Investigatory Powers Bill (Third sitting) Debate
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Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Attorney General
Investigatory Powers Bill (Third sitting)
Joanna Cherry ExcerptsTuesday 12th April 2016
(8 years, 8 months ago)
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Joanna Cherry (Edinburgh South West) (SNP)
I welcome you to the Chair, Ms Dorries and it is a pleasure to serve under your chairwomanship. I would like to make some brief opening remarks on behalf of the Scottish National party in response to the Minister. We acknowledge the attempt to codify and modernise the law, and we think that the attempt is laudable. However, we think that the execution of this attempt is not laudable. We believe that there has been a rush to legislate, and it is not only we who say that. Members will remember that, when evidence was given to the Committee by Jo Cavan, the head of the Interception Commissioner’s Office, she spoke of an aggressive timeline for the Bill. When I asked her to elaborate on that, she said:
“It is a really complicated and significant piece of legislation. Although I broadly support the Bill, because it is a good thing to put a number of the powers used by the intelligence agencies on a clearer statutory footing and to try to improve transparency, I do think that the scrutiny process has been very hurried. That is of concern because there are some significant privacy implications to the clauses in the Bill. There is still a long way to go towards strengthening some of the safeguards. Also, a lot of the operational detail is in the codes of practice. It is really important that those are scrutinised properly, line by line.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 70.]
She agreed with me that the time afforded for scrutiny of the Bill is inadequate, particularly with regards to the international legal implications of aspects of the Bill.
Mr Hayes
I have no wish to delay us unduly or indeed to embarrass the hon. and learned Lady, but I remember the evidence that was given. As she will remember, I challenged the witness on it because, as I said earlier, I cannot recall another piece of legislation that has enjoyed such close scrutiny over such a period of time. Can the hon. and learned Lady think of another such piece of legislation?
Joanna Cherry
I do not recall legislation of such detail and such constitutional significance. I have only been in this House for nine months, but I have followed the operation of this House closely since I was a teenager. This is a massive Bill, and it is its constitutional significance that matters. I chaired an event last night at which the chair of the Bar Council of England and Wales spoke. She raised her concerns about the rush to legislate because of the constitutional significance of the legislation and its implications for the rule of law. The Minister does not embarrass me at all. I wholeheartedly stand by what I say. It is a widely held view, across parties and across society, that there is not sufficient time for the scrutiny of this legislation.
Joanna Cherry
I will make some progress, if I may. I would like to echo the comments of the hon. and learned Member for Holborn and St Pancras about the proper role of the Opposition, which I spoke about on Second Reading. As he said, it is the proper role of the Opposition to robustly challenge the legislation, to push back on it and to probe, hopefully with a view to improving it. That is why my party did not vote the legislation down on Second Reading. We are honestly engaged here in a process of improvement, but if the Government are not prepared to listen to us then we may well vote against the legislation at a later stage.
I echo what the hon. and learned Gentleman said about the failure to amend the draft Bill to deal with the ISC concerns regarding the lack of overarching principles on privacy. I also strongly echo what he said about a request for the Minister to clarify how the Committee is to approach the codes of practice which, as the hon. and learned Gentleman said, this Committee does not have the power to amend, and which contain some enormously important detail. Jo Cavan, the head of the Interception Commissioner’s Office, also drew attention to that in her evidence.
On Second Reading on the Floor of the House, I promised to table radical amendments. The SNP has tabled radical amendments to the part of the Bill we will look at today. We want to ensure that surveillance is targeted, that it is based on reasonable suspicion, and that it is permitted only after a warrant has been issued by a judge rather than by a politician. We want to expand the category of information which will be accessible only by warrant, and to ensure that warrants may not be provided without proper justification. We also want to remove the widely drafted provisions of the Bill that would allow modification of warrants and urgent warrants without any judicial oversight. Those provisions, if they remain in the Bill, will drive a coach and horses through the so-called double-lock protection in the legislation.
We have also laid amendments to ensure a proper and consistent approach to the safeguards afforded to members of the public who correspond with lawyers, parliamentarians and journalists. We want to put a public interest defence into the offence of disclosure of the existence of a warrant. Those are the sort of radical, principled amendments that we believe are required to render parts 1 and 2 of the Bill compliant with international human rights law, bring the Bill into line with practice in other western democracies and meet the concerns of the UN special rapporteur on the right to privacy. We recognise that the security services and the police require adequate powers to fight terrorism and serious crime, but the powers must be shown to be necessary, proportionate and in accordance with law. If the House is not about the rule of law, it is about nothing.
Simon Hoare
I am very grateful to the hon. Lady for giving way. I do not agree with her and her party that the Bill is the constitutional earthquake they represent it to be. However, she has just referenced a point that would mean constitutional upheaval, if I heard her correctly—namely, to remove any political input, and therefore democratic accountability, to this House and to elected Members, and to bypass it all to unelected, unaccountable judges, though I mean that in no pejorative sense. To effectively create massive cleavage between democratic accountability and the day-to-day action allowing those things to go ahead would be a constitutional upheaval. Have the hon. and learned Lady and her party colleagues considered that viewpoint in that context?
Joanna Cherry
We have considered it in detail and I will be addressing it later in my submissions to the Committee. The hon. Gentleman and I will have to differ in our view on this. I do not consider that there is anything constitutionally unusual in judges being solely responsible for the issue of warrants. That happens in a lot of other western democracies—it is called the separation of powers. The idea that Ministers are democratically accountable to this House for the issuance of warrants on the grounds of national security is nonsense. I will explain later why I consider that to be so.
