Investigatory Powers Bill (Third sitting)

Christian Matheson Excerpts

Committee Debate: 3rd sitting: House of Commons
Tuesday 12th April 2016 Public Bill Committees

[Robert Buckland]

I am extremely grateful to my hon. and learned Friend. She is quite right. In fact, not only is there the offence of misconduct in public office, as it is now constituted, having been reformed from the old offence of misfeasance, but we have provisions in the Wireless Telegraphy Act 2006, the Computer Misuse Act 1990 and, as I have already mentioned, the Data Protection Act 1998. I therefore consider that the new offence we are introducing in clause 9, combined with relevant offences in other legislation, in particular the provision in section 13 of the Data Protection Act 1998, provides appropriate safeguards. On that basis, I respectfully invite the hon. and learned Lady to withdraw the amendment.

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

It is, as always, a pleasure to see you in the Chair, Ms Dorries. The Solicitor General has given examples of wide-ranging powers that are available to protect the public. I was grateful to listen to his contribution. However, during Second Reading I queried the Home Secretary’s position on the new offences that are being created. Many of the offences the Bill refers to, particularly in clause 9, relate to the regulation of investigatory powers. My concern is that later the Bill requires internet service providers, for example, to amass a large amount of personal data, and there is a danger that those data may be stolen rather than intercepted. I gave the example of a newspaper perhaps finding a low-grade technical operator in a telecommunications company, passing a brown envelope to them and stealing a celebrity’s internet connection records. I am concerned that the offence in clause 9 of unlawfully obtaining communications data does not go far enough.

I bear in mind the Solicitor General’s comments on other protections that are available, but would he or the Government consider an offence of not just obtaining but being in possession of unlawfully obtained communications data, which would strengthen the protections given to members of the public? We all know that the kind of scenario that I am expressing concern about has not been unknown in the last few years, as various court cases have demonstrated—though I should not discuss their details. Is the Minister satisfied that the protections he has outlined and those raised by the hon. Member for South East Cambridgeshire are sufficient, or should we take this clause a bit further, to give the public broader and wider protection of their privacy and the security of their internet and telecommunications transmissions?

[Keir Starmer]

It is a pleasure to follow my hon. Friend because I want to develop the point. This is a welcome clause, it is right that it is here, and we support it. However, we question whether it goes far enough. It only covers obtaining communications data. We think that serious consideration should be given to an overarching offence of misuse of the powers in the Bill. At the moment, there are specific provisions in relation to intercept which are replicated frim RIPA and we now have this welcome provision, but there is no overarching offence of misuse of the powers in the Bill.

It is all very well to say that there is the tort of misfeasance in public office. That is not the equivalent of a criminal offence. It has all sorts of tricky complications when one tries to apply it in practice. It is fair to say that there are other bits of legislation that might be made to fit in a given case, but it would be preferable and in the spirit of David Anderson’s approach for a comprehensive piece of legislation for an overarching criminal offence to be drafted, either out of clause 9 or in some other way, relating to misuse of powers in the Bill. It has been a source of considerable concern in the past and I ask the Government to think about a wider offence that would cover all the powers, because comms data are only one small subset of the issues and material information we are concerned with.

I have two short supplementary points. In subsection (3) there is a reasonable belief defence. It would be helpful if the Minister said a bit more about that. May I also foreshadow the inconsistency that we will need to pick up as we go along in the way reasonable excuse and reasonable belief are dealt with in the Bill? It is set out in subsection (3), but there is an inconsistency in other provisions that I will point to when we get there.

My other point is to ask the Minister to consider whether obtaining communications data unlawfully is a sufficient definition to make the offence workable in practice. I put my questions in the spirit of supporting the clause, but I also invite Ministers to go further and consider drafting a clause that covers the misuse of powers in the Bill, rather than simply saying that if we fish about in other bits of legislation or common law we might find something that fits on a good day. In my experience, that is not a particularly helpful way of proceeding.

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[The Solicitor General]

I am grateful to my hon. Friend, who served with distinction on the Joint Committee. That provision relates to creating a statutory duty, which, with respect to her, is slightly different from some of the arguments we are having about criminal sanctions. However, it is important to pray that in aid, bearing in mind the mixed approach we need to take in order to hold public office holders and public authorities to account when dealing with this sensitive area.

The Bill provides a great opportunity for us to put into statute a new offence, which will, together with the other agencies, provide a robust regime that will add to the checks and balances needed in this area in order to ensure that our rights to privacy are maintained wherever possible, consistent with the Government’s duty towards the protection of our national security and the detection and prevention of crime.

[Christian Matheson]

I am grateful to the Solicitor General for that clarification. My concern about his reliance on, for example, the Data Protection Act is what happens in the scenario I described, which I do not believe is so unbelievable, bearing in mind the experiences that hon. Members of this House have had in the past few years with the theft of their information. One problem that his solution presents is that if, for example, my personal data were stolen and published, the only recourse I would have is to the telecommunications provider, which is in a sense a victim itself. The real villains and culprits—the people who stole the information and published it—would not be covered by the Data Protection Act, which is why I seek consideration of extending the clause or guidance from the Solicitor General.

