Investigatory Powers Bill

Dominic Grieve Excerpts

Report: 1st sitting: House of Commons
Monday 6th June 2016 Commons Chamber

The new clause was inspired by the ISC, and it is based on the amendment that the hon. and learned Member for Holborn and St Pancras (Keir Starmer) tabled in Committee. I hope that on that basis, the whole House will be able to support it. It makes it clear that warrants or other authorisations should not be granted where information could reasonably be obtained by less intrusive means. It requires that persons, including Secretaries of State and judicial commissioners, who exercise functions under the Bill have regard to the public interest in respect of privacy, as my hon. Friend the Member for South West Wiltshire (Dr Murrison) has described. It makes it clear that criminal offences that apply to misuse of powers under the Bill are sufficient to put beyond doubt the fact that should anyone misuse the powers, severe penalties would apply. There can be no truck with that kind of deliberate wrongdoing.

[Mr Dominic Grieve (Beaconsfield) (Con)]

I realise that the Bill is complex, but could I ask my right hon. Friend—not during today’s debate, but before our consideration of the matter is concluded—to write to me setting out each of the penalties for each of the misconducts identified in the Bill? The point that I will make to him in due course is that it remains extremely complex to follow, and, in some cases, the penalties appear to be little more than a rap over the knuckles under the Data Protection Act.

[Mr Hayes]

My right hon. and learned Friend has made the point about incomprehensibility previously. Indeed, when we debated the draft version of the Bill, one of the telling points he made was that new legislation was needed in part because it should be more comprehensible, easier to navigate and thus more understandable to more people. He is right that the fact that existing provisions are to be found in a number of places makes it hard to determine exactly what powers there are and how the abuse of those powers will be dealt with. I happily concede the point that he has made, because it is important that all Members of this House, particularly he and the Committee that he chairs, are fully aware of the kinds of penalties that might apply. I have described them as “severe”, and I have made the point that wrongdoing cannot be tolerated. Therefore, the least I can do is agree with him that it would be helpful to set out those penalties as he has described. We will do so before the Bill completes its passage through Parliament, because it is only right for us to do so.

The purpose of the amendments and new clauses that we have tabled is to reflect the consideration of the Committee chaired by my right hon. and learned Friend, and to reflect the character and content of the debate that took place when the Bill enjoyed scrutiny in Committee. As we considered privacy to an increasing degree, it became clear that as well as the implicit emphasis on private interest, which runs through the Bill, there was a compelling case for an explicit commitment to privacy in the form of a new clause. To that end, it is right to say that both the minor parties on the Committee—in this case, the Scottish National party—

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[Keir Starmer]

I am grateful for that intervention. It is the historic trade union cases that have caused so much concern, but our new clause is intended also as a future-proofing exercise to ensure that, whatever human right is at issue and whichever individual or organisation is involved, there is a provision that requires decision makers to take into account the convention rights involved.

[Mr Grieve]

The hon. and learned Gentleman will have seen that the Intelligence and Security Committee has tabled a short amendment that says:

“This Act sets out the extent to which certain investigatory powers may be used to interfere with an individual’s privacy.”

We felt that that, linked to either his or the Government’s amendment, would send out a clear general statement about the state’s requirement to protect privacy. I wonder whether he has a view on that, because it seems to me that our amendment would add something without in any way undermining the ability thereafter in the Bill to undertake those necessary interferences that might be required.

[Keir Starmer]

I am grateful for that intervention, because what amendment 14 makes clear—the point is sometimes missed—is that these, or indeed any, investigatory powers affect an individual’s privacy. We have to be absolutely clear: the right to privacy is fundamental, but it is not absolute. The Bill gives the state a power to interfere with privacy—that is what it is about. The question then becomes: is there a case for the interference in the first place, and if there is, is that interference necessary and proportionate? Obviously it is for the Minister to respond to our amendment, but in a sense it is all of our duties to remind ourselves that this is all about an interference with privacy, and that is why the safeguards are so important.

The third reason the overarching privacy clause is important is that it is now linked to the test for judicial review of the Home Secretary and Foreign Secretary’s decision, so it has real application every day when one of the warrants is applied for.

Finally, let me say a few words about the appointment of judicial commissioners, an issue that has cropped up a number of times. Under clause 194, it is for the Prime Minister to appoint the Investigatory Powers Commissioner and

“such number of other Judicial Commissioners as the Prime Minister considers necessary for the carrying out of the functions of the Judicial Commissioners.”

Before doing that, he must consult the Lord Chief Justice of England and Wales, the Lord President of the Court of Session, the Lord Chief Justice of Northern Ireland, the Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland. Our amendment 298 would ensure that the Prime Minister acted on the recommendation of

“the Lord Chief Justice of England and Wales, in relation to Judicial Commissioners appointed from England and Wales,”

and likewise the recommendation of the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland in relation to Scotland and Northern Ireland.

The reason is that it is envisaged that judicial commissioners will be appointed from among those who are already very experienced judges—High Court and above—either serving or retired. They will obviously have gained the qualifications to be judges and will be appropriately skilled and qualified to take these decisions, so in truth the exercise of appointing a judicial commissioner will be an exercise in deploying, from the pool of available judges, those who will sit as judicial commissioners.

That is an important consideration. Our amendment is tabled on the basis that it is not appropriate for the Prime Minister to decide that sort of deployment—he does not have the skills and experience to do it—nor, in a sense, should it be a political deployment. This is something routinely done by the Lord Chief Justice of England and Wales. Our amendment would ensure that the Lord Chief Justice of England and Wales, the Lord President in Scotland and the Lord Chief Justice of Northern Ireland make a recommendation that binds the Prime Minister. The appointment is, of course, the Prime Minister’s, but that is the right way to carry out the appointment to this important judicial role, rather than the version in the Bill.

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[Keir Starmer]

I am grateful for that indication.

I have taken longer than I had anticipated. I think I have taken every intervention, because important points were being made—that is in mitigation rather than an excuse, I suppose—but the House will be pleased to know that I have finished, at least on these amendments.

[Mr Grieve]

It is a pleasure to take part in this debate. As will be noted, the Intelligence and Security Committee has tabled a number of amendments to this part of the Bill for the House’s consideration. I want briefly to run through them and explain the Committee’s collective position.

I want to start, however, by commenting on the debate we have just been having about privacy. It seems to me that it is absolutely central to the duty on this House that we should ensure that the principle of the right to privacy against the state is maintained except if there is a good and sufficient reason why that should not happen. In that context, it is extremely important that the Bill should be clear about the right to privacy. I very much welcome new clause 5; indeed, the difference between that and the new clause tabled by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) is, in reality, very slender indeed, as I see he acknowledges.

[Keir Starmer]

indicated assent.

[Mr Grieve]

That said, words sometimes matter, and the clearer the statement, the better. I hope that my right hon. Friends on the Treasury Bench will take that into account.

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[Mr Deputy Speaker (Mr Lindsay Hoyle)]

Order. Let me help the Minister a little. He has asked for more time at the end in which to deal with various points, but what we are bothered about is eating into that time when so many Members wish to speak. Being quicker in responses would help.

[Mr Grieve]

Thank you, Mr Deputy Speaker. I am grateful to the Minister for his response, and I look forward to such a review happening. It would be good if it could take place in plenty of time before the Bill is passed, because we must have this issue in mind if we want to take different steps in respect of this matter.

Let me move on to new clause 2 and the associated amendment 18, which reflect some of the important concerns of the Intelligence and Security Committee. The Bill contains some welcome reforms to the commissioners who are currently responsible for the audit of authorisations and warrants that govern the use of intrusive powers. I am sure that all Members will agree that the new judicial commissioners will be critical in providing the assurance we need that the intrusive powers are being used appropriately.