I was trying to stress that the SNP position is that we recognise the necessity of having adequate powers. I hope to be writing the security policy for an independent Scotland before I am an old lady and I would want to have a responsible, modern security policy that dovetails with that of England and other countries in these islands, but I want to model it on what other western democracies are doing, rather than going as far as this Bill, which, without proper justification, goes beyond what other western democracies do. The SNP intends to table amendments to deal with what I called on Second Reading the fantastically intrusive provisions of this Bill regarding internet connection records and bulk powers. We also want to look at ensuring a proper oversight commission, but that is for a later date. I look forward to addressing amendments on parts 1 and 2 of the Bill.
Mr Hayes
The shadow Minister raised a number of issues, some of which related to the letter he mentioned—I have a copy—which the shadow Home Secretary sent to the Home Secretary. This consideration is an answer to the letter; I might even go so far as to say that I am the personification of the answer to the letter. None the less, it is important that a reply is drawn up, not least because that reply will be useful to the Opposition in helping to frame their further ideas. For that reason, I will ensure that a reply to the letter is sent in good time, so that all members of the Committee, mindful of that response to the original letter, can form their consideration accordingly..
Mr Hayes
I do not want to get into a great debate about this now because we are at the beginning of the Bill and this will come up again during further consideration. I acknowledge that the hon. and learned Gentleman has recognised there is a sensitivity about how much can be put in the Bill and how much can be debated in a public forum. He is right that we tread a tightrope between making sure that we have public confidence that the system is fit for purpose, but also proportionate, and on the other hand not tying the hands of those wishing to keep us safe. That is the tightrope that every Government of all persuasions has had to walk.
Whether the hon. and learned Gentleman is right about a changing public mood is more debatable. Most surveys of the public mood suggest a very high level of confidence in our intelligence and security services and the powers that they exercise, so I am not sure there is a great public clamour for them not to be able to do some of the things they have to do. Contextually, given the threat we now face, I suspect most of the public would say they need absolutely all the powers necessary to face down that threat, so I am not absolutely sure that we do not occasionally see these things through the prism of a chattering class view of what the public should think, rather than what the public actually think. I am committed to the idea of politicians continuing to be involved in these things, because we have a regular and direct link to the British public and are in a pretty good position to gauge what their attitudes to such matters might be. So the issues are sensitive, but I appreciate the spirit and tone of the hon. and learned Gentleman and I am determined that we get this right in a way that we can both be comfortable with in the end.
The hon. and learned Gentleman asked how we might subsequently deal with issues around authorisation. We will have a chance to debate that at greater length as we go through the Bill, so it would be inappropriate to do so now. That point was made by the hon. and learned Member for Edinburgh South West. I think we are going to disagree about quite a lot of these matters, not because I do not want to move ahead in the spirit of generosity and unanimity where we can possibly do so, but I think that my position is more like that of the former Home Secretaries who gave evidence to the Committee, Lord Reid and Charles Clarke, who were very clear that the involvement of Ministers in authorising powers is an important way in which the public can be represented in these areas. Ministers bring a particular insight to such work. I was unsurprised by their consideration, but pleased that they were able to reinforce the view that I know is held by almost everyone who has been involved in the warranting process in modern times.
We heard from the former Secretary of State for Northern Ireland, my right hon. Friend the Member for North Shropshire (Mr Paterson), in similar vein. Indeed, he was doubtful about giving judges any role in the process at all, and many others take that view. The Government, however—always anxious to achieve balance and compromise—developed the double-lock, which the hon. and learned Gentleman mentioned. It retains the involvement of Ministers, as Lord Reid and others argued we should, but introduces judicial involvement and, one might argue, adds a greater degree of empiricism to the process, as David Anderson recommended in his report.
Joanna Cherry
The Minister will recall that, under questioning by the hon. and learned Member for Holborn and St Pancras, Lord Judge, in his evidence to this Committee, expressed concern about the phrase “judicial review”. He said that it
“is a very easy phrase to use. It sounds convincing, but it means different things to different people…Personally, I think that when Parliament is creating structures such as these, it should define what it means by ‘judicial review’. What test will be applied by the judicial…commissioner, so that he knows what his function is, the Secretary of State knows what the areas of responsibility are and the public know exactly who decides what and in what circumstances? I myself do not think that judicial review is a sufficient indication of those matters.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 69, Q220.]
What are the Government going to do to take on board what that distinguished judge had to say about this matter?
Mr Hayes
Yes, but Lord Judge also went on to say in the same evidence session that what really matters is what Parliament actually wants. He wanted to be clear about what Parliament wants and to respond accordingly. I heard what Lord Judge said, but I also heard what Lord Reid and Charles Clarke said. Frankly, I see no evidence that the warranting process is not considered carefully by Ministers, that they do not take that work incredibly seriously, that they do not seek all the information they need to exercise reasonable judgment and that they do not apply the tests of necessity and proportionality diligently. Neither this Committee nor the Joint Committee heard evidence to suggest that there is anything faulty in that system.
I am a conservative, so I would be expected to say that if something works there is no good reason for changing it, but because I want to be moderate and reasonable—notwithstanding my conservatism—we introduced the double-lock. My goodness, we have already gone a very long way down the road.
The Chair
With this it will be convenient to discuss new clause 3—Tort or delict of unlawful interception—
“Any interception of a communication which is carried out without lawful authority at any place in the United Kingdom by, or with the express or implied consent of, a person having the right to control the operation or the use of a private telecommunication system shall be actionable by the sender or recipient, or intended recipient, of the communication if it is either—
(a) an interception of that communication in the course of its transmission by means of that private system; or
(b) an interception of that communication in the course of its transmission, by means of a public telecommunication system, to or from apparatus comprised in that private telecommunication system.”