[The Solicitor General]

I hear what the hon. Gentleman says. I have already indicated that I will consider the matter further. I will simply give this solution. He mentioned the stealing of information. Information is property, like anything else, and of course we have the law of theft to deal with such matters. I do not want to be glib, but we must ensure we do not overcomplicate the statute book when it comes to criminal law. I will consider the matter further, and I am extremely grateful for his observations.

Question put and agreed to.

Clause 9 accordingly ordered to stand part of the Bill.

Investigatory Powers Bill (Fourth sitting)

Christian Matheson Excerpts

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

[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?

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In a nutshell, the Bill provides a clearer breakdown of the kinds of data, why they matter, and where they might be identified and used in a way that would be hard to identify in the variety of legislation that currently underpins the powers. It brings things together and makes them clearer. With that fairly lengthy but necessarily detailed explanation, I invite hon. Members not to press the amendments.

[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.

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[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.

[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.

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[Joanna Cherry]

These amendments would delete the separate ground for interception of economic wellbeing from the face of the Bill and require that grounds for interception are tied to a threshold of reasonable suspicion of criminal behaviour.

The Bill re-legislates for RIPA’s three broad statutory grounds for issuing surveillance warrants. The Secretary of State may issue warrants for interception, hacking and so on

“in the interests of national security…for the purpose of preventing or detecting serious crime, or…in 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”.

That final ground can apply only where it relates to the acts or intentions of persons outside the British islands.

I support the amendments because all three main statutory grounds are, in my submission, unnecessarily vague and are left dangerously undefined. As the decision will continue to lie with the Secretary of State, the test will be met by whatever he or she subjectively decides is in the interests of the national security or economic wellbeing of the UK, having regard to popular sentiment rather than to what is necessary and proportionate, as we have now heard from the Minister’s own mouth. The tests mean that individuals are not able to foresee when surveillance powers might be used, and they grant the Secretary of State a discretion that is so broad as to be arbitrary. The Joint Committee on the draft Bill recommended that the Bill should include a definition of national security, and I call upon the Government to produce such an amendment. If the Government sprinkle the Bill so liberally with the phrase “national security”—indeed, it is the Government’s job to defend national security—they need to tell us what they mean by that phrase, so I call upon them to define it.

The Joint Committee also recommended that the phrase “economic wellbeing” should be defined, but the ISC went further and said that economic wellbeing should be subsumed within a national security definition, finding it unnecessarily confusing and complicated. I heartily endorse the ISC’s view in that regard. The third ground is an unnecessary repetition unless there is something sinister behind the definition of “economic wellbeing,” and many Members of the official Opposition, and indeed of my own party, have serious concerns about what that might be about.

Recently, the Prime Minister went so far as to say, ridiculously in my view, that the Labour party is now a “threat to national security”. I am not a member of the Labour party, although I once was when I was a student.

[Christian Matheson]

Join us again.

[Joanna Cherry]

I am very happy to join Labour in many aspects of this Bill, but I have taken a slightly more radical path in middle age as an SNP MP. It is a disgrace to suggest that the Labour party is a threat to national security, and such loose language shows us that the continued undefined use of the term “national security” in enabling legislation is not sustainable.

The ISC also queried both the agencies and the Home Office on the economic wellbeing ground, and it reported that neither the agencies nor the Home Office have “provided any sensible explanation.” I hope that we might get a sensible explanation from the Government today, and I wait to hear whether we get one. Regrettably, the recommendations of the ISC and the Joint Committee have been dismissed, and the core purposes for which the extraordinary powers can now be used remain undefined and dangerously flexible within the Bill.

That is the nub of my concerns about the definitions of “national security” and “economic wellbeing.” The SNP amendments go slightly further than the Labour party is prepared to go at this stage by requiring reasonable suspicion. At the moment, the three grounds contain no requirement for reasonable suspicion that an individual has committed or intends to commit a serious criminal offence, nor even suspicion or evidence that a serious crime has been or is going to be committed. In my submission, that gives licence for speculative surveillance.

Briefly, on the national security ground, the courts have in the past responded with considerable deference to Government claims of national security, viewing them not so much as a matter of law but as Executive-led policy judgments. As a legal test, national security is meaningless unless the Government attempt to tell us what they mean by it. The second ground is similarly broad and open-ended because the Government have not sought to clarify the circumstances in which national security, as opposed to the prevention and detection of serious crime, will be in play.

I invite the Government to table an amendment to tell us what they mean by national security, to explain why it is necessary to have a ground revolving purely around economic wellbeing, to explain why they have discounted the recommendations of the Joint Committee and the ISC, and to tell us why there is no requirement for reasonable suspicion in these grounds.

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[Simon Hoare]

Up to a point, Lord Copper. I find myself in broad agreement with the hon. Member for City of Chester. Likewise, I could not give a tinker’s cuss about most of these things as long as I can look a constituent in the eye were something horrible to happen on the streets of Shaftesbury, Blandford Forum, Gillingham or any of the villages in my constituency. They might look at me and say, “Mr Hoare, are you convinced that you supported everything you possibly could to avoid this atrocity?” I would prefer to say, “Yes, I did.” If it impinged upon or offended against the virgo intacta of civil liberties as a sort of purist academic—I use that word not in an abusive way—definition, I would side with the security argument at every step and turn.

