Earl Howe
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(8 years, 2 months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I am very grateful to all noble Lords who have commented on David Anderson QC’s review. I take this opportunity to thank Mr Anderson for undertaking that review and I welcome his comprehensive report. The history of events leading up to the commissioning of that report was well rehearsed by the noble Lord, Lord Rosser. Mr Anderson was supported by an expert, security-cleared team of his own choosing. The Government, and in particular the security and intelligence agencies, provided Mr Anderson and his team with all necessary information, access and assistance for them to undertake the review effectively. As the report itself makes plain, almost 250 members of the security and intelligence agencies have been involved in the review, dedicating over 2,000 man-hours to support it. This has ensured that Mr Anderson has had the necessary resources to undertake a detailed assessment of the operational case for bulk powers in sufficient time to inform today’s debate.
As has been said today, the report sets out in extensive detail the review’s working methods and the sources of evidence that have been used to determine whether the operational case for bulk powers has been made. As noble Lords will have observed, these sources of evidence include: 60 detailed and highly classified case studies; internal security and intelligence agency documents considering the utility of bulk powers, which address shortcomings and failures as well as successes; statistical information on the extent of the use of bulk powers; allegations made by Edward Snowden; and a number of previous reviews, including in the UK and overseas. In fact, David Anderson found that previous reviews were either supportive of the need for the bulk powers or that they were in some cases not relevant to the UK context.
In their consideration of all this evidence, the review team critically appraised the need for bulk capabilities, including considering whether the same result could have been achieved through alternative investigative methods. This question has not just been taken on trust. The expertise of the review team has meant that, in the words of Mr Anderson, the security and intelligence agencies have been put,
“to strict proof of what they assert”.
In relation to the scope of the review, David Anderson was specifically asked to consider the operational case for bulk powers. The sensitive nature of those powers means that this task rightly had to be conducted by a security-cleared review team. But the safeguards that apply to those powers are, rightly, a matter for Parliament to consider as part of our ongoing scrutiny of the Bill’s provisions. The Government are clear that the Bill ensures that robust safeguards and world-leading oversight will apply to the exercise of bulk powers. For example, every bulk warrant will be subject to the double lock; any subsequent examination of material collected must be considered necessary and proportionate for an operational purpose approved by the Secretary of State and a judicial commissioner; and before issuing a bulk warrant, the Secretary of State must consider whether the same result could be achieved through less intrusive means.
The noble Lord, Lord Campbell, pointed out that the review did not specifically consider whether the use of bulk powers is proportionate. That is true; but it is also true that the question of whether alternative methods could achieve the same result was examined in detail. This question is equally important to the consideration of whether these powers are proportionate and necessary. The review has concluded that in the great majority of cases, there will be no effective alternative to the use of bulk powers and that where alternatives exist,
“they were likely to produce less comprehensive intelligence and were often more dangerous … more resource-intensive, more intrusive or—crucially—slower”.
I turn now to the conclusions of the review in a bit more detail. Taken together, they show that bulk powers are crucial. The report concludes that these powers,
“have a clear operational purpose”,
that they,
“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”,
and that the contributions made by bulk powers could not be replicated by other means. The review also concludes that bulk powers are vital across the full range of security and intelligence agency activity, including counterterrorism, cyberdefence, child sexual exploitation, organised crime and the support of military operations, and that they have been used to disrupt terrorist activity, prevent bomb attacks, facilitate the rescue of hostages, thwart cyberattacks and save lives.
This is a vital point. Mr Anderson is clear that questions of necessity cannot be entirely divorced from questions of proportionality. The noble Baroness, Lady Hamwee, rather neatly brought us into the domain of moral philosophy. The review concludes beyond all doubt that, were it not for the bulk powers, there would be more successful terrorist attacks, more successful cyberattacks, more dead hostages and military personnel, and more abused and exploited children. It is now for Parliament to decide whether the powers that have prevented such atrocities are proportionate, given the threats faced by the UK and our European and other allies around the world, given the extensive safeguards and oversight provided in this Bill, and given the review’s conclusions that there are no effective alternatives. The Government firmly believe that they are.
Turning briefly to the individual powers under review, the report concludes that there is a,
“proven operational case for three of the bulk powers”,
with reference to bulk interception, bulk acquisition of communications data and bulk personal datasets.
In relation to bulk interception, the report concludes that it is of “vital utility” to the security and intelligence agencies and that alternative methods, alone or in combination, fall short of providing the same results.
