncover. Not every individual involved in an investigation would themselves be suspected of committing a serious criminal offence, but their relationship with wider associates and potential facilitators of a crime might be crucial to identifying the extent of the organised crime gang and its international links and bringing the ringleaders to justice.

Restricting equipment interference warrants to where there is a serious criminal offence would be a significant reduction in the security and intelligence agencies’ current powers. I repeat: current powers. They are not new. We know how they are used and the effect of their use, but the amendment would restrict their ability to protect the national interest. Do not forget—not that you would, Mr Owen—the necessity and proportionality tests in the Bill that limit the circumstances in which the powers can be used, alongside the double lock.

My straightforward case is this: the powers are vital, to curtail them would damage our interests, and they are not here for any of the unintended consequences that people are understandably concerned about. I am prepared to look at how we can reinforce that. I invite the hon. and learned Lady to withdraw the amendment.

[Joanna Cherry]

Before I make my position on the amendments clear, it was remiss of me not to add the sincere good wishes of the Scottish National party to Her Majesty the Queen on the auspicious occasion of her 90th birthday.

When we looked at similar issues under part 2, we did not push the matter to a vote, and that is the course of action I wish to follow at this stage. I will withdraw the amendment now, but no doubt the whole issue of judicial warrantry will be revisited on the Floor of the House. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Keir Starmer]

One of the advantages of us all—me included—straying beyond the strict limits of the previous set of amendments is that there is nothing I can meaningfully or helpfully add on amendment 465, which would tighten the necessity and proportionality test for the reasons already articulated. I will say no more other than to indicate that I do not intend to press the amendment to a vote.

[Mr Hayes]

As the hon. and learned Gentleman says, we have covered the ground pretty exhaustively. Essentially, the amendments would change the language of the safeguard, requiring that alternatives must either be tried or be discounted because they were “bound to fail”. In the end, “bound to fail” is clearly too high a hurdle. Investigating agencies would have to waste time and resources, and interfere unnecessarily with people’s equipment trying out alternative ways to gather intelligence that they thought were likely to be successful and not bound to fail.

The amendments would require that in deciding to issue an order the Secretary of State or law enforcement chief must take into account the technical cyber risk assessment by the Investigatory Powers Commissioner. Given GCHQ’s track record of dealing with cyber-vulnerabilities of the kind that I described earlier—I will not go into further detail about that—and given that the code of practice requires that

“Any application for an equipment interference warrant should contain an assessment of any risk to the security or integrity of systems or networks that the proposed activity may involve including the steps taken to appropriately minimise such risk”,

and that

“The issuing authority should consider any such assessment when considering whether the proposed activity is proportionate”,

I believe that these amendments are unnecessary. Accordingly, I invite the hon. and leaned Gentleman to withdraw them.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Joanna Cherry]

I beg to move amendment 408, in clause 91, page 70, line 25, at end insert—

‘(10) Targeted equipment interference is only lawful if authorised under this Act.”

The amendment would require that targeted equipment interference cease to be conducted under the Intelligence Services Act 1994, the Police Act 1997 or indeed any other prior legislation, and instead be conducted under the provisions of the Bill. The Bill is a consolidated piece of legislation, and we tabled this amendment in the spirit of the Government’s laudable attempt to consolidate the legislation in this area. The amendment would ensure that equipment interference always benefits from the safeguards and oversight in the Bill. As we just set out, the Opposition parties want the safeguards to go further, but even if they remain as they are we would like them to apply to all targeted equipment interference. That would improve public accountability and clarify the state’s powers.

The Intelligence and Security Committee’s report on the draft Bill expressed concern about the fact that agencies conduct several forms of equipment interference that are not provided for in the Bill, so it is not just Opposition Members who are concerned. The ISC said that

“certain IT operations will require a different standard of authorisation…than Computer Network Exploitation and that similar activities undertaken by the Agencies will be authorised under different pieces of legislation.”

It concluded that, if that remains the case, the Bill will have failed to achieve transparency; operations will remain secret and thus not be subject to clear safeguards. It recommended that

“all IT operations are brought under the provisions of the new legislation…with the same authorisation process and the same safeguards.”

The amendment reflects the Intelligence and Security Committee’s recommendation that all types of equipment interference should be governed under one clear piece of legislation. I will be grateful if the Government take it on board in the spirit in which it is intended.

[Mr Hayes]

I will deal with this very briefly. The hon. and learned Lady is right that the amendment is neither invidious nor unhelpful; however, it is unnecessary because there is already a broad prohibition of unlawful interference with equipment in the Computer Misuse Act 1990. That means that any activity that fits within the definition of equipment interference provided in the Bill may constitute an offence unless it is lawfully authorised under part 6 of the Bill, where that authorisation is detailed, or under other relevant legislation.

On the hon. and learned Lady’s point about activities outside the United Kingdom—a prevailing theme of her concerns, understandably—the Bill sets out the circumstances in which it is mandatory for the agencies to obtain a warrant. That does not include cases in which the conduct takes place wholly overseas. The reality of operating outside our jurisdiction, as she knows, is quite different from operations conducted within or from the British islands. It is not our intention to introduce clauses that inhibit the agencies’ ability to act with agility or flexibility. I think that the amendment certainly does not assist in that regard, and is unnecessary. I hope she will withdraw it on that basis.

[Joanna Cherry]

Like the ISC, I am not wholly convinced by the Minister’s argument, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

Clause 93 is similar in many respects to clause 91, but obviously relates to the Chief of Defence Intelligence and is therefore shorter. It follows that the concerns that have been expressed by the Labour party, which I suspect the Scottish National party share, apply equally to the relevant parts of clause 93. I make that clear for the record, but it will not assist anyone to repeat them under the guise of clause 93.

[Mr Hayes]

I have nothing to add to what I said on clause 91.

Question put and agreed to.

Clause 93 accordingly ordered to stand part of the Bill.

Clause 94

Members of Parliament etc.

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to consider new clause 11—Confidential and privileged material—

‘(1) Where any conduct under this Part will cover or is likely to cover special procedure material, or relates to individuals handling special procedure material, the application must contain—

(a) a statement that the conduct will cover or is likely to cover special procedure material, or relates to individuals handling special procedure material, and

(b) an assessment of how likely it is that the material is likely to cover special procedure material.

(2) Where any conduct under this Part is likely to cover excluded procedure material, or relates to individuals handling excluded procedure material, the application must contain—

(a) a statement that the conduct will cover or is likely to cover excluded procedure material, or relates to individuals handling excluded procedure material, and

(b) an assessment of how likely it is that the material is likely to cover excluded procedure material.

(3) Where a warrant issued under this Part will cover or is likely to cover special procedure material, or relates to individuals handling special procedure material, the procedure set out at section 5 below must be followed.

(4) Where a warrant issued under this Part will cover or is likely to cover excluded procedure material, or relates to individuals handling excluded procedure material, the procedure set out at section 6 below must be followed.

(5) Further to the requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant if—

(a) there are reasonable grounds for believing that an indictable offence has been committed, and

(b) there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence at (a), and

(c) other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and

(d) it is in the public interest having regard to—

(i) the public interest in the protection of privacy and the integrity of personal data, and

(ii) the public interest in the integrity of communications systems and computer networks, and

(iii) the democratic importance of freedom of expression under article 10 ECHR to grant the warrant; or

(iv) the democratic interest in the confidentiality of correspondence with members of a relevant legislature; or

(v) the importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege.

(6) Further to the requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant in accordance with provisions made in Schedule 1 of the Police and Criminal Evidence Act and Schedule 5 of the Terrorism Act.

(7) An application for a warrant under this Part must not be granted where the information could be sought using a warrant under schedule 1 PACE, unless seeking this information under PACE would defeat the purpose of the investigation.

(8) Special procedure material means—

(a) special material as defined in section 14 of the Police and Criminal Evidence Act 1984;

(b) correspondence sent by or intended for a member of the relevant legislature.

(9) Excluded material procedure has the same meaning as in section 11 of the Police and Criminal Evidence Act 1984.

(10) A warrant under this Part may not authorise any conduct undertaken for the purpose of accessing any material relating to matters subject to legal privilege.

(11) For the purposes of subsection (10), “legal privilege” means—

(a) communications between a professional legal adviser and their client or any person representing their client made in connection with the giving of legal advice to the client;

(b) communications between a professional legal adviser and their client or any person representing their client and any other person with or in contemplation of legal proceedings or for the purposes of such proceedings;

(c) items enclosed with or referred to in such communications and made—

(i) in connection with the giving of legal advice, or

(ii) in connection with the contemplation of legal proceedings or for the purposes of such proceedings;

(d) communications made with the intention of furthering a criminal purpose are not subject to legal privilege.

(12) Where the purpose of the warrant is to conduct interference to obtain material that would normally be subject to legal privilege but that falls within subsection (11)(d), the interference and examination conduct authorised must relate—

(a) to the offence as specified under subsection (5)(a), or

(b) to some other indictable offence which is connected with or similar to the offence as specified under subsection (5)(a).”

[Keir Starmer]

I want to make some observations about this clause. I know that the Minister is looking at the way Members of Parliament are dealt with, but I want to put on the record what I see as the major limitations. The clause is intended to be additional protection when the purpose of a warrant for equipment interference is to obtain a communication sent by or intended for a member of a relevant legislature—so all our communication.

The first concern is that a warrant for equipment interference permits the obtaining of communications equipment data and other information, so the first observation about the clause is that there is no special provision for a warrant to interfere with an MP’s laptop to get secondary data or any other information. That applies to all of us. If a warrant were issued that touched on my equipment, as long as it dealt with equipment data and other information, there would be no need to consult the Prime Minister. I am not sure whether colleagues have appreciated that they could effectively be hacked without additional safeguard.

The second concern is that the added safeguard is when the purpose of the warrant is to obtain a communication. That is because communications are especially protected, but I remind colleagues that secondary data and equipment data may include the details of who has contacted whom, so if someone contacts an MP, the fact that they made that contact and who did so would not be protected. Here, the purpose is just to get a communication.

If the purpose was to achieve some other objective, but it was inevitable that communications between an MP and a constituent would be affected, clause 94 would not apply. I just wonder whether that needs a little further consideration because the protection for MPs’ communications ought to cover deliberate attempts to intercept a communication and also when it is likely to happen although the purpose is perhaps to intercept the communication of someone else. Those are real issues that I want to put on the record.

The other issue, which may be straightforward, is that clause 94 comes after the two powers we have seen in clauses 91 and 93, which deal with the Secretary of State’s warrants. It makes sense in that context, because it is the Secretary of State who consults the Prime Minister before acting. We will come on to equipment interference warrants that can be authorised by law enforcement officers. Those warrants will not go through the Secretary of State. It may be that clause 94 applies equally to those, and I suspect that it is intended to, because otherwise there would be another type of warrant that could touch on an MP’s unprotected correspondence; I cannot see that that is the intention.

If there is an easy an answer to this, I am happy to sit down and be corrected, but it seems that there are a number of ways in which the clause could be toughened up to achieve its desired objective.

[Mr Hayes]

The hon. and learned Gentleman does a service to the Committee by raising this, because it is a matter of continuing discussion. I think the Committee recognises that there are particular groups of people—lawyers, journalists, Members—who, because of the character, particularity and importance of the work that they do, need to be dealt with in an appropriate and sensitive way. We are talking not only about those people but about the people who are in contact with them. In a journalist’s case it would be sources; in a Member’s case it would be constituents and others. He is right, too, to suggest that we need to ensure that we have a consistent approach across the Bill.

It is true that there is a level of intrusion associated with content that is not shared in other areas. Equipment data are less intrusive than content, and we have already considered why they are necessarily subject to less stringent safeguards. Nevertheless, I think that the hon. and learned Gentleman is right that close examination of consistency in the Bill, in terms of how we deal with Members, is important. To that end, I hear what he says and will look at this again.

The conversation on this, in the Committee and more widely, needs to take full account of the proper assumption on the part of those who contact their Member of Parliament that any material they provide will be handled with appropriate confidentiality and sensitivity. The hon. and learned Gentleman makes that point well. It is a point that I have heard and will consider further.

[Keir Starmer]

I intervene to make sure that I have been clear enough on the second point, which is when law enforcement officers are issuing targeted equipment interference warrants. On my reading, the safeguard is the judicial commissioner, which is understandable. Clause 94 makes it clear that:

“Before deciding whether to issue the warrant, the Secretary of State must consult the Prime Minister.”

It is the consultation of the Prime Minister that is the added safeguard; I understand that. The problem with a clause 96 warrant is that it is not required to go to the Secretary of State. In other words, it goes from the law enforcement officer to the judicial commissioner, not via the Secretary of State.

One reading of clause 94 may be that it applies only to a clause 91 or clause 93 warrant. If that is right, there is no provision for consulting the Prime Minister if a clause 96 warrant is intended to obtain the communications of a Member of Parliament. There may be a simple explanation, but on the face of it that is a warrant that does not go via the Secretary of State, so clause 94 cannot operate in its intended way.

[Mr Hayes]

One of the most important things about the function of a Committee such as this is that we deal with minutiae, and rightly so. A bonus for this Committee is that, as its members know, I never feel entirely constrained by my notes. To that end, I want to emphasise that the Wilson doctrine of course applies to warrants issued by the Secretary of State. The hon. and learned Gentleman may well come back to me and say that greater clarity about the application of the Wilson doctrine in relation to the Bill is an important part of his argument, so for the record, and to make progress, I repeat that these are matters of ongoing consideration. I want to make absolutely sure that we get consistency, because the important thing about delivering certainty—I have argued throughout our proceedings that the Bill is about clarity and certainty—is that it is underpinned by consistency. In terms of the Wilson doctrine and the role of the Prime Minister in all these matters, I want to be absolutely confident that the measure can be and is applied to all the provisions we are considering.

Question put and agreed to.

Clause 94 accordingly ordered to stand part of the Bill.

Clause 95

Decision to issue warrants under sections 91 to 93 to be taken personally by Ministers

Amendment made: 257, in clause 95, page 72, line 33, leave out “the Scottish Ministers have” and insert

“a member of the Scottish Government has”.—(Mr John Hayes.)

Clause 95(2) provides that a decision to issue a warrant under Clause 92 must be taken personally by a member of the Scottish Government. This amendment corrects Clause 95(5)(b) so that it also refers to a member of the Scottish Government.

Clause 95, as amended, ordered to stand part of the Bill.

Clause 96

Power to issue warrants to law enforcement officers

[Keir Starmer]

I beg to move amendment 419, in clause 96, page 72, line 36, leave out

“law enforcement chief described in Part 1 or 2 of the table in Schedule 6”

and insert “Judicial Commissioner”.

--- Later in debate ---

[The Chair]

To help the Minister, we have already dealt with amendment 435.

[Mr Hayes]

Thank you, Mr Owen. A number of points have been raised. Clearly, law enforcement agencies use equipment interference to stop serious crime, but it is important to add that they also use it to help people at risk of serious harm. That might include locating missing people or helping vulnerable children; there is a whole range of preventive measures that anticipate harm. The Bill brings into a single place the powers that are already used in those ways; there are no additional powers here.

It is also important to point out that these matters were looked at, as were all matters, during the extensive scrutiny that the Bill enjoyed before it came to the Committee. None of the reports of the three Committees of the House, for example, recommended changing the current arrangements for the way in which these kinds of warrants are authorised and used. We have modelled the arrangements in the Bill on the current system under the Police Act 1997, which authorises property interference. That is how this activity is currently dealt with.

[Joanna Cherry]

I hear what the Minister is saying, but does he not accept the force of the argument that it is anomalous that the security services at least have to go to the Secretary of State, whereas law enforcement chiefs will be able to issue such warrants themselves?

[Mr Hayes]

I was coming to that argument, which was also made by the hon. and learned Member for Holborn and St Pancras. I simply say that the character of the warrants we are speaking about, which law enforcement chiefs apply for, is central to much of what happens now in the investigatory process. It is based on those chiefs’ special understanding of such investigations. They are clearly answerable for the effective policing of their area, and they certainly have the experience and expertise to make the right decisions on what equipment interference is necessary in an investigation of a serious crime. The status quo suggests that the system works and the powers that we are describing have real value in dealing with crime and in anticipating the other kinds of harm that I have described.

In drawing up a Bill, as I have argued previously, one looks to cement existing powers, but of course one also scrutinises what is not working. If we had thought that the current system was not working, we would certainly have looked to change it. The Bill is consistent with other powers in the 1997 Act, as I have described, such as property interference. It would arguably be anomalous to separate what the police do in respect of property from what they do in respect of technology. It might well, in the hon. and learned Lady’s eyes, deal with one anomaly only to create another.

[Joanna Cherry]

rose—

[Mr Hayes]

The hon. and learned Lady is no doubt about to lecture me on anomalies.

[Joanna Cherry]

Does the Minister agree that there is another anomaly? To search someone’s house, north and south of the border, one has to have a warrant issued by a judge. The clause will allow people to hack into equipment, with all the information that it contains in this modern world, without a judge-issued warrant.

--- Later in debate ---

[Mr Hayes]

The hon. and learned Lady is right that these things need to be consistent, as I said in the previous discussion, but we have been arguing in favour of the double-lock throughout this consideration. I am not sure it would be sensible for us to use the Bill to change existing legislation that is doing its job. That was not the view of law enforcement itself; of David Anderson, when he looked at these matters; or of the Joint Committee when it considered them. It would be curious—I put it no more strongly than that—if we were suddenly to focus on this and make a considerable change to existing practice.

The use of covert human intelligence sources under the Regulation of Investigatory Powers Act 2000 is also well established. The current practice is subject to the chief surveillance commissioner, who has publicly affirmed that law enforcement chiefs apply themselves with due care and attention to ensure they are compliant with the law and acting in good faith. Not only has the scrutiny of the Committees I have described not made the point that the hon. and learned Lady makes, but it seems that my defence of the status quo is supported by the evidence of the commissioner.

Equipment interference warrants must be approved by the judicial commissioner, so the hon. and learned Lady’s argument that a judge deals with the search of a property, and my argument that a judicial commissioner will approve the kinds of warrant we are debating now, seem to be equivalent. Perhaps she thinks a judicial commissioner is not the best person to do that.

[Joanna Cherry]

The position that has consistently been put forward by the Scottish National party is that the judicial commissioner should not be in a double-lock system. He or she should be looking from the outset at the merits of necessity and proportionality. That has been our consistent position in relation to all provisions related to warrantry in the Bill.

[Mr Hayes]

The hon. and learned Lady, with due respect, is shifting the ground. On the one hand, she says that she compares the arrangements for searching a house, the warrant for which is approved by a judge, with this system, on the grounds that there should be judicial involvement in both. On the other, when I said that there will be judicial involvement in both, she returned to the argument that the Secretary of State should be involved. I think she needs to know what she wants.

[Joanna Cherry]

With all due respect, I have been crystal clear about this from the beginning. “Judicial involvement” is a very loose term. Judicial involvement, in which the judge is bound by the rules of judicial review, is a considerably lesser involvement than if he or she is able to look at matters purely on their merits, as in a system of pure judicial warrantry, advocated by the Scottish National party.

[Mr Hayes]

There were many other opportunities to consider the judicial review point that the hon. and learned Lady makes. In fairness, she has been consistent in having doubts about whether those are the appropriate terms on which a judicial commissioner should consider these matters. There has been much discussion about that, including in some of the Committees that I referred to earlier. Regardless of the terms—you will not allow us to explore those in any great detail, Mr Owen, because they are not strictly pertinent to the clause or the amendment—the process whereby a law enforcement chief, supported by a judicial commissioner, obtains a warrant is, in my judgment, sufficient to guarantee proper practice. It is certainly in line with what we know currently works. I would have to be pretty convinced at this juncture to make such a radical change to the Bill, and frankly, I am not.

[Keir Starmer]

I am grateful to the Minister. I do not intend to vote against the clause, but I have a nagging concern, which I will try to articulate. A communication in the course of its transmission is highly protected—the Secretary of State must sign off a warrant. The Secretary of State individually considers those warrants and we know the numbers. That is an understandably high level of protection for a communication in the course of its transmission.

We are now talking about where equipment is interfered with to get a communication. It is true to say that if a communication is in the course of its transmission, an equipment interference warrant would not allow the protection in the first part of the Bill to be bypassed. That makes perfect sense. But my nagging concern, I suppose, is that it is the communication itself that ought to be protected; all that is protected at the moment is the fact that it is in the course of its transmission. I accept that that is the current regime and I am not challenging it, but that is my nagging concern.

[Mr Hayes]

The hon. and learned Gentleman has offered an interesting observation. My counter-observation—perhaps it is a little more than that; it is more of a considered assertion—is that the kind of investigation I have described needs to happen with speed, and certainly with expertise. I think we agree that that is supported by the evidence I have provided and the evidence that has been made available to the commissioner. There needs to be flexibility in the system, and I think that is provided for. He is right that there should also be a legal test and a legal check on that test, which we have also provided for in the Bill. My assertion is that the amendments would provide a single lock, but we are providing a double lock. What’s not to like? On that basis, I ask the hon. and learned Member for Edinburgh South West not to press her amendment.

[Joanna Cherry]

As the Minister will no doubt have gathered from the last few days in Committee, it is my opinion that there is a lot not to like in this Bill, but I am prepared to withdraw my amendment at this stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 96 ordered to stand part of the Bill.

Schedule 6 agreed to.