I am not using that as the Luddite argument that someone who has done nothing wrong has nothing to be afraid of. It is absolutely right that to govern is to choose. It straddles that often imperceptible divide between the application of the rule of law and discharging the first duty of the state—to keep the realm safe—and preserving the sacred and long-cherished liberties and freedoms that we all enjoy.

I accept what the hon. and learned Lady says on that point, but it is not just Liberty and Amnesty and other organisations that have access to legal counsel. It is not that the statue, as it emerges through all our processes, would be available only to us and the good guys. It would be available to those who wish us well, but I am going to hazard a guess that one or two of those who wish this country ill—whether in terms of national security, serious crime or acting in an injurious way to our economic wellbeing—may just have recourse to a legally trained brain or two themselves. They, too, would be able to say, “Ah, we’ll do it that way”, because the Home Secretary, the Foreign Secretary, the Secretary of State for Northern Ireland or the Defence Secretary would be so hogtied by the narrow definitions contained in the statute of the Bill, because people sought to stand—this is a phrase I used on Second Reading—like vestal virgins, defending the flame of civil liberty, because that is the flame that must be defended above all others and national security must be secondary to it. That is a perfectly acceptable and reasonable position to take, but it is one with which I profoundly disagree. It offends everything that motivates me as a politician.

We need to be very careful about having, either in the proposed amendments or during the progress of the Bill in Committee and on Report, an obsessive regard to trying to narrow down our language. Providing that the double lock with the judicial oversight remains for all circumstances whereby these warrants and other facilities can be granted—as long as that judicial view is there—that would seem to be in order to secure the provision for the short, medium and longer term, so that we do not have to come back through the legislative process to continually update the narrow language in the Bill to reflect circumstances or address scenarios that, without sounding too much like Donald Rumsfeld, in 2016, we did not think existed or could exist.

It is not from some sort of bovine, recidivist, reactionary, “We are the law and order side of the Tory party” sentiment that I find this quest for the narrowing down of our language to be wrong. It would fetter and constrain the decisions of Ministers and those who, on a daily basis, put their lives at risk under the rule of law to keep us safe. I shall be opposing this set of amendments, just as I will any other amendment, not because my Front Bencher or my Whip advises me to, but merely because I think that there is nothing intrinsically wrong—this is the non-lawyer’s approach—in having broad definitions that provide accountable scope to those who take the decision, so that they are able to take those decisions in response to circumstances as they arise.

[Christian Matheson]

There has been the requisite level of jousting and debate, and sometimes temperatures have risen a little bit, but I have found Ministers at least prepared to justify their arguments and to listen to other arguments. I say that, importantly, because this clause and the amendments are of profound importance to me and to many Opposition Members. I have absolutely no doubt that there are occasions when attacks on the United Kingdom can be carried out on an economic, rather than a military or criminal, basis. Let us consider a hypothetical example of a country that is adept at undertaking cybercrime against the London stock exchange to manipulate stock market activity or shares, or to bring the stock exchange down. That, of course, would have a serious effect on the operation of the City of London. I accept that that can happen.

The hon. and learned Member for Edinburgh South West talked about criminal activity. I have no doubt that the activity in the scenario I described would be considered criminal activity, but when my good friend the hon. Member for North Dorset talked about the elephant in the room, I thought he was going to mention the real elephant in the room and he did not. The real elephant in the room, certainly for me, is that, on such a broad definition of economic activity, the activities of trade unions in the United Kingdom could be brought under the scope of the Bill. I ask Members not to try to intervene to correct me because unfortunately that is the case. That is the real elephant in the room.

I do not believe that Ministers today do not consider trade unions to be an important and relevant part of civil society, but on Second Reading my right hon. Friend the Member for Leigh (Andy Burnham) gave the example of the Shrewsbury pickets, whose case was examined by the Secret Intelligence Service, and made the point that their convictions still stand. Indeed, there are right hon. and hon. Members of this House today who were right hon. or hon. Members of the House or indeed the Government in the 1980s when trade unions were seen as “the enemy within” and banned from representing members at GCHQ because it was considered that trade union membership and activity was incompatible with a commitment to international security, which is a position that is as absurd as it is downright insulting. I genuinely believe that Government Members have moved on from that positon.

Government Members may well wish to point to subsection (4), which suggests that:

“A warrant may be considered necessary as mentioned...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.”

They may feel that that gives sufficient protection. I must say that, in my experience, unfortunately it does not.

At this point I remind the Committee that I am a member of the GMB and Unite trade unions and I was formerly a senior official with Unite. That experience gives me insight that I wonder whether Ministers and Government Members, through no fault of their own, do not have. My plea is that they bear in mind that our economy is a globalised one, employers and industries are globalising and, in response, trade unions have had to do the same. Trade unions will gather together in bilateral agreements or bilateral alliances. In the UK, they may well join international trade union organisations such as the IMF—I should point out that that is the International Metalworkers Federation rather than any large economic body—or, as I did, they may well form a globalised trade union with other trade unions so that they meet globalised employers on the same basis and cannot be picked off, one against the other.