What is currently missing, however, is a power to refer cases to the commissioners by the Intelligence and Security Committee. The ISC considers strategic issues and overall policies, including operations of significant national interest, but that is quite a different role from the commissioners who audit specific authorisations and warrants. The Committee sees our roles as complementary and, at times, our own work will throw up concerns about issues that we ourselves are not in a position to investigate. It is entirely appropriate that matters arising from a strategic or high-level inquiry conducted on behalf of Parliament by the ISC be capable of being referred to the commissioners for more detailed audit.

To date, however, I have to say that the informal process has not been working well. I mentioned previously that the ISC discovered that the Interception of Communications Commissioner did not know how many selection rules GCHQ applied to its bulk intercept materials. In such circumstances, the ISC should be able to refer that matter to the commissioner to ensure that he investigates the selection rules and provides thorough oversight.

To provide a further example, in its report on the killing of Fusilier Lee Rigby, the ISC identified a number of concerns about the involvement of the intelligence services prior to events and particularly in respect of one of the killers. Despite numerous invitations to discuss the matter, the Prime Minister referred it to the commissioner, yet despite numerous representations to the commissioner for an opportunity for the ISC to raise its concerns directly with him, that opportunity has never been taken up. Neither has there been any response of any kind to the ISC’s representations.

I want to emphasise that the commissioner is independent. There is no suggestion on the part of the Committee that we should be telling the commissioner what to do, but if informal channels of communication do not seem to be working very well, it seems to us that greater co-operation is required to make this and every other aspect of our scrutiny and the commissioner’s scrutiny work better. It would therefore be helpful if there were a clear mechanism by which the commissioner could receive a reference and be required to acknowledge it. That is why we tabled new clause 2. It has been suggested that this might be in some way improper because the commissioner has a judicial function. I have to say that although the commissioner is a person who must have held judicial office, being a commissioner is not a judicial function, so I cannot see for the life of me why this requirement cannot be placed on him.

[The Solicitor General]

I have listened very carefully to what my right hon. and learned Friend has said about amendment 18, which the Government are prepared to accept. On the first part of new clause 2, the Government are prepared to accept referral in principle, but I would like to address in greater detail in my closing remarks, my concerns about reporting. I am sure my right hon. and learned Friend will listen carefully to what I have to say in due course.

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[Mr Grieve]

I will certainly listen very carefully to what my hon. and learned Friend has to say. It was on that basis, I should make it clear, that I tabled new clause 2 as a probing amendment. If he can provide me with some reassurance, we will leave it there. This is an important issue, and the wording is crucial. We did not intend to put any constraint whatever on the commissioner in respect of the conclusions he reached, and I could even envisage the commissioner writing back and saying, “I have taken a preliminary look, but I’m afraid I disagree with you, and I do not think this is worthy of my investigation.” That is the lowest level of response that the Committee would hope to get from the commissioner. On that basis, I find it difficult to see that that would be putting improper pressure on the commissioner to provide a response.

I gratefully accept what my right hon. Friend the Minister for Security, has said about amendment 18. This means that we shall be able to go to the Prime Minister and ask him to give a direction in certain circumstances. Indeed, if the leading member of the Executive will be able to give a direction to the commissioner to carry out an investigation, it could hardly be improper for us merely to ask the commissioner to consider and acknowledge a request to investigate something.

I shall turn briefly to amendment 8, which deals with the oversight of safeguards relating to bulk powers. When we reported on the draft Bill, we recommended that bulk equipment interference warrants be removed from the Bill entirely. We said that we had

“not been provided with sufficiently compelling evidence as to why the Agencies require Bulk Equipment Interference warrants, given how broadly Targeted Equipment Interference warrants can be drawn”.

In response to that recommendation, the Government helpfully provided the Committee with further extensive classified evidence, which we scrutinised in great detail. After carefully considering it, we concluded that there were circumstances—target discovery was an example—that would require a bulk equipment interference warrant and could not simply be covered by a thematic warrant. However, central to our willingness to accept that change is the need for underlying safeguards, policies, procedures and access controls to be in place.

In the last Parliament, the Committee’s inquiry on privacy and security examined at great length the underlying safeguards for bulk interception, and it was those that convinced the Committee that bulk interception was properly controlled. We are told that the same principle is going to apply to bulk equipment interference. We have sought assurances from the Government that the same safeguards, policies, procedures and access controls that apply to bulk interception will also be applied to interference, and we have received those assurances.

Nevertheless, given how critical those underlying safeguards are, we regard it as essential that the Bill place an obligation on the commissioner to have particular regard to the privacy safeguards when reviewing all matters under the Bill. The reason that this must be clearly stated on the face of the Bill is that the Committee discovered in its previous inquiry that the current Interception of Communications Commissioner did not know the detail of the underlying safeguards for bulk interception. This cannot therefore be taken for granted; there must be a specific obligation in statute.

[Lucy Frazer (South East Cambridgeshire) (Con)]

New clause 5 relates to privacy and states that the public authority must have regard to

“whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means”.

If the new clause is accepted, could that affect the point that my right hon. and learned Friend is making? Would not the least intrusive method possible have to be used?

[Mr Grieve]

I think my hon. Friend makes a good point. I have an underlying confidence that the amendment we are discussing might commend itself to those on the Government Front Bench. On that basis, I do not intend to labour this point any further. I felt it was important to set it out, however, because it marked a significant shift in the Committee’s approach to this legislation. I wanted the House to understand why that change had come about after we had been given the extra classified briefing and why we came to the conclusion that we should accept this principle, alongside essential safeguards.

[Mr David Davis]

I have not read the individual amendments, so I am flying blind here. However, there is no doubt that this power is the most intrusive power in the Government’s armoury. One of the problems historically has been that the sheer volume of work being conducted means that scrutiny and oversight can sometimes slip. Would my right hon. and learned Friend’s amendment actually require the investigation of every single bulk intervention?

[Mr Grieve]

The amendment would require that

“the Investigatory Powers Commissioner must, in particular, keep under review the operation of safeguards to protect privacy.”

In our view, it is crystal clear that such a provision would meet the needs that we have expressed. As I have said, the Committee has been satisfied that the rules relating to bulk interception are adequate to provide the necessary safeguards. So, as long as we apply identical standards to equipment interference, the Intelligence and Security Committee believes that this process could be made to operate properly.

[Mr John Hayes]

I hear what my right hon. and learned Friend has said. He will be aware that, because of the arguments put forward by him and others—including Opposition Members—on bulk powers, we have agreed to a further independent review. The point of clarity here is that the review will look at the range of bulk powers and apply its assessment of necessity across that range. I just wanted to give him that additional assurance.

[Mr Grieve]

I am grateful to the Minister. Clearly, the more targeted a power can be, the better. Indeed, that was one of the reasons that the Committee expressed concern about whether the bulk power was required in the case of equipment interference. However, in classified evidence to us, the Government made the compelling case that simply relying on thematic powers or targeted powers would be likely to be insufficient and unsatisfactory. In changing our position, we have acknowledged that. However, that makes it all the more important that the safeguards should be properly in place. Those are the key amendments in this group that I wanted to bring before the House. I simply reiterate my earlier comment that the Government have really co-operated and moved a great deal in relation to this legislation. They have responded positively, as I shall be able to illustrate as we come to the further amendments.

[Joanna Cherry]

I have unashamedly tabled a lot of amendments to the Bill, including to part 8, and the Scottish National party will also support amendments tabled by others.

I pay tribute to the hon. and learned Member for Holborn and St Pancras (Keir Starmer), with whom I worked closely in Committee. There are areas of divergence between the SNP and Labour on the Bill, but it was a pleasure to work with him and I hope that there will be other occasions on which Labour and the SNP can work together harmoniously.