Clause 97

Approval of warrants by Judicial Commissioners

[Mr Hayes]

I beg to move amendment 258, in clause 97, page 75, line 4, leave out from “a” to “under” and insert

“decision to issue a warrant”.

This amendment, and amendments 259 to 262, each make a minor drafting change to take account of the fact that clause 97 may also apply in a case where a warrant has already been issued (see Clause 98).

[The Chair]

With this it will be convenient to discuss Government amendments 259 to 262.

[Mr Hayes]

These are fairly straightforward amendments. Like all the Government amendments so far considered, they are minor and technical. They do not serve to change the scope of the warrant approval process, but make clear that judicial commissioner approval will apply to all equipment interference warrants—in that sense, they are relevant to the debate we have just been having. They replace the phrase “warrant to be issued” in subsection (3) with “decision to issue a warrant”, to reflect more clearly that in urgent cases the warrant would already have been issued by the Secretary of State or a law enforcement chief.

Amendment 258 agreed to.

Amendments made: 259, in clause 97, page 75, line 6, leave out from “a” to “under” and insert

“decision to issue a warrant”.

See the note to amendment 258.

Amendment 260, in clause 97, page 75, line 8, leave out from “a” to “under” and insert

“decision to issue a warrant”.

See the note to amendment 258.

Amendment 261, in clause 97, page 75, line 10, leave out from “a” to “under” and insert

“decision to issue a warrant”.

See the note to amendment 258.

Amendment 262, in clause 97, page 75, line 12, leave out from “a” to “under” and insert

“decision to issue a warrant”.—(Mr John Hayes.)

See the note to amendment 258.

Question proposed, That the clause, as amended, stand part of the Bill.

[Keir Starmer]

We have been over the territory of the judicial test, and I do not intend to rehearse the arguments again, other than to say that in circumstances where an equipment interference warrant has been issued by a law enforcement chief—it has not gone through the Secretary of State—it is particularly important for the review by the judicial commissioner to be tight. All the arguments made earlier about the test are reinforced in cases that do not go to the level of the Secretary of State. Any arguments about deference are unpersuasive. There is a particularly powerful argument for tightening up the judicial test throughout the Bill, and I have raised that topic on a number of occasions. There is a particular need for that where a warrant has come about by a different route, without receiving the scrutiny that a warrant signed by the Secretary of State would have.

--- Later in debate ---

[Keir Starmer]

The clause deals with the duration of warrants, and amendment 635 deals with subsection (2), which is concerned with urgent equipment interference warrants that, because they are urgent, have not been through a judicial commissioner. Under the subsection, warrants cease to have effect at the end of five working days after the day on which they are issued. I have a number of observations on that. We touched on the urgent provision. Up until now in the Bill, the provision has been for urgent warrants to remain valid for three working days. For equipment interference, we leap to five. I would certainly like an explanation why. A warrant that allows interference with computers and laptops for obtaining communications and other information suddenly moves from three days to five—not just five days, but five working days. That means that on occasion it could be seven days, and with a bank holiday it could be eight days, so we are moving well beyond the realms of an urgent warrant.

This amendment is similar to one relating to other urgent provisions that aimed to bring the duration down to 24 hours. There is a real concern about urgent warrants and how long they last. Very strong justification is required for allowing an urgent warrant that has not gone through the double lock to continue for between five and eight days. If the Minister is not about to provide that, I hope he will accept the amendment.

[Mr Hayes]

Let me make a general point about something that has punctuated our discussions; it may to some degree satisfy the hon. and learned Gentleman. The codes of practice are, of course, vitally important. They have metamorphosed over time and continue to do so, partly as a result of the scrutiny the Bill went through before it came to the House. The codes of practice are extremely detailed in respect of interference, as he will know, and on page 21 they deal with the relationship between equipment interference and privacy:

“Equipment interference agencies must not intrude into privacy any more than is necessary to carry out their functions or enable others to do so.”

The process by which an equipment interference warrant is authorised, and the subsequent use of that warrant, are properly constrained by those necessary requirements around intrusion and privacy. Notwithstanding that general point, the purpose of the amendments is twofold. As the hon. and learned Gentleman said, the first deals with the time before the judicial commissioner examines an urgent warrant. The second deals with the length of a warrant per se. Let me, for the sake of excitement, deal with them in reverse order.

The length of time that the initial warrant pertains was not challenged by any of the Committees that looked at the Bill, and there has been no great clamour or call about it, not least because of an understanding that these investigations or cases, as I said in an earlier debate, are often complex and dynamic; as they change rapidly, they require powers to pertain and continue over time. I will deal fairly dismissively—I do not mean that with undue contumely—with the second part of this short discussion.

[Joanna Cherry]

The Joint Committee and the Intelligence and Security Committee did deal with interception warrants and recommended 24 hours and 48 hours respectively. Given that hacking is potentially more significant and intrusive, would it not be logical to have a similar reduction in relation to hacking?

[Mr Hayes]

I think the hon. and learned Lady is probably considering a different matter from the one I am talking about. I may have been insufficiently clear, so let me briefly make my case again. I am speaking about the second aspect of the amendments, which is to change the length of time for which a warrant lasts. She will know that, on that issue of duration, David Anderson argued that a serious crime warrant should be extended to last for six months rather than three months, bringing it into line with national security warrants. He explained that, when a warrant lasts only three months, it is often necessary to start preparing a renewal application without a full understanding of the impact of the original warrant. It is important to point out in that respect that equipment interference is not necessarily more intrusive than other techniques. The amendment is out of line with David Anderson’s view in that it seeks to curtail duration of a warrant.

That brings me to the first part. I think I may have confused the hon. and learned Lady by dealing with the points in reverse order, but I come now to the first part of what the amendments will do, which is the matter to which she refers—the five days or three. She will know that there was considerable discussion about that in the earlier stages of scrutiny in the Joint Committee.

--- Later in debate ---

[Mr Hayes]

Clause 102, on the duration of the equipment interference warrants, is the same as clause 28, on the duration of interception warrants. Urgent warrants must be approved by the judicial commissioner after three working days. The urgent warrant lasts for five working days, at which point it must be renewed or it will expire. My point is that is about practicality, rather than there being anything philosophical about it. It is purely an operational matter.

David Anderson, in his report, to which I drew attention and which am now struggling to find, although the Solicitor General is as ever at my service—[Interruption.] That comes as good news to him. In his report, David Anderson deals particularly with these matters on page 275, paragraph 14.69. Earlier I mentioned recommendation 37, that

“to the effect that serious crime warrants should have the same 6-month duration as national security warrants, responds to the recent comment of the IOCC that ‘there remains a strong practical case for increasing the validity period for serious crime warrants to six months’”.

That is the second of the two points that the hon. and learned Member for Edinburgh South West wanted me to address.

My view is that on duration we are in line with both sensible practice and the recommendations of the independent reviewer. On the time between the application and the engagement, we are simply dealing with practicalities.

[Keir Starmer]

I wish to help the Minister. One of the points I was making does not withstand scrutiny and I will not pursue it or press the amendment. I accept what is being said.

[Mr Hayes]

Good. On that basis I will stop.

[Joanna Cherry]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 102 ordered to stand part of the Bill.

Clause 103 ordered to stand part of the Bill.

Clause 104

Modification of warrants issued by the Secretary of State or Scottish Ministers

UK Citizens Returning From Fighting Daesh

John Hayes Excerpts

Tuesday 19th April 2016 Commons Chamber

[The Minister for Security (Mr John Hayes)]

I congratulate my hon. Friend the Member for Newark (Robert Jenrick) on securing an interesting and informative debate on a topic that has been unfairly overlooked during our discussions about the conflict in Syria and Iraq. As you might expect, Mr Speaker, I have a prepared speech, and I shall refer to it sporadically, but I want to tailor my remarks to the issues that have been raised in the debate. I sense the shivers that are going down the spines of Home Office officials as I utter those words.

My hon. Friend made an emphatic case for why we should broadcast clearly and powerfully that travelling abroad in uncertain circumstances such as those that he has described is extremely dangerous. There are three reasons for that. First, the cause that people go to support is often not what it is purported to be in the propaganda that has encouraged them to do so. Secondly, as my hon. Friend suggested, those people may well not return. They may be placed in extremely jeopardous situations, even if they are going abroad to offer help. They may not know that they are going to fight—to engage in conflict—but they will nevertheless be placing themselves in extreme danger, almost regardless of their original purpose. Thirdly, on their return they may well face prosecution and will certainly face arrest. Extra-territorial jurisdiction applies in many of the places to which they might travel—particularly, as in this case, Syria. It is entirely possible that they have committed crimes abroad that are subject to that jurisdiction, and can be tried in a court here in the United Kingdom. That is another fact that is not made known to them when they are recruited. So my hon. Friend is absolutely right to say that, first and foremost, we should send out the extremely clear message that if people travel to a dangerous place, they will put themselves in all kinds of jeopardy.

[Mr Jim Cunningham]

There is a history of people volunteering to go abroad in this way—for example, during the Spanish civil war and other wars since then. Do the Home Office and the Cabinet Office view such people technically as mercenaries?

[Mr Hayes]

As I have implied, these matters have to be gauged on a case-by-case basis, because people travel abroad for humanitarian reasons and all kinds of other reasons. In the first tranche of people travelling to Syria, many went with good intentions and to do good work. They went to help. The pattern of travel to Syria has changed over time, but I would certainly not want to make any general assumptions about why an individual went or what they did when they got there. However, it is almost universally true to say that they place themselves at considerable risk. If people want to offer humanitarian help, it is much better to do that in a more organised way than in a dilettante fashion. People can contribute in all sorts of ways to the humanitarian effort in which the Government are playing a powerful part without putting themselves at risk. There are things that they can do to help.

Part of the reason behind the advice that was offered by my hon. Friend in his impressive speech, and which I have amplified, is that some of the organisations that people might join—ostensibly for the good and noble purposes that he described—might themselves be proscribed. Some of the organisations fighting Daesh are themselves proscribed and might be engaged in activities that we neither endorse nor support. The picture is often more complicated than is portrayed when people are recruited.

Many of those people are recruited through the internet. It will not have missed your consideration, Mr Speaker—little does—that people communicate in all kinds of modern technological ways these days. Much of the propaganda that is now emanating from Daesh uses the most modern methods of communication. We often think of Daesh as brutally archaic, which is understandable given its means and its methods. Indeed, it is often suggested that it is an organisation from times past. However, its technological methodology is extremely up to date. It takes advantage of every kind of social media and it uses the internet regularly in a well-organised and sophisticated way. That is precisely why its message is seductive to its adherents and apologists here in the United Kingdom.

[Keith Vaz]

The Minister is absolutely right to suggest that we are dealing with a very sophisticated enemy. May I take him back to the point made by the hon. Member for Newark (Robert Jenrick) about border checks? We still do not have 100% border checks, because our passports are not viewed by immigration officers on departure. They are looked at, together with our boarding cards, by the travel agents, but we are not checked on departure. The hon. Gentleman is calling for better checks at the border, with our passports being looked at by immigration officers and swiped before departure. That does not happen at the moment.

[Mr Hayes]

The Chair of the Home Affairs Committee takes a keen interest in all such matters. What I will say to my hon. Friend the Member for Newark is that it seems that if people have notified the local police that they may go, which is what he said, and then no more has been done for the reasons that the right hon. Member for Leicester East (Keith Vaz) suggested, that does not seem satisfactory. It certainly seems reasonable that if people have notified the police that they are going to travel—although it is of course for the police to make a case-by-case judgment on an operational basis—we need at least to be confident that the police have the right guidance on what is appropriate. I am certainly happy to take that suggestion back to the Home Office and to see what more can be done, if anything, to ensure that the advice to different police forces around the country is consistent. As I say, these are, in the end, operational matters, and this has to be gauged on a case-by-case basis, but my hon. Friend the Member for Newark makes an important point none the less.

[Lady Hermon (North Down) (Ind)]

I am grateful to the Minister, who is being generous in taking interventions. Following his comment about briefing police forces around the country, I urge him to ensure that the Police Service of Northern Ireland is included. People can leave the UK on British passports, go out to help in Syria, become radicalised and then come back, perfectly lawfully, to Dublin or Shannon airports. The border between the Republic of Ireland and South Armagh is entirely porous, so British passport holders can re-enter the UK through Northern Ireland without any border checks.

[Mr Hayes]

The hon. Lady makes a reasonable case. There is a robust system in place for missing persons to be identified, for example, by the Turkish police on the Syrian border. We spend a great deal of time considering the issue of people returning from Syria, because some of them will subsequently be subjects of interest to our intelligence services and to law enforcement. However, the point that my hon. Friend the Member for Newark was making was that if someone has said to the police, “I’m going,” do different forces apply the same policy consistently? It is a reasonable point, which is why I have committed to considering it in more detail and to looking at the guidance.

[Jim Shannon]

Will the Minister give way?

[Mr Hayes]

I am anxious to make progress, but I will briefly give way to the hon. Gentleman.

[Jim Shannon]

This House took a majority decision to support bombing attacks in Syria and Iraq. Those who watched those debates would assume that the bombing would be in support of the 70,000 allied forces and supporters who were trying to fight Daesh on the ground. That was the whole purpose of the House’s decision. Anyone watching that debate who wanted to support the factions fighting Daesh would feel, when they spoke to the police, that this House was already fighting a war, and that they were doing nothing wrong. Does the Minister understand that that is the issue put forward by the hon. Member for Newark (Robert Jenrick)? There are two different groups: those who are fighting Daesh, and those who support Daesh.

[Mr Hayes]

I am saying to the hon. Gentleman that someone might think that they are going out for what might be the perfectly noble cause of fighting our common enemy, but there is always a great deal of uncertainty about what happens when they get there. Such people are by their nature often quite ignorant of what they will encounter and may become linked to, tied to, or involved in all kinds of organisations and groups, some of which are proscribed in this country and engage in all kinds of other activities as well as the battle against Daesh. This is a complicated issue and should not be presented as anything else, although I understand the hon. Gentleman’s sympathy.

[Rehman Chishti]

Will the Minister give way?

[Mr Hayes]

I will give way one more time, and then I really must make progress.

[Rehman Chishti]

The Minister will agree that both categories of individuals—those who go to fight Daesh and those who support Daesh—are of concern. Around 800 individuals are fighting with Daesh. Do the Government or the Minister have an estimate of the number of individuals out there fighting against Daesh? Both groups should be on our intelligence services’ radar.

--- Later in debate ---

[Mr Hayes]

We know roughly the number of people who have travelled to Syria, some of whom initially went for humanitarian reasons. Many have returned, but some have been killed. As both my hon. Friend the Member for Newark and the hon. Member for Strangford (Jim Shannon) said, all those who go also face the risk of being captured and used as hostages. The strong advice is, “Don’t go, because you don’t know what you are going to encounter. And you certainly don’t know what the consequences may be.” That is precisely the point my hon. Friend the Member for Newark made in his opening remarks, and it is an important signal to send out from this place.

I would not want to suggest that the Government are inactive in this respect, so let me deal with what we are doing. The work we are doing on providing humanitarian aid is well documented. We have pledged more than £2.3 billion in vital life-saving assistance to Syria, and this is our largest ever response to a single humanitarian crisis. We remain one of the largest donors to the Syrian crisis response internationally. Of course it is important also to emphasise that those engaged in terrorism blight lives, provide bogus legitimacy to the worst extremes of human behaviour and tear communities apart. This activity cannot ever be justified, and it will never be justified by this Government, wherever it takes place or whoever commits it. I also understand the desire to confront our enemies, but the struggle for what is right is not, and cannot be, left to individuals; it can be devised and delivered only through the proper exercise of Government authority.

The second point I wish to make is that we are, of course, part of a military response to the threat posed by Daesh; the UK is making a strong military contribution. RAF Typhoon, Tornado and Reaper aircraft have flown more than 2,000 combat missions, and about 1,000 UK personnel are supporting their operation in the wider region. Our aircraft also provide effective close air support to Iraqi and Kurdish forces taking the fight to Daesh on the ground, with recent successes coming in Ramadi and Sinjar. It is through the global coalition, to which we are making such a significant contribution, that we will defeat Daesh. Although it is understandable that individuals should want to add to that, their effort is better expended in supporting what we are trying to do as a nation to get this right, both militarily and in humanitarian terms.

This is also about challenging the propaganda that I have mentioned, as has the Chairman of the Home Affairs Committee. Challenging that, in communities up and down our nation, is a job for all of us. If people want to fight Daesh, they can do that on the streets of our capital city, London, and in cities and towns across this kingdom. All of us have a job to do in countering that poisonous narrative, which is delivered partly, but not only, through the internet. That is why the Government have invested so much in the Prevent programme and in our Channel programme, which deals specifically with people at risk of radicalisation.

We introduced a Prevent duty for a range of public bodies, including schools, prisons, local authorities and health services. This communal task of challenging the narrative is ongoing. It is highly dynamic, for the very reason that the threat we face is dynamic, and that requires us to redouble our efforts. I say to individuals who want to take on Daesh that there is a job to do in all those ways. For example, we take 1,800 pieces of terrorist propaganda down from the internet not every year or every month, but every week. That task is vital, as is supporting those community organisations and others that are putting forward the counter-narrative. These are important pieces of work, because the effect on individuals, particularly young people, who are corrupted by that poisonous narrative could not be more devastating.

Of course young people are targeted, because they are particularly vulnerable. They are susceptible to the kind of propaganda that I have described. It is important to know that last year alone, we referred 2,000 young people to our Channel programme, because they were vulnerable to that kind of radicalisation. In some cases, no further work was needed, but in others, intervention by social services was required. More than 200 such young people received support through that Channel programme.

At the end of last year, I saw at first hand, in Portsmouth, Hackney and elsewhere, the work that was done by our Prevent co-ordinators. I have met many of those who are on the frontline of this battle, and that is the frontline on which I want people to fight. I am talking about working in this country, taking on those who wish to corrupt our young people. This is no less than a safeguarding issue. The methods used by those who want to radicalise young people are not dissimilar to those of other kinds of exploitation. There is often a grooming process, which may take place face to face or online. It is often about picking on those young people who are particularly disadvantaged in some way. It is certainly about turning them from the cause of virtue to the cause of wickedness.

There should be no doubt that my hon. Friend the Member for Newark has done a service to this House by drawing our attention to the matters that we have debated briefly tonight. I end with this thought, which I hope he will broadcast to the people of Newark and elsewhere. If anyone should be in any doubt, let it be dispelled tonight: this Government and this Minister can outmatch our enemies in respect of our certainty, our determination and our commitment to winning this battle for the very heart and soul of all we are as a people.

Question put and agreed to.

Investigatory Powers Bill (Eighth sitting)

John Hayes Excerpts

Committee Debate: 8th sitting: House of Commons
Tuesday 19th April 2016 Public Bill Committees

[The Chair]

This will be a long session: five hours. If anyone is worried about comfort breaks, I do not have the constitution of Mr Speaker, so I will call one at around 4 o’clock or 4.15 pm. We are then expecting a vote on a programme motion at around 6 o’clock. That will, I hope, break it up nicely.

[The Minister for Security (Mr John Hayes)]

On a point of order, Madam Chairman. I mentioned at the outset this morning that I had written to you and intended to make copies of that correspondence available to Committee members. In the course of the proceedings, I heard the Solicitor General report that I had also written to journalists. Hard copies of all that correspondence are available at the front of the room for collection by members, and I understand that it has also been sent to members by email.

[The Chair]

Thank you very much.

Clauses 70 and 71 ordered to stand part of the Bill.

Clause 72

Lawfulness of conduct authorised by this Part

--- Later in debate ---

[Keir Starmer (Holborn and St Pancras) (Lab)]

There are matters relating to this clause on which I would like to press the Minister. This is the clause that provides for what is effectively the transfer of certain functions between the Secretary of State and other public authorities. The functions to be transferred are the functions in clauses 58 to 60, at which we looked in some detail last week: the filtering arrangements for obtaining data. As set out in clause 58, it is for the Secretary of State to maintain and operate arrangements. It is then for the relevant public authority, acting through a designated senior officer, to effectively carry out the exercise, using authorisations as and where necessary and appropriate. We discussed that arrangement.

Clause 74 provides for a transfer of functions of the Secretary of State—which I take to include establishing, maintaining and operating arrangements—from the Secretary of State to another public authority. That seems to me to cut through the thrust and the purpose of clause 58, which has a clear hierarchy to it: the Secretary of State, then the designated senior officer. Subsection (1)(b) is freestanding and transfers any function exercisable by a public authority back the other way to the Secretary of State, so there is a complete provision for a swap of roles. Subsection (3) indicates that:

“Regulations under subsection (2) do not affect the Secretary of State’s responsibility for the exercise of the functions concerned”.

Then schedule 5, in the back of the Bill, is referred to, but that does not add a great deal.

The question for the Minister is: how is it anticipated that these powers are to be exercised? On the face of it, this is an odd structure for a Bill to set out. This structure goes from the Secretary of State down to the relevant public authority, with the Secretary of State having a much wider role of setting up the arrangements, only for us to find, several clauses later, that it is possible to flip the functions and have the public authority making the arrangements. That seems to remove some of the formality and the safeguards intended by clause 58.

[Mr Hayes]

The hon. and learned Gentleman, with his typical diligence—which is at least matched, by the way, by those on the Treasury Bench—has identified, quite properly, both the reasons for this clause and the character of the transfer of arrangements that it details. He accurately identified subsection (3), which emphasises that:

“Regulations under subsection (2) do not affect the Secretary of State’s responsibility for the exercise of the functions concerned”.

