Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Janvrin Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Tuesday 1st December 2020 Lords Chamber

Some role in this area as part of the totality of policing is surely appropriate. If it is not appropriate, it might be legitimate to ask whether Her Majesty’s Government remain committed to their much-repeated claim that they support the wide powers deliberately given to police and crime commissioners on behalf of the people they represent who live in their force area. I know that the noble Baroness the Minister who will respond to this group is a friend of police and crime commissioners. She made a very successful visit to me in Leicester some time ago. I hope that she will be equally sympathetic today and I look forward to her response.

[Lord Janvrin (CB) [V]]

My Lords, I support the case for strengthening oversight as put forward in Amendments 46 and 73, and I add my voice to those questioning the case for prior judicial approval of criminal conduct authorisations.

I speak not as a lawyer or practitioner but as another former member of the Intelligence and Security Committee, where we had plenty of evidence of the importance of covert human intelligence sources. I share the view that we need to get the balance right between, on the one hand, constructing a rigorous legal framework to support the activities of our intelligence and security agencies while, at the same time, still giving them the practical operational flexibility to carry out their difficult work effectively.

I have listened carefully to the strong arguments in favour of prior judicial authorisation. It is, as has been pointed out, what is required for other activities of the intelligence services and police. Should we not follow the practice of communications interception or search warrants? There are important differences. The person authorised to tap a phone or search a premises will be a public servant: an agent of the state. The person being given a criminal conduct authorisation may be a private citizen—possibly but not necessarily—from the margins of society, acting almost certainly from a complex set of motives and probably knowing that they are putting themselves in danger.

In the first case, authorisation seems to be essentially a judgment about compliance with the law. However, a criminal conduct authorisation requires, in addition, personal knowledge of the agent concerned and human relationships involved in complex circumstances. It is about making a judgment, possibly urgently, on human motivation, limitations and behaviour, and about operational context and risk. Therefore, on balance, I share the view that the handler or controller is better placed than a judicial commissioner to make that judgment call on what should and should not be authorised. Obviously, I am in no way against judicial authorisation in principle; it is about getting the best decision.

I would add a small point. For the handler to know that he or she is the authorising officer makes him or her more clearly accountable. It concentrates the mind to sign something off. As my noble friend Lord Anderson observed, it also concentrates the mind to know that your decision will be scrutinised immediately and rigorously. I therefore strongly share the view the present oversight arrangements should be significantly strengthened in the ways put forward in Amendments 46 and 73 to allow immediate scrutiny by the Investigatory Powers Commissioner. My noble friend Lord Anderson and colleagues from the Cross Benches have spoken with much greater experience than me on the need for real-time oversight. I find the arguments persuasive. Indeed, there may be a case for giving judicial oversight powers more teeth—perhaps along the lines of Amendment 47 or something similar.

Finally, I said at the outset that we are looking to get the balance right between a robust legal framework and operational flexibility. Obviously, this applies across the Bill. I ask the Minister to consider whether, by strengthening significantly the oversight arrangements, she will mitigate some of our other concerns around, for example, immunity or the serious crimes threshold in this important Bill.

[Lord Morris of Aberavon (Lab) [V]]

My Lords, I support Amendment 14. I was sorry that I was unable to attend Second Reading. I was sitting on a sub-committee of the EU Select Committee and was therefore unable to welcome the noble and learned Lord, Lord Stewart of Dirleton, and congratulate him on an impressive maiden speech. He gave the impression that he had been introducing Bills in your Lordships’ House all his life.

I welcome the Bill, which provides for authorising offers to be given express powers to authorise criminal conduct that would otherwise be illegal. They carry a heavy responsibility, hence the need for supervision. Given the history of direct government intervention in coal mining disputes many years ago, I look forward to debating amendments in the names of my noble friends dealing with trade unions. Powers given

“in the interests of the economic well-being”

of the state will need close scrutiny. I am proud that, in a small way, I was able to give a little legal advice to the south Wales miners during the miners’ strike—for the most part, pro bono—many years ago. During my time as a law officer for England and Wales, and separately as Attorney-General for Northern Ireland, although the Attorney-General has general oversight and appropriate clearance, I was not troubled on any issue arising from the Bill. As the House will know, law officers have general oversight and supervision of the offices of state concerning both the rule of law and other matters.