This new clause creates a civil wrong of unlawful interception.
Joanna Cherry
I will deal with new clause 3 in fairly short compass. The amendment was suggested to me by the Scottish division of Pen International, which is a world association of writers. It would introduce a tort, or a delict as we call it in Scotland, for unlawful interception. Such a tort or delict exists already as a result of section 1(3) of the Regulation of Investigatory Powers Act 2000, and I am not entirely sure why it has not been replicated in the Bill. I would be interested to hear from the Solicitor General or the Minister for Security why the Government did not include the measure in the Bill, and whether they will give it serious consideration. It would give a meaningful avenue of recourse and act as a motivation to intelligence agencies, police forces and the Government to ensure that all interception is lawfully authorised, on pain of an action for damages if it is not properly authorised. It is really a very simple new clause modelled on section 1(3) of RIPA. I am interested to hear what the Government have to say about this suggestion.
The Solicitor General (Robert Buckland)
It is a pleasure to take this first opportunity to say that I am looking forward to serving under your chairmanship, Ms Dorries, and indeed to serving with all colleagues on the Committee.
I am grateful to the hon. and learned Lady for making her observations in a succinct and clear way. I am able to answer her directly about the approach that we are taking. One of the aims of the Bill is to streamline provisions to make them as clear and easy to understand as possible. She is quite right in saying that RIPA had within it this provision—a tort or a delict, as it is called north of the border, that would allow an individual to take action against a person who has the right to control the use or operation of a private telecommunications system and to intercept communication on that system.
The Government have fielded a number of inquiries about the non-inclusion of the RIPA provision in the Bill. The circumstances in which it applies are extremely limited, and as far as we are aware it has never been relied on in the 15 years of RIPA’s operation. The provision applies only in limited circumstances because it applies to interception on a private telecommunications system, such as a company’s internal email or telephone system. Where the person with the right to control the use or operation of the system is a public authority, there are of course rights of redress under the Human Rights Act 1998, such as article 8 rights.
The Bill is intended to make the protections enjoyed by the public much clearer and we feel that introducing that course of action or replicating it would not add to that essential clarity, but I have listened carefully to the hon. and learned Lady and we are happy to look again at the issue in the light of her concerns. On that basis, I invite her not to press her new clause and I hope we can return to the matter on Report.
Joanna Cherry
I am grateful to the Solicitor General for his constructive approach. I am happy not to press the new clause at this stage on the basis that the Government will look at it. I am happy to receive any suggestions about the drafting, which is mine. I had some discussions about the terms of the drafting with Michael Clancy of the Law Society of Scotland and James Wolffe, the dean of the Faculty of Advocates, but any infelicities are my fault alone. I would be happy to discuss the drafting with the Government.
Question put and agreed to.
Clause 2 accordingly ordered to stand part of the Bill.
Clause 3
Definition of “interception” etc.
Question proposed, That the clause stand part of the Bill.
Keir Starmer
There are no amendments tabled to the clause, which we support, but I say for the record and for clarification that what is welcome in clause 3 is the spelling out in legislation of the extent of an interception—an issue that has bedevilled some recent criminal cases. Importantly, as the explanatory notes make clear, it is now provided in clear terms that voicemails remaining on a system, emails and text messages read but not deleted and draft messages stored on a system will count within the phrase “in the course of transmission” and will therefore be covered by the offence. We welcome that. I wanted to emphasise that point and put it on the record, because a lot of time and effort was spent when that phrase was not so clearly defined.
The Chair
With this it will be convenient to discuss new clause 4—Tort or delict of unlawfully obtaining communications data—
“The collection of communications data from a telecommunications operator, telecommunications service, telecommunications system or postal operator without lawful authority shall be actionable as a civil wrong by any person who has suffered loss or damage by the collection of the data.”
This new clause creates a civil wrong of unlawful obtaining of communications data.
Joanna Cherry
The new clause very much relates to what I said earlier about new clause 3. The intention is to create a civil wrong of unlawfully obtaining communications data as opposed to unlawful interception. Again, the drafting is mine and it could do with some serious tightening up, but my intention is to establish the Government’s attitude to the new clause. I hope that the Solicitor General will indicate that.
The Solicitor General
I am grateful to the hon. and learned Lady for the way in which she spoke to her new clause. I see that it very much follows new clause 3. Our argument with regard to new clause 4 is slightly different because it has a wider ambit than private telecommunication.
We submit that this tort or delict would not be practicable. Communications data are different from the content of communication. For example, one would acquire communications data even by looking at an envelope or searching for a wi-fi hotspot when turning on a particular wi-fi device at home. It would not be appropriate to make ordinary people liable for such activity. With respect to the hon. and learned Lady, its ambit is too wide. That said, it is only right that those holding office within a public authority are held to account for any abuses of power. That is why clause 9 makes it an offence for a person in a public authority to obtain communications data knowingly or recklessly without lawful authority. I place heavy emphasis on the Government’s approach to limiting and checking the abuse of power by the authorities.
On the new clause, the interception tool was always intended to address the narrow area that was not covered by the interception offence in RIPA, which is replicated in the Bill. As noted, the communications data offence is intentionally narrower. It would therefore be equally inappropriate to introduce a tort or delict in relation to the obtaining of communications generally or in the areas not covered by the new offence. Under the provisions of the Data Protection Act 1998, communications data often constitute personal data. That act already provides for compensation for damage or distress resulting from non-compliance with the data protection principles and for enforcement in respect of failing to comply with the provisions of the act.