I recognise that the Government have made significant concessions on part 1 of the Bill. I welcome their attempt in new clause 5 to introduce an overarching privacy requirement. Their belated conversion to the central recommendation of the Intelligence and Security Committee is a tribute to the arguments advanced by Opposition Members in Committee. I have to say, however, that I prefer new clause 21, tabled by the Labour party, which trenchantly states that regard must be given to the Human Rights Act 1998. For reasons that other hon. Members have already given, that is important. It is encouraging to see the Government making reference in their own amendments to the Human Rights Act. That gives me hope that they might have retreated from their plan to repeal the Act even further than we had hoped. That could be one of the little bits of good news to come out of this exercise.

I am also happy to welcome Government new clause 6, and I thank the Minister for Security for acknowledging that it reflects an amendment that was tabled by my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands) and me. It is quite an historic occasion when the Government accept an amendment tabled by the SNP, and I should like to mark it. I just wish that they would look at more of my amendments, but I fear that they will not do so. We are, however, pleased that the Government have seen fit to respond to a number of the concerns raised in Committee. That said, I want to be clear that they will have to go an awful lot further before the Scottish National Party can contemplate giving the Bill our support.

As I said on Second Reading, we would like to be able to support some aspects of the Bill, because they are necessary for law enforcement across these islands and reflect some powers that are already in force in Scotland. It is also a good idea to consolidate the powers and to have a modern, comprehensive law. However, we remain concerned about the legality of some of the powers that are still on the face of the Bill and the fact that they significantly exceed, such as with the retention of internet connection records, what is authorised in other western democracies. We continue to have severe concerns about the bulk powers enabled by parts 6 and 7 of the Bill. We are pleased that the Government have conceded that there should be a properly independent review of the bulk powers, which was argued for by both Labour and SNP Members in Committee, but we are yet to see confirmation of the review’s remit. I want to associate myself with what the hon. and learned Member for Holborn and St Pancras said about the review needing to look not at whether the bulk powers are useful, but at whether they are necessary. We look forward to the publication of the correspondence between the Government and the Labour party, so that we can see what is being proposed. My hon. Friends the Members for Paisley and Renfrewshire North and for Glasgow North East (Anne McLaughlin) will address bulk powers and internet connection records in more detail tomorrow.

I led for the SNP in Committee, where we tabled numerous amendments to try to get the principle of suspicion-based surveillance to run throughout the Bill. We support the idea that warrants should be focused and specific and that oversight should be robust and meaningful. Nearly all our amendments were opposed or ignored by the Government, which is why we cannot give the Bill our support at this stage.

On Second Reading, the right hon. and learned Member for Rushcliffe (Mr Clarke) sought to mock me for making what he described as

“combative and partisan speeches in support of an abstention”.—[Official Report, 15 March 2016; Vol. 607, c. 847.]

He expressed a degree of confidence in a shared consensus across this House about the principles that we should be adopting. I am afraid that my experience in Committee has shown his confidence to be misplaced. The amendments tabled by the Government for debate today are only a partial response to our legitimate concerns. The Government need to pay more than lip service to the importance of privacy and to the principles of necessity and proportionality.

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[Simon Hoare]

It was my pleasure to serve on the Bill Committee for most of its sittings. I put on the record my thanks to my right hon. Friend the Member for Chelmsford (Sir Simon Burns) for taking my place when I had to leave the Committee.

It is always with some reluctance, if not trepidation, that I raise a question on a point made by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), not only because I am not right honourable, but because I am not learned, as I am not a lawyer. When my hon. and learned Friend the Solicitor General sums up, I invite him to try to address a concern that is exercising my mind, about a possible unforeseen consequence of new clause 2, namely the confliction and conflation of judicial and Executive oversight. My view is that those two things are best kept entirely separate. I fear that it may be an intended, or, as I would hope, an unintended consequence of what my right hon. and learned Friend the Member for Beaconsfield has suggested that the two might merge in a rather unsatisfactory and possibly even anti-democratic way.

[Mr Grieve]

I certainly would not wish to see the two conflated, but—to reassure my hon. Friend—I really do not think that that is the case. The point at issue is that the commissioner has a specific power of investigation of particular things, whereas the Committee looks at the generality. It seems to me very much in the public interest that the Committee should be able to refer to the commissioner something that it thinks the commissioner might look at. All we ask of the commissioner is that he should acknowledge that and indicate to us whether he is minded to look at it. Beyond that, it is entirely a matter for him. There needs to be some formal structure, because otherwise there is the risk that that communication will not be there.

[Simon Hoare]

I am grateful for my right hon. and learned Friend’s clarification. That might be the intention of the structure but I still have that reservation and look to the Solicitor General either to confirm what our right hon. and learned Friend has said or to confirm or address my suspicion.

This is probably the most important Bill that we will deal with. I support new clause 5, and think that it amplifies incredibly well the approach that Members on the Treasury Bench and the Opposition Front Bench took in Committee. The words, tone, tenor and approach of the hon. and learned Member for Holborn and St Pancras (Keir Starmer) are to be welcomed. I always contended that the rights and the importance of the privacy of our constituents were an unspoken golden thread running through the Bill. Through new clause 5, the Government have decided—I therefore support them in doing this—that as those rights are not always implicit they should be made explicit.

Like my hon. Friend the Member for Louth and Horncastle (Victoria Atkins), I will oppose new clauses 1 and 16. It seems to me utterly and totally counterproductive and counter-intuitive to give those who have been investigated, either correctly or incorrectly, notice of the fact that they have been. I take slight issue with the hon. and learned Member for Edinburgh South West (Joanna Cherry)—she will not be surprised at that. In Committee, I was never convinced that her party got the fact that we were talking about delivering security and safety for our constituents. This Bill does so. This is not an abstract theoretical debate in a law faculty; it is about providing security and safety for our citizens—the first duty of all of us.

I am pleased with the Government’s approach and the way in which they have responded. I am grateful for the tone of the Front Bench team and look forward to supporting the Bill as it progresses through the House.

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[The Solicitor General]

I am sure hon. Members on both sides will forgive me if I have to canter through all the issues that have been raised at the pace of a Derby thoroughbred and so do not name them in turn. I am grateful for the thrust of the debate, which dealt very much with the historic but continuingly important balance between the need to protect the individual’s right to privacy—a right against intrusion—and the clear national interest in making sure that the agencies responsible for the detection and prevention of crime and terrorism have the tools to do the job.

I will deal first with new clause 21, which has taken up much of the debate. In an intervention on the hon. and learned Member for Holborn and St Pancras (Keir Starmer), my right hon. Friend the Minister for Security indicated that we will consider the position with regard to new clause 5 very carefully. That is indeed the case. It seems to me that we are very close indeed on the provision on privacy. There is one issue, namely the effect of the Human Rights Act. I would say that it is axiomatic that all public bodies are subject to that Act, so an amendment to make that even clearer is not necessary. However, we are going to consider the matter very carefully, and I invite further deliberation in another place. In that spirit, I invite hon. Members on all sides to support Government new clause 5. As someone who has consistently advocated action on privacy by this place, as opposed to leaving it to the courts, I am delighted to see that new clause being placed in a major piece of legislation that I hope will stand the test of time.

I shall now deal with amendments tabled on behalf of the Intelligence and Security Committee. I am grateful to its members for their careful consideration of the Bill. In an intervention on my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the Committee Chair, I indicated the Government’s position on amendment 18. Amendment 8 relates to the underlying internal safeguards. The Government are happy to accept this amendment so that greater clarity and reassurance to Parliament and the public can be provided. Let me make it crystal clear that the remit of the Investigatory Powers Commissioner will include oversight of the internal handling arrangements and processes that enable compliance with the Bill’s safeguards.