I wish to endorse and reinforce the points made by my noble friend Lord Rosser in his Second Reading speech about the need for judicial oversight prior—I emphasise “prior”—to the event. There is no argument that there should be supervision. The only issues are, first, who should supervise, and secondly, whether it should be post or prior the event. I believe that the arguments for proper prior supervision are fundamental. In our legal processes, we have judges available 24 hours a day. This particularly includes the long vacation— indeed, any time, any place, throughout the year. They can adjudicate from home if necessary; I am told that that is not unusual. Provided a judge is given the right information, a proper judgment can be given. The same applies down the line to the magistracy, which performs a very vital role. Before a warrant is issued, evidence in one form or another is given and judicial authority is given.

I was never involved as counsel on these procedures during my time as a criminal practitioner, but I can give a personal example of the availability of magistrates on family matters. My wife sat for 18 years in the London juvenile courts. Part of her duties involved the care of children who were, or might be, vulnerable. I recall many occasions when I had to leave the sitting room of our London house at the request of a welfare officer so that she could hear evidence, hear witnesses sworn in and adjudicate, pending the following morning when a proper courtroom could be convened. It was vital that there was availability. My point is that there has never been an issue with non-availability of a court sitting at any level. The Minister is not very persuasive in his brief comment in Column 1046. I need to be persuaded why you can have judicial intervention and a judicial decision in so many other fields but not in this one.

We are dealing with very serious matters. Authorising criminal conduct is important and a departure from the ordinary rules of law. If there is any problem about the security clearance of a particular judge, I would be surprised if that could not be achieved. If a High Court judge cannot be trusted, who can? It would not be beyond the administration of justice to have a panel of designated judges with experience in this field who adjudicate from time to time and can authorise the necessary activities.

This brings me back to the key question: who is to guard the guardians? This is not to denigrate the experience of the highly trained authorising officers, nor the retrospective—I emphasise “retrospective”—oversight of the Investigatory Powers Commissioner. Prior judicial authority is the best safeguard to ensure that, where there is a departure from the rule of law in ordinary circumstances, there is proper supervision of the activities.

Covert Human Intelligence Sources (Criminal Conduct) Bill

Lord Janvrin Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Wednesday 11th November 2020 Lords Chamber

[Lord Janvrin (CB) [V]]

I too congratulate the noble and learned Lord, Lord Stewart, and the noble Lords, Lord McLoughlin and Lord Walney, for three memorable maiden speeches, and welcome them to this House.

I join this debate having served in the last two parliamentary Sessions on the Intelligence and Security Committee. I welcome this Bill, and the need to give a legal basis to an activity which, as I frequently heard in evidence to the ISC, plays a key role in many operations of the intelligence services and the police.

As with other legislation putting the secret activities of the agencies on a statutory basis, there is a balance to be struck between, on the one hand, constructing a clear and robust statutory framework with effective oversight and, on the other, giving the agencies the ability and flexibility to act very quickly, if necessary, and in difficult and changing circumstances to achieve their objectives.

I will confine my comments to three areas: the gravity of the crimes to be authorised, the public bodies and oversight. On the first point, I certainly understand the argument against spelling out a carefully defined list of serious crimes, but, as others have mentioned—most recently, the noble Lord, Lord Judd—some of our Five Eyes partners apparently do have explicit limits. Do they not have the same concerns about the risks of a checklist? To say that they are not subject to the European Convention on Human Rights does not really answer that question. Like others, I am troubled by the Five Eyes comparison.

Secondly, I join with others to question the public authorities able to grant authorisations. I know that a wide range of public authorities carry out criminal investigations but, if they are running an investigation of sufficient gravity to consider the use of a CHIS with authority to commit crime, surely, the police ought to be aware? If they are, is there not a strong case for them to be responsible for authorising the criminal activity?

Thirdly, I support the view that these criminal activity authorisations should be effectively scrutinised not only by the Investigatory Powers Commissioner and IPCO but also by the Intelligence and Security Committee of Parliament. It is for the IPCO to examine the detail of individual authorisations, and I look forward to examining what the noble Lord, Lord Anderson, said about oversight on a more immediate basis. In addition, surely, it is right in principle that the ISC, on behalf of Parliament, should have wider oversight of the use of these authorisations now that they are the subject of legislation? I look forward to a full discussion of these and the many other issues raised in Committee. I take this opportunity to thank the noble Baroness, Lady Williams, and her department for the excellent briefings we have had on this Bill. I look forward to her reply.