The Solicitor General
I hear what the hon. Gentleman says. I have already indicated that I will consider the matter further. I will simply give this solution. He mentioned the stealing of information. Information is property, like anything else, and of course we have the law of theft to deal with such matters. I do not want to be glib, but we must ensure we do not overcomplicate the statute book when it comes to criminal law. I will consider the matter further, and I am extremely grateful for his observations.
Question put and agreed to.
Clause 9 accordingly ordered to stand part of the Bill.
Joanna Cherry
On a point of order, Ms Dorries, may I seek clarification on my position on new clause 4, which the Minister invited me to withdraw? I am minded to do so, having regard to what the Solicitor General said about the Data Protection Act and what the hon. and learned Member for South East Cambridgeshire said about misfeasance in public office, but as a novice in these Committees I seek some guidance. If I press the new clause to a vote now and it is voted down, does that prevent me bringing it back to the Floor of the House?
The Chair
As I made clear at the beginning of our sitting, you could move the motion at the end of consideration, but that does not prevent you from bringing the new clause back on Report. This point in the proceedings is not the time for it.
Joanna Cherry
I realise that, but my point is about the conflicting information on the issue. If an amendment is pressed to a vote and voted down in Committee, some people tell me that it cannot then be brought before the House at a later stage; others tell me that that is not the case. I am anxious to have the Chair’s clarification.
The Chair
It is not normal, but it does sometimes happen; it is at the Speaker’s discretion. If voted down, you would have to retable the amendment and it would be up to the Speaker, who would know that it had been heard in Committee and voted down.
Joanna Cherry
I am grateful. So if I withdraw the new clause now, I cannot be prevented from bringing it back later—I will withdraw it in Committee.
Clause 10 ordered to stand part of the Bill.
Schedule 2 agreed to.
Clause 11
Mandatory use of equipment interference warrants
Question proposed, That the clause stand part of the Bill.
Keir Starmer
I will be very quick. The clause is welcome and we support it, but again my concern is that there is no enforcement mechanism or sanction. Will the Minister take it under the umbrella of these clauses that are intended to ensure good governance, effectiveness and that the proper routes are used, and look in an overarching way at what their sanction might be? I am asking a similar question to one I made before: what is the sanction if what should happen does not happen?
Keir Starmer
In passing, this is just really to explain what the amendment is intended to achieve. In order to understand what is in clause 13(2), we need to look to clause 14(4) to (6), which set out what secondary data means for the purposes of this part and, thus, is to be read into clause 13.
Clause 14(6) states:
“The data falling within this subsection is identifying data which…is comprised in, included as part of, attached to or logically associated with…is capable of being logically separated…and if it were so separated, would not reveal anything of what might reasonably be considered to be the meaning”,
so it is integrally bound up with the content of the communication but capable of being separated from it.
So far as clause 13 is concerned, if there is a targeted interception warrant, the warrant deals specifically with content and secondary data, recognising the integral link between the two. That is right and we do not quarrel with that.
Clause 13(3) is different, providing that:
“A targeted examination warrant is a warrant which authorises the person to whom it is addressed to carry out the selection of relevant content for examination, in breach of the prohibition in section 134(4) (prohibition on seeking to identify communications of individuals in the British Islands).”
The purpose of clause 13(3) is different. We move from the targeted warrant to the bulk warrant—an examination warrant that provides authority to examine the content that would otherwise be in breach of clause 134(4). In order to understand that, I take the Committee to clause 119, to which that relates.
Clause 119 deals with bulk interception warrants, which can be issued if conditions A and B are satisfied. Condition A deals with
“the interception of overseas-related communications”
and with “obtaining…secondary data”. The definition of secondary data is the same in that part of the Bill as it is in the part that we have just looked at. I will not test the Committee’s patience by going to that definition, but it is a consistent definition of secondary data.
Condition B sets out that the bulk warrant authorises “the interception”, which is the content,
“the obtaining of secondary data”,
which is the same as a targeted warrant but in relation to the bulk powers, and
“the selection for examination, in any manner described…of…content or secondary data”
and “disclosure”. The bulk warrant allows the interception of the content and secondary data. In and of itself, it provides for the examination on the face of the same warrant.
For content, it becomes more complicated because there is a safeguard, which is in clause 134(4)—safeguards in relation to examination materials. Having provided a broad examination power, there is then a safeguard for that examination power in clause 134(4). A number of conditions are set for examining material that has been obtained under a bulk interception warrant. They are set out in subsection (3) and the first is that
“the selection of the intercepted content for examination does not reach the prohibition in subsection(4)”
which is that
“intercepted content may not…be selected for examination if— any criteria used for the selection of the intercepted content…are referable to an individual known to be in the British Islands at that time, and the purpose of using those criteria is to identify the content”.
The long and short of it is that, going back to clause 13, a targeted intercept warrant authorises the examination of both content and secondary data.
For a bulk warrant—this is where clause 13(3) kicks in—there is provision for an examination warrant which provides an ability to look at the content, which in all other circumstances would be a breach of the prohibition in clause 134. The content of communications of individuals in the British Isles can be looked at when it has been captured by a bulk provision, but only when there is a targeted examination warrant. That is a good thing.
What the amendment gets at is this. What is not in clause 13(3) is any provision for an examination warrant in relation to secondary data, so for the targeted provisions these two are treated as one: secondary data integral to the content of communication. When it comes to bulk, they are separated and only the content is subject to the further provision in clause 13(3).