The transfer of arrangements will change neither the Secretary of State’s responsibility nor the process for authorising requests for data. It is about the technical running of the filtering capability. It is there to require flexibility; it might be appropriate at some future point for another authority to exercise the filtering function, but without responsibility moving from the Secretary of State. The Secretary of State will retain responsibility, but the operational running of the filter might change over time. This is essentially about future proofing.

[Keir Starmer]

I am grateful to the Minister. I am not being pernickety; I just want to be clear. Subsection (3) appears to apply only to regulations under subsection (2), which I think is about changing the powers of public authorities lest they should not have the power to carry out functions on behalf of the Secretary of State. In other words, when the Secretary of State is modifying the powers available to a public authority, that comes within subsection (3). On reflection, I wonder whether sub-clause 3 should say “regulations under subsections (1) and (2) do not affect the Secretary of State’s responsibility”, because I think that is the thrust of what the Minister said.

[Mr Hayes]

That is not an unreasonable point, actually. Someone who read the Bill could certainly come to the same conclusion as the hon. and learned Gentleman. I will look at that from a drafting perspective, because it is important that we are clear. First, in all these matters, filtering arrangements take effect only as the result of a lawful process; the process for permission will not change. Secondly, that permission rests with the Secretary of State; I do not want there to be any ambiguity—as the hon. and learned Gentleman suggests there might be—about which parts of this clause that affects. On re-reading the clause, I can see what he means, so I am happy to take it away and check whether the drafting needs to be amended in the way that he describes. In that spirit, and with that immensely generous offer, I hope we can move on.

[Keir Starmer]

I am grateful.

Question put and agreed to.

Clause 74 accordingly ordered to stand part of the Bill.

Schedule 5 agreed to.

Clause 75 ordered to stand part of the Bill.

Clause 76

Extra-territorial application of Part 3

--- Later in debate ---

[Keir Starmer]

I am grateful to the hon. and learned Lady for her intervention. I am not pressing amendments 150 and 151. They have been put forward to draw attention to concerns. The hon. and learned Lady made submissions last week about service in relation to civil proceedings under the White Book, which I noted and could see the sense of. I do not want to push amendment 150 and accept that “unfeasible” and “inappropriate” may not be the best way to articulate the point.

What underlies both amendments is a genuine concern on the part of those who, when the Bill receives Royal Assent, will be called on to assist in relation to warrants and who want clarity on how the procedure is to operate, what they are to do and what the safeguards are, in particular when they find themselves, as we mentioned last week, required under penalty of criminal proceedings in this country to do something that constitutes an offence in the country in which they are operating. That is a very real concern for them.

[Mr Hayes]

I shall deal as pithily as is possible with the points the hon. and learned Gentleman made. The first was his helpful contribution in the form of this schematic, to which I will not respond now. He would not expect me to as I have only just seen it. It might form part of my next letter to the Committee to explain why in different parts of the Bill these matters are handled in different ways. In doing so, I will implicitly consider his point about whether that is healthy eclecticism or unhappy inconsistency.

Secondly, it is important to point out that clause 76 essentially maintains provisions on extraterritoriality as they are now, replicating the arrangements under RIPA, clarified by the Data Retention and Investigatory Powers Act 2014. The hon. and learned Gentleman is right, but there is nothing new here.

Thirdly, there is a need to retain flexibility about where the notices are served. I take the hon. and learned Gentleman’s point that companies may take a view on these things, and sometimes those might be overlapping or conflicting views about different aspects of the Bill, but in those terms it is important to maintain a degree of flexibility about the communications data notice and where it can be delivered.

Fourthly, on the hon. and learned Gentleman’s point about coming more speedily to an agreement that is more satisfactory than either current arrangements or those that might be delivered through a mutual legal assistance treaty, I can offer the Committee the assurance, as I have previously, that that work is under way. We are hopeful—indeed, confident—that we can achieve the sort of outcome that he has described. He referred, as I did, to the comments of David Anderson, which were critical of the mutual legal assistance treaty process on the grounds that it is slow. It is not always the best way of achieving the objective set out in the Bill, because it is not designed for that purpose but an entirely different one.

Finally, I would say that this is really important. Although the hon. and learned Gentleman is right that this is a particular part of a particular part of the Bill and so could be overlooked, it is important to understand that, in terms of the objectives we seek to achieve—that is, those of us who want the Bill to work well, which I think applies to the whole Committee—these powers are significant. Much of what happens is now happening overseas and much of the process by which we deal with overseas organisations is vital to the work of our security services and others. Dealing with extraterritorial matters is significant, but not straightforward. It is dynamic, for the reasons that we have both offered to the Committee. In that respect, I believe we have got the Bill about where it wants to be. I do not say that these things will not evolve over time, but for the purposes we have set out, the clause works.

As with all these things, I start from the perspective of wanting to be both convivial and conciliatory; both helpful and positive. I never ignore arguments put in these Committees or on the Floor of the House, as people know who know how I operate. The House has an important function in making government as good as it can be, and that is partly about the interaction and tension between Government and Opposition. Of course I am always prepared to listen, but I think we have got this right. With the appropriate humility, I suggest that we move on.

[Keir Starmer]

I indicated would not press the amendments at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Mr Hayes]

I will not make a case again for the clause, but I shall say this, in the spirit of helpfulness and kindness. It is really important that the Committee sends out a combined message to overseas communications service providers—on which the obligations will have an important effect because their commercial endeavours have a significant relationship with the powers we are trying to cement in the Bill—so that they have a very clear impression that we as a Committee of this Parliament are clear that we expect them to do their bit to do what is right. We should not, out of a sense of good will, allow ourselves to be misled and encouraged not to have high expectations or make serious demands of those organisations.

I simply say to the hon. and learned Lady that clause 76 is about giving a clear signal, as does clause 57, with which it should be read in tandem, that telecommunications operators should comply with the notice given, whether or not they are in this country. I accept that that is difficult and challenging—I made that point at the outset—but my goodness, it is vital that we take these steps. I know that she is open-minded and a woman of great good will, but we should not allow that to dilute in any way that common message to those big companies. I do not want those companies to get away with anything that that should not get away with.

[Joanna Cherry]

I am not so much concerned about the message we send out to the companies; I am more concerned about the message we send out internationally and potentially to authoritarian regimes. The difficulty is that if the British Government demand from these companies unqualified co-operation with British laws, that might encourage authoritarian Governments to do likewise. We clearly would not want that, so we need to be very careful about the messages we send out and think carefully about their full implications. That is why such matters should be approached by way of mutual legal agreement internationally, rather than the unilateral imposition of one Parliament’s will outwith the area where its sovereignty operates.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

It is a joke, Ms Dorries. We now come to a very important clause. In some respects, over the last part of Thursday and today we have been working backwards through the way in which the functions will be exercised, because clause 78 is the starting point in relation to communications data. It relates to the power to require retention of data in the first place, and everything we have discussed has been about how those data can be filtered and accessed after they have been retained. It is a very important clause.

I draw attention to the breadth of the clause, which states:

“The Secretary of State may by notice…require a telecommunications operator to retain relevant communications data if the Secretary of State considers that the requirement is necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (j) of section 53(7)”.

The first thing that crops up in relation to the clause is what the test for retention is. The test is, of course, necessity and proportionality but the real question is: what does that necessity and proportionality bite on? That pushes us straight back to clause 53(7), which is problematic because it sets such a low threshold for these extensive retention powers.

There should be no doubt that this provision gives the Secretary of State the power to require the retention of a huge amount of data. There may be circumstances in which that is necessary and proportionate, but the test for whether that power is exercised is pushed all the way back to clause 53(7). To take an example that we touched on last week, extensive data can be retained

“for the purpose of preventing or detecting crime”—

any crime. Any crime of any level can trigger a power to retain data. The importance of the issue of retention over that of access is that at this stage it is about retaining the data of those who are not necessarily suspects or targets but anybody whose data come within the types that are intended to be retained. It is a very wide provision.

Sign-off is by the Secretary of State, so there is no double lock and no reference to a judicial commissioner here. The Secretary of State operates the powers, which are very wide. Clause 78(2) states that

“a retention notice may…relate to a particular operator”;

it may

“require the retention of all data or any”;

it may

“identify…periods for which data is to be retained”;

it may “contain…restrictions” and

“make different provision for different purposes,”;

and it may “relate to data” that are not even in existence at the time. These are very wide-ranging powers triggered by the test set out in clause 53(7), and that is a cause of significant concern. The retention period is 12 months, so this is an extensive hoovering-up exercise.

It is clear that the clause applies to internet connection records, because that is stated in subsection (9). We touched on internet connection records last week in relation to when internet connection records are to be accessed. Now, I touch on it for a different purpose: to highlight how all our internet connection records can be swept up in a data retention notice issued under this provision.

For that purpose, one obviously starts with the definition of internet connection record in clause 54(6)(a) and (b), which we looked at last week. I will not read it out again but just give some examples of what is intended to be included. I will do so in chronological order. The operational case for the retention of internet connection records was published in August last year. Page 3 made it clear that internet connection records are:

“a record of the internet services that a specific device connects to—such as a website or instant messaging application—captured by the company providing access to the internet”.

So that is within the scope of an internet connection record, as set out in the operational case of August 2015. An annexe setting out terminology and definitions was put in evidence before the Joint Committee in January this year, which made it clear that not only web and IP addresses are included, but names and addresses, email addresses, phone numbers, billing data, customers, users, and so on. In the explanatory notes to the Bill, paragraph 2.30, on clause 78(9) makes it clear that,

“communications data that can be retained includes internet connection records. Internet connection records, which are defined in clause 54(6), are a record of the internet services that a specific device connects to—such as a website”

That is therefore consistent with the operational case.

What is swept up under clause 78 are internet connection records, which means connections to the internet and websites to which any device has connected. When anyone uses a device to connect to a website, that is recorded by the provider and comes within the definition. It therefore comes within the retention order. That is what the clause gives the Secretary of State power to retain.

It is fair to point out that clause 54(4), which deals with accessing the data that are retained, says that the access through an authorisation can be allowed only if the purpose is to identify: which person is using the internet, which internet service is being used, where the person or apparatus whose identity is already known is, and so on. It is true to say that on the point of access there is restriction of the way in which internet connection records are accessed, but we need to be absolutely clear that for the purpose of retention, it is a record of all websites visited or accessed by a device.

[Mr Hayes]

I do not doubt that my hon. and learned Friend the Solicitor General will deal with these points at some length, but is it not fair to say—the hon. and learned Gentleman is in the mood to be fair—that the two subsequent clauses both build a set of safeguards into the system and provide for a review of the system? There is further work in the Bill that caveats what might be taken to be the extremes of his argument.

[Keir Starmer]

I am grateful for that intervention, and I accept that there are safeguards in subsequent provisions. I will be corrected if I am wrong, but on the face of it at least—I am not saying they are incapable of a review—the safeguards do not restrict the definition of an internet connection record in a way that would prevent websites visited being swept up in the retention order.

[Mr Hayes]

Yes.

[Keir Starmer]

The message to my and all of our constituents is that, even if they are not a target, a record of the websites they have visited can be retained under a data retention order, and if retained will be retained for 12 months—every website they have visited. But if somebody later wants to access it, there is then a tighter test for that. The chilling effect of clause 78 is that the websites visited will be retained if a retention order is issued. We need to be absolutely clear about that. The tighter definition does not kick in until a later stage of the exercise, and that is a cause of real concern to our constituents, certainly to the people who have engaged with me on the topic, and to our fellows across both sides of the House.

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[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is a great pleasure to rise as part of this ongoing scrutiny, and to offer my hon. and learned Friend the Member for Edinburgh South West brief respite in this Committee. It is also a great pleasure to serve under your chairmanship, Ms Dorries. It is great to follow the hon. and learned Member for Holborn and St Pancras, who in his customary fastidious and engaging manner has covered in a short space of time all the aspects of many amendments. Some of that bears repeating, and I will speak to new clause 10, which is tabled in my name and that of my hon. and learned Friend the Member for Edinburgh South West.

My hon. and learned Friend spoke at length about the important role that the judiciary, in the form of judicial commissioners, should bring to this process. We do not think it is good enough that the Bill only proposes to use judicial commissioners to review the process used by the Secretary of State in making a decision. The Government may claim that it is important that the Home Secretary retains the power to issue retention notices to internet service providers, as it will ensure that democratic accountability is a salient feature of the process, but I do not accept that to be the case. In fact, I would argue that because of the political arena that any Home Secretary operates in, it is right that this power is handed to and delegated to an independent official such as a judicial commissioner.

It is also worth noting that we know very little of the various notices that the Home Secretary issues, and as such there is no possible opportunity to hold her to account for them. Building the role of judicial commissioners into this part of the process will help to ensure that we have appropriate checks and balances when it comes to the retention of communications data. This is vitally important, because it is the proper constitutional function of the independent judiciary to act as a check on the use of intrusive and coercive powers by state bodies, and to oversee the application of law to individuals and organisations. Liberty rightly points out that judges are professionally best equipped to apply the legal tests of necessity and proportionality to ensure that any surveillance is conducted lawfully.

I turn now to new clause 7. Schedule 4 provides a lengthy list of bodies that are able to access or retain data, including several Government Departments, such as the Department for Transport, and a range of regulatory bodies, such as the Food Standards Agency and the Gambling Commission. This suggests that access to communications data may be allowed for a range of purposes which may be disproportionate and inconsistent with the guidance offered by the European Court of Human Rights.

[Mr Hayes]

I draw the hon. Gentleman’s attention to clause 79, which we are not debating at the moment but which is directly relevant to the point he made about proportionality. Clause 79(1)(a) states:

“(1) Before giving a retention notice, the Secretary of State must, among other matters, take into account—

(a) the likely benefits of the notice”.

To me, that would be a pretty strong way of enforcing proportionality. Yet the hon. Gentleman is in his peroration claiming that that would not be taken into account, or not sufficiently so.

[Gavin Newlands]

I am grateful for the Minister’s intervention. I appreciate that that is a safeguard, but we must ask whether those Departments should be getting access in the first place.

[Mr Hayes]

I do not want to be unnecessarily brutal with the hon. Gentleman, but either he is making an argument about proportionality or he is not. If he is saying that nothing is proportional, then it should not happen at all, that is hardly an argument about proportionality. Those of us who take a more measured view of these things are considering whether such collection and access to data are proportionate. Proportions by their nature require an assessment of balance, do they not? Yet the hon. Gentleman is suggesting that the scales are weighted all on one side.

[Gavin Newlands]

The Minister did not actually address why these Departments need access to these data in the first place. I appreciate the point that he is making, but these Departments should not, in my view, require access to this information.

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[Keir Starmer]

I beg to move amendment 226, in clause 84, page 66, line 15, at end insert—

“(2B) No notice shall be served under subsection (1) where the relevant telecommunications operator outside the United Kingdom.

(a) is already subject to a comparable retention requirement in the country or territory where it is established, for the provision of services, or

(b) where there is no comparable retention requirement under its domestic law, any extraterritorial requirement is limited to the making of preservation requests to the telecommunications operator.”

Committee members will understand why this amendment has been tabled. It reflects the concerns of those who will be caught by these provisions in cases where a comparable retention requirement exists in the country in which they are working. The provisions in this part of the Bill are unnecessary in relation to them. That is the amendment’s intention and purpose.

[Mr Hayes]

I think we can deal with this briefly. I entirely agree with the hon. and learned Gentleman: where it was neither necessary nor proportionate to attempt to retain data in another place, we would not do so, so that is very straightforward. All data retention notices that are given to telecommunications companies, whether here or abroad, must pass the test of necessity and proportionality. Where they did not do so, it simply would not happen, because it would not be necessary, so for that purpose the amendment is unnecessary.

The second part of the amendment would remove the ability to serve data retention notices on telecommunications operators in countries that do not have a comparable data retention regime. Of course, the fact that they do not have a comparable data retention regime does not necessarily mean that there are no data to obtain, and I think that this part of the hon. and learned Gentleman’s proposal would add rigidity where flexibility is needed. I accept that there are not always comparable systems, but that does not mean that no system of any kind prevails. Again, with the caveat of proportionality and the proven need established, I think it would be unhelpful to limit our capacity to take action as necessary in the way that he suggests. The same could be said of the third element of his proposal, which is about the preservation of data. When there are no data to preserve, this does not really apply, but when there are, we need at least the capacity, born of the flexibilities provided by the Bill, to take action as is necessary and reasonable.

[Keir Starmer]

I am grateful to the Minister. I am sure that those who have the primary concern here will take some comfort from what is said about necessity and proportionality but, in practice, where there are comparable retention requirements in the country, it will rarely, if ever, be necessary or proportionate. Obviously, that will have to be determined case by case, or authorisation by authorisation, but I note what he has said on the record. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 84 ordered to stand part of the Bill.

Clause 85 ordered to stand part of the Bill.

Clause 86

Extra-territorial application of Part 4

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Mr Hayes]

I intervene merely because I know that the hon. and learned Gentleman is as much a stickler for accuracy as I am and is perhaps even less prone to hyperbole than me. He will therefore want the Committee to consider the draft code of practice, particularly where it deals with exactly the matters to which he is referring. I will discuss this at greater length than an intervention will allow in a moment, but he will see in the draft code of practice a comprehensive list of qualifications to the breadth that he is outlining.

[Keir Starmer]

I am grateful for that intervention. I have been referring throughout to the code of practice and its role. Consistent with the in-principle argument I have been making, the Bill and the code serve different functions. I understand the argument that a code is one way not only to give more detail to the provisions in the Bill, but to future-proof it. In other words, a code allows an approach that can be changed without amending the legislation.

As a matter of principle, though, I argue that where limits are to be put on the exercise of the power, and thus important safeguards are in place, they should be in the Bill. What should be resisted is a wide and generalised power in the Bill that finds constraint and limitation only in the code of practice. The extent of these powers should be set out in the Bill. The code of practice is the place for more detailed provision—provision that may change over time—and other obvious future-proofing techniques; it is not the right place for the limitations themselves.

Moving on, consistent with the earlier clauses on warrants, subsection (5) allows conduct in addition to the interference itself in order to do what is expressly authorised or required and any conduct that facilitates or gives effect to the warrant. I now want to take a bit of time on subsection (6).

[Mr Hayes]

Given the hon. and learned Gentleman’s desire to move on, and so that he can do so with greater velocity, let me be absolutely clear that the clause would not allow warrants to be issued without the information being sought being specified.

[Keir Starmer]

I am grateful for that intervention. It is helpful to have such matters on the record so that others can follow how the clauses are intended to operate.

Returning to subsection (6), one of the welcome measures in the Bill is that clause 3(4) makes it clear that, when a communication is intercepted, interception includes the communication at

“any time when the communication is stored in or by the system”.

I know that sounds very technical, but it became a real issue in a number of cases in which the question was whether a voicemail that was accessed once it was on a voicemail machine was in the course of its transmission. If the answer to that was no, there was nothing unlawful about retrieving it, listening to it and publishing it. A lot of time and energy went into the interpretation of the relevant clause. One of the advantages of the Bill is that clause 3 spells out in no uncertain terms that communications are protected if they are intercepted in the course of transmission, including if stored either before or after transmission. That protects any communication, sent to us or anybody else, which is either listened to at the time or not, but is later stored either in a voicemail, on a computer or in any way. We all store communications all the time; it is very rare that they exist only in real time. That is a step in the right direction.

We then get to clause 88(6):

“A targeted equipment interference warrant may not, by virtue of subsection (3), authorise or require a person to engage in conduct, in relation to a communication other than a stored communication”.

It protects the communication and excludes its content from this part—I think that is the idea—but only half does the job and leaves quite a gap, in my view. We get back to the same problem. If there is equipment interference to obtain a communication, that communication would be protected from one of these warrants as long as it is in the course of its transmission. If it has arrived, it is not. If I am wrong about this I will stand corrected, but all of the good that was done by amending clause 3 will be undone by clause 88; the same ends could be achieved by using an equipment interference warrant, namely obtaining by interference a communication that is in the course of its transmission, either before or after it is sent.

[Mr Hayes]

I am grateful to the hon. and learned Gentleman for his humility in suggesting that he would stand corrected; I now stand to correct him. An equipment interference warrant would not allow interception of real-time information of the kind that he describes. He is right that to intercept that kind of information would require a different process, as we discussed earlier in our considerations. If further explanatory notes need to be made available to provide greater clarity about that I am more than happy to do so. I will talk more when I respond, before you rightly chide me for going on for too long, Ms Dorries.

[Keir Starmer]

I am grateful to the Minister. If he could point to the provision that makes good the submission he has just made, then that will deal with this particular point. Just to be clear, subsection (6) is intended to ring-fence and exclude from one of these warrants communications the interception of which would

“constitute an offence under section 2(1)”,

but only in relation to communications in the course of their transmission in the real sense of the term, not including those that are “stored”. I put on the record—if this is capable of being answered, so be it—that “stored” in subsection (6) has the same meaning as in clause 3, which is intended to include stored communications within the prohibition. I will not take it any further; the Minister has my point, which is that one would expect subsection (6) to protect the same content that is expressly protected by clause 3(4), but it does not—unless he or somebody else can point to another provision that adds to subsection (6), though that would be an odd way of doing it.