The review finds that the bulk acquisition of communications data is,
“crucial in a variety of fields, including counter-terrorism, counter-espionage and counter proliferation”.
In addition, the review states that case studies provided to the review team demonstrated that,
“bulk acquisition has contributed significantly to the disruption of terrorist operations and, through that disruption, almost certainly the saving of lives”.
On bulk personal datasets, Mr Anderson states:
“I have no hesitation in concluding that BPDs are of great utility to the SIAs. The case studies that I examined provided unequivocal evidence of their value”.
He goes on to conclude that in “vital” areas of work, such as pattern analysis and anomaly detection, there is “no practicable alternative”.
Mr Anderson’s conclusion in relation to bulk equipment interference, which I will come to in more detail in a second, is differentiated from the other powers under review in that he finds that there is a,
“distinct (though not yet proven) operational case”,
for its use. The reason for this difference is that bulk equipment interference has not yet been exercised. That is not to say that bulk equipment interference is a new power. While it has not yet been deployed, activity that would be classed as bulk equipment interference under the Bill could be authorised under existing legislation but, to date, GCHQ has carried out only equipment interference operations which would have been authorised under a targeted equipment interference warrant under the Bill. While acknowledging that bulk equipment interference has not yet been used, the review still concludes that,
“an operational case for bulk EI has been made out in principle”,
and that there are likely to be cases where,
“no effective alternative is available”.
In summary, the conclusions of this detailed and thorough independent review mean that there can now be absolutely no question that the operational case for the bulk powers in the Bill has been comprehensively made out. It now falls to us to decide whether to continue to provide our security and intelligence agencies with these vital powers to counter the threats we face.
Let me turn to some of the specific questions and points that noble Lords have raised. First, I turn to the issue of bulk personal datasets, which a number of noble Lords referred to. A bulk personal dataset is a dataset containing information about a range of people, most of whom are not of interest to the security and intelligence agencies, for example a telephone directory. A list of people who have a passport is another good example of such a dataset. It includes personal information about a large number of individuals, the majority of which will relate to people who are not of security or intelligence interest. Analysis of bulk personal datasets is an essential way for the security and intelligence agencies to focus their efforts on individuals who threaten our national security. The use of bulk personal datasets is not new, and the Bill does not provide new powers for acquiring them; rather, it provides robust transparent safeguards around bulk personal datasets, including a requirement for warrants to authorise the retention and use of them. The safeguards are comparable to those provided in relation to other powers in the Bill, including the double lock, for example.
The noble Lord, Lord Rosser, pursued these issues, and in particular raised the point in the review where Mr Anderson says that some bulk personal datasets may contain,
“material that is comparable to the content of communications”,
and, in rare cases, even material subject to legal professional privilege. He went on to say it is imperative that,
“consideration be given to the introduction of additional safeguards to the Bill and Code of Practice”.
We are carefully considering whether changes should be made to the Bill and code of practice to address the rare occasions when a bulk personal dataset may contain material comparable to the content of communications or subject to legal professional privilege, and discussions on that are going on at the moment. As David Anderson’s report also makes clear, in considering the sources of evidence, the review team specifically questioned whether similar results could have been achieved by other, less intrusive methods, I do not believe that anyone who has read this detailed and comprehensive report in full could come away with the impression that it did not consider hard evidence on that point.
The noble Lord, Lord Rosser, also flagged David Anderson’s comment that the Government’s operational case for bulk powers,
“categorises the purposes served by the powers under review in ways which lack coherence and consistency”.
The Government’s operational case for bulk powers was published in response to the recommendation of the Joint Committee that scrutinised the draft Bill, but we acknowledged that there was a need for the operational case to be subjected to independent scrutiny. That is why we commissioned David Anderson’s review, and the conclusions of the review are clear that,
“bulk powers have a clear operational purpose”.