Data Protection Bill [HL]

Lord Janvrin Excerpts

2nd reading (Hansard - continued): House of Lords
Tuesday 10th October 2017 Lords Chamber

[Lord Janvrin (CB)]

My Lords, I welcome the opportunity to speak in this Second Reading debate. It is always slightly daunting to follow the noble Lord, Lord Lucas. We were colleagues on the Digital Skills Committee a few years back, and he was pretty daunting on that too, being a great fund of knowledge on this subject. I mention at the outset my interests as set out in the register, including as a trustee of the British Library and as a member of the parliamentary Intelligence and Security Committee in the last Parliament. I too welcome this important piece of legislation. I will be brief and confine myself to some general remarks.

There is no doubt that data, big data, data processing and data innovation are all absolutely essential ingredients in the digital revolution which is changing the world around us. However, as we have discussed in debates in this House, advances in technology inevitably risk outstripping our capacity to think through some of the social, ethical and regulatory challenges posed by these advances. This is probably true of questions of data protection.

The last key legislation, the Data Protection Act 1998, was ground-breaking in its time. But it was designed in a different age, when the internet was in its infancy, smartphones did not exist and the digital universe was microscopic compared to today. As the Government have said, we desperately need a regulatory framework which is comprehensive and fit for purpose for the present digital age.

As has been mentioned by other noble Lords, the Bill is also necessary to ensure that our legislation is compatible with the GDPR, which comes into force next year. It is absolutely clear that however Brexit unfolds, our ability to retain an accepted common regulatory framework for handling data is essential; the ability to move data across borders is central to our trading future. I was much struck by the lucid explanation given by the noble Lord, Lord Jay, of some of the challenges which lie ahead in achieving this goal of a common regulatory framework for the future.

The Bill before us is undoubtedly a major advance on our earlier legislation. It is inevitably complex, and as today’s debate makes absolutely clear, there are areas which this House will wish to scrutinise carefully and in depth, including issues of consent and the new rights such as the right to be forgotten and to know when personal data has been hacked, and so on. The two areas which will be of particular interest to me as a member of the board of the British Library and as a member of the Intelligence and Security Committee in the last Parliament will be, first and foremost, archiving in the public interest, and secondly, Part 4, on data processing by the intelligence services.

In order to support archiving activities, as was made clear in the British Library’s submission during the DCMS consultation earlier this year, it is essential that this legislation provide a strong and robust legal basis to support public and private organisations which are undertaking archiving in the public interest. As I understand it, this new legislation confirms the exemptions currently available in the UK Data Protection Act 1998: safeguarding data processing necessary for archiving purposes in the public interest and archiving for scientific, historical and statistical purposes. This is welcome, but there may perhaps be issues around definitions of who and what is covered by the phrase “archiving in the public interest”. I look forward to further discussion and, hopefully, further reassurances on whether the work of public archiving institutions such as our libraries and museums is adequately safeguarded in the Bill.

On Part 4, data processing by the intelligence services does not fall within scope of the GDPR, and this part of the Bill provides a regime based on the Council of Europe’s modernised—but not yet finally agreed—Convention 108. The intelligence services already comply with data-handling obligations within the regulatory structures found in a range of existing legislation. This includes the Investigatory Powers Act 2016, which, as was debated in this Chamber this time last year, creates a number of new offences if agencies wrongly disclose data using the powers in that Act.

The new Bill seeks to replicate the approach of the Data Protection Act 1998, whereby there have been well-established exemptions to safeguard national security. It is obviously vital that the intelligence services be able to continue to operate effectively at home and with our European and other partners, and I look forward to our further discussion during the passage of the Bill on whether this draft legislation gives the intelligence services the safeguards they require to operate effectively.