In the past, for example—this was quite a regular occurrence—I found myself in Canada on negotiations with mining and mineral extraction employers based in Brazil, working with trade unions from outside the UK. There were disputes with British Airways, which at the time was incorporated through International Airlines Group in Spain, and I found myself in Bangladesh working with the Bangladeshi trade unions that we were trying to form to help them develop trade union strength against the exploitation of shipbreakers. Globalised trade unions pursuing genuine avenues of trade disputes with globalised employers are a modern-day reality.

When the hon. Member for North Dorset talked about the elephant in the room, I thought he was going to mention the great fears that Opposition Members have that trade union membership could be seen as damaging to the nation’s economic wellbeing. If we seek to amend the clause to give the greater clarity that I understand Government Members do not wish to see, it is for good reasons of bitter experience—reasons that Ministers are perhaps not aware of, because of their own personal experience.

Investigatory Powers Bill (Fifth sitting)

Christian Matheson Excerpts

Committee Debate: 5th sitting: House of Commons
Thursday 14th April 2016 Public Bill Committees

Clause 35 ordered to stand part of the Bill.

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

On a point of order, Mr Owen. A Division was called and the Doorkeeper announced a Division in Committee Room 14, at which point I made my way back into the room. I am not clear on the rules for Divisions, so I seek your guidance, but I was in the room at the time that my name would have been called. It was not called. I would have abstained anyway, but I seek your guidance on why my name was not called.

[The Chair]

You have done my job for me. I indicated to the Opposition Whips that we were ready to take the vote, and they said yes. If you have an issue, it is with your own Whip. You have it on the record.

[Christian Matheson]

I am grateful, Mr Owen.

Clause 36

Duty of operators to assist with implementation

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

Investigatory Powers Bill (Eighth sitting)

Christian Matheson Excerpts

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

Instead of the Secretary of State imposing an arbitrary and speculative data retention notice to cover the entire population, we propose that police forces should be able to apply to a judicial commissioner for targeted data retention warrants, where data are required for specific purposes. Building the role of judicial commissioners into that part of the process will help to ensure that we have appropriate checks and balances when it comes to retention of communications data. That is vital, as it is a proper constitutional function of the independent judiciary to act as a check on the use of intrusive and coercive powers by the state.

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

I am delighted to see you back in the Chair, Ms Dorries, as I break my couple of sessions’ silence; it is always very reassuring. I certainly do not wish to keep the Committee here all night, but I will reiterate a point that I made earlier in our considerations, and that relates to the retention of certain data. As my hon. and learned Friend the Member for Holborn and St Pancras pointed out, we understand the need for data retention. However, on looking at the Bill, I am still not entirely satisfied that the Government have taken into account the need for additional security for data retention.

I look to the Minister for reassurance that, when telecommunications and internet providers and suchlike are obliged to retain data, there is a consequent obligation on them to maintain it securely. We know that several such providers have problems with internet security: we saw that with the TalkTalk hack, and we believe another large provider has been hacked recently. Those attacks were on personal data; the Solicitor General and I have had exchanges in this room about the potential for charging them as theft—about whether the sanctions against somebody who committed that offence would be contained in existing legislation.

This part of the Bill needs to look at obliging or maintaining a minimum acceptable level of security, to provide security and privacy for people whose data may have been accepted. I realise that it might not necessarily be covered in detail in the new clause, but now might be a good time for the Ministers to consider whether they believe internet security and the security of personal data held under the terms of clause 79 should be considered in the Bill. Do they believe guidance should be given to telecommunications providers to maintain that security, or do they feel that it is not relevant and that they are quite satisfied with the status quo? I must say that I am not. Notwithstanding the need for the retention of individual data, as described so eloquently by my hon. and learned Friend, it remains a major concern of mine that individual privacy and data are at risk: it puts a question mark over the whole clause and over the areas we are discussing.

[The Solicitor General]

I am grateful to hon. Members for a wide-ranging debate. I would first like to reiterate on behalf of the Government the position adopted by the Joint Committee on the draft Investigatory Powers Bill, which quite clearly indicated its conclusion that the case was made for a retention period of up to 12 months for relevant communications data. In the report from David Anderson QC, “A Question of Trust”, recommendation 14 is:

“The Home Secretary should be able by Notice (as under DRIPA 2014 s1 and CTSA 2015 s21) to require service providers to retain relevant communications data for periods of up to a year”.

There we have it: the Government are acting upon the specific endorsement of an independent reviewer and a Joint Committee of this House. There is an element of the waving of the proverbial shroud when it comes to the retention of data, because the word “relevant”, which is contained in the second line of clause 78(1), is the governing word here. It is very important to remember that this is not carte blanche for the Secretary of State to authorise communications service providers to retain everything for 12 months. That is not the case. Where there is no case of necessity and proportionality for a 12-month period, a shorter period must be adhered to. Indeed, if the material is not relevant, it falls outwith the ambit of any such authorisation.