I have already indicated that in principle the Government accept the first part of new clause 2, which concerns the referral of issues to the Investigatory Powers Commissioner, and we will table an amendment in the other place to give effect to that intention. As I said, however, I have rather more hesitation with regard to reporting. In agreeing the principle of reference and referral, we are already creating that line of communication that, as my right hon. and learned Friend said, was not working in one respect.

I am grateful to my hon. Friend the Member for North Dorset (Simon Hoare) for directly outlining some of the tensions that still exist with regard to the judicial status and independence of the Investigatory Powers Commissioner, and a role that could lead to an overlap or—dare I say it?— confusion, given how important it is to have clear lines of authority and reporting.

[Mr Grieve]

I realise that time is short. The Minister has gone a long way towards reassuring me, and I certainly do not wish to press this issue to a vote unnecessarily. However, if there is a reference mechanism, an obligation of acknowledgement and at least an indication of what is happening and a report back seem eminently reasonable—after all, the Intelligence and Security Committee exists on Parliament’s behalf to provide scrutiny. I simply do not see how it undermines any element of judicial independence whatsoever.

[The Solicitor General]

I am not saying that the new clause is unreasonable; I am simply being cautious about the need for those involved—namely the commissioner—to be part of the process, and to be consulted if there is to be such a change. With regret, I cannot at this stage support that part of the new clause, but I am grateful to my right hon. and learned Friend for the clear, careful and considered way that he and the Committee have put that point.

New clause 4 relates to clarity on criminal offences. The Minister for Security has properly said that the Government will undertake to prepare a schedule of existing criminal law, and I think he will find that whatever our arguments about the level of penalty in the Data Protection Act, every bit of potential misconduct or criminality that could be carried out under the Bill will be covered by existing criminal law. As practitioners in the field for many years, my right hon. and learned Friend and I are always anxious about the creation of unnecessary new criminal offences. My simple argument is that I am not persuaded that new clause 4 would add anything to criminal law or achieve the sort of clarity that he and others seek, and I am therefore not persuaded and able to accept the new clause.

Let me move swiftly to the amendments on judicial commissioners which were tabled by the hon. and learned Member for Holborn and St Pancras. I listened carefully to the arguments, and I agree that there is real merit and value in providing expertise from the heads of the judiciary in the appointment process. I also believe that there is a role for the Lord Chancellor in these appointments. He has responsibility for ensuring that the Courts and Tribunals Service has enough judges to operate effectively. Given the limited number of High Court judges, these appointments could affect that. Involving the Lord Chancellor in making a recommendation on appointment would help to avoid any accusations of judicial patronage. On the basis that we will table an amendment in the other place to fulfil that aim, I invite the hon. and learned Gentleman to withdraw his amendments.

Let me deal quickly with the judicial appointments commission and the amendment tabled by the hon. and learned Member for Edinburgh South West (Joanna Cherry). I am persuaded by the argument of Lord Judge who, when asked in the Bill Committee about that matter, said:

“there is no point whatever in involving the Judicial Appointments Commission”.

Why? Because judges will have been through the process themselves, and the measure is therefore completely otiose.

On the hon. and learned Lady’s other amendments, I am still not persuaded that the creation of an independent non-departmental public body—namely the investigatory powers commission—would add anything to the thrust of reforms that we are already undertaking, other than cost to the taxpayer. I therefore do not think that creating a new statutory body will add anything to the public interest, which is what we are trying to serve.

The right hon. and learned Member for Camberwell and Peckham (Ms Harman) chairs the Joint Committee on Human Rights, on which I served in the previous Parliament. She is not currently in her place, but I wish to deal with the question of the Chinese wall. She was right to make the concession about David Anderson, who himself said there should be a relationship between the judicial authorisation function and the inspectorate. Indeed, there needs to be a distance, but creating the sort of division envisaged in the amendment would break the important link that exists to allow those who review fully to understand how the process works in practice. For that reason, the Government will seek to resist that amendment if it is pushed to a vote.

My hon. Friend the Member for Louth and Horncastle (Victoria Atkins) clearly and eloquently set out her objections to the amendments tabled in the name of the right hon. Member for Orkney and Shetland (Mr Carmichael) and others on notification. I cannot improve on her argument, except to say that comparisons with other jurisdictions are somewhat invidious, bearing in mind the differing natures of, for example, an inquisitorial process as opposed to the adversarial process that we use in the United Kingdom. My worry is simply that those who are continuing in their criminality will change their behaviour as a result of notification. For that reason, the Government cannot accept the amendment.

On amendment 482, I am happy to consider how to make it absolutely clear that whistleblowers can make disclosures to the IPC without fear of prosecution. I agree that that should be the case, and I will consider how to amend the Bill to bring even greater clarity to that issue. Amendments can also be tabled in the other place, which I hope the hon. and learned Member for Edinburgh South West will take on board when considering her party’s position.

On the wider amendments to the Investigatory Powers Tribunal, let us not forget that the Bill already represents a significant step forward. The only route of appeal available to complainants from decisions of that tribunal is currently a direct reference to the European Court of Human Rights. We are now establishing a domestic right of appeal that allows parties to seek redress in the United Kingdom, and that will also lead to greater speed. My concern is that if every decision of the IPT could be made subject to appeal, the operation of that body would grind to a halt, which I know is very much the view of its president. Currently, only 4% of claims questioning the tribunal’s work have any merit to them, so I am worried about the increasing expense and loss of efficiency that would result.

Similarly, the amendment that would force public hearings would, I am afraid, remove the tribunal’s discretion in deciding how best to operate in the public interest. It currently regularly holds public hearings and publishes copies of its judgments when appropriate.

The requirement to appoint special advocates is unnecessary—I argued that case forcefully in Committee. I can see no reason for departing from the position on declarations of incompatibility with the Human Rights Act, because only a small number of courts currently have that reservation.

I will close with this remark: privacy is now very clearly at the heart of the Bill. I am very proud of that, and Members on both sides of the House will agree that this is a job well done.

Question put and agreed to.

New clause 5 accordingly read a Second time, and added to the Bill.

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[Joanna Cherry]

No, I do not accept that. As I say, the phrase is sprinkled throughout the Bill to justify very broad and intrusive powers, and it is incumbent on the Government to explain what they mean by it. We have heard powerful speeches and interventions from Labour Members about how these loose phrases can sometimes be misinterpreted to enable individuals who have done absolutely nothing wrong, such as trade unionists going about their lawful business, to have their livelihoods and communications interfered with. So if the Government want these powers, they have to define the grounds on which they can be exercised.

That takes me to economic wellbeing. The Joint Committee on the Bill said that economic wellbeing should be defined, but the Intelligence and Security Committee went further and said that it should be subsumed within the national security definition and that otherwise it was “unnecessarily confusing and complicated”. It was basically saying that if economic harm to the wellbeing of the UK was so serious that it amounted to a threat to national security, it would be covered by clause 18(2)(a). That was the point the ISC made. We do not need a separate category.

[Mr Grieve]

I intend to touch on this briefly when I speak. It is right to point out that, after making that recommendation, the Committee had the opportunity to hear considerable further evidence provided by the Government, and as a result we were unanimously persuaded that keeping “economic wellbeing” as a separate category was justified. I will amplify my remarks when I speak later, but that was the conclusion we reached.

[Joanna Cherry]

I do not wish to quibble with the right hon. and learned Gentleman’s conclusion, but unfortunately the rest of us have not been favoured with the basis on which he and his Committee reached it. I am yet to be convinced that the “economic wellbeing” ground is a stand-alone ground that cannot be subsumed within “national security”. If the Government can convince me otherwise, or want to try, I will listen, but I have yet to be convinced, despite having sat through many days of the Bill Committee.