The question was raised about bulk powers as distinct from targeted thematic powers. As noble Lords will remember, this issue was looked at by the Intelligence and Security Committee, and I will just quote a short passage from the speech of my right honourable friend Dominic Grieve MP, who is chair of the ISC, because it helps to inform this question. He said:
“The second issue concerns the agencies’ use of equipment interference. Our concerns focused on the way in which the use of this capability is authorised, rather than on the need for it, which is clear to us. In particular, we were not initially provided with evidence that explained the need for a bulk power, as opposed to a targeted thematic one. That is why we reported in the way we did. Following publication of our report, we received additional evidence from the agencies as to why they need bulk equipment interference warrants to remain in the Bill and they actually made a persuasive case. More importantly, the Committee was reassured that information obtained by such means will be treated in exactly the same way, with exactly the same controls, as data acquired under a bulk interception warrant. The Committee is therefore broadly content that there is a valid case for the power to remain in the Bill, but, just as with bulk interception warrants, we want to see the safeguards and controls in detail and hope to do so in the near future”.—[Official Report, Commons, 15/3/16; col. 838.]
I hope noble Lords will appreciate that we have been around this course before. There is a need for both powers, as I hope will now be accepted.
Lord Rooker (Lab)
The noble Lord, Lord Carlile, made the case for going a bit wider than the narrow wording of the recommendation. Will the Government have a look at recommendation 6 of the RUSI report? We recommended an advisory council for digital technology and engineering to cover some of these exact points. The recommendation goes somewhat wider—it is probably too wide for the purposes of the Bill—but it met the point about providing research on engineering technology and being answerable to the Secretary of State, so the process is open and we keep abreast of technical measures. Advancing public education is what we get from David Anderson’s reports from time to time; that is what they are about. I ask for recommendation 6 of the RUSI report to be considered in conjunction with David Anderson’s recommendation to see whether consensus can emerge.
Lord Strasburger
The noble Earl spoke at some length about the utility of bulk personal datasets to the intelligence agencies, but he did not answer my question, which was generated by the revelation in Mr Anderson’s report that bodies other than the intelligence agencies have access to bulk personal datasets. Which other bodies have access to bulk personal datasets?
Earl Howe
Almost anyone has access to bulk personal datasets. Many of us have a telephone directory. A very wide range of public bodies and commercial organisations have access to bulk personal datasets, because that expression describes a wide range. I cannot be specific to the noble Lord, but if I am able, on advice, I will write to him to elucidate further.
Lord Rosser
Before I wind up—and I shall, of course, withdraw the amendment—does the noble Earl anticipate that the Government will come forward with an amendment on Report on the recommendation in the report on the technology panel, or not?
Lord Rosser
I thank the Minister for his detailed response and thank all noble Lords who have participated in this debate, as well as thanking the Committee for its indulgence in allowing us to have a general debate on the Anderson report, even though my amendment related only to one specific part of it. It is very useful to have had the debate that we have had. I am sure that other noble Lords will do so, but I shall certainly want to read again in Hansard the full details of the Minister’s response and the replies that he has given to the questions that have been raised. Once again, I thank him for his detailed response and beg leave to withdraw the amendment.
(a) ”
“(4) The operational purposes specified in the warrant must be ones specified, in a list maintained by the heads of the intelligence services (“the list of operational purposes”), as purposes which they consider are operational purposes for which intercepted content or secondary data obtained under bulk interception warrants may be selected for examination.”
Earl Howe
My Lords, I shall speak also to Amendments 198, 207, 208, 213, 214, 227, 228 and 223, all of which relate to operational purposes on bulk warrants.
The amendments tabled by the Government add significant detail to the provisions in the Bill on operational purposes—that is, the purposes for which data collected under a bulk warrant may be selected for examination. Operational purposes are an important new safeguard and we are committed to ensuring that the Bill includes as much detail as possible about how they will operate in practice. These amendments respond to amendments tabled in the House of Commons by the Intelligence and Security Committee, and they address concerns raised during the Committee stage in the Commons that operational purposes could be “general”.
The amendments would do a number of key things. They would create a requirement that the heads of the intelligence services must maintain a list of all operational purposes. The maintenance of this list would ensure that the security and intelligence agencies are able to assess and review all the operational purposes that are, or could be, specified across the full range of their bulk warrants at a particular time. This would ensure that these purposes remain up to date and relevant to the current threat picture, better enabling the agencies to identify warrants that need to be modified, adding or removing operational purposes. The maintenance of the central list would also make sure that the Investigatory Powers Commissioner is able to oversee, in one place, the full range of purposes for which a bulk warrant could authorise the examination of material.
The amendments would apply robust controls to the addition of an operational purpose to the central list, requiring that any such addition must be approved by the Secretary of State. They make clear that the Secretary of State may approve the addition of an operational purpose to that list only if satisfied that it contains more detail than the statutory grounds on which the warrant was issued, such as in the interests of national security.