I reassure the hon. Member for City of Chester, who makes quite proper points about the integrity of data, that he is right to make them. That issue affects all those in this room and beyond. He is also right to allude to the criminal law. I reassure him that communications service providers have to comply with the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, which together contain those requirements that the data is appropriately secured. When he has the time—which I am sure is as precious to him as it is to the rest of us—chapter 16 of the draft communications code of practice contains an entire set of provisions relating to the security, integrity and, indeed, destruction of retained data, which very much underpin the principles of why CSPs have to operate and will give him the reassurance that he properly seeks about the position with regard to individual data and people’s privacy.

Data retention legislation has existed in this country since the Anti-terrorism, Crime and Security Act 2001, which allowed the Secretary of State to enter into voluntary agreements with telecommunications operators so that they could retain data that otherwise would be deleted. The Data Retention (EC Directive) Regulations 2007 were the first piece of data retention legislation that provided for the Secretary of State to require the retention of such data. We currently have DRIPA 2014 and the data retention regulations of that year. We hope to replace those with the provisions in the Bill. A very important point is that there is nothing new about these proposals. Our data retention legislation has always had the Secretary of State involved in the process and there are very good reasons for that. It has worked successfully until now. As I have indicated, it has been recommended to us by David Anderson.

The amendments that have been tabled seek to drive a coach and horses through all of that. There is a simple and blindingly obvious reason why we wish to maintain the system of data retention. For example, when a crime happens or a child goes missing, it is impossible to know in advance which data would be relevant in any subsequent investigation. It is therefore important that we require the retention of all relevant communications data that matches a certain description wherever it is necessary and important. Because it is impossible to know which data will be the most relevant in advance of any crime, it is impossible to know whether a specific piece of data will be of value to MI5 in locating a terrorist, for example, or to the National Crime Agency in identifying a paedophile, or for any other legitimate purpose. For that reason it does not make sense for those authorities to apply for retention warrants individually. What makes sense is for the requirement of all relevant public authorities to be considered together. The person best placed to do that is the Secretary of State. Public authorities set out their requirements for data retention to the Home Office and they are then carefully considered. As they usually overlap, the Secretary of State is able to identify the specific telecommunications operators and specific data types that it is necessary and proportionate to make subject to data retention notices. As the full costs of data retention are covered by the Secretary of State, only he or she can decide whether or not the benefits of data retention are proportionate to the costs.

There has been some discussion about cost again today. The £170 million figure is based on the cost of our anticipated implementation, which takes into account data that is already obtained under existing legislation. We noted the evidence of BT when it talked about the costs being dictated by its implementation approach, and we continue to discuss implementation with those communication service providers likely to be inspected. Whatever the final cost, however, the important underwriting by the Government is a vital factor in giving reassurance to the industry, not only on the practicability of these measures, but on the importance therefore of involving the Secretary of State.

My worry is that if we went down the road proposed by the amendments, we would end up with a rather confused system that would not allow for the overall benefits of retaining a particular type of data, because the judicial commissioner would only ever be able to consider the benefits to the particular public authority applying for a warrant. It would therefore be impossible to judge the overall necessity and proportionality of requiring a particular company to retain a particular dataset.

We have heard about new clause 10 and its provisions. Given that it is impossible to predict in advance what data would need to be retained, this approach relies on data being retained only after a crime has been committed and/or an investigation has begun. Preservation only works if the data are there to preserve and it is of limited benefit without an existing retention scheme. Without data retention, data protection rules require that the data that are no longer needed for business purposes must be deleted. Without data retention, the data that are needed would not exist. Therefore, the regime of warrantry—the double lock, indeed the proposals put forward by Opposition Members—none of it would matter, because the material would not be there. That is particularly relevant when it comes to the increasing move of criminals and their ilk away from conventional telecommunications to the internet and internet connections.

A number of reports published by the EU Commission show the value of communications data and why the concept of data preservation, as envisaged in new clause 10, is not a viable alternative. In a Europe-wide investigation into online child sexual exploitation, of the 371 suspects identified here in the UK, 240 cases were investigated and 121 arrests or convictions were then possible. Of the 377 suspects in Germany, which does not have a data retention regime, only seven could be investigated and no arrests were made.

I have explained why the existing data retention regime that the Bill replicates is the appropriate model. May I deal with the change proposed by a set of amendments that involve changing the word “may” to “must” in clause 78(2)? That would require a data retention notice to cover certain issues. I am sympathetic to the aim of the amendment, because I am in favour of specific requirements, but the amendment is misconceived because subsection (7) already requires that a retention notice must specify the operator to whom it relates, the data which are to be retained, the period of retention, the requirements and restrictions imposed by the notice, and information on costs. Subsection (2) sets out the scope of what a notice may require and subsection (7) requires that the notice must make clear what is required. The two subsections are therefore aimed at different things.

The effect of this amendment would be to require a notice to cover issues that it might not have any reason to cover. For example, a retention notice may

“make different provision for different purposes”.