In sum, this is a most important piece of legislation. If, as the noble Baroness, Lady Lane-Fox, suggests, we can set the bar high, it will be a most significant step forward. First, it will redefine the crucial balance between, on the one hand, the freedom to grasp the extraordinary opportunities offered by the new data world we are in and, on the other, the need to protect sensitive personal data. Secondly, and very importantly, it will put the United Kingdom at the forefront of wider efforts to regulate sensibly and pragmatically the digital revolution which is changing the way we run our lives.

Security in the UK

Lord Janvrin Excerpts

Monday 10th July 2017 Lords Chamber

[Lord Janvrin (CB)]

My Lords, I thank the Minister and the Government for finding time for this timely and important debate. I want to focus my remarks on the intelligence community—namely, the three intelligence services and their co-ordinating structure in Whitehall. I draw attention to the fact that I was a member of the Intelligence and Security Committee during the last Parliament.

I pay tribute, as others have done, to all those who work in our intelligence community, and in doing so I readily acknowledge that there are others in this House who know their work far better than I do. They work under sustained and relentless pressure, in some cases in conditions of personal danger, and the very nature of their business is that their work goes largely unrecognised. Day in, day out, they play a crucial role, along with their colleagues in the police and the other law enforcement agencies, in enabling the rest of us to go about our daily lives.

The intelligence community has, of course, been under huge pressure of late, and I was interested in what my noble friend Lady Manningham-Buller was saying about the tempo and scale of the threat we are facing. Counterterrorism obviously remains the highest priority in the aftermath of the attacks we have seen and has naturally formed the focus of this debate. But, in parallel, we have seen an upsurge in co-ordinated, possibly state-sponsored hacking and cyberattacks, presenting new challenges to our intelligence services.

Yet, at the same time, old challenges do not fade away. In such an unstable and volatile time in world politics, the traditional need for high-grade political and economic intelligence has never been greater. Have the intelligence agencies the resources to meet this pressure? Despite the severe restrictions on public spending in recent years, the expenditure on all the three intelligence services has been, as the Minister reminded us, increased significantly, not least in the November 2015 spending review. While I think there was widespread acceptance that these increases were justified, there is, in my view, a continuing case for the parliamentary Intelligence and Security Committee to continue to scrutinise how these significant extra resources have been used. It should examine whether this additional expenditure has been deployed effectively across all three services, bringing them closer together, particularly in ways that not only deliver further capability but, at the same time, encourage further savings when necessary by pooling resources between the three services.

Looking more closely at the three specific priority areas that I have mentioned, let me focus first on counterterrorism. In the aftermath of the series of attacks that we have endured, it is important to recall that the intelligence services have constantly reminded us, as others have today, that we cannot be guaranteed 100% security. Tragically, there will be attacks which succeed and get through the net, with such horrific and life-changing consequences for those directly involved, their friends and families. The important thing is to learn the lessons of these incidents; it is imperative that we do so and, where possible, be seen to do so.

I welcome the appointment of David Anderson, the former Independent Reviewer of Terrorism Legislation, to oversee a review of the handling of recent terror attacks. He knows the intelligence world and brings incisiveness and clarity to difficult issues. Has he been given a date on which to report, and will a redacted version of his review be made public? A starting point for his analysis may well be in looking again at the issues raised by the Intelligence and Security Committee in the aftermath of the brutal murder of Fusilier Lee Rigby in 2013, as referred to by the noble Lord, Lord Campbell, who was a member of the committee at that time.

Some of the issues may well be very relevant as we search for lessons from the recent attacks. Obviously, there were many questions then about resources, but there were also questions about process. Can MI5 progress low-priority casework even when under the huge pressure of running an increasing number of high-priority investigations? How can we deal with “self-starting terrorists”, who are increasingly security conscious in how they go about their business? As we have heard today, the question of communications service providers came up in the report; I welcome the Government’s activity in that important area. How do the agencies manage the vast amount of data on individuals not assessed as posing a risk to national security, and how do they process more effectively intelligence from local communities, which may prove vital in any investigation? All those issues were exposed in 2013, and I suggest that they may be very relevant as we look to learn lessons in 2017.