That is a material provision and is a big part of the legislation because, unless amendment 57 is accepted, a targeted examination warrant is not required for secondary data, which are capable of being examined simply under the bulk powers. The purpose of the amendment is to align subsections (2) and (3) and ensure that the targeted examination warrant is not required for both content and secondary data in relation to individuals in the British Isles. The result otherwise would be that, for someone in the British Isles, their secondary data could be looked at as long as it was captured under a bulk provision without a targeted warrant. That is a serious drafting issue of substance.
Our approach to some of the wider retention of bulk powers is this. Although we accept that a case can be made for retaining data that will be looked at later, the wide powers of retentional bulk are a cause of concern on both sides of the House. When it comes to examining what has been caught within the wider net, there are specific safeguards. In other words, as long as there is a specific targeted safeguard when someone wants to look at bulk or retained data, that is an important safeguard when they are harvesting wide-ranging data. That is a very important provision in relation to secondary data.
Amendments 59 and 60 go to a different issue. They are separate and I ask the Government to treat them as separate. The first is about content and secondary data as a hom-set and whether they should be protected in the same way throughout the regime of the legislation, however they are initially intercepted. That is an important point of principle that I ask the Government to consider seriously because it goes to the heart of the question of targeted access.
The second amendment relates to individuals in the British Isles. At the moment, clause 13(3) provides specific protection in relation to the content of communications for people in the British Isles. It is clear from clause 134(4) that that means not residing in the British Isles, but actually in the British Isles. Under clause 13(3), once I get to Calais, I fall out of the protection of that provision, as does everybody else in this Committee, because it is a question of whether someone is physically in the British islands. Therefore, a targeted examination warrant for the content of my communications gathered by bulk powers would not be needed once I got halfway across the channel. Until I went through the analysis, I did not fully appreciate that, and serious consideration is required for both content and secondary data. More generally within amendment 59 are provisions relating to individuals not normally in the British islands or within the countries specified in amendment 60.
I am sorry to have referred to other clauses, but I could not work this out until I went through that torturous route. The net result is a disconnect between content and secondary data, which goes to the heart of protection when it comes to bulk powers. Clause 13(3) is really important for bulk powers and is one of the most important provisions in the Bill, so we have to get it right.
The limit of clause 13(3) to individuals in the British islands is unsustainable and needs further thought. Amendments 59 and 60 intend to remedy that defect. If there is an appetite in the Government to look carefully at those provisions, there may be a different way of coming at the problem, but it is a real flaw in the regime as it is currently set out. I apologise for taking so long to get to that, Ms Dorries. It required a cold wet towel on one afternoon last week to work my way through this, but once we go through the exercise, we realise there is a fundamental problem that either has to be fixed or adequately answered.
Joanna Cherry
I am 100% with the hon. and learned Gentleman in his description of the clause. Indeed, many clauses of the Bill require the application of a cold wet towel or a bag of ice to the head followed by copious amounts of alcohol later in the evening.
Amendments 57 and 83 bear my name and that of my hon. Friend the Member for Paisley and Renfrewshire North. I wish to emphasise the importance of those amendments, which foreshadow important amendments in respect of bulk powers that the Scottish National party intends to table at a later stage. Our amendments would apply the same processes and safeguards for the examination of information or material obtained through bulk interception warrants and bulk equipment interference warrants, irrespective of whether the information or material pertains to individuals in the British Isles, and to require a targeted examination warrant to be obtained whenever secondary data obtained through bulk interception warrants and equipment data and information obtained through bulk interference warrants are to be examined.
In order to gain an understanding of the background to this amendment, I invite hon. Members to look back at the evidence of Eric King to the Committee on 24 March. He explained to us how GCHQ examines bulk material. The targeted examination warrant available on the face of the Bill fails to cover the aspect of communication that is most used by agencies such as GCHQ: metadata, or secondary data, as it is referred to in the Bill.
Simon Hoare
The hon. and learned Lady might have chosen a better witness. If I recall, the gentleman in question admitted in answer to my hon. Friend the Member for Louth and Horncastle that he had had no experience at all in the application for or determination of any warrants. He had never had any security clearance either, so I am uncertain why he is being prayed in aid.
Joanna Cherry
I must say that I do not like the approach of traducing witnesses. If I do not like a witness’s evidence, I will not traduce them; I will just try to forensically dissect their evidence. This is a distinguished witness with significant experience in this field.
Joanna Cherry
No, I will not give way. I am going to finish. Because of his technical expertise, Mr King has been of enormous assistance to myself and my hon. Friends in the Labour party in drafting amendments.
Joanna Cherry
Hon. Members may “Ah” and “Um”, but Mr King has relevant technical expertise. I invite hon. Members to consider his CV.
Joanna Cherry
No, I will not. I will continue to make my point. The amendment was tabled because there should be a requirement to apply for an examination warrant when seeking to examine secondary data. That would protect the privacy of our constituents—I am looking at Government Members—and us. It is not some idle attempt of the chattering classes to be difficult about the Bill; it is an attempt to make the Bill compliant with the rule of law and with the requirement to protect the privacy of our constituents. That is all it is about. Criticising and making ad hominem comments about a witness are not going to undermine the moderate—
Joanna Cherry
No, I will not give way. There will be plenty of opportunity for the hon. Lady to contribute later. I am conscious of the time, Chair, so I will briefly—
Joanna Cherry
No, I will not. I want to continue making my point. Without the amendment, which we support, a GCHQ analyst would be able to search for and view non-content material of anyone in the United Kingdom without a warrant. I do not believe that that is right, necessary or proportionate.