With respect, it therefore does not make sense to say it must make different provision for different purposes, because a notice may not relate to those different purposes. I would argue that there is therefore nothing to be gained by moving these amendments. That is all I wish to say, but for those reasons I urge hon. Members to withdraw the amendments.

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[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 80 ordered to stand part of the Bill.

Clause 81

Data integrity and security

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

[Christian Matheson]

I seek the Minister’s guidance. Throughout our considerations, I have spoken of my fears whether data held under this Act are held securely. I hope that clause 81 will address many of my fears; I seek the Minister’s advice on whether it lays responsibility on communications providers to maintain those data securely. I simply reiterate my concern that when theft does take place, there has to be a consideration of an offence of unlawful possession of stolen data, on the basis that the communications provider that has suffered the theft would also be legally responsible for that theft when the provider is in fact a victim of the theft itself. Bodies that seek to obtain illicitly a person’s private communications data may try to make financial gain as a result. Is the Minister confident that clause 81 gives me the kind of assurances that I have been looking for on internet security? Is there sufficient deterrent, in terms of possession of unlawfully obtained data, that might be included later in the Bill?

[The Solicitor General]

The hon. Gentleman has been consistent in stating his concerns. I assure him that clause 81 contains the sort of requirements that he would reasonably expect. It sets out the matter clearly. It should be read in conjunction not only with other legislation that I have mentioned, such as the Data Protection Act 1998 and the Privacy in Electronic Communications Regulations 2003, but with clause 210, which provides for the Information Commissioner to audit the security, integrity and destruction of retained data, and the codes of practice to which I referred earlier. The provisions in the communications data draft code of practice go into more detail about the security arrangements.

We had a discussion some days ago about the existence of adequate criminal legislation. The Bill has a number of provisions that relate to those who hold data, and we discussed whether existing legislation could cover those who come into possession of the data unlawfully. I say to the hon. Gentleman that I will take the matter away and consider it, and come up with a proper considered response to his query.

Question put and agreed to.

Clause 81 accordingly ordered to stand part of the Bill.

Clauses 82 and 83 ordered to stand part of the Bill.

Clause 84

Enforcement of notices and certain other requirements and restrictions

Investigatory Powers Bill (Tenth sitting)

Christian Matheson Excerpts

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

[Joanna Cherry]

I am glad to hear that the hon. Gentleman does not want the Americans to tell the British how to run their affairs. In very much the same way, I do not want the British establishment to tell Scotland how to run its affairs. We can have that argument another day—

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

We have already had that argument.

[Joanna Cherry]

I think the hon. Gentleman will find that the argument is alive and kicking north of the border, but we digress.

I can reassure the hon. Member for North Dorset that I have no intention of following the United States of America’s security policy. We should devise our own policy in the United Kingdom, so long as it remains the United Kingdom. I am saying that we should set up an independent review body, made up of people from the United Kingdom—not the Americans or French; let us not panic about the French or the Americans telling us what to do. I am suggesting that our own people, if I may use that phrase, should be on the body. I mentioned the American experience to show that our key ally in such matters has, as a result of two very high-level congressional committees, reached the view that bulk powers are not justified. That is my point; it is not that we should do what the Americans tell us to do. I can assure the Committee that that is far from being the position of the Scottish National party. My point is that we should look to the experience in other countries to inform our decision making.

Investigatory Powers Bill (Thirteenth sitting)

Christian Matheson Excerpts

Committee Debate: 13th sitting: House of Commons
Thursday 28th April 2016 Public Bill Committees

[Mr Hayes]

I will give way to the hon. and learned Gentleman in a second, but I draw attention again to the Joint Committee’s view on the matter, because he quoted it. I think that we are reaching a common view on this; we are certainly journeying towards accord. The Joint Committee said:

“We do not think that appointment by the Prime Minister would in reality have any impact on the independence of the Investigatory Powers Commissioner and Judicial Commissioners. In modern times, our senior judges have had an unimpeachable record of independence from the executive and we believe any senior judge appointed to these roles would make his or her decisions unaffected by the manner of appointment.”

In the witness sessions, former Home Secretaries made it clear that in their direct experience of similar matters, they had seen no sign of the judiciary being intimidated to the point of subservience when faced with the views of the Executive.

There is an argument for fine-tuning, and that is almost where the hon. and learned Member for Edinburgh South West is heading. There are a range of amendments in this group, and in a sense some are more radical than others, as the hon. and learned Member for Holborn and St Pancras has acknowledged. He and the hon. and learned Lady have placed some emphasis on, if I may put it this way, one or two of the more modest changes that have been suggested, and that is not falling on deaf ears on the Government Benches. However, I resist the fundamentalist view—not represented in this case, I think—that somehow the Prime Minister’s involvement is undesirable because it compromises judicial independence.

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

Will the Minister give way?

[The Solicitor General]

Will my right hon. Friend give way?

[Mr Hayes]

I shall give way to the hon. Member for City of Chester and then, purely in a bipartisan way—perhaps I should say tripartisan—I will give way to the Solicitor General.

[Christian Matheson]

I will respond in a bipartisan way with an initial confession that I know little about judicial appointments. I wonder whether there are any others that have to go through the Prime Minister’s office. Perhaps the Minister can confirm that.