I will move on. Subsection (9) defines targeted examination warrants. This is important because subsections (1) to (8) deal with targeted equipment interference warrants—warrants issued in a targeted way; the targeted examination warrant deals with examining material obtained by way of a bulk warrant. It therefore serves a different purpose. Subsection (9) is an extremely wide provision:

“A targeted examination warrant is a warrant which authorises the person to whom it is addressed to carry out the selection of protected material…in breach of the prohibition in section 170(4)”.

To understand that, we need to turn to section 170(4), which raises questions that relate to an argument I made earlier on another, not dissimilar, provision. It states:

“The prohibition…is that the protected material may not…be selected for examination if (a) any criteria used for the selection of the material for examination are referable to an individual known to be in the British Islands at that time, and (b) the purpose of using those criteria is to identify protected material consisting of communications sent by, or intended for, that individual or private information relating to that individual.”

That is intended to give protection to individuals known to be in the British islands, by placing limits on the examination of their material: in relation to their material or their communications one needs a targeted examination warrant to get around the prohibition in clause 170(4). The point I make here is similar to the point that I made before: this is temporal. Whether a person is in the British islands or not depends on where they are physically. I am protected so long as I am in the British islands, but I fall out of protection—as would everybody else—the moment I leave them, whether I am leaving for a day, a week, a month or a year. That is a real cause for concern, as is the wide definition of protected material that immediately follows in clause 88(9); amendment 382 would limit the extent of that definition by stopping the clause after the words “Part 6”, which are on page 67, line 40, of the draft Bill.

In conclusion, this is a very wide-ranging clause, and it contains insufficient safeguards—if there are safeguards, they should be in the Bill. There are questions on subsections (6) in (9), taken in conjunction with clause 170(4), that the Minister will have to deal with.

--- Later in debate ---

Any amendments that the SNP table to part 5 of the Bill are against the background of those concerns. It is because of them that I support the hon. and leaned Gentleman’s arguments in support of amendments 381 and 382.

[Mr Hayes]

As the shadow Minister said, part 5 of the Bill is very important. It deals with equipment interference. He is right to say that equipment interference is, by its nature, quite a radical technique—I will explain that in a few moments—but of course it is for a purpose. It fulfils a proper function and allows those missioned to keep us safe to do so by means of the exercise of that power.

Let me deal with the hon. and learned Lady first. I thought that her contribution—I say this kindly because, despite all of my instincts, I cannot help liking her—[Interruption.] Someone said “saintly instincts”. I would not go as far as to say “saintly”; I would say “wholesome instincts”. I thought that her speech exemplified the curious cocktail at the heart of Scottish nationalism: a mix of paranoia and assertiveness.

I have two things to say in response to her. First, these powers are not new; they already exist in the Intelligence Services Act 1994 and the Police Act 1997. Secondly, the exercise of those existing powers has been scrutinised. They are particularly used by GCHQ.

[The Chair]

Order. There is a Division in the House. We will suspend for 15 minutes, or 25 if there are two. Be back as quickly as you can if there are three.

--- Later in debate ---

On resuming—

[Mr Hayes]

Having characterised the Scottish National party in a vivid and, in some people’s view, slightly too generous way, I will move on to the specifics of what the hon. and learned Lady said. She is right that there need to be important safeguards in respect of equipment interference. I do not think that there is any difference between us on that. She is right that GCHQ’s use of equipment interference powers—although they are more widely available, it is GCHQ that uses them particularly—are central to its purpose and of course must be lawful. She will be pleased to know that the Investigatory Powers Tribunal found them to be just that when it looked at the matter as recently as February of this year. Of course it is right, given the radical character of those powers, that we put in place all the right checks and balances. One might say that transparency and stronger safeguards are part of what the Bill is defined by.

It is important to emphasise in that context the draft codes of practice, which I drew attention to in a brief intervention on the hon. and learned Member for Holborn and St Pancras. They are clear in two respects. I draw attention first, in general terms, to part 8 of the draft code of practice on equipment interference, which deals with handling information, general safeguards and so on, and secondly to the specific areas covered in part 4.10, which lists an extensive series of requirements for the information that a targeted equipment interference warrant should contain. I will not go through them exhaustively, Ms Dorries, because that would please neither you nor other Committee members. Suffice it to say that such a warrant should contain details of the purpose and background of the application, be descriptive and clearly identify individuals where that can be done. Those requirements also necessitate an explanation of why equipment interference is regarded as essential and refer to conduct in respect of the exercise of such powers, collateral intrusion, and so on. They are pertinent to the consideration of the clause.

There is always, as I predicted there would be in this case, a debate in Committee about what is put in the Bill and what is put in the supporting material. As you will be familiar with, Ms Dorries, having been involved in all kinds of Committees over time, Oppositions usually want more in Bills and Governments usually want more flexibility. Perhaps that is the nature of the tension between government and opposition. I have no doubt that were the Labour party ever to return to Government, the roles would be reversed; we would be the ones saying, “More in the Bill,” and that Labour Government would probably be arguing for more flexibility. The truth lies somewhere between the two: of course it is important to ensure that there is sufficient in the Bill both to ensure straightforward legal interpretation and to cement the safeguards and protections for which the hon. and learned Gentleman rightly calls, but in achieving those ends one must always be careful that specificity does not metamorphose into rigidity. Where we are dealing with highly dynamic circumstances, changing technology and, therefore, changing needs on the part of the agencies and others, rigidity is a particular worry.

In the Bill as a whole, and in this part of the Bill, we have tried to provide sufficient detail to provide transparency, navigability and a degree of resilience to legal challenge while simultaneously providing the flexibility that is necessary in the changing landscape. That is why the codes of practice matter so much, particularly in respect of this clause and these amendments, and it is why the codes of practice have changed in the light of the consideration of the Joint Committee of both Houses, and others. It is also why I predict—I put it no less strongly than that—that the codes of practice will change again as a result of the commentary that we have already enjoyed in Committee and will continue to provide over the coming days.

The need for equipment interference could not be more significant, and I will explain what it comprises. Equipment interference is a set of techniques used to obtain a variety of data from equipment that includes traditional computers, computer-like devices—such as tablets, smartphones, cables, wires—and static storage devices. Interference can be carried out remotely or by physically interacting with the equipment. Although equipment interference is increasingly important for the security, intelligence and law enforcement agencies, it is not new. Law enforcement agencies have been conducting equipment interference for many years, and I described the legislative basis for that in response to the hon. and learned Member for Edinburgh South West. It is probably fair to say that equipment interference is likely to become still more important as a result of the effect that changes in technology are having on other capabilities. I do not want to overstate this, but encryption, for example, is likely to make equipment interference more significant over time.

I will amplify the clarity with which I delivered my advice to the hon. and learned Member for Holborn and St Pancras. Warrants cannot be issued without specifying what information is being sought, and on that basis it is hard to see why clause 88 should be amended. Chapter 4 of the code of practice states:

“An application for a targeted equipment interference warrant should contain… A general description of any communications, equipment data or other information that is to be (or may be) obtained”.

Together, the provisions provide the issuing authority with the information it needs to assess an application and with the power to constrain the authorised interference as it sees fit on a case-by-case basis. Amendment 382 would extend the requirement to obtain a targeted examination warrant to circumstances where the agencies need to select for examination the equipment data and non-private information of an individual who is known to be in the British islands. I tend to agree with the argument made by the hon. Member for City of Chester in an earlier sitting of the Committee that it is right that there are particular provisions for UK citizens in what we do in this Bill, rather than with the argument made by the hon. and learned Member for Edinburgh South West.

[Keir Starmer]

I just want to clarify my concern, because I think the Minister just said, “UK citizens”. I understand that the distinction is made between UK citizens and others. My concern about this provision is that, whether someone is a citizen or not, if they are physically outside of the British Isles they fall outside the protection. That has been my driving concern, or one of my driving concerns, here. There may be a good reason for this and there may be a longer explanation for it, but I was surprised to see in the Bill that the protection was not to British citizens or to some other description of people with the right of residence in this country, but in fact depends on whether someone is physically in the country or not. On my understanding, I lose the protection that is provided by this Bill in this and other provisions if I go to France for a short period of time.

[Mr Hayes]

To be fair to the hon. and learned Gentleman, the Bill refers to people within “the British Islands”, so he is right, and there are very good reasons why enhanced safeguards should apply for the content of people in the UK. As he implied, we explored these issues in an earlier part of the debate.

I will conclude, but I want to do so on the basis of clarifying this matter, too. The subsection that the hon. and learned Gentleman described earlier makes it clear that when a warrant for equipment interference is used to examine a phone, the police can look at all data on the phone, including text messages, but not in real time. I wonder whether there has been a misunderstanding or misapprehension about this issue—either a mis- understanding about the meaning or misapprehension about the purpose.

I repeat this solely for the sake of convincing the hon. and learned Gentleman and others that we are doing the right thing. These are important powers with stronger safeguards with absolute determination to be clear about legal purpose; they can only be used when necessary and can only be used lawfully. They are fundamentally not new but a confirmation of what is already vital to our national interest and to the common good.

[Keir Starmer]

I am grateful to the Minister for taking us through in some detail how the clause is intended to work with the code of practice. I reiterate my point that the essential safeguards should be in the Bill. Amendments 381 and 382 would not delete the provisions in clause 88; they would tighten the provisions in clause 88, and I intend to push both of them to a vote.

Question put, That the amendment be made.

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[Joanna Cherry]

I rise to add my support to amendment 384 on behalf of the Scottish National party. Historically, communications data were considered much less revealing than the content of the communication, and consequently the protections offered to communications data under RIPA were weaker than those existing in the interception regime. However, as communications have become increasingly digital, the data generated are much more revealing and copious than before, allowing the state to put together a complete and rich picture of what a person does and thinks, who they do it with, when they do it and where they do it.

As the Bill stands, clause 88(9) would allow for the examination of potentially vast amounts of data on people in Britain obtained under bulk equipment interference warrants, as vague categories of “data” in 88(9)(a) and (b) are asserted to have no meaning. Data relating to the fact of a communication or the existence of information do have meaning and must not be exempt from the privacy protections afforded to other categories of data.

I urge the Committee to ensure that the Bill does not treat data relating to the fact of a communication or the existence of information relating to that fact as unimportant. In fact, there is extraordinarily high value to such material, precisely because it is highly revealing. It therefore demands equal protection.

[Mr Hayes]

All these disruptions and delays are adding interest and variety to our affairs. There is a straightforward argument for why the amendment is unnecessary, which I will make. If that is insufficient to persuade the Committee, I will add further thoughts.

The straightforward reason why the amendment is unnecessary is that it would undermine the principle that the most robust privacy protections should apply to the most intrusive kinds of data. I simply do not agree with the hon. and learned Lady that, for example, systems data—the highly technical data that will be separated out as a result of the endeavours in this part of the Bill—are better excluded from those extra protections. The unintended consequence of the amendment—at least, I hope it is unintended—is that it would lead to disproportionate access requirements for less intrusive data. That would be unhelpful and could, through confusion, hamper the work of the services.

[Keir Starmer]

I want to be clear as to how clause 89 operates, because subsection (2) suggests it is an attempt to identify data associated with a communication that can be separated from the communication, but which, if separated, would not touch on the meaning of the communication, thereby protecting it. That is all good. That is a safeguard, which is supported and welcome, but after the comma, as I read it, disregarded from that protection is everything that follows on. At the moment, I do not follow how the amendment removes protection, because the last bit of clause 89(2)(c) after the comma disregards from the protection and thus leaves unprotected from the scheme of clause 89

“the fact of the communication or the existence of the item of information or from any data relating to that fact.”

If I am wrong about that, there is a problem with the amendment, but I understand that part of clause 89(2)(c) to detract from the protection that the subsection is otherwise intending to put in place.

[Mr Hayes]

Let me see if I can deal with that question specifically. Equipment data include identifying data. Most communications and items of information will contain information that identifies individuals, apparatus, systems and services, or events and sometimes the location of those individuals or events. Those data are operationally critical to the agencies, as the hon. and learned Gentleman understands. In most cases that information will form part of the systems data, but there will be cases where it does not.

The work that has been done to separate out and define data has been carefully designed to categorise logically the range of data generated by modern communications. Identifying data are operationally critical. It is important to be able to classify data correctly and coherently throughout the Bill. My assertion, therefore, drawing on the hon. and learned Gentleman’s question, is that the amendment would inhibit though not prevent that by making the distinction less clear.

We can talk at length if necessary, although I suspect that at this juncture it is not necessary, about inferred meaning and its importance and relevance here. Misunderstanding frequently arises on inference, but I do not think that that is critical to this particular part of our discussion. My case is that the work we have done in better categorising the difference between the kinds of data assists the application of this part of the Bill, and assists the agencies accordingly. As I said, the amendment, perversely, would afford to those bits of technical data, for example, the same protection that is deliberately granted to more sensitive data under the Bill.

I do not like to do this on every amendment, or we would drown in a sea of paper, but as I write to the Committee regularly, if it would be helpful to cement that point in my next letter, I will happily do so. I am, however, confident that what I have said to the Committee is an accurate reflection of the work that I have described and of the content of the Bill.

[Keir Starmer]

I am grateful to the Minister, first for spelling out in detail the intended operation of the clause and, secondly, for indicating his willingness to write on the matter. This is something that ought to be in the Bill. My clear reading is that the amendment would not ring-fence anything from examination; it would simply require a warrant under clause 88 if equipment data, having satisfied all the other provisions under subsection (2)(a) to (c), included anything where there was a meaning arising from fact communication and so on. I will therefore press the amendment to a vote.

--- Later in debate ---

[Joanna Cherry]

I want to add my voice in support of the hon. and learned Gentleman’s suspicions—sorry, submissions! We share suspicions about this clause. The clause unamended permits thematic, suspicion less warrants and these shade into general warrants. General warrants are anathema to the common law of England and Scotland and fall foul of international human rights law.

I am pleased that the hon. and learned Gentleman prayed in aid what David Anderson QC said about clause 90. If Members have read his supplementary written evidence to the Committee, they will have seen that at paragraph 5a he expressed grave concern about clause 90, describing it as “extremely broad” and continuing:

“The ISC noted this in relation to the EI power in February 2016…The Operational Case lodged with the Bill also acknowledged…that a targeted thematic EI”—

equipment interference—

“warrant may ‘cover a large geographical area or involve the collection of a large volume of data’. This matters, because as the Operational Case also acknowledged…the protections inherent in a thematic warrant are in some respects less than those inherent in a bulk warrant. The very broad clause 90 definition effectively imports an alternative means of performing bulk EI, with fewer safeguards. The Government’s explanation for this–that it will opt for a bulk warrant where extra safeguards are deemed necessary–may be argued to place excessive weight on the discretion of decision-makers.”

That concern—that it gives excessive discretion to decision makers—is one that the Scottish National party has as a thread running through the Bill. David Anderson goes on to say:

“If bulk EI warrants are judged necessary, then it should be possible to reduce the scope of clause 90 so as to permit only such warrants as could safely be issued without the extra safeguards associated with bulk.”

Even if the Minister does not consider the SNP’s and the Labour party’s concerns valid, what does he have to say about the lengthy passage that David Anderson has devoted to the matter in his supplementary written evidence?

[Mr Hayes]

I spoke earlier about velocity; now I will talk about breadth and speed. I emphasise that the powers in clause 90 are not new. They are existing powers used by law enforcement, for example, in a range of serious criminal investigations.

[Joanna Cherry]

Will the Minister tell us the legal basis of the existing powers?

[Mr Hayes]

I have done so already, but I will repeat it for the sake of the record. The powers are contained in the Intelligence Services Act 1994 and the Police Act 1997. I am more than happy to provide more information to the hon. and learned Lady on that detail, should she want me to do so.

[Joanna Cherry]

I am looking at the 1994 Act and it seems to me that it contains broad and vague enabling powers, which bear no resemblance to the powers in the Bill. Can the Minister contradict that?

[Mr Hayes]

One of the stated purposes of the Bill is to bring together those powers—to cement them and to put in place extra clarification and further safeguards. I have argued throughout that the essence of the Bill is delivering clarity and certainty. I would accept the hon. and learned Lady’s point if she was arguing that, at the moment, the agencies draw on a range of legal bases for what they do, for that is a simple statement of fact. We are all engaged in the business of perfecting the Bill, because we know it is right that these powers are contained in one place, creating greater transparency and greater navigability, and making legislation more comprehensible and more resistant to challenge. That is at the heart of our mission.

I said I would talk about breadth. The breadth of the circumstances in which equipment interference could be used reflects the fact that, at the time of making an application for a warrant, the information initially known about a subject of interest may vary considerably. Last week, we spoke about the kind of case in which there may be an unfolding series of events, such as a kidnapping, where a limited amount might be known at the outset when a warrant is applied for. The warrant’s purpose will be to gather sufficient information as to build up a picture of a network of people involved in a gang or an organised crime. That is very common and I intend to offer some worked examples in a number of areas.

Identifying members of such a gang can often come from interception arising from a thematic warrant. That might apply to interception, but frankly it might also apply to equipment interference where that is a more appropriate and more effective means of finding the information. Another example may be a group of people involved in child sexual exploitation. Frequently, partial information will allow for further exploration of a network of people who are communicating over a wide area, and who are careful about how they communicate, mindful of the activity that they are involved in. They will not be easy to discover or find, as they will very often disguise their identity. For that reason, it may be necessary to start by looking at sites commonly used to share indecent images of children and from there uncover information that leads, through the use of equipment interference, to those who are driving that unhappy practice. Those examples are not merely matters of theory; they are matters of fact. I know that in cases of kidnapping and in cases of child sexual exploitation, those techniques have been used and continue to be used.

[Keir Starmer]

I understand the point the Minister is making and the need for these powers to be practical and effective in real time. He says that they are not theoretical but real, and I absolutely accept that, but David Anderson is someone who will have appreciated that more than many others. He has been working in this field and dealing with those issues for many years. He is hardly likely to make the mistake of theorising about something that he knows about in great detail in the practical examination, so is he just plain wrong when he raises this concern? He has raised it not just once, but on a number of occasions, in detail, and he knows how these things work.

[Mr Hayes]

I will return to that point because it is important and fair, and I will return to the Anderson critique in a moment, but before I do so, I want to be clear about the second thing that I said I would speak about—speed.

The kind of cases that I have outlined can move rapidly. The information that becomes available from the kind of initial inquiries that I have described, when the character or names of individual actors may not be known but will become known through these techniques, may require law enforcement agencies to act very quickly to avert further serious crime. Owing to the need for speed, it is vital that those missioned to protect us are able to exercise all the powers when they need to, with confidence and lawfully. The Anderson critique is why the codes of practice limit specifically how thematic warrants can be used. I draw the Committee’s attention to page 25 of the draft code of practice, which deals with such warrants and defines again, in some detail, exactly how they should be as specific as possible, given the breadth and speed requirements that I have set out.

I hear what is said about the David Anderson criticism. I think that we have gone further in being specific in the code of practice than we might have been expected to by our critics, but, rather as I said in relation to our consideration of an earlier group of amendments on warranting, I do not want to inhibit what is currently done; I do not want the Bill to leave the agencies and law enforcement with fewer powers; I do not want to leave them emasculated as a result of our consideration. It is right that we should have safeguards, definition, constraints and, where necessary, specificity, but these powers are vital to protect us from those who want to exploit our children and do us harm. Criminals are increasingly adaptable and sophisticated, rather like terrorists. We must outmatch them at every turn and I believe that those powers are vital for us to be able to do so. So I am unapologetic about making the case for them to the Committee and to Parliament.

[Keir Starmer]

I am grateful to the Minister for setting out his case in that way. To be clear, particularly in relation to his last point, I do not think that anyone is suggesting that those powers should not be available. The discussion is about whether they are rightly described as thematic warrants or whether they are, in truth, bulk warrants, which operate in different ways and have different safeguards, procedures and processes to go through. I do not want our challenging and probing to be portrayed as somehow to undermine the work that has to be done by law enforcement and others in real time, often in difficult circumstances.

That said, this is an important issue. I have listened to what has been said and I want to preserve the position. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Keir Starmer]

Ms Dorries, you have been indulgent in allowing me to trespass on the territory of some of these amendments in my general remarks on the clause. That probably applies to the Minister in reply as well. In those circumstances, it is not necessary for me to say any more about this group.

[Mr Hayes]

I have little to add, except to reassure the hon. and learned Lady and the hon. and learned Gentleman that the Investigatory Powers Tribunal has looked at this issue and supported the use of targeted thematic warrants. The Bill strengthens the safeguards.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 90 ordered to stand part of the Bill.

Clause 91

Power to issue warrants to intelligence services: the Secretary of State

Investigatory Powers Bill (Fourth sitting)

John Hayes Excerpts

Committee Debate: 4th sitting: House of Commons
Tuesday 12th April 2016 Public Bill Committees

[The Chair]

I remind the Committee that with this we are discussing the following:

Amendment 58, in clause 13, page 10, line 17, leave out from “examination” to end of line 18.

Amendment 59, in clause 13, page 10, line 17, leave out from “examination.” to end of line 18 and insert

“of material referable to an individual known to be in the British Islands at that time, or British citizen outside the British Islands at that time.”

Amendment 60, in clause 13, page 10, line 17, leave out from “examination.” to end of line 18 and insert

“of material referable to an individual known to be in the British Islands at that time, or British, Canadian, American, New Zealand or Australian citizen outside the British Islands at that time.”