Another problem with the grounds relates to the lack of any “reasonable suspicion” threshold. This recurs throughout the Bill. Our amendments would insert such a requirement. At present, intrusive powers can be authorised to prevent and detect serious crime and, in the case of communications data, even just to collect tax, prevent disorder or in the interests of public safety. These general purposes, however, are left wide open to broad interpretation and abuse if one does not also require a threshold of suspicion. A requirement of reasonable suspicion, when one invokes the purpose of preventing and detecting serous crime, would have the benefit of preventing the abusive surveillance of campaigners, unionists and victims by undercover police; police surveillance of journalists’ lawful activities; and surveillance by the agencies of law-abiding non-governmental organisations and MPs. This is not fanciful. We have seen law-abiding NGOs and MPs having their correspondence and activities interfered with in recent times, so these are not just theoretical examples.

The “reasonable suspicion” threshold was recently held to be necessary by the European Court of Human Rights in a case concerning the Russian interception regime, Zakharov v. Russia, with which many hon. Members will be familiar. The Solicitor General will try to make a distinction—if we had time, we could argue about that—but there is a widely held view that the standard set by the ECHR in that case is not met by the grounds in clause 18. I therefore urge fellow hon. Members to support our amendment to clause 18 to ensure that the United Kingdom’s investigatory powers regime meets international human rights standards.

It will be clear from what I have said already that the SNP very much shares Labour’s concerns about the monitoring of legitimate trade union activity. I understand that the Home Secretary has acknowledged those concerns and given some sort of assurance to the shadow Home Secretary. However, like Labour, the SNP will require an amendment to make that absolutely clear on the face of the Bill. If Labour Members want to push their amendment to a vote this evening, we will support it.

--- Later in debate ---

[Mr Grieve]

It is a pleasure to follow the right hon. and learned Member for Camberwell and Peckham (Ms Harman). I shall resist being dragged away from the specific issues on which the ISC has tabled amendments. However, the Government have moved substantially on some key issues, providing greater protection, for which we should be grateful. On the point made by the right hon. and learned Lady, I confess that I find the idea that the Speaker could provide the necessary safeguard, when one looks at the surrounding circumstances, difficult to follow. Ultimately, the double-lock mechanism provides far greater protection. We have to accept that there are scrutiny and oversight mechanisms in place that mean that if this became a common issue, it would surface properly in our system, with both the Interception of Communications Commissioner and, ultimately, the ISC.

I understand the problem that the right hon. and learned Lady has raised. I am not unsympathetic to her anxieties, which have also been expressed by my hon. Friend the Member for Stevenage (Stephen McPartland). However, I do not see how the mechanism that has been proposed and which involves the Speaker would, in practice, provide the safeguard that the right hon. and learned Lady seeks.

Amendment 25 was tabled by members of the ISC and deals with thematic warrants, on which there has been quite a lot of discussion. I have absolutely no doubt that thematic warrants have the potential to intrude into the privacy of a great many people. In the ISC report on the draft Bill, we recommended that that greater intrusion should be balanced and constrained, and suggested that those warrants should be limited in duration to the period for which they could be authorised. We then took considerably more evidence from the agencies on thematic warrants, and they argued persuasively that if thematic warrants were issued for a shorter time, there would not be sufficient time for the operational benefits of the warrant to become apparent before they had to apply for it to be renewed. We recognised that the Secretary of State and the commissioner would therefore have insufficient information on which to assess necessity and proportionality.

We therefore accept that limiting the duration of a thematic warrant is not the most effective way to constrain it. Nevertheless, we remain of the view that clause 15 as currently worded is a very extensive power indeed. Subsection (2) makes it clear that a targeted interception warrant is turned into a thematic warrant if it can relate to

“a group of persons who share a common purpose or who carry on, or may carry on, a particular activity”.

Giving that its ordinary English meaning, it immediately becomes apparent that the scope is potentially enormous. However, I want to make it quite clear that we have not seen any examples of that power being misused in any way, which presents the House with a challenge. To try to meet that challenge, the Committee’s suggestion, after reflection, is that it might be possible to include an additional constraint by removing the word “or” and adding “and” after the words, “sharing a common purpose”, to try to narrow the scope of the provision. That is why amendment 25 was phrased in that way.

Since then, as often happens in dialogue between the Committee and the agencies, we have received further information. I saw persuasive information this morning that suggested that if we adopted that approach, it would have the unintended consequence of making perfectly legitimate operations by the agencies impossible, and would place a great burden on them, because the use of a straight, targeted warrant based on the particular person or organisation, or a single set of premises, could not meet the necessity and proportionality test of having to do something further. I tabled this probing amendment in order to contribute to the debate, but I still take the view that there is an issue here that the Government need to consider carefully. It crossed my mind as I listened to the various submissions that one possible route might be the creation of a protocol to be used by the agencies—one that could be seen by the Intelligence and Security Committee and that would provide reassurance that the wide scope of the wording could not be open to abuse.

The point was perfectly reasonably made to me—I think by the Home Secretary—that the idea that the Interception of Communications Commissioner would tolerate an abuse that went outside the necessity and proportionality test was, in practice, rather unlikely, but the issue cannot simply be ignored. Something more is needed, because on the plain wording of the statute, the scope that “common purpose” and “a particular activity” allow seems excessive. There must be some constraint, and I leave it to the ingenuity and common sense of the Ministers to come up with a solution to this real problem.

[The Solicitor General]

I think my right hon. and learned Friend can see the problem: if we limit the provision too much—to “common purpose”—we might end up being able to deal only with conspiracy-type offences, as opposed to individual ones. We are trying to be very careful as to the wording, and it certainly is not the Government’s intention to do anything by sleight of hand to create a definition that would be unacceptably wide—far from it.

[Mr Grieve]

I am grateful to the Solicitor General, and I have no reason to disagree with his analysis of the way in which this matter has been approached. I also have no reason to disagree with him about the necessity of having thematic warrants in addition to warrants targeted at premises, individuals or organisations, but the question is how that reassurance can be provided. I hope very much that the Government can go away and give this issue some thought. I suspect it will arise in the other place, when these provisions are debated there. It is important, and I think that a solution can be found, but I accept that, although the amendment we have tabled would provide one, it would also place the agencies in difficulty.

[Mr John Hayes]

Since my right hon. and learned Friend is inviting me to employ my ingenuity, I will try to do so. This is, in essence, about proportionality. We had quite a lot of debate earlier about necessity, but proportionality matters too. In determining what is reasonable—

--- Later in debate ---

[Mr Hayes]

I think this is about proportionality. The answer to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) is that yes, of course, in establishing the character of the proportionality and therefore the range he described, we may need to think about the sort of protocol he set out.

[Mr Grieve]

I am grateful to the Minister, and I leave the matter there.

I turn now to amendments 19, 20 and 21, which deal with the renewal of warrants. They may appear somewhat complicated, but they deal with a very simple issue. Warrants for interception last for up to six months. Under clause 29, the warrant can be extended by a further six months at any time before the original warrant expires. That creates a loophole because it would theoretically allow for a warrant to be renewed immediately after it was issued, thereby permitting interception for 12 months. That is clearly not what the Bill intends. The Secretary of State might well argue—logically—that the commissioner would never approve such a renewal, and that she would not either, but this is nevertheless a loophole that can and should be closed, and these amendments would ensure that it is. I hope very much that the Government can accept them.

I should mention that the amendments in my name relate only to warrants for interception and bulk interception. I would be grateful if the Minister could assure the House that, if the Government accept my amendments, that acceptance will be extended to other consequential amendments of a like character, to ensure that the power cannot be abused elsewhere.