Let us look at what the Intelligence and Security Committee said. If Government Members do not like Mr King’s evidence, let us set him to one side and look at the ISC. Government Members might find its approach more palatable or less easy to criticise. In the ISC’s response to the draft Bill, it highlighted the significant concern that the secondary data, including that derived from content, would not be protected. It said:
“To provide protection for any such material incidentally collected, there is a prohibition on searching for and examining any material that relates to a person known to be in the UK (therefore, even if it is collected, it cannot be examined unless additional authorisation is obtained). However, these safeguards only relate to the content of these communications. The RCD relating to the communications of people in the UK is unprotected if it is collected via Bulk Interception. In direct contrast, if the same material were collected and examined through other means (for example, a direct request to a CSP) then the draft Bill sets out how it must be authorised”.
The ISC expressed a concern that the amendment attempts to address. Because no examination warrant is required for secondary data, a variety of highly intrusive acts could be undertaken without additional authorisation by individual analysts. That is all that the amendment is seeking to address. In my respectful submission, it is appropriate, necessary and proportionate.
Mr Hayes
As the hon. and learned Gentleman was speaking—he recalled having a cold towel placed upon him last week—I wondered, as his peroration ranged across so many different clauses of the Bill, whether he wished the same fate for the whole Committee, although I fully appreciate his point on the complexities of this particular area of our consideration. They are such that, to get to the basis of why he tabled the amendments, it is necessary to look across a range of parts of the Bill.
In essence, this is probably the difference between us—perhaps it is not, but let me present that at least as my hypothesis. We recognise, as the Bill reflects, that different levels of authorisation should apply in relation to different investigative techniques. I think the hon. and learned Gentleman is with us that far, but it is important to say why those different levels should apply. The differences plainly reflect the different operational contexts in which the powers are exercised, and that includes the different organisations, how they use the capabilities, and the statutory purposes for which those capabilities are utilised. We are absolutely clear that those differences are necessary, and that the safeguards that apply to different powers are satisfactory, coherent and effective.
Investigatory Powers Bill (Fourth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Home Office
Investigatory Powers Bill (Fourth sitting)
Joanna Cherry ExcerptsTuesday 12th April 2016
(8 years, 8 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 12 April 2016 - (12 Apr 2016)
Joanna Cherry (Edinburgh South West) (SNP)
I remind the Minister that when I spoke before lunchtime, I highlighted the fact that the Intelligence and Security Committee has a concern about secondary data derived from content not being protected. What does the Minister make of the ISC’s concerns? Why have the Government dismissed them?
Mr Hayes
I wondered whether the ISC might be raised in this respect. Of course the hon. and learned Lady is right. With her typical diligence she has identified that the ISC does indeed make that point. The answer to the question is that we welcome scrutiny and we invite consideration of these proposals. All of the Committees that looked at these matters made a whole series of recommendations, some of which the Government accepted with alacrity, some of which the Government continue to consider, and some of which the Government do not agree with. It is true that that point has been made, and I said that this might reasonably be argued. However, I think that we have gone far enough in this area in balancing the proper desire for effective safeguards with the operational effectiveness of the agencies.
Bulk collection is really important. Without giving away too much sensitive information, I can happily let the Committee know that as Security Minister I have visited GCHQ, as the Committee would expect me to do. I have looked at the kind of work the staff there do in respect of bulk data collection, and I have seen the effect it has. Contrary to what might be described as a rather crude view of what bulk collection is all about, it is not searching for a needle in any haystack; it is being highly selective about which haystacks are looked at. It is about trying to establish connections, networks and relationships between organisations and individuals; places and people. I have no doubt that without these powers the work of our intelligence and security services would be inhibited. However, I accept that safeguards are needed: I do not for a moment suggest anything else.
I turn now to amendments 58, 59 and 60. These amendments seek to extend the circumstances in which a targeted examination warrant is required beyond the current situation in the Bill, such that they are not limited to persons in the UK. The intention of amendment 58 appears to be that an individual targeted examination warrant would be required from the Secretary of State and a judicial commissioner each time an analyst in an intelligence agency wished to examine the content of any communications acquired under a bulk data interception warrant. This would apply irrespective of where in the world the sender or recipient of the communication was located. As currently drafted, the Bill makes it clear that a targeted examination warrant must be sought if an analyst wished to examine the content of communications of individuals in the British islands which had been obtained under a bulk interception warrant.
Amending the scope of a targeted examination warrant as proposed would, in my view, fundamentally alter the operation of the bulk regime. I am advised to that effect by those who use these powers. There is plainly a rational justification for treating the communications of persons known to be in the British Isles differently to those of persons who are believed to be overseas. Within the UK, the interception of communications is a tool that is used to advance investigations into known threats, usually in conjunction with other capabilities and other tools. Of course, serious investigations of the kind we are talking about are complicated, and very often this will be only one of the means that are used to establish the patterns of activity of the networks I have described and the threats that I have outlined.
Mr Hayes
I do not want to delay the Committee unduly, but I will offer this response. First, I direct the hon. and learned Gentleman to the “Operational Case for Bulk Powers”, which specifies the ways in which bulk powers will be used. The operational case will be specific. I am grateful to him for not pressing the amendment. I am happy to write to the Committee to reinforce our arguments and I think that we might reach a Hegelian synthesis—I am very keen on Hegel, as he knows. I agree that it is often necessary to examine the secondary data to determine the sender—he knows that that is the case—but I disagree about the lack of specificity on the operational purposes. We cannot give too much detail on that, for the reasons of sensitivity that he will understand, but I am happy to write to him to draw his and the Committee’s attention to the “Operational Case for Bulk Powers”, which is targeted at overseas threats but might, as he properly said, draw in some data from those who are in the UK. I hope that when I write to him he might decide not to bring these matters back further. I am grateful for his consideration.