Amendment 83, in clause 13, page 10, line 22, after “6”, insert—

“In this Part “secondary data” means—

(a) in relation to a communication transmitted by means of a postal service, means any data falling within subsection (5);

(b) in relation to a communication transmitted by means of a telecommunication system, means any data falling within subsection (5) or (6).”

[The Minister for Security (Mr John Hayes)]

I am delighted to welcome you to the Chair, Mr Owen. In your absence, under the stewardship of Ms Dorries, we had enlightening and rigorous scrutiny of the early provisions of the Bill and had got to the point of considering the third group of amendments. They are complicated, as illustrated by the shadow Minister’s opening remarks. I was about to go into some detail about the safeguards that we have put in place. So that we are all up to speed, I will mention that I had referred briefly to the recommendations made by the independent reviewer, Mr David Anderson, in his report, “A Question of Trust”, in relation to this area of the Bill—the use of material recovered under bulk warrants. I had reminded the Committee that the provisions before us reflect that advice. The Government have essentially taken the advice of David Anderson and built it into the Bill that we are now considering.

The current bulk access safeguards under the Regulations of Investigatory Powers Act 2000 have, of course, recently been scrutinised by the Investigatory Powers Tribunal. After extensive argument, the tribunal ruled that the current approach fully met the UK’s obligations under the European convention on human rights. In particular, the tribunal ruled that it was not necessary to apply the protections that apply to content to related communications data—the other data associated with a communication but not its content that has been redefined as secondary data in the Bill—to ensure ECHR compliance.

Both targeted and bulk warrants authorise the collection of content and secondary data. That, I think, clears up one of the doubts that some Committee members may have had. A bulk warrant also authorises the circumstances in which content and secondary data can be selected for examination. The Secretary of State and the judicial commissioner, when authorising warrants, agree the operational purposes that determine what content and what secondary data can be examined. In other words, at the point when the warrant is issued, both the judicial commissioner, in the arrangements that we propose, and the Secretary of State, in those arrangements and now, are fully aware of the operational reasons for the request. There is no distinction in those terms—again, I think this addresses some of the points raised by the hon. and learned Member for Holborn and St Pancras—between content and secondary data.

Where the difference comes is in relation to the additional protections for persons in the UK. In fact, the hon. and learned Gentleman made reference to this. The Bill makes it clear that examination of the content, once it has been collected, of data relating to persons in the UK can take place only when an additional warrant has been issued. People should bear it in mind that there will already be a bulk warrant authorising collection; this is a separate process from the collection of data. An additional warrant must be issued that specifically authorises examination. There is a warrant to collect data and another warrant to examine data, and at the point when those warrants are considered by the Secretary of State and, under these new arrangements, by the judicial commissioner, the purposes will be clearly defined. The Secretary of State will be aware of why the request is being made and why it matters.

We talked earlier, in a different part of our consideration, about authorising powers only where they are necessary because nothing else will do the job—the point raised by the hon. and learned Gentleman. I want to emphasise that those considerations, around the broad issues—they are no less important because of their breadth—of proportionality and necessity, will govern all these matters.

[Keir Starmer (Holborn and St Pancras) (Lab)]

To clarify, I think I heard the Minister say—if I misheard him, he can ignore this intervention—that two bulk warrants would be put forward at the same time; one for the intercept and one for the examination. However, I am not sure that is right. I had always read this as one warrant within which different types of conduct are authorised. Therefore, the warrant could—I am looking at clause 119(4)—authorise both the interception and the selection for examination. I may be wrong about that, but I had always understood that one warrant would authorise all the conduct in one fell swoop at the beginning, rather than there being two warrants. If I misheard, I apologise.

[Mr Hayes]

Essentially, in order to obtain collection—to have bulk collection and examination—a warrant is required. The Bill makes it clear that the examination of content of persons in the UK requires an additional warrant. That is the point I was making.

Authorisation for persons in the UK does not apply to secondary data, because it is often not possible to determine the location of a person without taking those data. The reason why it looks like there is an inconsistency in respect of a set of data—or it might be perceived that way, without fuller consideration—is that, in relation to secondary data, it is not always possible to determine where someone is until the secondary data have been collected.

The point I made earlier was that it is a well and long-established principle that non-content is less important and less intrusive than content. Content is likely to be more intrusive, so what we are describing in these terms replicates the existing position—the long-established practice—which, as I said, was upheld by the Investigatory Powers Tribunal. This is the existing practice, and it has been examined and found to be appropriate and reasonable. I mentioned ECHR compliance in that respect.

I have described the existing regime and its examination, but the regime proposed under the Bill further enhances the safeguards that the security and intelligence agencies already apply when accessing data obtained under a bulk interception warrant. The access arrangements are set out in part 6 of the Bill: for example, secondary data, as well as content, can be accessed only for one or more of the operational purposes specified on the warrant and approved by the Secretary of State and the judicial commissioner. The Bill also includes a requirement that an analyst must consider the necessity and proportionality of any access to any data obtained under a bulk interception warrant in line with the operational purposes. Without putting words into the mouths of Committee members, it could be argued that it is all very well setting out the operational purposes at the outset and that, further, at that point they might be deemed to legitimise the use of the powers in terms of necessity and proportionality, but that that might not be the case further down the line. It is therefore important that we have introduced further analysis of the data collected under the bulk warrant, rather than just when collection is authorised.

Extending targeted examination warrants to non-content data, including secondary data, which is what the amendments propose, would be disproportionate and impractical. That would radically change the bulk data regime, reduce its efficacy and place a substantial burden on the security and intelligence agencies, requiring them to obtain highest level authorisation for data that would often resemble the kind of information routinely collected under a part 3 authorisation.

[Joanna Cherry (Edinburgh South West) (SNP)]

I remind the Minister that when I spoke before lunchtime, I highlighted the fact that the Intelligence and Security Committee has a concern about secondary data derived from content not being protected. What does the Minister make of the ISC’s concerns? Why have the Government dismissed them?

[Mr Hayes]

I wondered whether the ISC might be raised in this respect. Of course the hon. and learned Lady is right. With her typical diligence she has identified that the ISC does indeed make that point. The answer to the question is that we welcome scrutiny and we invite consideration of these proposals. All of the Committees that looked at these matters made a whole series of recommendations, some of which the Government accepted with alacrity, some of which the Government continue to consider, and some of which the Government do not agree with. It is true that that point has been made, and I said that this might reasonably be argued. However, I think that we have gone far enough in this area in balancing the proper desire for effective safeguards with the operational effectiveness of the agencies.

Bulk collection is really important. Without giving away too much sensitive information, I can happily let the Committee know that as Security Minister I have visited GCHQ, as the Committee would expect me to do. I have looked at the kind of work the staff there do in respect of bulk data collection, and I have seen the effect it has. Contrary to what might be described as a rather crude view of what bulk collection is all about, it is not searching for a needle in any haystack; it is being highly selective about which haystacks are looked at. It is about trying to establish connections, networks and relationships between organisations and individuals; places and people. I have no doubt that without these powers the work of our intelligence and security services would be inhibited. However, I accept that safeguards are needed: I do not for a moment suggest anything else.

I turn now to amendments 58, 59 and 60. These amendments seek to extend the circumstances in which a targeted examination warrant is required beyond the current situation in the Bill, such that they are not limited to persons in the UK. The intention of amendment 58 appears to be that an individual targeted examination warrant would be required from the Secretary of State and a judicial commissioner each time an analyst in an intelligence agency wished to examine the content of any communications acquired under a bulk data interception warrant. This would apply irrespective of where in the world the sender or recipient of the communication was located. As currently drafted, the Bill makes it clear that a targeted examination warrant must be sought if an analyst wished to examine the content of communications of individuals in the British islands which had been obtained under a bulk interception warrant.

Amending the scope of a targeted examination warrant as proposed would, in my view, fundamentally alter the operation of the bulk regime. I am advised to that effect by those who use these powers. There is plainly a rational justification for treating the communications of persons known to be in the British Isles differently to those of persons who are believed to be overseas. Within the UK, the interception of communications is a tool that is used to advance investigations into known threats, usually in conjunction with other capabilities and other tools. Of course, serious investigations of the kind we are talking about are complicated, and very often this will be only one of the means that are used to establish the patterns of activity of the networks I have described and the threats that I have outlined.

[Christian Matheson (City of Chester) (Lab)]

I seek the Minister’s clarification more than anything else. Is there a view in the Government that there is a difference between the external threat of people who are not in the British Isles and also are not British citizens, as opposed to those who are British citizens? Is it the Government’s view that we have a responsibility to protect the privacy of British citizens, as we are charged to do, as opposed to those who may present an external threat to the United Kingdom?

[Mr Hayes]

We legally have different responsibilities with respect to UK citizens. The hon. Gentleman is absolutely right. UK citizens are protected by all kinds of legal provisions, not only those in this Bill, far from it. He is absolutely right that different circumstances prevail. However, it is slightly more complicated than that, as he knows. We may be talking about people who are British but not in Britain at a particular time, or people who are not British but in Britain at a particular time. We may be speaking about people who are moving in and out of the country. These are often quite complex webs about which we are trying to establish more information. Of course, things such as surveillance and agent reporting will pay a part in this. All the conventional means by which these things are investigated would interface with the tools that the agencies currently use and are given greater detail and more safeguards in the Bill. The hon. Gentleman is right to say that we should have an approach that is appropriate to the circumstances and the kind of people we are dealing with.

It is important to emphasise again that applications for targeting reception warrants will be supported by a detailed intelligence case. There has to be a clear operational purpose—a case needs to be made. That means that the Secretary of State must be satisfied that the use of these powers is appropriate. The Bill quite rightly ensures that the agencies must provide the same detailed case if they want to examine communications of a person in the UK that have been intercepted under a bulk warrant.

The hon. Gentleman’s point about threats outside the UK is important, because it is often only through bulk powers of the kind detailed in the Bill that we are able to discover threats outside the UK, particularly in countries such as Syria where we may have little or no physical presence and limited cover in respect of the security services, for obvious reasons. In those circumstances, the amount of information we have to deal with being very limited, bulk interception plays a critical part. It will often be necessary to examine the communications of individuals outside the UK, for obvious reasons, based on partial intelligence—the limited intelligence we have—in order to determine whether they merit further investigation or in order sometimes to eliminate people from the inquiries. Many of the powers that I am describing—indeed many of the powers in the Bill—as well as identifying, qualifying and making further steps more exact, are about eliminating people from consideration, because once we know more, we know they do not pose a real or current threat. It is therefore really important that we understand that this plays a vital role in mitigating the threat to the UK from overseas.

Requiring an analyst to seek permission from the Secretary of State or the judicial commissioner every time they consider it necessary to examine the content of a communication sent by a person outside the UK would inhibit the ability of the security and intelligence agencies to identify new and emerging threats from outside the UK.

I want to emphasise that the scale and character of the threats we face have changed and continue to do so. This is partly because of changing technology, the way in which people communicate, the adaptability of those who threaten us and the complexities of the modern world. Unless we have powers that match—indeed, outmatch—the powers that are in the hands of those who seek to do us harm, we will simply not be able to mitigate those threats in the way that is needed in defence of our country and countrymen.

The current bulk access safeguards under the Regulation of Investigatory Powers Act 2000 have recently been scrutinised. The Investigatory Powers Tribunal found in particular that there was sufficient justification for enhanced safeguards to be applied only where an analyst is seeking to examine the content of people in the British Isles. Nevertheless, the Bill enhances the safeguards and while I am sympathetic to the aims of amendments 59 and 60, they present practical challenges in their own right.

As hon. Members will appreciate, overseas-based individuals discovered in the course of an investigation do not uniformly present their nationality and passport details to agencies, so in practical terms the agencies will simply not be able to do what the amendments require. The amendments could also give rise to discrimination issues. As I explained, there is a clear justification for applying different safeguards to persons located outside the UK, but it is by no means clear that it is necessary to apply different protections to people of a particular nationality. Accordingly, providing for such a distinction in law could place the UK in breach of its international obligations, particularly our obligation not to discriminate on grounds of nationality.

It is right that we take a view about people who are operating in a way that is injurious to our interests from outside the UK, but it is equally right that we do not make prejudgments. Again, we are trying to strike a balance in this part of the Bill. The aim of the Bill is to place vital powers on a statutory footing that will stand the test of time. I believe that the strongest safeguards for the examination of communications, taking into account the challenges of identifying threats outside the UK, are necessary, and that we are in the right place with the Bill.

Finally, amendment 83 relates to the clause 14 definition of secondary data, which sets out how it can be obtained through an interception warrant provided for in part 2 of the Bill. The amendment seeks to replace the current definition in the Bill with a narrower one.

[Suella Fernandes (Fareham) (Con)]

Welcome to the Chair, Mr Owen, for my first contribution to this Committee.

Regarding amendments 59 and 60, is it not the position that bulk interception is provided for under section 8(4) of RIPA and is therefore subject to tests of necessity and proportionality? If it relates to a British citizen within the British Isles and an analyst wishes to select for examination the content of the communication of an individual known to be located in the British islands, the analyst has to apply to the Secretary of State for additional authorisation under section 16(3) of RIPA—similar to section 8(1). There are robust and extensive safeguards in place for this purpose.

[Mr Hayes]

I am delighted to be able to say in response to that extremely well informed intervention that my hon. Friend is right. The Bill does not actually add to bulk powers, contrary to what some have assumed and even claimed. In the sense that it reinforces safeguards and maintains the ability of our agencies to collect bulk data, it builds on what we already do. The Bill pulls together much of the powers in existing legislation; part of its purpose is to put all of those powers in one place, making them easier to understand and more straightforward to navigate. She is absolutely right; we took those powers in RIPA because they were needed to deal with the changing threats and the character of what we knew we had to do to counter them. That was done in no way other than out of a proper, responsible desire to provide the intelligence agencies with what they needed to do their jobs.

To return to amendments 59 and 60, when people are discovered to be outside the country and are subject to an investigation by the security services they do not usually present their credentials for examination, and it is important that the powers we have fill what would otherwise be a gaping hole in our capacity to do what is right and necessary. The aim of the Bill is to place vital powers on a statutory footing that will stand the test of time.

Amendment 83 relates to clause 14 and the definition of secondary data. It is important to point out that it has always been the case that an interception warrant allows communications to be obtained in full. Historically, that has been characterised in law as obtaining the content of communication and of any accompanying “related communications data”. However, as communications have become more sophisticated it has become necessary to revise the definitions to remove any ambiguities around the distinction between content and non-content data and to provide clear, simple and future-proof definitions that correctly classify all the data the intercepting agents require to carry out their functions.

Secondary data describes data that can be obtained through an interception warrant other than the content of communications themselves. Those data are less intrusive than content, but are a broader category of data than communications data. For example, it could include technical information, such as details of hardware configuration, or data relating to a specific communication or piece of content, such as the metadata associated with a photographic image—the date on which it was taken or the location—but not the photograph itself, which would, of course, be the content.

I want to make it clear that the data will always, by necessity, be acquired through interception. The definition does not expand the scope of the data that can be acquired under a warrant, but it makes clearer how the data should be categorised. Interception provides for the collection of a communication in full and the amendment would not serve to narrow the scope of interception. It would, however, reduce the level of clarity about what data other than content could be obtained under a warrant. It would also have the effect of undermining an important provision in the Bill. In some cases secondary data alone are all that are required to achieve the intended aim of an operation or investigation. That is an important point. Another misconception is that it is always necessary to acquire content to find out what we need to know. In fact, sometimes it is sufficient to acquire simpler facts and information. For that reason, clause 13 makes it clear that obtaining secondary data can be the primary purpose of an interception, and the kind of data that can be obtained under a warrant is also set out.

Narrowing the scope of secondary data would reduce the number of occasions on which the operational requirement could be achieved through the collection of those data alone, resulting in greater interference with privacy where a full interception warrant is sought. Where we do not need to go further we should not go further. Where secondary data are sufficient to achieve our purposes, let that be so.

Secondary data are defined as systems data and identifying data included as part of or otherwise linked to communications being intercepted. Systems data is any information that enables or facilitates the functioning of any system or service: for example, when using an application on a phone data will be exchanged between the phone and the application server, which makes the application work in a certain way. Systems data can also include information that is not related to an individual communication, such as messages sent between different network infrastructure providers, to enable the system to manage the flow of communications.

Most communications will contain information that identifies individuals, apparatus, systems and services or events, and sometimes the location of those individuals or events. The data are operationally critical to the intercepting agencies. In most cases, the information will form part of the systems data, but there will be cases when it does not. When the data are not systems data and can be logically separated from the communication, and would not reveal anything of what might reasonably be considered to be the meaning of the communication, they are identifying data. For example, if there are email addresses embedded in a webpage, those could be extracted as identifying data. The definitions of systems data and identifying data make clearer the scope of the non-content data that can be obtained under the interception warrant.

The fact that the definition of secondary data is linked to clear, central definitions of systems and identifying data ensures that there can be consistent application of powers across the Bill to protect privacy and that data can be handled appropriately regardless of the power under which it has been obtained.

--- Later in debate ---

[Christian Matheson]

Mr Owen, it is traditional that hon. Members recognise the Chair. I do so not only because of your consummate skills in chairmanship, but because as the Member for Ynys Môn you bring back happy childhood memories of many childhood summer holidays in Benllech, Red Wharf Bay, Llangefni market and suchlike.

I listened to the Minister’s detailed explanations—I pay tribute to him for the length and the detail he went to—sometimes with the vision of a wet towel around my head invoked by my hon. and learned Friend the Member for Holborn and St Pancras. This is not a very politically correct thing to say and hon. Members may find it disappointing, but frankly I do not give a tinker’s cuss whether, in the defence of the realm, we seek access to information from outside the UK or outside British citizenry. Parliament has a responsibility to this country and we will exercise that. As we have discussed, we also have a responsibility to British citizens to respect their privacy. The crux of the Bill is the balance that we will achieve between those two competing demands.

I am not clear yet, particularly in respect of the point made by my hon. and learned Friend, as to whether the question of secondary data that will be extracted and that affects UK citizens has been correctly answered. If the Minister can give an assurance—I appreciate that he has already given a long and detailed answer—of his confidence that the privacy of UK citizens or people within the UK can be properly protected, I am sure we would be able to move on. The balance that we need to strike between protecting the privacy of UK citizens and protecting their personal security and the security of the nation is difficult.

[Mr Hayes]

To be absolutely clear, the means of the acquisition of content and secondary data and the operational purposes for which those data can be selected for examination will be explicitly authorised by the judicial commissioner and the Secretary of State. The operational case for the collection of those data must be explicit and sufficiently persuasive that the warrant is granted by the Secretary of State and by the judicial commissioner. I hope that gives the hon. Gentleman the assurance he desires.

[Christian Matheson]

I am most grateful for that assurance and explanation and, indeed, for the previous explanation. The Minister has gone into considerable depth on the matter and I am most grateful for that.

[Keir Starmer]

I, too, welcome you to the Chair of this Committee, Mr Owen. It is a privilege to serve under your chairmanship.

The assurance that has just been asked for cannot be given because the whole purpose of the provision is to enable the secondary data of any of us in this room that is caught by a bulk interception warrant to be looked at without any further warrant. If my data is swept up in a bulk interception warrant, even though I am not the target it can be examined without a separate warrant. That goes for every member of the Committee, every member of the public and everybody residing in the British Isles. The neat distinction between people here and people abroad breaks down in relation to this clause. I want us to be clear about that. The Minister is making the case that that is perfectly appropriate and necessary and that there are sufficient safeguards in place, but he is not making the case that this would not happen for those in the British Isles. It can and undoubtedly does happen, and it will happen under this regime. That means that all our secondary data are caught by this provision, even where we are not the primary target.

The Minister pointed to the double lock and the roles of the Secretary of State and judicial commissioner. He took an intervention on that, but I want to be absolutely clear on what those roles are and how necessity and proportionality play out. Clause 125 sets out what requirements must be met by a bulk interception warrant. Subsection (3) says:

“A bulk interception warrant must specify the operational purposes for which any intercepted content or secondary data obtained under the warrant may be selected for examination.”

The Minister points to that and says that there has got to be an operational purpose, which is true. However, we then read just how specific that operational purpose is likely to be:

“In specifying any operational purposes, it is not sufficient simply to use the descriptions contained in section 121(1)(b) or (2)”.

Those are just the general descriptions of national security and preventing serious crime, so it is not enough to say that the operational reason is national security or to prevent serious crime. Well, good—that that is all that had to be specified, it would not be very much. However, the purposes may still be general purposes, so the operational purposes are likely to be very broad—necessarily so in practical terms, given that it is a bulk warrant.

The role of the Secretary of State and the judicial commissioner is to decide whether the warrant is necessary and proportionate according to those purposes. We keep using the words “necessary and proportionate”. We have to keep an eye on what the object of the necessity and proportionality is. The question for the Secretary of State and the judicial commissioner is whether it is necessary and proportionate for the very broad operational purposes that are permitted under clause 125. It is not a very detailed, specific examination by the Secretary of State or the judicial commissioner; nor could it be.

At some later date, there is further consideration when it comes to examination. If it was suggested that at the later stage of actual examination, rather than authority for examination, it goes back to the Secretary of State and judicial commissioner, that is just plain wrong. It does not go back at all. All that the judicial commissioner or Secretary of State do is to authorise the general purposes under the warrant. As far as selection is concerned, that is governed by clause 134(1) and (2). Subsection (2) specifies that:

“The selection of intercepted content or secondary data for examination”

—that is at the heart of what we are talking about—

“is carried out only for the specified purposes”.