The amendments would also enhance the oversight and transparency of the use of operational purposes. As well as the rigorous independent oversight that the Investigatory Powers Commissioner will apply to the exercise of bulk powers, these amendments would also require the following: that the list of operational purposes must be reviewed annually by the Prime Minister; that the list must be provided to the Intelligence and Security Committee every three months; and that the Investigatory Powers Commissioner must publish a summary of the use of operational purposes in each of his or her annual reports.
The amendments would also take out references in the Bill to operational purposes being able to be “general purposes”. This provision was inserted in the Bill to ensure that operational purposes do not have to be drawn so tightly that they are operationally unworkable. While it has never been the case that this language meant operational purposes could be vague or lacking in detail, the Government have listened to concerns that this language could be misinterpreted and that is why these amendments would remove it.
These amendments would significantly enhance the Bill’s provisions on operational purposes, adding absolute clarity as to how this important safeguard will operate in practice. I hope that the Committee will approve them. I beg to move.
Lord Paddick
My Lords, I am very grateful to the Minister for those amendments. They bring a significant improvement to the Bill and are extremely welcome. We were faced previously with the situation in which operational purposes were to be part of the Bill but we would never know what those operational purposes were. I appreciate that they are not going to become public knowledge, but at least we will now have a review by the Intelligence and Security Committee every three months and the annual review by the Prime Minister as well. Removal of the term “general” is greatly reassuring and we wholeheartedly support these amendments.
(5A) An operational purpose may be specified in the list of operational purposes only with the approval of the Secretary of State.(5B) The Secretary of State may give such approval only if satisfied that the operational purpose is specified in a greater level of detail than the descriptions contained in section 129(1)(b) or (2).(5C) At the end of each relevant three-month period the Secretary of State must give a copy of the list of operational purposes to the Intelligence and Security Committee of Parliament.(5D) In subsection (5C) “relevant three-month period” means—(a) the period of three months beginning with the day on which this section comes into force, and(b) each successive period of three months.(5E) The Prime Minister must review the list of operational purposes at least once a year.”
Earl Howe
My Lords, Amendments 201ZA, 210ZB, 217A and 231ZA seek to insert a provision into the clauses that enable the modification of bulk interception, acquisition, equipment interference or bulk personal dataset warrants. The amendments would require that persons who can make a minor modification to remove an operational purpose from a warrant must keep under review the operational purposes on each bulk warrant. The intended effect of these amendments, as I understand it, is that such persons will be aware when one of those purposes is no longer necessary and can remove it from the warrant.
These amendments are not necessary because the relevant draft codes of practice, which were published when the Bill was introduced to Parliament, already make clear that the security and intelligence agencies must keep bulk warrants under ongoing review. In addition, the draft codes set out specific requirements in relation to operational purposes. This includes a requirement that the security and intelligence agencies will need to ensure that bulk warrants are relevant to the current threat picture and will therefore need to identify operational purposes that need to be added to or removed from bulk warrants.
Further to the requirements in the draft codes, the government amendments, as I explained earlier, would create a requirement in the Bill that the heads of the intelligence services must maintain a list of all operational purposes. I set out the rationale and utility of that list in the preceding group of amendments. The provisions in the Bill and the detailed requirements set out in the draft codes of practice already make clear that the operational purposes on any bulk warrant will be kept under review. This will ensure that where an operational purpose is no longer necessary on a particular warrant it can be identified and removed. I hope the noble Lord will feel able to withdraw these amendments.
Amendments 201ZB, 210ZC, 217B and 231ZB make a modification to remove an operational purpose from a bulk warrant a major modification. Currently, a modification removing an operational purpose is a minor modification, meaning that it may be made by a Secretary of State or a senior official acting on their behalf. This amendment intends that such a modification would instead be subject to the double lock and must therefore be made by a Secretary of State and approved by a judicial commissioner before taking effect. That would be entirely unnecessary. A modification removing an operational purpose from a bulk warrant reduces the scope of the conduct that the warrant authorises, conduct that will already have been approved by the Secretary of State and a judicial commissioner. Subjecting such a modification to the double lock is superfluous. Accordingly, I invite the noble Lord to withdraw these amendments.