The appearance of things is perhaps a problem. If the Prime Minister is appointing the Secretary of State—let us say, for example, the Home Secretary—and the judges who comprise the second part of that double lock, it may appear that there is an apex, or apogee, leading to one place, rather than the two locks. It might be better for the process if there were an appearance of independence from those two sides.

[Mr Hayes]

Again, that is an argument about fine tuning. I do not say that with any pejorative implication. It is reasonable to say that the Prime Minister’s engagement has to be of a kind that does not either mean, or arguably, perhaps, give the appearance of, a lack of independence—I think that is what the hon. Gentleman is suggesting. Thus we end with the idea of the hon. and learned Member for Edinburgh South West about changing the chronology, or perhaps rather more than that, actually altering the process by which the Prime Minister is involved.

On the factual point that the hon. Gentleman raised about the Prime Minister’s engagement, of course the current commissioners are appointed on that basis, and there is no suggestion that their independence has been compromised.

Then we come to the issue of deployment, and I want to talk about the difference between deployment, in the way that the hon. and learned Lady is no doubt about to prompt me to.

Investigatory Powers Bill (Fourteenth sitting)

Christian Matheson Excerpts

Committee Debate: 14th sitting: House of Commons
Thursday 28th April 2016 Public Bill Committees

[Mr Hayes]

The hon. and learned Gentleman is being excessively sensitive. I was not commenting on his experience, expertise or diligence on these matters generally. I was drawing attention to the fact that those of us who have served as Members of Parliament and have dealt with the consequences of the misinterpretation that can unfortunately arise from the most minor of matters—we have all been there in our surgeries, and I think we all know what I mean—have learned that very well intentioned provisions can lead to misassumptions and even fuel vexatious complaint. I am not questioning the hon. and learned Gentleman’s right to probe—indeed, I welcome it, and he has exercised it with diligence and courtesy—but the amendment could have the unintended consequence of fuelling the kind of misassumptions and consequent vexatious complaints that we have to deal with by the nature of our job, and be quite discerning about, too.

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

I am sure that I do not need to remind the Minister that both my hon. and learned Friend the Member for Holborn and St Pancras and the hon. and learned Member for Edinburgh South West are skilled, high-level criminal prosecution advocates, so they will be well aware of the ability to find fault with legislation. We should be grateful that they will not be the defence barristers finding fault with the legislation.

[Mr Hayes]

I agree, and that is precisely why, when members of the Opposition probe, it is important that my hon. and learned Friend the Solicitor General and I explain where that probing leads. The interface between members of this Committee is designed for that exact purpose. It allows us to test the Government’s arguments, to examine the Bill with care and to identify where it can be strengthened, and as part of that to find out where the Opposition, having probed, will ultimately be satisfied that the Government got it right the first time round. I have been on both sides of this process over many years; I have been in the shoes of the hon. and learned Member for Holborn and St Pancras, so I know exactly what that is all about.

In this case, drawing on my experience as a Member of Parliament, I can imagine where the amendment might lead. I do not think it is the intention, but it could well be the result. Furthermore, although certainly not intended, it is possible that the obligation under the amendment to notify a person of minor errors that did not cause significant harm to any individual would not only be burdensome—the hon. and learned Gentleman acknowledged that fact, which has to be taken into consideration—but might discourage the agencies and others from going about their work in the way that they do. If they felt that even the most minor accidental error would be notified to the individual concerned, it could inhibit or change the way that they went about their work.

Investigatory Powers Bill (Fifteenth sitting)

Christian Matheson Excerpts

Committee Debate: 15th sitting: House of Commons
Tuesday 3rd May 2016 Public Bill Committees

[Mr Hayes]

The amendment is designed to ensure that the Government’s commitment to cost recovery for providers is explicitly provided for in the Bill. The hon. and learned Gentleman is right to raise this issue again, reflecting what we heard during the witness session when we debated the issue in part. In his evidence, Mark Hughes said he was aware that

“Under the proposals in the Bill—the Home Secretary has made reference to it—we would recover our costs from the Home Office, as we have done under existing legislation.”

He went on to say that

“the proposed regime is more sensible as long as it is clear that we will recover 100% of our costs.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 45-46, Q126.]

And I am clear, quoting the Home Secretary, that

“100% of the compliance costs will be met by the Government.”—[Official Report, 15 March 2016; Vol. 607, c. 821.]

The hon. and learned Gentleman asks what that means in practice. The £174 million he mentioned is not a cap, but an estimate. It is dealt with in the impact assessment, and there is no cap in the impact assessment. We will meet costs such as they arise. We are determined to make sure that the Bill works and is not inhibited by any doubts about the cost of its implementation. Clearly, future Governments will inherit this legislation. It is worth emphasising that the current policy has not changed since the passage of the Regulation of Investigatory Powers Act 2000, so it has survived three Governments of different colours or combinations of colours—we used to be more rainbow-like than we are now, which is actually quite welcome, by the way. We are clear that 100% means what it says.