That relates to back to subsection (1). It continues,

“only so far as is necessary”

—necessary to what? It then refers straight back to the “operational purposes” set out in clause 125. Even at that later stage, the question of necessity and proportionality is against the very broad operational purposes. The Minister has been very clear about this and I am not suggesting otherwise, but the idea that there is some forensic and carefully curtailed exercise that looks in detail at the individual circumstances of the case is pretty far-fetched. In the end, all anyone has to do is ask whether it is necessary or proportionate to the general operational purposes upon which the warrant was issued in the first place. That is very different from the test set out for targeted interception. It is the test that will be applied to all the secondary data of anybody in this room who ever finds themselves caught up in a bulk interception warrant. That is not far-fetched. There will be many bulk intercept warrants, which may well capture the content and secondary data of many members of the public who are not targets in any way.

As a result, although I applaud the Minister for his long and detailed answer, it was not very persuasive regarding the necessity of this scheme or the effectiveness of the safeguards. Simply saying that secondary data may be necessary to determine location is hardly enough to justify the provision. I recognise that secondary data are different to content and that bulk powers are different from targeted powers, but in the end, when this is unravelled, it shows that there is no effective safeguard. In the circumstances we will not divide the Committee on the amendment, but I reserve the right to return to the matter at a later stage. It goes to the heart of the Bill. When properly analysed and understood, the safeguard in this respect is barely a safeguard at all.

[Mr Hayes]

I do not want to delay the Committee unduly, but I will offer this response. First, I direct the hon. and learned Gentleman to the “Operational Case for Bulk Powers”, which specifies the ways in which bulk powers will be used. The operational case will be specific. I am grateful to him for not pressing the amendment. I am happy to write to the Committee to reinforce our arguments and I think that we might reach a Hegelian synthesis—I am very keen on Hegel, as he knows. I agree that it is often necessary to examine the secondary data to determine the sender—he knows that that is the case—but I disagree about the lack of specificity on the operational purposes. We cannot give too much detail on that, for the reasons of sensitivity that he will understand, but I am happy to write to him to draw his and the Committee’s attention to the “Operational Case for Bulk Powers”, which is targeted at overseas threats but might, as he properly said, draw in some data from those who are in the UK. I hope that when I write to him he might decide not to bring these matters back further. I am grateful for his consideration.

[Joanna Cherry]

I, too, welcome you to the Chair, Mr Owen. It is a pleasure to serve under your chairmanship.

Before lunch, I spoke to amendment 83, concerning secondary data. I did not speak to amendment 84, because it was tabled but not selected, but it is really a corollary: it proposes leaving out clause 14.

I have listened carefully to what the Minister has said and I am grateful to him for his detailed explanation, but he does not take on board the concerns that I attempted to articulate on secondary data, notwithstanding the fact that similar concerns were articulated by the Intelligence and Security Committee. We will have to agree to differ for the time being. I associate myself with the comments made by the hon. and learned Member for Holborn and St Pancras about the other issues relating to the these amendments, in particular his pertinent and typically incisive point about clause 125(3).

Having sought clarification this morning from the Chair on the voting procedures, I do not intend to push the amendment to a vote, because I think that I would end up with something of a pyrrhic victory. However, I emphasise that I stand by the necessity for the grouped amendments and wish to revisit them later during the passage of the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.

Clause 14

Obtaining secondary data

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Keir Starmer]

That is absolutely right. If subsection (1) was wide enough to incorporate subsection (2) we would not need it. Subsection (2) is there to enable a warrant to be granted in circumstances that would be constrained by subsection (1). It is permissive—that is why the word “may” is used.

It is subsection (2) that has been singled out. Sir Stanley Burnton was absolutely clear that the wording of the subsection was wide, and that was what he focused his attention on. If someone with the experience of the experts I have named says that there is a problem because the provision is too broad, I invite the Government, in the spirit of constructing a better Bill, to go away and think about that. Those people have unrivalled experience of seeing warrants in practice.

[Mr Hayes]

I do not want to detain the Committee too long on these amendments, but this is an important debate, because investigation of the kind we are discussing may not at the outset be able to identify particular individuals. The effect of the amendments would be to limit the ability of warrant requesting agencies to apply for a warrant against organisations, and to require the naming of individuals. It is not always possible to do that. That includes individuals using communication devices—it may be known that someone has received a telephone call from a particular number, but not necessarily know who or where they are.

[Victoria Atkins]

Would a horribly pertinent example be the man in the hat in Belgium? Until this week the security services abroad did not know who that person was and were desperately trying to find out his identity.

[Mr Hayes]

That is an example of what I meant. There could well be people, either here or travelling here, whose identity is known only in the broadest terms. They are part of a network, a wider group or organisation, but no detail is known about them. That does not apply only to terrorist investigations; it might apply to serious organised crime investigations, in which by their nature we are dealing with organisations that desire anonymity. That means that investigations are challenging and makes the powers in the Bill absolutely necessary.

It is perfectly possible that a terrorist or criminal organisation might be seeking to travel in or out of the United Kingdom. It might not be clear at the outset which individuals will be travelling, or that all those travelling share an identified common purpose and will be carrying on the same activity, as required by the definition of “group of persons”.

It is also important to note that the Bill imposes strict limits on the scope of the warrant in relation to organisations. We need to be clear that activity against an organisation must be for the purpose of a single investigation or operation, and the Secretary of State and judicial commissioner will both need to be satisfied that the warrant is sufficiently limited to be able to meet the necessity and proportionality case. It is not just that it needs to be necessary and proportionate; it must be sufficiently limited to legitimise that.

[Joanna Cherry]

I am thinking about the example of the man in the hat. Is that really apposite here? We are talking about targeted interception warrants and targeted examination warrants. We cannot intercept someone’s communications, or examine them, before we have identified who or where they are. Simply knowing that there is a man in a hat is of absolutely no use to us until we find some way to narrow it down and identify who the man in the hat is, even if just that he is a man living in a particular place.

[Mr Hayes]

The hon. and learned Lady may have misunderstood. Part 2 targeted warrants, even if they are thematic, cannot be used to trawl information collected en masse or in bulk. Targeted interception warrant applications must specify the scope of the activity to be intercepted. They cannot be open-ended; they are time-limited and must provide sufficient information for the Secretary of State to assess that the activity proposed is necessary. Indeed, all targeted interception warrants will be time-limited to six months.

Where the interception of calls between a particular handset and a group of individuals, for example, may help to identify a kidnapper—we have heard the example of kidnapping—or show where a kidnapper is, the details of what they are planning or where they might be holding the victim, it is of course possible to identify individuals to whom the warrant relates at the point when it is sought. Where that is the case, the warrant requesting agency will be expected to add the identities of the suspects to the warrant as they become known. That is a further assurance and an important new safeguard, as the hon. and learned Member for Holborn and St Pancras knows. It will allow the Secretary of State and the judicial commissioner to oversee the conduct taking place under the warrant. That obligation will be given statutory force through the code of practice, as he said. Even though it will be in the code of practice, it will have statutory force.

[Keir Starmer]

Will the Minister confirm, just so we are clear what we are talking about, that that process, as envisaged in the code, is by way of modification and does not involve the double lock?

[Mr Hayes]

That is an interesting point. I will take further advice on that in the course of my peroration, which will be marginally longer than it was going to be as a result.

Because we recognise that it is important that these warrants are not open-ended, we have added that important safeguard. The fact that it is in the code of practice and not on the face of the Bill does not weaken its significance. I emphasise that it must have force and will be an obligation, as I have described it.

I will come back to the hon. and learned Gentleman’s point, but first I will deal with amendments 8 and 9, which would remove the warrant requesting agency’s ability to apply for a warrant for testing or training purposes. It is vital that those authorised to undertake interception are able to test new equipment and ensure that those responsible for using it are properly trained in its use. There are, however, strict controls that govern the handling of material obtained during such tests. We believe that it is right that it should be possible for equipment to be tested in scenarios where it can be checked that it is working properly, for example by armed forces on the battlefield. It would have serious consequences for our military if they did not have the ability to test equipment so that risks and mistakes are avoided.

[Victoria Atkins]

Returning to the point made by the hon. and learned Member for Edinburgh South West about the man in the hat, the reason for the ability to investigate communication devices and numbers to which names may not be attributed is precisely so such a person can be identified through devices seized from suspects who have already been arrested. Is my understanding correct on that? The hon. and learned Lady accused me of misunderstanding, but may I invite the Minister to clarify?

[Mr Hayes]

My hon. Friend is right, and I can enlighten the Committee by saying that I have seen this in practice. At the National Crime Agency I saw an investigation live, because it happened that while I was visiting, just such a warrant was being used. The identity of a number of those involved in a very serious potential crime was not known, and a warrant was used to piece together information from what was known to prevent an assassination. I will say no more than that for the sake of the necessary confidentiality, but that capability was needed to avert a very serious crime. That warrant was highly effective, and if I needed any persuading, it persuaded me then of the significance of the power we are discussing.

To return to the point made by the hon. and learned Member for Holborn and St Pancras, thematic warrants can be modified by adding people, as I think he was suggesting, but only where it is in the scope of the original activity authorised by the warrant and the purpose does not change. It must be for the purpose that the warrant requesting agency gave without the double lock; he is right about that. However, the Secretary of State must be notified when a person is added, so there is a further check in terms of that notification. Modifications are not permitted to change the scope of the warrant. The provision is not open ended—I do not think the hon. and learned Gentleman was suggesting that it was, but he might have been interpreted as doing so.

[Keir Starmer]

We can probably pick up this baton when we get to clause 30, but I think the provision that the Minister has just mentioned comes from the code, rather than the Bill.

[Mr Hayes]

That is true, it is in the code. I think I indicated that earlier. None the less, it is an obligation. The reason we added to the codes, largely following the Joint Committee report, was that we wanted to provide additional assurances without the rigidity of placing too much on the face of the Bill.

There is always a tension—I spoke about it in our morning session—between how much is placed on the face of a Bill, which of course provides a degree of certainty but by its nature simultaneously provides rigidity, and how much is placed in supporting documentation. Codes of practice are important supplements to a Bill, and, in their final form, to an Act. It should be emphasised that they are not merely advisory documents—they are legally binding in their effect. As I also emphasised, these are draft codes of practice that we expect to publish in full, partly as a result of this Committee’s consideration and what we learn from it.

The warrant application process will allow the Secretary of State to understand the potential risk that communications will be intercepted incidentally to the purpose of testing or training, and to approve the measures to be taken to reduce the chance of communication being accidentally intercepted. Clear safeguards are in place to protect the privacy of the citizen, so I invite the hon. and learned Member for Edinburgh South West to withdraw the amendment.

[Joanna Cherry]

I am not minded to withdraw the amendment. For the same reasons that the hon. and learned Member for Holborn and St Pancras gave earlier, and the reasons that I gave in relation to amendments to clause 13, I will not insist on a vote just now—I suppose that means that I do withdraw the amendment, but I reserve the right to bring it back at a later stage.

--- Later in debate ---

[Mr Hayes]

The hon. and learned Gentleman is so wrong about this that I have an embarrassment of riches on which to draw. He is philosophically, politically and factually wrong, but let me deal first with his factual inaccuracy. The Home Secretary can talk about specific warrants to the ISC. The ISC does conduct detailed investigations into particular cases, as it did into the murder of Lee Rigby, when it scrutinises data in considerable detail. Of course all of that cannot be made public, because of the nature of the investigation, but the hon. and learned Gentleman misunderstands—perhaps because of inexperience—the role of the ISC in those terms. I will deal with his philosophical and political problems later.

[Keir Starmer]

Perhaps the Minister will point me to an example of the ISC ever making public any criticism of or comment about the Secretary of State’s exercise of the powers in a way that could in any way be described seriously as politically accountable.

[Mr Hayes]

With respect to the hon. and learned Gentleman, he can hardly claim that the ISC is a puppet or poodle of Government given its report on the Bill. The ISC is extremely robust in its scrutiny of Ministers. It makes its views known to Ministers and is not frightened to make known to the House its views about the proposals, policies and performance of Government.

[Keir Starmer]

I do not think that the Minister was listening to what I said. I asked if he could point me to a single example of the Intelligence and Security Committee ever commenting publicly—in a way that could be accountable to the public—on the exercise by the Secretary of State of her powers to issue a warrant. It is all very well making generalised points, but I am asking for yes or no—the Minister must know.

[Mr Hayes]

The hon. and learned Gentleman said that the ISC could not ask the Secretary of State about particular warrants, but the ISC can and does ask the Secretary of State about particular warrants in pursuit of its inquiries into specific cases. Of course, because of the character of the ISC, rather like the practice of Ministers, it cannot make all that information publicly available. The whole point about the ISC is that it does not make all that it considers publicly available, but that does not mean that Ministers are not accountable to the Committee, which is made up of Members of this House from many political parties.

--- Later in debate ---

[Joanna Cherry]

I just want to address the joint amendments briefly. I want to draw attention to amendment 101, which was tabled on behalf of the Scottish National party and reflects a later amendment to delete clause 19. Scottish Ministers issue warrants at present in relation to serious crime. If the amendments were taken on board, their role would be replaced by judicial commissioners, and they are comfortable with that. I simply draw attention to that consequential amendment.

I support everything that the hon. and learned Member for Holborn and St Pancras has said in support of the group of amendments to clause 17. I have just three points to make: three reasons why I support the amendments. First, I associate myself with the argument that arguments concerning Ministers’ democratic or political accountability for surveillance warrants are misconceived and misplaced. Secondly, one-stage judicial authorisation is the norm in many comparable jurisdictions. Thirdly, and picking up another point made by David Anderson, judicial authorisation would encourage co-operation from technical firms in the United States of America.

I am grateful to the hon. and learned Member for Holborn and St Pancras for exploding the myth, also exploded by David Anderson, that Ministers are democratically accountable for their role in issuing warrants, because of course it is a criminal offence to disclose the existence of a warrant, and that will remain the case under clauses 49 and 51.

What is often advanced and has been advanced by Government Members is that a corollary to this argument is that Ministers are politically accountable for the agencies and will be required to resign if things go wrong. That is incorrect. Although the Home Secretary is responsible for setting the strategic direction of the Government’s counter-terrorism policy and the Cabinet Minister is responsible for MI5, MI5 is like the police: operationally independent. MI5’s director general retains operational independence for day to day decision making. Historically, when terrorist attacks have tragically succeeded, they have not led to political resignations in this country. Despite inquests and inquiries following the terrible tragedies of the 7/7 attacks and the ghastly murder of Fusilier Lee Rigby, and despite the fact that those inquests and inquiries uncovered internal errors in the agency’s handling of information relating to those responsible for the attacks, this did not result in the political accountability that is now so strongly claimed.

The reality is that the oversight we have for such decisions and the accountability for the agency is provided by a patchwork of mechanisms, including the ISC—although I dissociate myself with the comments made by the hon. and learned Member for Holborn and St Pancras on the limitations of the ISC—and also by public inquiries and legal challenges brought against the Government. No doubt we could argue that such oversight and accountability as there is in relation to the operation of the security agencies could be enhanced, but it is simply not correct to argue that political accountability is provided by the ministerial sign-off on warrants, because it is not. I have been in the House for only nine months, but when questions around these issues are asked of Ministers, I have seen them repeatedly reply, probably quite properly, that they cannot answer for reasons of national security.

My second point is that one-stage judicial authorisation is the norm in comparable jurisdictions. It happens in America, where federal, investigative or law enforcement officers are generally required to obtain judicial authorisation for intercept. A court order must be issued by a judge of a US district court or a US court of appeals judge. In Australia, law enforcement interception warrants must be issued by an eligible judge or a nominated administrative appeals tribunal judge. In Canada, it is unlawful to intercept private communications unless the interception is in accordance with an authorisation issued by a judge. In New Zealand, police can only intercept a private communication in tightly prescribed circumstances, including requiring a warrant or emergency permit that can only be issued by a High Court judge. If the United Kingdom wants to be able to claim that it is in a world-class league for good practice in surveillance, in my submission, it should adopt one-stage judicial authorisation.

Those of us who are lawyers in the Committee or have ever dealt with the law are familiar with the concept of a judge being got out of his or her bed in the middle of the night to grant an interdict in Scotland or an injunction in England, in civil matters of far less importance than the sorts of matter the Bill deals with. In the aftermath of—God forbid—another attack in the United Kingdom such as 7/7, judges would be as readily available to deal with warrants as Ministers of the Crown are at present.

Thirdly, judicial authorisation would encourage co-operation from US technical firms. That point was pressed home by David Anderson QC in his review, when he said that given the United States tradition of judicial warrants, Silicon Valley technical firms feel uncomfortable with the United Kingdom model of political authorisation. Those firms operate in a global marketplace, which underlines the need for us to adhere to procedures fit for a world-leading democracy. The United Kingdom is alone among our democratic allies with similar legal systems in permitting political-only authorisation. The SNP supports the amendments for those three reasons.

[Mr Hayes]

This is an important debate, as my hon. and learned Friend the Solicitor General said. The shadow Minister is wrong, as I described earlier, factually, philosophically and politically. I will try to deal with those in turn.

The factual case is this. Accountability is a much more sophisticated thing than the shadow Minister suggests. Accountability is about who makes decisions, as well as about the decisions they make. People who are elected, by their nature, are accountable to those who elect them. The judgments they make and the powers they exercise reflect that direct relationship with the electorate. It is almost undeniably true that those of us sitting in this room and others like us are bound to be more influenced and affected by the wider public because we do not do a job unless they continue to have faith and belief in us. We are elected by them; we are answerable to them.

The Home Secretaries, the Northern Ireland Secretaries and the Foreign Secretaries who make these decisions are elected constituency Members of Parliament who every day, every week and every month are communicating with constituents who have profoundly held views about the very matters over which those Secretaries exercise their judgment, in a way that people who are not elected simply do not. That line of accountability to the wider public should not be understated or underestimated.

[Keir Starmer]

How would a member of the public ever know, and therefore be able to judge, whether a Secretary of State had made a mistake in relation to a specific warrant?

[Mr Hayes]

I am prepared to acknowledge that I may not have made the argument sufficiently clearly, rather than to suggest that the hon. and learned Gentleman did not understand it. I was making the point that those who are missioned to make the decisions are likely to be more in touch with the sentiments, values, views and opinions of the public than those who are not elected, because of who they are and the job they do. That is not a particularly difficult concept to grasp, so I am amazed that he does not grasp it.

[Keir Starmer]

Perhaps the Minister can point me to the provision in the Bill that permits or requires the Secretary of State to take into account the wider public’s views. There are strict legal tests of necessity and proportionality, and the idea that judges could not apply them to specified organisational purposes and so on is to underplay their duty. I have done loads of control order cases and TPIM cases in front of judges and they make such decisions day in, day out.

[Mr Hayes]

Here is the nub of the difference between us. The hon. and learned Gentleman is a former lawyer who has happily now become a politician. I am a politician who has never had the disadvantage of being a lawyer. Luckily, I have many hon. Friends in the room who are able to supplement my skills in that regard. My fundamental point is that as a constituency Member of Parliament, with all the communications, contacts and understanding that that necessitates in respect of popular opinion—I reapply for my job, as he will, every five years—I am likely to be more in tune and in touch with popular sentiment when exercising all kinds of judgments, including judgments about the Bill, than someone who is not. That is not a particularly controversial view. It is an affirmation of the importance of representative democracy, and we are, after all, Members of a representative democratic forum.

[Christian Matheson]

Does the Minister understand the point my hon. and learned Friend the Member for Holborn and St Pancras is making about how a balance must be struck between being in touch with popular sentiment—the Minister made that case well—and being correct in terms of legal procedures?

[Mr Hayes]

Absolutely, thus the double lock. I am proud to be an elected person. I do not share the doubt-fuelled, guilt-ridden bourgeois liberal hesitation about decision making that has emasculated so much of the political class.

[Simon Hoare]

I thought my right hon. Friend was about to give a tinker’s cuss, but obviously he refrained from doing so. I think he will agree that the main difference between the two Front Benches is the point made by the hon. Member for City of Chester in an earlier intervention. If the first duty of Government is the protection of the realm and Government can send troops on to our streets and into foreign battlefields and so on, suddenly passing any responsibility for or involvement in the granting of these warrants off to unaccountable judges would be an abdication.

[Mr Hayes]

I do take that view. The hon. Member for City of Chester did not explicitly articulate, but implied that there needed to be a balance between refusing to abdicate that duty, and indeed affirming it, alongside the affirmation of representative Government that I have already made, and taking into account the significance—as the hon. and learned Member for Holborn and St Pancras argued, David Anderson made this point clearly in his report—of judicial involvement, not least as a means of reinforcing the system. As he very honestly said, part of David Anderson’s consideration was whether we could make what we do stand up to challenge, and having a judicial involvement through the double lock is a way of creating a system that is more robust and resistant to challenge: a system that people can have greater faith in, in that respect.

[Christian Matheson]

I am most grateful to the Minister for his generosity in giving way again. Having grown up in a village in rural Cheshire, I probably am quite bourgeois and certainly quite liberal, but I am finding the arguments of Government Members somewhat absurd, in that they seem to have a lack of trust in the judiciary to implement the law and understand what was meant from the original drafting of a law. I think my hon. and learned Friend the Member for Holborn and St Pancras was trying to convey the sense that the balance was not quite there.