Amendment 16 relates to clause 45 and interception in accordance with overseas requests. The clause gives effect to the European Union’s convention on mutual assistance on criminal matters and permits an overseas authority to request the support of the United Kingdom in undertaking the interception of communications. Curiously, and probably accidentally, it does not repeat the protection that exists in the Regulation of Investigatory Powers Act 2000, which ensures that requests can be made only where a person being intercepted will be outside the United Kingdom. That seems to us be another loophole that ought to be dealt with. Although the Government had indicated that it could be dealt with in secondary legislation, the Intelligence and Security Committee do not consider that to be satisfactory. It is far too important an issue to be left to secondary legislation; it should be dealt with in the Bill. If our amendment is accepted, the matter can be resolved without more ado.

Finally, may I touch on an issue that has been raised by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and others, namely economic wellbeing? When the Intelligence and Security Committee first came to consider the issue as a subset of national security in our initial evidence-taking sittings, we came to the conclusion that it ought to be possible to remove economic wellbeing as a criterion altogether. That is why we made the initial recommendation that economic wellbeing, so far as it is relevant to national security and relates to people outside the British islands, be removed from the Bill as grounds for interception. We took the view that it could all be safely contained in the subset of national security. After we published our report, the Government provided us, through the agencies, with additional evidence regarding their reasoning for including it as a separate ground. They also provided us with a number of examples of where it was being or might be used, which illustrated areas where it was useful to have it as a separate category.

[Mr George Howarth]

Although I am conscious that the right hon. and learned Gentleman will not, for obvious reasons, be able to go into detail on all of the examples that were given, one thing that can be avowed under this particular rubric is critical national infrastructure, which is an obvious area where the public and the state need to be protected.

[Mr Grieve]

The right hon. Gentleman is absolutely right. The consequence of damaging national infrastructure would be to cause a severe economic shock to the United Kingdom. At the end of the day, the most persuasive argument of the lot was that listing economic wellbeing separately added transparency as to the purposes for which an investigatory power was being sought. We came to the conclusion that it would probably assist the judicial commissioners in their consideration of the necessity and proportionality of the warrant, precisely because it highlighted that it fell within a category in which economic wellbeing was present; it was therefore in practice likely to be subject to very detailed scrutiny. For all those reasons, we did not table a further amendment on that point.

[Mr Alistair Carmichael]

Given the lateness of the hour and the number of right hon. and hon. Members still wishing to catch your eye, Mr Speaker, I hope to confine my remarks principally to those amendments that stand in my name, but I would also like to pick up on one or two more general points.

--- Later in debate ---

[Mr Hayes]

Seven minutes of pure joy, Mr Speaker.

The Government will bring back further amendments to do what my right hon. and learned Friend intends.

Amendments 19 to 23, also tabled on behalf of the Intelligence and Security Committee, seek to prohibit a targeted or bulk interception warrant being renewed for more than 30 days. I do not foresee any circumstance where such a renewal application would be approved by the Secretary of State or judicial commissioner, but this is another matter that I agree could be clearer in the Bill. As with the previous amendment, we will revisit this and table an amendment in the other place.

I am less convinced by the argument my right hon. and learned Friend makes on amendment 25. The amendment would prohibit warrants being sought against suspects who are carrying out the same activity but who may not share a common purpose. In my judgment, a restriction of this kind would have a material impact on current operations. It would, for example, prohibit the targeting of an online forum that is used predominantly—but not exclusively—by child abusers, because the agency could not be certain that everyone accessing the forum was doing so for a common purpose. I have profound reservations about that amendment. I understand the sense of it and I understand why it has been tabled, but I do not think the Government can accept it. I do not want to give the impression that the Government accept any amendment, regardless of what we think about it. That is not our style, however conciliatory we might be.

[Mr Grieve]

I did not quite follow what my right hon. Friend meant by that. I exhorted him to give the matter a little further thought and suggested there might be some ways in which it could be dealt with. I very much hope his answer was not suggesting that he was ruling that out, because that might place me in the position of wanting to put the amendment to the House.

[Mr Hayes]

“Very much thought” is my middle name. Actually, that is several middle names, isn’t it, Mr Speaker? I will of course do that. Indeed, I thought the point my right hon. and learned Friend made about ways in which we could achieve what he sets out to do was well made, as I said in an earlier intervention.

Power is legitimised only by the means by which those who exercise it are held to account. The health of our open society relies on the acceptance that those with whom we differ should be free to make their case, campaign or crusade. The Labour Opposition tabled an amendment on trade unions, and I want to be crystal clear about our response to it: it would neither be proportionate nor lawful for the security or intelligence agencies to investigate legitimate trade union activity. However, there are good reasons for seeking to put the matter beyond doubt. That is what amendment 262 seeks to do.

I know that this is a matter of profound concern to the Labour party, but again let me be crystal clear: it is a matter of profound concern to me, too. Trade unions make a vital contribution to the free society I mentioned a moment ago. Working people would be considerably worse off if it were not for the activities of trade unions through the ages. My father was a shop steward, my grandfather was the chairman of his union branch and I am proud to be a member of a trade union myself.

Let me do something else that is rarely done in this House. I have already praised the Opposition and commended the way they have gone about their scrutiny of the Government’s proposals; now I am going to accept the amendment that stands in the name of the Opposition.

Investigatory Powers Bill

Dominic Grieve Excerpts

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

[Anne McLaughlin]

May I continue? I have already given way to the hon. and learned Lady and am conscious of the need to let other Members speak. I will possibly give way a wee bit later.

The review is welcome—of course it is, not least because it is hoped that David Anderson QC will do what Liberty and others have called for and use the opportunity properly to challenge the evidence and produce a thorough, comprehensive and unbiased examination of the necessity of all bulk powers in the Bill. However, the review was called for long ago by Liberty and other respectable organisations. The Government could and should have completed it before asking MPs to vote for the Bill.

When we are dealing with proposals that are so broad—the proposal is effectively for bulk data harvesting from mainly innocent citizens—it is incumbent on the Government to prove that there is an operational case and that the powers are necessary, and to ensure that the safeguards in place are rigorous. The Government have neither proven the operational case for the powers nor have they delivered safeguards and oversight of sufficient calibre to make the powers justifiable.

[Mr Dominic Grieve (Beaconsfield) (Con)]

Will the hon. Lady give way?

[Anne McLaughlin]

I will give way to the right hon. and learned Gentleman but I am trying not to give way too often.

[Mr Grieve]

I am grateful to the hon. Lady. As I indicated when I spoke on Second Reading, I appreciate that bulk powers are controversial, but I am absolutely sure that we do not conduct data harvesting in this country. It simply does not happen. The use of bulk powers is not for that purpose, but for the purpose of examining material. Even though that may be done in bulk, it is done in a way that does not amount to the generalised harvesting of data for their examination. It simply is not.

[Anne McLaughlin]

My answer to that is simply that if the Bill allows for bulk data harvesting, it can still happen. We cannot sit here and say, “No, it will never happen.”

The SNP argument is not to do down our security services or anyone else working to keep our constituents safe. We argue that we would fail as a Parliament if we assert our power on behalf of our constituents and fail to place proper limitations on the scope of the state to interfere in the lives of innocent private citizens.

--- Later in debate ---

[Mr Grieve]

It is a pleasure to be able to participate in today’s debate. I will move the amendments standing in the name of the Intelligence and Security Committee in a moment, but I would not be doing justice to this afternoon’s debate, on a matter of great and legitimate public interest and importance, if I were not to seek briefly to respond to the perfectly reasonable fears expressed by the hon. Member for Glasgow North East (Anne McLaughlin).

Those fears highlight the difficulty we have in this country—certainly for Members of Parliament, but I dare say also for members of the public and certainly for non-governmental organisations interested in civil liberties—in reconciling an assessment of what the agencies may be doing in relation to bulk powers, with what those of us who have become privy to classified information by virtue of our work actually see is happening in reality. I am not sure that this is a gap that is very easy to bridge. I can only do my best to explain to the House and to the hon. Lady how I see the system working.