Amendments 201ZC and 217C relate to the modification of bulk warrants for the purpose of allowing examination of material after acquisition has ceased. These amendments would remove important technical provisions from the Bill. The Bill enables a bulk interception or bulk equipment interference warrant to be modified such that it no longer authorises the acquisition of any material but continues to authorise the selection of material for examination. This provision caters for limited circumstances where it may no longer be necessary or possible to continue the collection of data, such as where a communications service provider who is providing assistance in giving effect to the warrant goes out of business but where the data collected up to that point remain pertinent. In such circumstances, it may continue to be necessary and proportionate to examine data that have already been collected under the warrant.
The subsections that these amendments would remove simply clarify that a warrant that has been modified in this way remains a valid bulk warrant in spite of the provisions in Clauses 127(2) and 162(1). This is necessary because these clauses state that one of the conditions of the warrant is that its main purpose is to acquire data, but, of course, a warrant that has been modified in the manner I have described will no longer meet this condition, given that it will no longer authorise the collection of data. I hope the noble Lord will agree that these provisions are necessary and recognise that they serve only to reduce the activity that would have been authorised by the original unmodified warrant.
On Amendment 201ZJ, Clause 142 prohibits the selection for examination of intercepted content using criteria referable to an individual known to be in the British Islands, except where a targeted examination warrant—subject to the double lock—has been issued. I hope it is helpful if I draw the noble Lord’s attention to Clause 142(5), because there is one additional exception to this prohibition. That subsection addresses cases where there is a change of circumstances such that a person whose content is being selected for examination enters, or is discovered to be in, the British Islands. The subsection provides that selection for examination may continue in these circumstances for five working days with the approval of a senior official. This is vital to cater for circumstances such as where a member of an organised crime group travels into the British Islands. Any selection for examination after the five-day period will require the issuing of a targeted examination warrant.
I hope and believe that that explanation addresses the query the noble Lord, Lord Paddick, put to me. I understand his amendment as intended to capture the set of circumstances I just outlined, but it would also lead to a diminution in safeguards, given that it would enable selection for examination to continue for what I would judge to be an unnecessarily long period—in the absence of a targeted examination warrant—where there is a change of circumstances and someone has entered or is discovered to be in the UK. I hope that explanation will allow the noble Lord to feel comfortable in not pressing this amendment.
Lord Paddick
I am very grateful to the noble Earl for those explanations. Regarding Amendments 201ZA and that group, I am still concerned that the Minister or senior official is reliant on the security services flagging up to them that they need to withdraw operational purpose or even cancel a warrant. It is trusting the head of the intelligence services to flag that up. I will read very carefully what the noble Earl said about that.
I am grateful for his confirmation of when a bulk interception warrant is not a bulk interception warrant but still is. The only difference between us was that I asked whether it was right that analysis needs to continue after content is not being added to, whereas the correct term was “examination” continues. I think we are on all fours as far as that is concerned.
On Amendment 201ZJ, I accept that if there is a change in circumstances, whether a foreign terrorist or a foreign criminal arrives in the UK, the switch is not immediately flipped in that a five-day grace period is provided by Clause 142(5) for that content to continue to be allowed to be selected, even though the person is in the British Islands. However, it seems an unnecessary hurdle for the security services to have to apply for a targeted examination warrant in those circumstances, if it is a known terrorist coming into the UK. Presumably the five days are simply to allow enough time for a targeted examination warrant to be applied for, but I illiberally suggest that that is unnecessary bureaucracy for the security and intelligence services to go through. However, if the Government, the Home Office and others are content for the intelligence and security services to jump through that particular hoop, who am I to argue? On that basis, I beg leave to withdraw the amendment.
“( ) The fact that the communications data which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary in the interests of national security or on that ground and a ground falling within subsection (2).”
(a) ”
“( ) The operational purposes specified in the warrant must be ones specified, in a list maintained by the heads of the intelligence services (“the list of operational purposes”), as purposes which they consider are operational purposes for which communications data obtained under bulk acquisition warrants may be selected for examination.”
(5A) An operational purpose may be specified in the list of operational purposes only with the approval of the Secretary of State.(5B) The Secretary of State may give such approval only if satisfied that the operational purpose is specified in a greater level of detail than the descriptions contained in section 146(1)(a) or (2).(5C) At the end of each relevant three-month period the Secretary of State must give a copy of the list of operational purposes to the Intelligence and Security Committee of Parliament.(5D) In subsection (5C) “relevant three-month period” means—(a) the period of three months beginning with the day on which this section comes into force, and(b) each successive period of three months.(5E) The Prime Minister must review the list of operational purposes at least once a year.”