The second area for further scrutiny is in the field of cybersecurity. We have been reminded over recent months of the threat faced not only by organisations regarded as critical national infrastructure but by those further afield. The establishment of the National Cyber Security Centre has been an innovative and creative response to the need to build a bridge between the necessarily secret work of GCHQ and the more open world of assuring the security of business and public bodies. There is a widely recognised need to raise public awareness and provide high-level advice—and I salute the work of the noble Baroness, Lady Lane-Fox, in promoting that. As the Minister reminded us, the centre has not yet been open a year, but I think that, before long, there will be a case to take stock of its work and to learn lessons from how it is carrying out its vital role.

Finally, in the more traditional world of intelligence there is always an insatiable requirement for high-grade political and economic intelligence on the many trouble spots in the world. What are the Russians’ intentions in Ukraine or the Baltic? What do we know about the shifting political sands in the Middle East, the Gulf, Syria and Iran? What do we really know about intentions and capabilities in North Korea? The list is endless; the resources are finite; priorities need examining. Continuing scrutiny of the work of the intelligence services in these areas, as well as the effective use of their resources, is the proper function of the parliamentary Intelligence and Security Committee appointed by the Government. I hope that this parliamentary body can be reconstituted soon, given recent events. In another place last month, the Home Secretary fully recognised the need for this. Does the Minister have further news on the re-establishment of the committee? The committee has a vital and crucial role both in explaining the intelligence community to the public and in holding it to account. That it does so effectively is in the interest of the public, of Parliament and of the intelligence community itself, as it can only be really effective if it continues to enjoy the widest possible public trust that effective scrutiny brings. I firmly believe that it deserves that trust, but we should never take it for granted.

Investigatory Powers Bill

Lord Janvrin Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Paddick]

My Lords, I am trying to demonstrate—and in many cases, obviously, not succeeding—why the 10 tests as set out in the report are necessary, and how the Bill fails to meet those 10 tests.

As I was saying, on the filter, the noble and learned Lord, Lord Keen, in his summing up said that it did not create a database. I said in my Second Reading speech that it creates a virtual database. No doubt, we can discuss that issue when we come to it.

Overall, we feel that having the 10 tests as part of the Bill is an important safeguard for the privacy of individuals, and would place limitations on what the Government can do. I beg to move.

[Lord Janvrin (CB)]

I speak to Amendment 3, in my name, and note my interest as a member of the Intelligence and Security Committee. A lot of the points made by the committee have already been taken on board by the Government following discussions and scrutiny in another place.

In the committee’s report on the draft Bill, we recommended that privacy protections should form the backbone of the legislation around which the exceptional powers are then built. This is absolutely crucial to the whole purpose of the Bill. Following scrutiny in another place, the Bill introduced in this House now has in Clause 2 provisions on “General duties in relation to privacy”. I hope that your Lordships welcome the inclusion of the new clause, which crucially includes the requirement that intrusive powers should be used only when the information being sought cannot be obtained by other less intrusive means.

However, the Bill still lacks a clear statement at the beginning about the right to privacy. This is the purpose of the amendment in this group in my name. We propose inserting a new subsection at the very start of the Bill, which places an individual’s right to privacy at the forefront of the legislation. I note that this amendment is similar to Amendment 2 in the name of the noble Lord, Lord Paddick, and the noble Baroness, Lady Hamwee, which attempts to achieve something similar, although I suggest that the amendment in my name is the more straightforward of the two options before us.

Finally, I think that this short but necessary amendment is compatible with the more detailed provisions already existing in Clauses 1 and 2.

[Lord Strasburger (LD)]

My Lords, it is a good idea to remind ourselves at times like these that we live in a democracy, and part of what defines a democracy is that our Government do not rule us and we are not their subjects; they govern on our behalf, and with our consent. So when our Government ask us to hand over prodigious quantities of our information that reveal in detail how we live our private lives, we must take great care.

We all have something to fear from these surveillance powers, for none of us can guarantee the benevolence of future Governments. The surveillance programmes run by our Government now go far beyond anything George Orwell imagined. The more personal data are dredged up and stored, the more the risk of misuse. Now that most of us carry smartphones, government agencies and the police have unprecedented access to location information about where we are 24 hours a day, seven days a week. They can also get their hands on all the information on our phones and computers: our contacts, our diaries, our emails, our web browsing, our social networking and everything we do on the internet. Their access to our lives has expanded massively in the past 10 years. In addition, there are myriad new databases that create digital dossiers about our lives which are held by private companies and public bodies, including our banks and our doctors, and the Government have access to all of them.