In an ideal world, it would always be better if we used targeted interception. If we know what it is we are trying to intercept and have reasonable grounds that are necessary and proportionate for doing so, then clearly that is what we should be aiming to do. The reality, however, is that the use of the internet today, in respect of the transfer of information, is of such an order that if there were not bulk powers to enable the agencies to look to intercept bulk and then search it to find what they are looking for, it would in practice be very difficult for the agencies to defend our security against espionage and, in particular, terrorism. That is the reality.

That point has been made repeatedly, including in public by agency heads. When Sir Iain Lobban gave evidence to the Intelligence and Security Committee, the only time it held a public hearing, he explained that the idea that there is bulk harvesting of data in order to carry out a detailed examination of them is, in fact, fanciful. That is not what is happening. What is happening is that there may be the retention of a bulk group of data in which in reality the vast majority—in fact, probably over 99%—will never be looked at, except in so far as it exists as a few digits on a screen. Ultimately, the agencies are interested in the nugget—or, as he described it, the needle in the haystack—that they are actually looking for. The idea that the privacy of an individual will be compromised if it just so happens that their internet traffic is caught in that particular net is simply not real. That is the reality of what goes on.

If I may say so to the hon. Lady and to the House, I do not really think that that is very different from what was probably going on 100 years ago when somebody suspected there might be a letter in a mailbag coming down from Glasgow to London. They could identify some of the markers on it and the handwriting, so they took an entire mailbag, tipped it out and looked to see if they could find the letter they were looking for. They then put all the other letters back in the mailbag and sent it on. The only realistic difference is that at the moment we do not have to stop the mailbag, because the mail can be transferred and we can simply retain the data somewhere else.

I appreciate that this is an area where people will legitimately be anxious that this could be capable of misuse. Of course, the hon. Lady is right that it could be capable of misuse. Anybody in this House who wants to raise concerns about misuse is raising a perfectly legitimate point. The question is what safeguards we can properly put in legislation, and through the framework we create in a democratic and free society, to try to ensure that that misuse will not and does not occur. The Intelligence and Security Committee, of which I am the Chairman, is part of the process of trying to ensure that there is no such misuse.

[Joanna Cherry]

I am listening very carefully to the right hon. and learned Gentleman, because he is very knowledgeable in these areas. Is he aware that during the currency of the Public Bill Committee, The Guardian published an internal newsletter from MI6 from September 2011, which said that individuals within MI6 had been

“crossing the line with their database use…looking up addresses in order to send birthday cards, checking passport details to organise personal travel, checking details of family members for personal convenience…check the personal details of colleagues when filling out service forms on their behalf”?

Is he aware that there is internal recognition of misuse of data within the security services?

[Mr Grieve]

Yes, I was aware of that. That has, I think, been public knowledge for some time. So far as I am concerned, as the Chairman of the Intelligence and Security Committee, we take that very seriously. Indeed, I believe the agencies took the matter very seriously as well, and that those involved were disciplined. The point was made that however innocent the activity of looking up one’s friend’s address might appear, it was not an acceptable thing to do. I certainly agree. That was one reason why, yesterday, I highlighted the issue of offences and was pleased to get the response from my hon. Friends on the Treasury Bench that they were taking this issue seriously. I worry that the penalties attached to some of the potential offences appear to be insufficient. I fully understand the point the hon. and learned Lady makes, but we must be a bit careful before we translate what appears to have happened in such cases into a belief that there is systematic abuse of the data sets that may be held—that is what we are talking about—by agencies, and that the material in them is being misused or put to some nefarious purpose that is not legitimate for the purposes of national security.

[James Cleverly (Braintree) (Con)]

Is it not the case that there are many things in public life—the police, computers, firearms and so on—that have the potential for misuse, but that the potential for misuse is not a reason to eradicate them from public life? It is a reason to ensure there is a robust framework and—this is the point my right hon. and learned Friend is making—a proper system of penalties for misuse, rather than just scrapping a whole capability because of potential future misuse.

[Mr Grieve]

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

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

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

[Mr John Hayes]

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

[Mr Grieve]

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

Amendment 9 sets out:

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

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

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

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

[Mr Hayes]

indicated assent.

[Mr Grieve]

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

Amendment 10 also states:

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

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

[Tom Elliott (Fermanagh and South Tyrone) (UUP)]

Going back to amendment 9, is the right hon. and learned Member confident that the list will not be too prescriptive—in other words, that those who want to find a way around it, will be able to do so?

[Mr Grieve]

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

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

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

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

that is us—

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

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

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

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

[Mr John Hayes]

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

[Mr Grieve]

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

Amendment 12 states that the

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

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

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

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

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

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

[Mr Hayes]

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

[Mr Grieve]

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

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

[Gavin Robinson (Belfast East) (DUP)]

I am less perplexed by the arbitrary nature of subsection (1)(b) of new clause 3 and more interested in subsection (1)(a). What is meant or intended by the word “large”? Can the right hon. and learned Gentleman say what proportion or quantum would be considered large when considering a personal dataset? There may be some helpful read-across from the 1998 Act, but it would be useful in considering this amendment to know what is intended by that entirely non-arbitrary and open suggestion?

[Mr Grieve]

Like everything else, I tend usually to say that we give the word its ordinary English meaning. I can accept that one may collect a dataset whose content is entirely innocuous and not really sensitive personal data at all, but which for some reason might contain a nugget of sensitive personal data that has crept in in some strange and perhaps unintended way. I accept that in those circumstances the protections we introduce are unnecessary; indeed, the truth is that the agencies would not even know that that information was there at the time they were acquiring it.

However, if we focus on the points I raised earlier—the Data Protection Act describes sensitive personal data as relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life—we are probably in quite a good place. I do not think a court would have too much difficulty being able to tell what falls one side of the line and what falls the other. However, like everything else, it is all open to a degree of interpretation, so I do not offer that to the hon. Gentleman as 100% perfection, although it is a good way forward and I think most of us would understand what sort of collected bulk data are likely to contain that sort of material.

Amendment 24 concerns specific warrants for bulk personal datasets. We are far less concerned about these, but again this provision would cover data relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life, and would ensure that the Secretary of State authorising the warrant would have the sensitivity of the data highlighted for them as part of their overall consideration of the necessity and proportionality of retaining and examining the dataset. I believe this may well be completely acceptable to the Government. Amendment 24 would mean that if there was an intention, for example, to acquire a dataset that clearly contained a great deal of information about people’s religious or political opinions, that would be specifically drawn to the Secretary of State’s attention in asking her or him to sign off the warrant, so that they were aware that that was being sought.

Finally in this list, I want to mention amendments 22 and 23, which are really carryovers from yesterday and concern the renewal of warrants to prevent two warrants from extending over a 12-month period, which I believe the Government have accepted, although that could not be considered yesterday.

I apologise for taking up so much of the House’s time, but I hope these amendments may help to clarify some of these areas of the Bill.

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

We made good progress in the House yesterday. We now have clarity about the terms of the independent review of bulk powers, which we are looking at today; and we have an overarching privacy clause, a stricter test for the judicial commissioners, protection for trade union activities, and an undertaking from the Solicitor General to consider how to amend the Bill to make it absolutely clear that whistleblowers can make disclosures to the Investigatory Powers Commissioner without fear of prosecution. I hope we can make as good progress today.