Joanna Cherry
I, too, welcome you to the Chair, Mr Owen. It is a pleasure to serve under your chairmanship.
Before lunch, I spoke to amendment 83, concerning secondary data. I did not speak to amendment 84, because it was tabled but not selected, but it is really a corollary: it proposes leaving out clause 14.
I have listened carefully to what the Minister has said and I am grateful to him for his detailed explanation, but he does not take on board the concerns that I attempted to articulate on secondary data, notwithstanding the fact that similar concerns were articulated by the Intelligence and Security Committee. We will have to agree to differ for the time being. I associate myself with the comments made by the hon. and learned Member for Holborn and St Pancras about the other issues relating to the these amendments, in particular his pertinent and typically incisive point about clause 125(3).
Having sought clarification this morning from the Chair on the voting procedures, I do not intend to push the amendment to a vote, because I think that I would end up with something of a pyrrhic victory. However, I emphasise that I stand by the necessity for the grouped amendments and wish to revisit them later during the passage of the Bill. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 13 ordered to stand part of the Bill.
Clause 14
Obtaining secondary data
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I tabled an amendment to delete clause 14. I do not think it has been selected, but I have made my position clear. I wish to revisit this issue at a later stage.
Question put and agreed to.
Clause 14 accordingly ordered to stand part of the Bill.
Clause 15
Subject-matter of warrants
Joanna Cherry
I beg to move amendment 4, in clause 15, page 12, line 3, leave out “or organisation”.
This amendment, and others to Clause 15, seek to preserve the capacity of a single warrant to permit the interception of multiple individuals while requiring an identifiable subject matter or premises to be provided.
The Chair
With this, it will be convenient to discuss the following: amendment 5, in clause 15, page 12, line 8, after “activity” insert
“where each person is named or otherwise identified”.
Amendment 6, in clause 15, page 12, line 9, leave out “or organisation”.
Amendment 7, in clause 15, page 12, line 11, after “operation”, insert
“where each person is named or otherwise identified”.
Amendment 8, in clause 15, page 12, line 12, leave out paragraph (2)(c).
Amendment 9, in clause 15, page 12, line 13, leave out subsection (3).
Amendment 52, in clause 27, page 21, line 7, leave out ‘or organisation’.
Amendment 53, in clause 27, page 21, line 8, leave out ‘or organisation’.
Amendment 54, in clause 27, page 21, line 13, leave out
‘or describe as many of those persons as is reasonably practicable to name or describe’ and insert ‘or otherwise identify all of those persons’.
Amendment 55, in clause 27, page 21, line 15, leave out ‘or organisation’.
Amendment 56, in clause 27, page 21, line 19, leave out
‘or describe as many of those persons or organisations or as many of those sets of premises, as it is reasonably practicable to name or describe’ and insert ‘all of those persons or sets of premises’.
Joanna Cherry
The effect of these amendments to clause 15 would be to retain the capacity of a single warrant to permit the interception of multiple individuals but require an identifiable subject matter or premises to be provided. Associated amendments to clause 27 would be required. This would narrow the current provisions, which, in my submission, effectively permit a limitless number of unidentified individuals to have their communications intercepted.
As drafted, clause 15 permits warrants to be issued in respect of people whose names are not known or knowable when the warrant is sought. That is confirmed by clause 27, which provides that a thematic warrant must describe the relevant purpose or activity, and
“name or describe as many of those persons…as…is reasonably practicable”.
The creation of thematic warrants in the Bill means that communications intercepted in their billions under part 6 could be trawled thematically for groups sharing a common purpose or carrying out a particular activity. The difficulty with that is that it provides for an open-ended warrant that could encompass many hundreds or thousands of people, and the expansive scope of these warrants, combined with the broad grounds with which they can be authorised, does not impose sufficient limits on the authorities’ interception powers.
The existence of thematic interception warrants was avowed by the Secretary of State in March 2015. The Intelligence and Security Committee has reported that the significant majority of section 8(1) warrants under RIPA relate to one specific individual but that some do not apply to named individuals or specific premises, and instead apply to groups of people. The current Home Secretary has apparently derived the authority to do so from a broad definition given to the word “person” that is found elsewhere in RIPA, despite the unequivocal reference to “one person” in section 8(1) of RIPA. I suggest that what has gone on in the past is a very unorthodox statutory construction.
Be that as it may, in considering the terms of this Bill the ISC has reported that the Interception of Communications Commissioner has
“made some strong recommendations about the management of thematic warrants”
and in some cases recommended that they be cancelled. The ISC has expressed further concerns about the extent to which this capability is used and the associated safeguards that go along with it. It has suggested that thematic warrants must be used sparingly and should be authorised for a shorter time than a standard section 8(1) warrant.
Reporting on the draft version of the Bill, the ISC noted that “unfortunately”—the Committee’s word—its previous recommendation about thematic warrants
“has not been reflected in the draft Bill”;
nor has it been reflected in the revised Bill, in which the scope for thematic warrants remains unchanged. It is not only the ISC that has concerns about this issue. The Joint Committee on the draft Bill also recommended that
“the language of the Bill be amended so that targeted interception and targeted equipment interference warrants cannot be used as a way to issue thematic warrants”.
Many lawyers believe that the scope of warrants permitted under clause 15 as drafted would fail to comply with both the common law and European Court of Human Rights standards, as expounded in a very recent decision in Zakharov v. Russia from 4 December 2015. In that case, the ECHR found that Russia’s interception scheme was in violation of article 8 of the European convention on human rights. Also, the Court cited the fact that Russian courts sometimes grant interception authorisations that do not mention a specific person or a specific telephone number to be tapped but authorise interception of all telephone communications in the area where a criminal offence has been committed. Although thematic warrants do not relate to geographical location, in my view and that of many far more distinguished lawyers, they are sufficiently broad to violate article 8 of the convention. Our amendments are required to make clauses 15 and 27 compatible with that article.