Above and beyond that—the hon. and leaned Gentleman did not ask for this, but I will add it—we need to be clear that the providers are consulted on any changes to the cost model and that they will be able to seek review of any variation to the notice that affects the level of their contribution. To sum up: we have an estimate, not a cap; a determination that 100% means 100%; a willingness to have a proper input into this; and an assurance—which I think is what the hon. and leaned Gentleman really seeks—that the Government will cover the costs so that the Bill does what it should.

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

What a great reassurance it is to see you in the Chair, Ms Dorries. I will be very brief. I welcome the contributions of my hon. and learned Friend the Member for Holborn and St Pancras and the Minister for Security. As Committee members know, I have been banging on about this issue—

[Mr Hayes]

Yes.

[Christian Matheson]

—rather tediously. The Minister says, “Yes,” but I have to point out that he said it before I said “rather tediously”. I welcome the Minister’s assurance as I have been concerned about communications service provider security since Second Reading. Will the Government consider providing security advice and testing for the smaller communications service providers, in addition to the financial contribution that they are making?

[Mr Hayes]

I will make only two points in reply to the hon. Gentleman. First, when he describes it as “banging on”, he understates his contribution. I see it more as informed, eloquent and sensible inquiry. Secondly, he is absolutely right that the small providers need to be fully involved at all stages. It may be fair to say that the bigger providers have the mechanisms to implement the requirements for data retention more straightforwardly, so we need to ensure that that does not mean that small providers are in any way disadvantaged. I acknowledge that point, and he is right to make it elegantly. He should never apologise—at least to me—for banging on about anything.

--- Later in debate ---

[The Solicitor General]

I am grateful to my hon. and learned Friend, who is right to pray in aid that subsection, which sets out the bones on which we flesh out the procedure in the code of practice.

[Christian Matheson]

I am getting a bit confused. My understanding was that these provisions applied only to communications service providers. I think it was the hon. and learned Member for Edinburgh South West who raised the question of Apple, which to my mind is not a communications service provider, but the Minister responded in the same terms. Will he clarify who exactly we are talking about and who the provision is intended to cover?

[The Solicitor General]

The hon. Gentleman is right to make that important point and to steer us back on to the straight and narrow. I am not criticising the Committee for trying to bring the Bill to life with some examples. We are indeed talking about communications service providers, not third parties, which is important in the context of the Bill.

Investigatory Powers Bill (Sixteenth sitting)

Christian Matheson Excerpts

Committee Debate: 16th sitting: House of Commons
Tuesday 3rd May 2016 Public Bill Committees

[The Chair]

Order. We are not ready for you yet, Minister.

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

I can assure you, Mr Owen, that I will not detain you, the Minister or the Committee for long, save to endorse what my hon. and learned Friend the Member for Holborn and St Pancras has said.

If this is to be our final debate in Committee, I pay tribute to the forensic diligence exercised by my hon. and learned Friend throughout our proceedings and as exemplified by new clause 25 that he has tabled. The crux of so much of what we have discussed in Committee has been balance—where the right balance is between the protection of individual privacy and the ability of our security, intelligence and law enforcement agencies to protect us as a nation. We all have different beliefs about where the balance lies and it is the job of the Committee and the House to establish that balance.

As my hon. and learned Friend has made clear, adding this overarching new clause would give the public a level of comfort—a level of trust, indeed—that we have the balance correct. The new clause would remind us, right at the start of the Bill, of the principles that we think underpin the legislation. That would provide the public with the comfort that they require and also imbue a sense of trust in the final Act that we hand over to the judiciary, the Home Secretary and the agencies that are charged with protecting us. Given the structure of the Bill and the repeated application of certain measures to different areas of activity, an overarching clause would provide a solid foundation to the rest of the Bill’s structure.

I commend my hon. and learned Friend for his work, and in particular for the new clause, because it helps to achieve the balance between protection of privacy and the protection and defence of the realm. I hope that it goes a long way towards winning the support of more sceptical members of the public who might be looking for reasons why they should not support the Bill; now, we can give them a reason why they should.

[Joanna Cherry]

I add my support and that of the Scottish National party to the new clause. I will tell hon. Members about an example of such a clause in Scottish legislation, which they might wish to look at. In doing so, I pay generous tribute to honourable Labour and Liberal Democratic parties which passed it. In coalition in the first Session of the Scottish Parliament, they passed a wonderful piece of legislation, the Mental Health (Care and Treatment) (Scotland) Act 2003. It was based on a report produced by a committee chaired by the late right hon. Bruce Millan, a former Secretary of State for Scotland and a very distinguished gentleman.

The 2003 Act sought thoroughly to modernise and codify the law of Scotland on mental health and, in particular, to take into account the human rights of those who have mental health problems. To do that, it set out in section 1 of the Act general principles that everyone discharging functions under the legislation must stand by. It is a piece of legislation that has very much stood the test of time and it has greatly enhanced the protection of the human rights of those in Scotland with mental health problems. It has also balanced that against the protection of the public in certain situations. The new clause does not take a legislative approach that is without precedent. If Members want to see how it might be done, they can find a similar example to new clause 25 in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003.