One of the amendments made to the Bill yesterday concerned the requirement for judicial commissioners to consider necessity and proportionality with a sufficient degree of care to ensure that they comply with the general duties in relation to privacy—this is the tighter judicial review test. That amendment was made to clause 21, which relates to intercept warrants. Today we are dealing with bulk powers. The judicial commissioners have an important role in relation to bulk powers and are an important safeguard in respect of warrants involving bulk powers. It is therefore important that we have clarity in the House today that the tighter scrutiny that is now in clause 21 applies equally to all other exercises of authorisation or approval carried out by judicial commissioners, including where they are exercising their powers in relation to bulk warrants. I think that otherwise there will be a risk of two tests, one under clause 21 and one under the other clauses applying to bulk powers. There is a real danger relating to combined warrants, in respect of which judicial commissioners would be asked to carry out different tests. It is important for the bulk powers to be scrutinised every bit as closely as the intercept warrants. Perhaps, in his response, the Minister will make it clear that the test applies generally across all the functions of the judicial commissioners, whether in respect of the specific warrants referred to clause 21 or in respect of the warrants relating to bulk powers and other provisions in the Bill. That, I think, would be a helpful extension of the safeguards relating to bulk powers.

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[Mr Grieve]

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

[Mr Hayes]

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

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[Andy Burnham]

There is an exchange of letters between the Security Minister and my hon. and learned Friend the Member for Holborn and St Pancras, which I hope is in the public domain, and which I believe allays the fears of the right hon. Member for Orkney and Shetland (Mr Carmichael). To be clear, it was a sticking point for Labour that the review had to consider necessity and not just utility. That is enshrined in the terms of reference, so I hope I can reassure him on that point.

Clearly, there is further to go on journalistic material and internet connection records, although it appears from what the Minister has said this afternoon that we are heading in the right direction. I stress again that progress on the ICR points that I have made are a personal red line.

That said, I thank the Home Secretary, the Solicitor General and the Security Minister for the constructive way in which they have approached our discussions. Because of the consensus we have been able to find, the legislation is more likely to succeed and to stand the test of time.

[Mr Grieve]

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

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

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

“the interests of national security”,

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

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

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

[The Solicitor General]

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

[Mr Grieve]

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

[Joanna Cherry]

The right hon. and learned Gentleman and I may be on different sides of the House, but I have the highest regard for the clarity and erudition with which he approaches matters. The Intelligence and Security Committee, which he chairs, said in its recommendation I on the draft Bill that the Bill did not make it clear that getting internet connection records

“through a specific request to a Communications Service Provider under Part 3”

is not the only way in which the agencies may have access to internet connection records. He said that that was “misleading” and that

“the Agencies have told the Committee that they have a range of other capabilities which enable them to obtain equivalent data”

to internet connection records. He said the Bill should make that clearer. Has the Bill been amended to his satisfaction on that point?

[Mr Grieve]

The hon. and learned Lady raises a relevant point. The Bill has not been amended, but we received sufficient assurances from the Government that the way in which the system would be operated, in terms of the internal workings of the agency, would be such as to meet the concerns we expressed. Indeed, the Solicitor General or the Minister may be in a position to confirm that. On that basis, despite the fact that we raised the point, we did not table an amendment on it. The hon. and learned Lady is quite right to pick it up. I have not wanted to detain the House for too long, otherwise I could take her through a list of areas on which, having had further discussion, we decided amendments were not required. She is right to focus on that and I hope very much the Minister is able to provide some confirmation. I am grateful to her for having raised it.

[Gavin Newlands]

Along with my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), I represented the SNP in Committee. I am grateful for the opportunity to take part on Report.

I have many concerns about the Bill, and my hon. Friends have already outlined a number of areas where the SNP is sceptical about the Government’s case. This is a wide-ranging and complex Bill and time constraints prevent me from speaking to everything I would like to. However, I will focus my contribution on communications data and internet connection records. The measures in the Bill are not limited to internet access, email or telephony and include, explicitly, communication without human intervention. As it stands, the definition of communications data can tell us an awful lot about someone’s life. Stewart Baker, former senior counsel to the NSA in the United States, states that the content of a person’s communications data is redundant when we consider the amount of metadata that is already collected.

Communications data can be key in obtaining leads, solving crimes or preventing crime. However, I have a real issue with the length of the list of public bodies that would be able to access such personal and sensitive information on an individual without sufficient oversight in place. As we heard at the end of the previous debate and again at the start of this debate, from the hon. Member for Stevenage (Stephen McPartland), schedule 4 currently provides for a list of bodies that would be able to access retained data, including a range of regulatory bodies. Among them are the Food Standards Agency, the Gambling Commission, the Office of Communications, and the Health and Safety Executive. No fewer than 47 bodies are listed, a reflection of the tightly drawn nature of the Bill—or otherwise. That suggests that access to communications data may be granted for a range of purposes, which will almost certainly be disproportionate and inconsistent with the guidance offered by the European Court of Human Rights.

It is only appropriate that the correct level of protection and oversight is in place. The SNP tabled amendments 320 to 327 and 328 to 350 to ensure sufficient judicial oversight. The relevant public bodies must seek a warrant from a judicial commissioner, replacing the Secretary of State in the process where necessary. They also ensure that a threshold of reasonable suspicion would be necessary before a warrant is issued.

The arguments on judicial warrantry have already been rehearsed at length and I do not intend to detain the House long on this issue, particularly as my hon. and learned Friend the Member for Edinburgh South West speaks with a lot more authority on that subject than I do. Suffice it to say, I think hon. Members should pause and reflect on the lack of oversight. Decisions concerning necessity and proportionality can only be made properly by someone who is truly independent from the operations of the organisation.

Clause 54 contains the first mention of internet connection records. Subsection (6) defines ICRs in such general terms as to render the definition pointless. In that regard, I welcome some of the comments from the shadow Home Secretary and the Minister in their courting across the Dispatch Box a little earlier.

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[Mr Grieve]

It is always a pleasure to follow the hon. Member for Walsall North (Mr Winnick). We have co-operated on civil liberties matters in the past, and the hon. Gentleman has shown great courage in many of the approaches that he has taken, including those to legislation when his own party was in government. I hope he will accept, however—just as I accept the principles that underpin his opposition and, indeed, that of the hon. and learned Member for Edinburgh South West (Joanna Cherry)—that those of us who will support the Bill on Third Reading are not acting in an unprincipled fashion.

As was pointed out by the right hon. Member for Leigh (Andy Burnham), the simple fact is that this is not just some opportunistic gimmick employed by the Government in an attempt to acquire more power. The existing legislation was doing positive harm; indeed, allowing it to remain would have been far more likely to undermine civil liberties than ensuring that it was properly replaced. It seems to me that, during its passage in the House of Commons, the Bill has been immeasurably improved. I am grateful to my right hon. Friend the Home Secretary for listening and responding to the concerns expressed by the Intelligence and Security Committee and for accepting virtually all our amendments, although I recognise that we shall need to negotiate on some areas of detail.

The ISC has always taken the collective view that this legislation is necessary, and that that necessity applies to bulk powers of collection. We look forward to and will accept David Anderson’s report, and will consider whether there are indeed any alternatives that might be advanced, but I have to say that, on the basis of everything that we have seen up to now, we believe that bulk powers are needed, although sensible and proper safeguards are required to ensure that they cannot be abused. The Bill contains such safeguards, and I believe that when it comes back from the other place, it will be in an even better condition. Parliament, it seems to me, has been doing its job rather well.

If I have any complaint to make about the Bill’s passage, it is this: the quantity of amendments tabled on Report has rendered the Order Paper entirely inadequate. Until we have an Order Paper that marries the amendment numbers to page numbers—which is vitally needed—we shall be wasting a great deal of our time in the Chamber faffing around when we might have been doing other things. I hope that that complaint is passed on. I might even suggest that someone should consult GCHQ if there is a difficulty in finding the necessary formula on a computer to do the page numbering and the amendment numbering at the same time.

With that thought, I just want to say that it has been a privilege to participate in the passage of this Bill, and I hope that when it comes back to this House we will be able to reassure the hon. Member for Walsall North and the hon. and learned Member for Edinburgh South West that they have a piece of legislation that will actually stand the test of time and be a credit to this House.