In short, far from going dark, as is often claimed, the police and security services are enjoying a golden age of surveillance. If government agencies were offered the choice of current capabilities or pre-internet capabilities, they would overwhelmingly prefer their surveillance abilities today. Listen to the words of Wolfgang Schmidt, who was a lieutenant-colonel in the Stasi in Berlin. When he first learned of the extent of surveillance currently carried out on their populations by the British and American Governments, Schmidt thought carefully and then said:

“You know, for us, this would have been a dream come true”.

Some proponents of bulk surveillance tell us, “You have nothing to fear, if you have nothing to hide”. It has been said that the original maker of that claim was Joseph Goebbels. Many people’s response is simply, “I don’t have anything to hide, but I don’t have anything I feel like showing you either, and the way I live my life is none of the state’s business”.

I fully support the amendments in this group. They seek to give effect to the Intelligence and Security Committee’s—

--- Later in debate ---

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I shall speak first to the government amendment. Clause 1 refers to those offences found elsewhere in the law that provide protections for privacy or safeguards against the misuse of these powers. This amendment simply corrects a minor error in the drafting; the Bill currently refers to the,

“common law offence of misfeasance in public office”.

That offence is more correctly referred to as misconduct in public office. This amendment simply reflects the usual name for the offence in common law, and will prevent confusion with the distinct civil cause of action, which is usually referred to as misfeasance in public office.

[Lord Janvrin]

I rise to speak to Amendment 15 in this group, again on behalf of the Intelligence and Security Committee. It is crucial when this House is being asked to approve intrusive powers for the state that we all have a clear understanding as to how any misuse of those powers will be dealt with. These are exceptional powers, capable of revealing the most sensitive and detailed information about private lives. The Bill already includes offences related to the unauthorised interception and misuse of communications data, and there are other relevant offences mentioned in other legislation relating to data protection or computer misuse, for example. However, the Intelligence and Security Committee has concluded that these offences, scattered across numerous Acts of Parliament as they are, are insufficient and lack clarity. There would, therefore, be considerable benefit in setting out a single offence in one single place in this Bill alongside the intrusive powers we wish to regulate.

Your Lordships will note that we have sought to include wording in this amendment relating to wilful and reckless misuse of intrusive powers. We are not seeking to make minor, accidental mistakes criminal offences; we are focusing on the most egregious abuses of investigatory powers. There have been arguments that the creation of a new overarching offence for misuse of powers would add confusion in the law, duplicate existing offences and create a “chilling effect” for those using these powers in the agencies. Neither of these arguments is particularly compelling.

First, far from adding to confusion in legislation, it is self-evident that putting a single offence for misuse in one place should simplify legislation in this area, as it avoids the need to look for offences scattered throughout the legislative corpus and the common law. Potential duplicate offences can be dealt with easily, as has already been done in Clause 231, which amends the Wireless Telegraphy Act. The clause effectively says that an offence under the Wireless Telegraphy Act which is also an offence under the Investigatory Powers Bill should be dealt with preferentially under the Investigatory Powers Bill.

Secondly, the argument that an overarching offence would have a “chilling effect” on agency staff seems exaggerated. If a certain action constitutes a criminal offence anyway, it seems highly unlikely that an agency staff member would act differently depending on where and when the legislation appeared. If agency staff are engaging in activities that are on the edge of lawfulness, it is quite right that they should be given grounds to pause for thought, at least to the extent that they take internal legal advice if they wish to continue their work. The amendment would therefore be a simplification of the law and provide suitable penalties for serious transgressions.

Investigatory Powers Bill

Lord Janvrin Excerpts

Monday 27th June 2016 Lords Chamber

[Lord Janvrin (CB)]

My Lords, as the noble Marquess, Lord Lothian, has mentioned, I am a member of the Intelligence and Security Committee. It is slightly daunting to follow four very senior members, either past or present, of that committee as I am a relative newcomer. I join them and other noble Lords, many of whom have direct experience of intelligence, security and law enforcement matters, in welcoming the Bill before us. It covers ground that is of real and utmost importance in terms of national security and the prevention of serious crime while touching on crucial issues of personal privacy in a digital context, which has been referred to many times; it is not only complex, but very fast-moving. We are also up against a deadline set by the sunset clause in the RIPA Act 2004.