[Mr Hayes]

No, the double lock will provide the judicial commissioner with the same information—the same explanation of need—as that offered to the Secretary of State: the Home Secretary, the Foreign Secretary, the Northern Ireland Secretary. What is more, they will apply the same test of proportionality and necessity, for it is indeed just that: a double lock. Unless both the judicial commissioner and the Home Secretary approve the application for the warrant, it will not happen. It is true that any party can ask for further information and the re-presentation of the warrant, and that may occur if there is uncertainty about the case that has been made, but the double lock has real effect. It is not that we do not believe in the judicial side of this deal; it has equal weight to the political involvement, but it is important that the Executive retain a role in this.

Let us be clear, the effect of these amendments will be to take the Executive out altogether—a substantial change in the Labour position. I suspected, unhappily, that the hon. and learned Member for Holborn and St Pancras might be a bourgeois liberal; I did not know he was going to be a born-again Bolshevik.

--- Later in debate ---

[The Chair]

Before the Minister continues, let me say that the shadow Minister will have an opportunity to respond.

[Mr Hayes]

I just say to the shadow Minister that he may not appreciate the tone, but I could be much tougher. The reason I could be much tougher is because these amendments—which I take great exception to, by the way—stand in direct contrast to the tone of the shadow Home Secretary’s remarks when the draft Bill was published, when he welcomed the idea of a double lock. Speaking of the Home Secretary, he said:

“She has brought forward much stronger safeguards, particularly in the crucial area of judicial authorisation. It would help the future conduct of this important public debate if the House sent out the unified message today that this is neither a snooper’s charter, nor a plan for mass surveillance.”—[Official Report, 4 November 2015; Vol. 601, c. 973.]

That warm welcome of the double lock was affirmed several times since. It then metamorphosed into an equal lock, as the hon. and learned Member for Holborn and St Pancras and others said that the information provided to the judicial commissioner should be equivalent to that provided to the Home Secretary, and I can even understand the argument that the process might be simultaneous. I do not necessarily agree with it, but I at least understood it, though our case was that the matter should go first to the Home Secretary and then to the judicial commissioner. I thought it might be the Opposition’s settled position that they wanted simultaneous consideration, but these amendments take the Home Secretary out of the process altogether. I can only assume that this change of heart—this about-turn—is not to the hon. and learned Gentleman’s taste, because I know that he is a very sensible chap and I cannot believe that he really believes that the Executive should be removed from the process altogether. Either there has been a command from on high—thus, my point about Bolsheviks—or, I hope, these are merely probing amendments that seek to reach one of the earlier positions I thought he might take.

[Lucy Frazer]

The hon. and learned Member for Edinburgh South West mentioned in her opening speech and on this point the importance of international comparison. Did the Minister notice that she did not refer to paragraphs 8.46 to 8.48 of David Anderson’s report, in which he extensively analyses the comparative jurisdictions?

--- Later in debate ---

[The Chair]

I notice everything.

[Mr Hayes]

For the sake of brevity and to make sure I do not fall out in the future, I am going to say that, yes, I did notice it.

The shadow Home Secretary, speaking of the Home Secretary, went on to say:

“The two-stage process that she advocates seems to have the merits of both arguments: it will provide public and political accountability, and the independence that is needed to build trust in the system.”—[Official Report, 4 November 2015; Vol. 601, c. 974.]

That is exactly the same point that I made to the hon. Member for City of Chester: it has, in the words of the shadow Home Secretary, the “merits of both arguments”.

Perhaps the shadow Minister will forgive me if I sound a little more arch than I normally do, but I feel that this is such a surprising set of amendments, which is so out of keeping with what I hoped was emerging as a settled position on the balance between the Executive and the judiciary. I thought we would end up with a debate on this, but not one between two positions—our measured, compromise position, and a much more extreme position that I did not expect the official Opposition to adopt. I urge him to think about this again, because I think we reached a good settlement in the terms that I described. That is my political point.

Returning to my original point for a moment, given the evidence provided by the former Home Secretaries, John Reid and David Blunkett, and the former Northern Ireland Secretary, my right hon. Friend the Member for North Shropshire (Mr Paterson), I think the balance of opinion lies on our side of the argument. I note the Joint Committee’s report and the fact that the ISC was silent on this issue in its most recent report. I feel that the balance of the argument lies with the proposals in the Bill. Perhaps we can look at the detail—I am happy to do that. Perhaps, in the spirit of trying to make positive progress, we can look at the information is provided to each party under the double-lock or at how the timing works—I do not know. I am not going to make any commitments on that, but I am more than happy to have a measured and reasonable debate about this. However, to take the Executive out of the process is politically very unwise, if I might say so, of the Opposition, and it is certainly not acceptable to the Government.

On the philosophical point, the shadow Minister understands—he is an educated and interesting man—that this strikes at the very heart of the separation of powers. My right hon. Friend the Member for North Shropshire said in evidence that

“these are executive decisions. They are operational decisions and must be made by a democratically elected Minister, accountable to Members of Parliament.”

He did not want the judiciary involved at all. We did not take that route because we listened to David Anderson and others, but I take the former Minister’s point.

Finally, so that we do not have any factual inaccuracies, the ISC made a clear recommendation on warranting in the Lee Rigby report that I mentioned earlier. The ISC does comment on warranting, contrary to what the shadow Minister says. It can both interrogate the Home Secretary on specific warrants and comment on warrants in respect of a particular investigation or inquiry. There is a line of accountability, as well as one to the wider public in the general terms that I described, to a well respected Committee of this House, which was established for exactly that purpose. On that basis, and having heard the argument, I urge Opposition Members to think again about these amendments.

[Keir Starmer]

In the exchanges we have had, I have probably said all I needed to in response to the Minister’s points. David Anderson might be surprised to find out that he is associated with the Bolshevik opposition apparently represented in the amendments. The amendments represent and reflect his thinking, but that is as may be—I will not press the amendments to a vote. I beg to ask leave to withdraw the amendment.

--- Later in debate ---

[Keir Starmer]

It is a pleasure to follow my hon. Friend, whose comments I endorse. I saw the Ministers nodding that they will take that away and consider it, and I am grateful for that indication. Rather than the broader points that have been discussed so far, I will concentrate my comments on clause 18(2)(c), which deals with

“the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.

The short point is this: if economic harm to the wellbeing of the United Kingdom is so serious that it amounts to a threat to national security, it is covered within subsection (2)(a). If harm to the economic wellbeing of the United Kingdom is a serious crime, it is already within subsection (2)(b). The Intelligence and Security Committee has made the point that

“if ‘national security’ is sufficient in itself, then ‘economic well-being…so far as [is] relevant to the interests of national security’ is redundant, since it is a subset of the former.”

The ISC went on to say:

“We have questioned both the Agencies and the Home Office on this matter and neither have provided any sensible explanation. In our opinion, this area is already sufficiently complex so drafters should seek to minimise confusion wherever possible. We therefore recommend that ‘economic well-being’ is removed”.

The Committee makes the same point that if economic wellbeing is already subsumed into paragraphs (a) and (b), paragraph (c) is not necessary. The Committee has asked repeatedly what paragraph (c) covers if not what is already within paragraphs (a) and (b), and I ask that question here today. I ask the Minister or anyone else to give me a single example of what it is envisaged paragraph (c) covers that does not fall within paragraphs (a) and (b).

Subsection (4) has been referred to today and on Second Reading as providing some sort of comfort that subsection (2)(c) is not a matter of concern. It says:

“A warrant may be considered necessary as mentioned in subsection (2)(c) only if the information which it is considered necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.”

To be clear, that does not mean the communication itself is outside the British islands, but that the communication relates to acts or intentions of persons outside the British islands. I endorse everything that was said about trade union and other activities that may be outside the British islands, but the suggestion that this provision would only catch communications outside the British islands is a wrong reading, in my submission.

The question on the table for the Minister is whether a single example can be given of something coming within subsection (2)(c) that does not come within subsections 2(a) and (2)(b). If not, how can the clause be justified?

[Mr Hayes]

I start my contribution to this short debate by confessing a pretty profound prejudice, which is that I am committed to and supportive of trade unions. I am a member of a trade union; my father was a shop steward; my grandfather was chairman of his union branch. I come from a long history of trade unionism, and I believe that the trade union movement in Britain has done immense good for the interests of the people. I am a Disraelian Tory, and so I believe in the elevation of the people, in which trade unions have played an important part. I could wax lyrical about one of my heroes, Joseph Chamberlain, in terms of the elevation of the people, but we do not have time for that. When I approach this clause and this subject, I do so with that profound prejudice. By the way, just as an aside, prejudice is immensely underrated in the modern age, but it is important that we balance all that is rational with all that we feel. Feelings matter.

I make it categorically clear that, as the hon. Member for City of Chester generously said, not only individual Ministers in this Government, but the Government as a whole have no intention that these powers should be used for the kind of political purposes he describes. That is not our intention. Actually—it is always good to go further than one’s officials want—I think we might need to be more emphatic about that in some form, because I want to make it crystal clear that the kind of scenario that he describes cannot happen in our country.

Our country is a free and open place where we celebrate the differences between people and the role played by the trade unions. I am prepared to go as far as necessary down the road to make that categorically clear. To that end, I suggest that I meet Frances O’Grady of the TUC to discuss this. I know her well. I went on a joint business-trade union delegation with her to Germany to look at apprenticeships when I was Skills Minister. I am more than happy to engage with the trade union movement to see what more we can do.

However, let us return to the point about economic wellbeing and these amendments. At the outset of his remarks, the hon. Gentleman rightly recognised that threats to economic wellbeing could be immensely damaging and fundamental in their effect and could be the business of a foreign potentate or another source of malevolence. He described a cyber-attack, which might be an attack on our critical infrastructure, on our financial services system or, heaven knows, on Government itself. The age we live in means that cybercrime, perpetrated either locally or internationally, is a threat that we must recognise and have the means to address, so it is right that the law—this Bill, which I hope will become an Act—includes reference to the interests of the economic wellbeing of the UK, but it is equally true, as the Opposition argued on Second Reading and elsewhere, that that interest is closely tied to national security.

One argument that has been made is that if we were to define national security more tightly, we might assuage fears of the kind the hon. Gentleman described. The trouble with defining national security more tightly is that that might of itself create additional rigidity that is unhelpful to the agencies in pursuit of their work. Successive Governments have hesitated to describe national security prescriptively, and having looked at these matters closely I understand why. Successive Governments have affirmed the idea that a small number of law enforcement agencies, the security and intelligence services and the armed forces need to be able to seek and use interception warrants for national security, for preventing and detecting serious crime and in the interests of economic wellbeing. I am reluctant, therefore, either to take economic wellbeing out of that list or to define national security more narrowly. I think that the breadth of those definitions is important for operational effectiveness.

There may none the less be more that we can do to deal with political fears, if I can put it in those terms. The existing law is clear that none of these powers can be used in the interest of a political party or in a particular political interest, but it may be that we can do more to offer reassurance. I am going a little further than we have until now because I want to create a bridge that we can cross. The Security Service Act 1989 and the Intelligence Services Act 1994 provide some protection, because they deal particularly with the issue of the interests of any political party being served by the powers. A case has been made about the Shrewsbury 24. Indeed, there was a debate in Westminster Hall on that very subject—I have the transcript here with me—promoted by the hon. Member for Liverpool, Walton (Steve Rotheram), who is a very good man and a very proud trade unionist; I know him well. The events at that time preceded the legislation that tightened protection. Notwithstanding that, I have heard the argument that has been made today.

The other reason why I do not want to significantly change the language on economic wellbeing, although I understand the argument about ambiguity, is that the phrase “economic wellbeing” reflects the language in domestic legislation—as my hon. and learned Friend the Solicitor General will know—the European convention on human rights and the European Union directive that covers the scope of interception powers. It is difficult to think of a better, more appropriate or more widely recognised term. Substituting another term could be taken to imply that the agencies should not engage in certain activities in the future that they undertake now. One can easily imagine a future judicial commissioner querying why the language has changed from that used in the Regulation of Investigatory Powers Act 2000, and asking whether what the agencies do should change, too.

I am hesitant to make that fundamental change. I am not sure it would do anything for transparency. Indeed, removing economic wellbeing and placing what is done under the broader umbrella of national security might lead to less, rather than more, clarity in the process. As the hon. Member for City of Chester described, some of the events that would be included under the heading “economic wellbeing” could be sudden and of crisis proportions, such as the cyber-attack to which he and I referred, and require prompt and decisive action. Such crises are, by their nature, unpredictable and we must not limit the agencies’ ability to deal with them.

--- Later in debate ---

[Keir Starmer]

I am grateful to the Solicitor General. I have listened carefully to what he has said. There is a difference between us, because I seek to ensure through the amendment that the judicial commissioner is a proper decision maker.

To make the argument that the judges might be fettered is really to misunderstand the amendment that I have tabled. The duty of the judge is to apply the test that Parliament sets out in statute. That is straightforward, and if Parliament is clear about the test, the judge is exercising his or her duties properly in applying the test. There is no question there, but there is this fundamental point between us as to whether it should be review or decision making. I think that is clear enough.

In light of the argument, at this stage I will not push this amendment to a vote, but I will reserve it for a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Mr Hayes]

I beg to move amendment 2, in clause 21, page 17, line 13, leave out from “a” to “grounds” and insert

“decision of the Secretary of State to issue a warrant,”.

This amendment makes a minor drafting change to take account of the fact that Clause 21 may also apply in a case where a warrant has already been issued (see Clause 22).

[The Chair]

With this, it will be convenient to discuss Government amendment 3.

[Mr Hayes]

These are minor drafting changes, to take account of the fact that clause 21 may also apply in cases where warrants have already been issued by the Secretary of State, and that urgent procedures are covered in clause 22, and that clause 21 may also apply in a case where the warrant has been issued by Scottish Ministers. They are uncontentious changes, and I beg to move the amendment on that basis.

Amendment 2 agreed to.

Amendment made: 3, in clause 21, page 17, line 15, leave out from “a” to “grounds” and insert

“decision of the Scottish Ministers to issue a warrant,”.—(Mr John Hayes.)

This amendment makes a minor drafting change to take account of the fact that Clause 21 may also apply in a case where a warrant has already been issued (see Clause 22).

[Keir Starmer]

I beg to move amendment 102, in clause 21, page 17, line 23, at end insert—

“(6) In consideration of any warrant pursuant to this Part, a Judicial Commissioner may instruct a special advocate to represent the interests of any person or persons subject to the warrant or the wider public interest.

(7) A Judicial Commissioner must instruct a special advocate when considering applications for a warrant—

(a) in the interests of national security; or

(b) involving the consideration of items subject to legal professional privilege.

(8) For the purposes of these proceedings special advocates are persons appointed by the relevant law officer.

(9) The ‘appropriate law officer’ is—

(a) in relation to warrants in England and Wales, the Attorney General,

(b) in relation to warrants in Scotland, in relation to (7)(a), the Advocate General for Scotland, and in relation to (7)(b), the Lord Advocate, and

(c) in relation to warrants in Northern Ireland, the Advocate General for Northern Ireland.

(10) A person may be appointed as a special advocate only if—

(a) in the case of an appointment by the Attorney General, the person has a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990,

(b) in the case of an appointment by the Advocate General for Scotland or the Lord Advocate, the person is an advocate or a solicitor who has rights of audience in the Court of Session or the High Court of Justiciary by virtue of section 25A of the Solicitors (Scotland) Act 1980, and

(c) in the case of an appointment by the Advocate General for Northern Ireland, the person is a member of the Bar of Northern Ireland.”

Oral Answers to Questions

John Hayes Excerpts

Monday 11th April 2016 Commons Chamber

[Nic Dakin (Scunthorpe) (Lab)]

3. What assessment she has made of recent trends in the level of cybercrime.

[The Minister for Security (Mr John Hayes)]

While overall crime has fallen by more than a quarter since 2010, it is also changing, as the hon. Gentleman knows. An accurate national picture is critical to informing our response to cybercrime, which is why the Office for National Statistics has now published, for the first time, initial estimates of the number of cybercrimes committed, based on a preliminary field trial. The ONS estimates that there are 2.5 million incidents of computer-misuse crime per year.

[Nic Dakin]

The Office for National Statistics estimates that there were some 5.1 million incidents involving such crimes last year, which adds about 40% to the baseline figure for crime in the UK. Will the Minister accept that crime appears to be going up, rather than down?

[Mr Hayes]

I think crime is changing. The hon. Gentleman is right that this is about skills, which is why we established the National Cyber Crime Unit in the National Crime Agency, and about resources, which is why we have put £1.9 billion into this area of work. However, the issue is also about recognising that many such crimes can be prevented through straightforward good practice by citizens.

I think—I know you do too, Mr Speaker—that questions should always have a purpose beyond challenging the Government and should actually deliver positive results for Members. Following the hon. Gentleman’s question, I will write to him and to the whole House with details of how he can advise businesses in Scunthorpe and his constituents on how to stop these kinds of cybercrimes.

[Mr Speaker]

I await that with eager anticipation.

[Ben Howlett (Bath) (Con)]

The west of England is leading the way in tackling cybercrime following the £1.9 billion investment announced by my right hon. Friend the Chancellor last year. Given the atrocities in Brussels last month, will the Minister update the House on how he is working with our allies to tackle cybercrime?

[Mr Hayes]

What is critical in tackling cybercrime is the partnership between the private and public sectors, which is why the Home Secretary launched a joint taskforce to look at how allies, comrades, friends and others can work together to tackle this issue. It is also important to emphasise that GCHQ states that 80% of such crimes can be prevented by the straightforward good practice that I identified earlier, which is precisely why I take the matter so seriously and why public information is at the heart of what we do.

[Jack Dromey (Birmingham, Erdington) (Lab)]

For five years, the Government’s alibi has been, “We cut police, but we cut crime.” The Police Minister has told Sky that citizens are more likely to have a crime perpetrated against them online on their computers while they are asleep than in the street. With cybercrime statistics set nearly to double the national crime rate, will the Minister finally admit that, far from the alibi of the past five years being the case, crime is not falling? Crime is changing and the truth is that crime is rising.

[Mr Hayes]

It is always unfortunate when a shadow Minister prepares a question in advance and does not listen to what has been said immediately beforehand. I said in my first answer that crime is changing. It is falling, but it is also changing and because it is changing we need the additional skills, resources and approaches that I described to the hon. Member for Scunthorpe (Nic Dakin).

Given that the hon. Member for Birmingham, Erdington (Jack Dromey) made a bit of a hash of his question, I want to help him as much as I can: I refer him to the two sets of guidance that we have just published, which I will happily furnish him with following questions.

[Jonathan Reynolds (Stalybridge and Hyde) (Lab/Co-op)]

4. What assessment she has made of the effect of changes in the level of funding on the work of the fire and rescue service.

--- Later in debate ---

[Mark Spencer (Sherwood) (Con)]

T5. Has the Home Office team had time to reflect on the extraordinary National Union of Teachers motion that condemned the Prevent duty? Do Ministers agree that we all have a responsibility to do all we can to prevent young people from engaging in terrorism and extremism?

[The Minister for Security (Mr John Hayes)]

It was Ruskin who said:

“Let us reform our schools, and we shall find little reform needed in our prisons.”

It is in that spirit that the Prevent duty missions teachers to identify those vulnerable young people and safeguard them from being drawn into terrorism. Schools are stepping up to that mark, as they know their students best. They are well equipped and well prepared, and they are safeguarding our children and so securing our future.

--- Later in debate ---

[Tom Tugendhat (Tonbridge and Malling) (Con)]

T8. The Investigatory Powers Bill, which is going through the House, provides important capabilities, along with new safeguards, to tackle cybercrime. Will Ministers update the House on how the changing nature of crime is being fought by the Bill?

[Mr John Hayes]

The motives of terrorists, paedophiles and people traffickers may differ, but their means are the same, and they take advantage of the internet. The Bill will provide the police and security services with powers that are necessary to keep us safe. Powerful new measures, steely determination and an iron will mark all that we do.

[Patrick Grady (Glasgow North) (SNP)]

Anyone from Malawi who wants to visit the UK has to apply online with a credit card. Given how few people in Malawi have access to electricity, let alone the internet or banking facilities, what steps is the Home Office taking to make sure that people who have a legitimate request can apply?

Investigatory Powers Bill (Second sitting)

John Hayes Excerpts

Thursday 24th March 2016 Public Bill Committees

[Joanna Cherry]

Q Do you agree that we cannot compare what is proposed in the Bill with what was proposed in Denmark until you have got an agreed specification with the Home Office?

Mark Hughes: A pamphlet has been issued and we have been in discussion with the Home Office as recently as the last couple of days about this. More clarity is required, but broadly speaking there is a definition in the Bill, there are purposes in the Bill and we understand that there are options technically around it. We have been working that through with them, but yes we would like clarity as soon as we can.

[The Minister for Security (Mr John Hayes)]

Q Thank you, Mr Hughes, for coming, and thank you also for acknowledging the extent of the consultation with which you have been engaged with the Home Office. As a result of that, you will know that the codes of practice published at the time of the Bill reflect some of the arguments you have advanced previously and clarify some requirements.

Today you emphasised that as we move forward there will be ongoing discussion. How important do you therefore think it is to avoid rigidity by putting more on the face of the Bill rather than including that in codes of practice and in the ongoing discussions you described?