I join others who have spoken, including in particular the noble Lord, Lord Butler, in acknowledging the vast amount of work orchestrated by the Government that has gone into the preparation of the Bill before us. It has been the subject of numerous reports, to which a number of speakers have referred, including two from the Intelligence and Security Committee. This work has led to the Bill now progressing through Parliament with intensive scrutiny, as was referred to in the other place. There is one further external review being done by David Anderson QC of the operational case for the intelligence agencies to have access to bulk investigatory powers. In the last Parliament the ISC considered bulk interception in great detail and was satisfied that that capability was justified, subject to robust safeguards and oversight. Furthermore the current ISC, again after considering a great deal of classified evidence on this subject, reached a similar conclusion for bulk equipment interference, the bulk acquisition of communications data and bulk personal datasets. I look forward to David Anderson’s review as an invaluable contribution to further consideration of these bulk powers by this House.

Your Lordships will be aware that a significant number of improvements have been made to the Bill in the other place, including extra safeguards, improved oversight mechanisms and stronger privacy protections. A number of these improvements were made on the recommendation of the ISC and we are extremely grateful for the co-operation shown and helpful approach taken by the Government throughout. That said, as the noble Marquess, Lord Lothian, mentioned, there are still a few aspects of the Bill on which my ISC colleagues have concerns or questions, and I should like to reinforce two of those, both of which have already been mentioned.

The first is the issue of restrictions on the use of class warrants for the retention and examination of the most sensitive personal information within bulk personal datasets. Noble Lords will be aware that the ISC tabled amendments in the Commons that would have restricted this power where a significant amount of the data would be sensitive. We looked to the Data Protection Act 1998 to determine what Parliament had already defined as being the most sensitive personal data. It is the use of generic class warrants in relation to that sensitive data that we have questioned. Our understanding is that the Government have accepted that in principle, but it would be interesting if the Minister could indicate whether he intends to bring forward amendments on this point in Committee.

The second aspect has already been referred to by the noble Marquess, Lord Lothian. It refers to offences for the misuse of investigatory powers contained in the Bill which are scattered throughout various pieces of legislation and common law. While in some cases there are severe penalties for abusing those powers, in other cases, as has been mentioned, the penalty can be described as little more than a reprimand or a moderate fine. Such penalties may be suitable for dealing with honest mistakes or more minor instances of negligence, but there may be a point where the malicious and wilful abuse of intrusive powers could be dealt with more consistently with the use of more severe criminal penalties than are currently available.

Finally, I shall raise a point referred to by the noble Baroness, Lady Neville-Jones, and the noble Lord, Lord West. It is some 18 months after the ISC’s Report on the Intelligence Relating to the Murder of Fusilier Lee Rigby, but it still seems unclear whether the extraterritorial nature of warrants asserted by the Bill will be honoured by communications companies based overseas. The ISC recommended in the Fusilier Lee Rigby report that access to communications held by overseas-based providers, particularly those in the United States, was a very significant security problem, so I would be grateful if the Minister could comment on the progress of negotiations on that matter, in particular with the Government of the United States.

As your Lordships scrutinise the Bill over the coming weeks, whatever views may be expressed regarding its specific provisions, we should not lose sight of what this new Bill as a whole achieves, as many speakers have already mentioned. In particular it makes significant improvements in terms of transparency by avowing certain intrusive powers for the first time, including equipment interference, bulk acquisition and bulk personal datasets. While the use of those powers previously was legal, they were shrouded in secrecy and obscured behind some fairly impenetrable legal language. Having these powers set out on the face of the Bill is a considerable improvement. We should also welcome the role of the judicial commissioners as an extremely significant safeguard, and while we may debate the detail of their role, once again I urge noble Lords to acknowledge this very welcome additional reassurance.

Based on the recommendations of the ISC, David Anderson and RUSI among others, the Government have recognised the need for a new, modern and transparent legal framework for this crucial and complex area. The Bill is a huge improvement on the legislation it will replace. I look forward to further discussions in your Lordships’ House as we scrutinise it in the weeks to come.