Mark Hughes: It is very important that we have words and definitions on the face of the Bill to deal with the really substantive points as far as this type of legislation is concerned—namely the level of intrusiveness, which is clearly where definitions help. A definition is only really a way of helping to establish the level of intrusiveness of the power that is being put in place.

There are needs to have something. One need, which I have said, is about ensuring that there is clarity around 100% cost recovery, for example. There is definitely a need for that and with 268 pages there is quite a lot in there. However, we also recognise that as technology changes—our world is an ever-changing one as we know, and that is the case specifically in our industry—there is need for flexibility of a discussion point around how consultation happens and how that manifests itself in a legal instrument for us to retain and disclose either content or other types of communication data.

It is a difficult balance to be had. I think there is a lot at the moment in the Bill that is very useful. There are purpose limitations, for example, which are very useful for us, as are, as I said already, the definitions.

The other point is that there does need to be flexibility in future about understanding how the new codes of practice will be formulated based on what was required, and the Bill is clear that the correct oversight is in place. That is a difference from the extant legislation. The consultation process is different from others there have been in the past, and we welcome that.

[Mr Hayes]

Q Presumably you also welcome the right to review a technical capability notice and the commitment that there will be further discussion with you before you are obliged to meet obligations.

Mark Hughes: Yes, indeed, and not only that, but there is now on the face of the Bill a right of appeal to the Home Secretary if a notice is issued to us and we disagree with it. That has not existed in the past. In the past, under other legislation, we have had occasion to make representation, but it is much clearer in this Bill than it has been in the past.

[Christian Matheson]

Q Under the terms of the Bill, you are being asked to collect a large amount of data, some of which will be quite personal and some private. How confident are you of BT’s capability in terms of maintaining the security of those data from hacking or theft, particularly bearing in mind the fact that other communications service providers have been hacked into? When you consider the rest of the industry more broadly—without naming names—do you think BT is in a stronger position than other CSPs to maintain security against hacking or theft where there might be vulnerabilities elsewhere?

Mark Hughes: The security of any data we hold and retain is clearly a matter that we take extremely seriously. That is of the utmost seriousness for our organisation for any type of data. The type of data that the Bill refers to specifically is, though, perhaps different from other types of data that need to be interfacing the public on a bigger scale, for example. This is not that type of data; it is going to be restricted and allowed to be viewed by only very few individuals who have the correct authority to be able to get to the data when they need to.

The level of security applied to this type of data is clearly factored into the type of data that is being retained, so we have to put very significant security measures around it to ensure that the access is controlled properly and that the data are very secure when stored. That absolutely has to be factored into the cost and the way we operate. It is not something new. We are currently subject to laws and regulations under which we have to make sensitive data available, so we are used to doing it, but that clearly has to be factor in for, for example, some of the new datasets we are potentially going to be asked to retain under the Bill.

--- Later in debate ---

[Joanna Cherry]

That is an internal guarantee that you are giving us. There is nothing in the Bill to say that it would not be accessed, is there?

Richard Berry: Not that I have seen, no.

[Mr Hayes]

Q I will be mercifully brief. Given your very wide case experience, and the fact that an overwhelming number of serious crimes are now connected with both the technology and methods of modern media, can you envisage circumstances in which loss of life or severe injury might be prevented through equipment interference?

Chris Farrimond: Absolutely, yes.

[Mr Hayes]

Q That is something the Joint Committee recommended and now forms part of the Bill. On internet connection records, can you give us a flavour, also from your case experience, of the kinds of crimes and circumstances in which they might be vital to an investigation and, ultimately, to catching and convicting people involved in serious crime?

Chris Farrimond: Let us just start with the fact that internet connection records are the new comms data; they are the modern equivalent of comms data, the normal itemised billing that we have had for years and years. Criminals are using internet communications even if they do not necessarily realise it—when they send an iMessage, for instance, in an internet communication, rather than a text message. That is happening the whole time, and it is happening right across the population, whether people are law-abiding or criminal, so internet connection records now feature in every type of criminality. They are featuring more in those types of crime where the internet plays a larger part—fraud, for instance. I can talk about child sexual exploitation, where the internet makes it so much easier to share images, so internet connection records would be extremely useful for us in those circumstances.

Simon Grunwell: HMRC’s business model going forward is to put more and more services online to enable taxpayers to do more themselves, a bit like an online bank account. We already have online frauds. We are quite attractive for fraudsters, in the sense that we collect £500 billion a year and we pay out £40 billion in benefits and credits. Comms data helps us directly prevent the loss of £2 billion in revenue. On the ICR point, in particular, we have already had online attacks against us. In one case alone we were able to prevent the loss of £100 million. ICRs can only help us in that regard.

Richard Berry: From a local policing point of view, it is not just about serious crime; it is also about—if I can use this phrase—policing the digital high street. So ICRs could be just as relevant for cases such as domestic abuse, stalking and harassment, to prove a particular case, or to help us deal with what might seem, in isolation, to be a minor issue, but can often be on a path of escalation to homicide or very serious assault.

[The Solicitor General]

Q You were just asked about anonymity and the perceived danger to anonymity—for example, in the Crimestoppers scenario—but that would apply if I telephoned Crimestoppers now, wouldn’t it?

Chris Farrimond: It would.

--- Later in debate ---

[Joanna Cherry]

Q That was not really my question. My question was on whether you agree that the individual’s right to privacy justifies the time that is sometimes taken in inputting for a judicial approval.

Mark Astley: I understand the need for respect for privacy, but the necessity and proportionality aspect of every case will be considered, and if it is appropriate to do so, we would need to intrude on that privacy.

[Mr Hayes]

Q Obviously, your role is an additional safeguard. There are those who think that the Home Secretary and I are preoccupied with safeguards, checks and balances and the defence of privacy, but I think we have probably got this right. Can you tell me of the number—the frequency—of requests that you would consider to be an abuse of power in respect of applications for information? How often do you come across seedy requests that you would consider to be an abuse of the powers?

Mark Astley: In 2% of inquiries in the past two years, we have had applications rejected or cancelled through the input of our accredited SPOCs.

[Mr Hayes]

Q Is that common?

Mark Astley: It is actually going down because of the training and the accreditation that is provided by our staff—the figure has reduced every year—so that people are fully aware, fully trained and fully focused on what is appropriate, what is necessary and what is lawful.

[Mr Hayes]

Q But most requests are reasonable, sensible and measured.

Mark Astley: They are.

[The Chair]

Have you finished, Mr Hayes?

[Mr Hayes]

I have finished, yes. You asked me to be brief.

[The Chair]

Actually, on this occasion I did not ask you to be brief, but thank you for being brief in the spirit that that was offered.

--- Later in debate ---

[Joanna Cherry]

Q At point 6 of your written evidence you expressed concern that in the draft Bill there were

“a number of clauses which provide exceptions for national security or which exempt the intelligence agencies from key safeguards”.

What is your view of the finalised Bill in relation to that concern?

Jo Cavan: Essentially there has been progress on one of the national security exemptions, which is around the acquisition of communications data to determine journalistic sources. The Government have amended clause 68 to remove the national security intelligence agency exemption. That was because that was picked up by the Intelligence and Security Committee and the Joint Committee.

However, there are still two broad exceptions in the Bill: clauses 54 and 67. One of them is really important, because it is around the independence of designated persons. This area was strengthened as a result of the Digital Rights Ireland case, and that is an area where we still find significant compliance issues within public authorities. Communications data is approved by designated persons—it will become designated senior officers in the Bill—who are from the same public authority. In almost half of the police forces, intelligence agencies and other bodies that we inspected last year, we made recommendations around that area because we were not satisfied with the independence.

The clauses as drafted seem to drive a horse and cart through the independence requirements for designated persons by exempting very broadly national security. The same is the case in the single point of contact provision in clause 67: that appears to exempt in national security cases the SPOC being consulted, and we see the SPOC as a key safeguard in the process. So the fact that the Government have already said that the exemption relating to journalistic sources was broad, and removed it, suggests that the same needs to happen to clauses 54 and 67.

Sir Stanley Burnton: I would just like to add that it is far from obvious that the interests of national security, which is a ground for the grant of a warrant, is itself an exceptional circumstance. It is very difficult to see what the logic behind that formulation is.

[Mr Hayes]

Q Joanna, I guess you are pretty familiar with the legislative process and the way Parliament works.

Jo Cavan: I would hope so.

[Mr Hayes]

Q Good. How often have you encountered a Bill that before its publication in draft had been preceded by three reports, and which was subsequently considered by three Committees of the House before embarking on the normal process of scrutiny? Can you think of another Bill in the last 10 years like that? How many can you list?

Jo Cavan: I am afraid I cannot think of any off the top of my head, but I will say the reviews—

[Mr Hayes]

Q You said it had been hurried; that is what I was trying to get at.

Jo Cavan: Yes, absolutely. The reviews were comprehensive in their own right. However, the three reviews that you talk about were specifically focused on certain areas. David Anderson was specifically focused around interception and communications data, so he did not look at equipment interference, for example. Some of the capabilities had not been avowed at that stage, so they are seen for the first time in the Bill. I think it is a challenging timeline, and a number of the witnesses have talked about their concerns.

[Mr Hayes]

Q But I just wanted to establish, just to be clear, that in my 20 years I cannot think of a Bill that has had quite such extended scrutiny. I am sure there must be some, but they do not spring to my mind and they clearly do not spring to yours, either.

Jo Cavan: No, that is right.

[Mr Hayes]

Q On a second point of fact, you talked about the number of cases in which judicial approval is involved. That is the double lock. The double lock applies where a Minister—the Secretary of State for Northern Ireland, the Foreign Secretary or the Home Secretary—issues a warrant. The double lock applies where one of those people is involved. That is right, is it not?

Jo Cavan: That is right.

[Mr Hayes]

Q You would hardly expect the second part of the lock to apply where a Minister is not involved, would you?

Jo Cavan: The figures from last year that were published by all three commissioner bodies show that only about 7,000 out of 290,000 applications actually have judicial approval.

[Mr Hayes]

Q Where the Minister is involved. So the judicial approval is a double lock, and therefore the second part of the lock applies where the first part applies.

Jo Cavan: Not in all instances in the IP Bill, but in the majority, yes. There are still some exclusions.

[Mr Hayes]

Q On a separate point, it has been said that the judicial commissioner—this is a question for any of you, but I am thinking of the two gentlemen in the middle in particular—will not be sufficiently independent, and that they will be deferential towards the politicians involved. Is that your view? Are they likely to be deferential, or are they likely to act independently?

Lord Judge: I think you should ask the last 10 Secretaries of State whether they had an easy time when judges have had to consider whether they are acting lawfully. You will find, I suspect, that many of them feel fairly scarred by the experience. There is no danger whatever.

[Mr Hayes]

Q I have known a number of Home Secretaries, and none of them has suggested that the judiciary is deferential. I take your point. Finally, in terms of the appointment of the judicial commissioners, would the Judicial Appointments Commission be a better place to appoint them, or do you rather like the model we have come up with?

Lord Judge: No, I much prefer the model you have come up with. The Judicial Appointment Commission appoints judges usually from people who have not been judges. This is an appointment system that will work for people who have already been through the process, have acted as judges, have been appointed at whatever level they have eventually ended up, and are then exercising a new function. There is no point whatever in involving the Judicial Appointments Commission, ignoring the fact that it has got far too much to do anyway and not enough people to do the work.

My concern about the appointments is the speed with which all this is going to happen. We are going to have, under clause 233(3), a new investigatory powers commissioner within two months of the Bill becoming an Act. Where is this wonderful individual, male or female, going to come from within two months? The processes of appointments that I have had anything to do with take a very long time. I announced my retirement in November 2011 to be replaced by October 2013, and nobody knew who the next Lord Chief Justice was until the end of July. I am very worried about that. It is a very serious point. It is not a big point, but it is serious.

[Mr Hayes]

We must all rise to the challenge.

[Peter Kyle]

Q Sir Stanley, in response to Sir Keir’s question, you said that you felt that judges would be compelled to give weight to the person applying. Will judges, considering that it has been signed off by the Home Secretary, feel compelled to give weight to the fact that the Home Secretary has already authorised the warrant?

Sir Stanley Burnton: Well, you give weight to it, but you none the less look at the material to see whether she was entitled to come to the decision she came to.

--- Later in debate ---

[Joanna Cherry]

Q I was not asking about targeted interception, I was asking about the current Home Secretary’s specific avowal of that fact that for many years section 94 of the Telecommunications Act 1984 has been used to collect the phone records of everyone in Britain into a single national database. I am simply interested to know whether either of you gentlemen, as former Home Secretaries, could tell us whether you had authorised that.

Charles Clarke: No, I cannot, for the reasons I have stated.

Lord Reid: You would have to ask the Secretary of State that.

Charles Clarke: I do think that the related point is future-proofing. In an area where technological change is taking place so rapidly—where you have a state of affairs on the balance between security on the one hand and liberty on the other, and where we need to keep the capacity to surveille threats to society—how do we future-proof that? That was the issue I faced with RIPA in 1999-2000, and I think it is the issue that this Committee faces in thinking about this particular piece of legislation too.

[Mr Hayes]

It is good to have two of my favourite former Home Secretaries here.

Charles Clarke: Name names. [Laughter.]

[Mr Hayes]

Q I have many favourites.

The only question I really want to ask is whether you ever felt that the test of necessity and proportionality was insufficient to allow you to make a judgment of the kind you describe? You have said that you could call for more information and that you could qualify what you had on that basis, but in your judgment, did you ever, at any point, not feel confident to make a judgment on the basis of that prevailing test of necessity and proportionality?

Charles Clarke: For myself, I can recall only one case where I felt that. In that case, I decided not to authorise the warrant that I had been requested to authorise, for exactly the reason you suggested. There was an issue in my mind about whether the proportionality issues had been properly weighed up. I think that the proportionality issues were a constant theme of any of the warrants that were sent. You had to try to make a judgment.

I cannot recall whether there were specific guidelines on this, but when I first became Home Secretary I certainly had a couple of briefing meetings about the issues in general—not about particular warrants—to try to go through some of the principles that applied. I am sure other colleagues did much the same. I do not recall a written-down document that tried to explain the proportionality judgment in general, because obviously in reality you are always making the proportionality judgment in particular cases. My approach was that if I did not feel it was satisfactory, I would not agree the warrant.

Lord Reid: I take it that you are asking, “Were there occasions on which you refused a warrant because you didn’t think it was either proportionate, sufficient or necessary?”

[Mr Hayes]

Q Yes. Obviously you know, as you are very familiar with it, that that is the kind of baseline requirement. I presume that the case that was made to you was mindful of that requirement and that, for the most part, you felt it met the requirement. I just wanted confirmation of that.

Lord Reid: To give you a straight answer, yes. When I was Home Secretary, I refused a warrant. On other occasions, I refused to renew a warrant. I cannot remember specific cases in Northern Ireland, but I did it there as well. In the first instance, when a warrant is put to you, you are exercising a degree of judgment. And very often you are exercising a judgment based on other people’s judgment, and their judgment is often based on fragmentary evidence. That is the problem with all intelligence, as we know to our cost in some cases. You exercise a judgment, and that judgment is hopefully exercised diligently on the criteria: “Is this proportionate? Is it necessary? Is it reasonable? What is being asked here?” There were occasions on which the answer was no. Before you said no, the normal process would be to call in the various officials—the people who put the submission to you—if necessary, and to go through it orally and ask them questions. The answer to your question of whether I ever refused a warrant is yes.

[Byron Davies]

Q You have answered the main question I was going to ask, but this is carrying on from that. Times have moved on since your days in the Home Office in terms of technology, with smartphones, et cetera. If you were sat in the Home Office now, would you be looking at introducing this Bill?

Lord Reid: I don’t think it is entirely up to the Home Secretary to introduce it. There are two countervailing pressures. One is the development of cyber, which is something that, having stepped down from the Cabinet, I have voluntarily spent a lot of time working on. By the time you get this Bill through, in whatever form, we will no doubt be faced with artificial intelligence and a whole new era of communication. Yes, it would be necessary to take into account the changes, as I was saying to Ms Cherry earlier, in the world of cyber, and particularly the global nature of communications.

Secondly, there are undoubted pressures from the other end, not just the wish from the intelligence services and the policing side. I don’t think their motives and objectives have changed; what has changed is the world around them. Therefore, to meet the same objectives, they have to employ different methods on the old principles. However, at the same time, I am well aware that there has been widespread—“discussion” is a very light word—controversy about access to people’s information. Sometimes it is a paradox, because people are willing to supply all sorts of information to all sorts of private companies. That information is not only being put in a databank but is being mined, matched, sold and used for commercial reasons. Nevertheless, whatever the paradox, the concern is there, and I think the Bill tries to meet the needs of addressing technological change on the side of security at the same time as giving the reassurances necessary because of the public’s concerns about the new world in which we live and about intervention into it. That is against a background where, as the Committee will know, one of the constant characteristics of the world of cyber and communications is constant entrepreneurial innovation by black hats and white hats. It is literally changing every day. Therefore, the equivalent of today’s microdot, where we used to put secret messages, can be a webpage—an apparently innocent webpage that can be sending all sorts of instructions, propaganda or whatever. There are very bright people in both the black hats and the white hats who are constantly inventing things, vis-à-vis each other.

Investigatory Powers Bill (First sitting)

John Hayes Excerpts

Thursday 24th March 2016 Public Bill Committees

[Joanna Cherry]

Q Do you agree that in the investigation of threats to national security and terrorism there can really be no justification for scooping up personal data in relation to children?

David Anderson: I am going to duck that one because bulk personal datasets were outside my remit. The use of bulk personal datasets, we now know, has been subject to annual review by the Intelligence Services Commissioner for several years. Perhaps he is the appropriate person to ask about that.

[The Minister for Security (Mr John Hayes)]

Q Thank you for coming, David. On bulk personal datasets, I note that you say that the members of the intelligence community that you have met, and what you have seen and heard from them, have confirmed the view that was expressed by the ISC and others. Are you clear about their efficacy and utility?

David Anderson: I think what I said was that bulk personal datasets had been looked at by the Intelligence and Security Committee and by the Intelligence Services Commissioner. I have read what they have said about that, including in closed hearings, and I said that what I was shown by the agencies was consistent with that, but I was not trying to do the same exercise that they had done of deciding whether these things were necessary or proportionate.

[Mr Hayes]

Q As a follow up on that, obviously you appreciate that your recommendations on the operational case being made have been built in to what we are doing. Further to what you said about the Chairman of the ISC’s recognition of their proportionality and necessity, I suppose you would accept that any publication of that operational case will obviously be limited, because it is an operational case and as soon as you make it public to the point where it ceases to have value, it could compromise operations.

David Anderson: Yes, the agencies’ ability to protect us relies quite heavily on people not knowing exactly what it is they can and cannot do.

[Victoria Atkins (Louth and Horncastle) (Con)]

Q I will ask just a couple of questions, if I may, Mr Anderson. Looking at the operational case for bulk powers, the Home Office has stated:

“There is clear evidence that these capabilities have…played a significant part in every major counter terrorism investigation of the last decade, including in each of the seven terrorist attack plots disrupted since November 2014...enabled over 90% of the UK’s targeted military operations during the campaign in the south of Afghanistan…been essential to identifying 95% of the cyber-attacks on people and businesses in the UK discovered by the security and intelligence agencies over the last six months”.

They have also been of great use in serious organised crime and paedophilia investigations, as we know. Are those factors that you and others have taken into account when assessing whether we need bulk powers, and how critical they are to national security and serious organised crime investigations?

David Anderson: I saw and heard enough to persuade myself of the necessity of bulk interception powers and bulk data retention of the type we were describing—phone logs and emails and so on. I did not look at equipment interference, for example, because that was outside my remit, and the query that I raised on that earlier was really the same query that the Intelligence and Security Committee has raised. If you define the targeted powers so broadly as to encompass almost anything, what is the additional utility of a bulk power? I am not persuaded on that simply because I did not do the exercise.

--- Later in debate ---

[Mr Hayes]

Q On Second Reading, Mr Starmer said that you do not know that someone is a suspect until they are a suspect and that at that point you need to know who they are speaking to. The filtering process that you described in your earlier remarks is about taking very large amounts of data and, through that filter, in the end dealing with very small amounts. We have heard a lot of concerns and paranoia about bulk powers. Would it be fair to say that that filtering process is as much about excluding people as it is about including them?

Lord Evans: It is essentially about that. The purpose of the whole machinery is to put the surveillance on people who are actually a direct threat to our national security. You do not want anybody else in the system. You need to get everybody else out of the way as early as possible; otherwise you will get distracted by things that are a waste of resources. That puts you in a very vulnerable position, of course, because something will go wrong. Yes, you are quite right that we are trying to clear away all the things that are not relevant so that you can focus down on to what is relevant.

[Mr Hayes]

Q Another of Mr Starmer’s arguments was on equipment interference. Does equipment interference become more important as, for example, encryption makes other means by which you would get to the same destination more difficult?

Lord Evans: I am not a siginter so I would find that slightly difficult to know. The fact that we have a multiplicity of devices that any individual will be operating on at any one time means that selecting out those that are really significant becomes a more and more important process. That is certainly the case and I suspect that is part of that bulk process. Because these are overseas powers, this is fundamentally a sigint issue. Therefore I do not feel fully able to answer your question.