Victoria Atkins (Louth and Horncastle) (Con)
Is the purpose of the clause to address those circumstances where, for example, the security services or police know that someone has been kidnapped, but they do not know the names of the kidnap gang or even perhaps the number of gang members? The clause is designed to enable the security services to make the inquiries they need to make to save a life.
Joanna Cherry
I think I am correct in saying that this section is directed more towards security concerns than serious crime. I will no doubt be corrected, but I can only stand by what others who deal with surveillance issues have said in their evidence to the Committee. I would also like to point to what David Anderson QC said in his follow-up evidence to the Committee at paragraphs 4 and 5.
Joanna Cherry
David Anderson, in his typically helpful, studious and hard-working way followed up his oral evidence to us with some additional thoughts in written evidence. He has a section headed “Thematic Targeted Powers” in which he says:
“I recommended that the practice of issuing thematic warrants be continued into the new legislative regime…I envisaged their utility as being ‘against a defined group or network whose characteristics are such that the extent of the interference can reasonably be foreseen, and assessed as necessary or proportionate, in advance’—for example, a specific organised crime group”.
Perhaps that answers the hon. Lady’s question. He went on to say:
“I also recommended that the addition of new persons or premises to the warrant should…require the approval of a judicial commissioner, so that the use of a thematic warrant did not dilute the strict authorisation procedure that would otherwise accompany the issue of a warrant targeted on a particular individual or premises”.
His following statement is very important. He says:
“On both counts, the Bill is considerably more permissive than I had envisaged. Thus: The wording of clause 15 (interception) and still more so clause 90 (EI) is extremely broad”.
This answers the hon. Lady’s point. Even David Anderson, who envisaged thematic warrants having some utility against a defined group or network such as an organised crime group, says that the wording of clause 15 is considerably more permissive than he had envisaged.
Victoria Atkins
The hon. and learned Lady states the opinion that clause 15 is really aimed at dealing with the security services point. It is but, may I refer her to clause 18, which deals with the grounds on which warrants may be issued by the Secretary of State? It is very clear that it can be done for national security reasons but also for the purposes of preventing or detecting serious crime.
Joanna Cherry
The hon. Lady is absolutely right. I stand corrected. Fortunately I have the assistance of David Anderson on this point. He has made the point that whereas he sees envisaged their utility in identifying a defined group or network—for example, a specific organised crime group—he remains of the view that the wording of clause 15 is “extremely broad”. It should concern all members of this Committee that the independent reviewer of terrorism legislation considers the wording of this clause to be extremely broad. If the Government will not take the Scottish National party’s word for it, then they can take the word of the independent reviewer of terrorism legislation. I seek the Government’s assurance that they will go away and look again at clause 15 and clause 27 very carefully, in the light not only of what I have said but, more importantly, what has been said by Sir Stanley Burnton, Lord Judge and David Anderson.
Lucy Frazer (South East Cambridgeshire) (Con)
I thank the hon. and learned Lady for her very detailed points. Does she accept that even though David Anderson thinks that the wording is too broad, the amendments that she proposes would make the provision too narrow? If the words “or organisation” are taken out then only a person or a premises will be identified, which would not catch the circumstances that David Anderson is thinking about. In her submission, the hon. and learned Lady identified that while the current wording was too broad, some of the organisations that she mentioned did recognise that in some circumstances the thematic powers were useful.
Joanna Cherry
The hon. and learned Lady makes a point that I have to take on board to a certain extent. I suspect that my amendments to clause 15 go further than David Anderson would if he were drafting an amendment to this clause. We are at a very early stage in this procedure. I am really seeking an assurance from the Government that they will take on board, if not my concerns, then at the very least the concerns of Sir Stanley Burnton, Lord Judge and David Anderson, and that they will take away clause 15 and clause 27 and look at them again.
Keir Starmer
I will be brief because a lot of the detailed work has been done. I listened very carefully to the Minister, not only today but on other occasions, and he indicated that the Government want to improve the Bill and that they do not have a fixed view. I therefore make these submissions in the hope that the Minister and the Government will not circle the wagons around the existing formula in clause 15 simply because those are the words on the page. The warrants are supposed to be targeted, but when reading clause 15(2) it is clear that they are very wide. I will not repeat the concerns of Lord Judge, Sir Stanley Burnton and David Anderson, but they are three individuals with huge experience of the operation of these warrants.
I take the point about kidnap cases or examples of that type. They are exactly the cases that Lord Judge and Sir Stanley Burnton will have seen in real time and reviewed, and that David Anderson will have reviewed after the event. When those three distinguished individuals say that they have concerns about the breadth of the clauses, they do so against huge and probably unparalleled experience of what the warrants provide for. I doubt that anyone would suggest that they are not alive to concerns about the warrants being practical and effective in the sort of circumstances that have been described.
Mr Hayes
That is an example of what I meant. There could well be people, either here or travelling here, whose identity is known only in the broadest terms. They are part of a network, a wider group or organisation, but no detail is known about them. That does not apply only to terrorist investigations; it might apply to serious organised crime investigations, in which by their nature we are dealing with organisations that desire anonymity. That means that investigations are challenging and makes the powers in the Bill absolutely necessary.
It is perfectly possible that a terrorist or criminal organisation might be seeking to travel in or out of the United Kingdom. It might not be clear at the outset which individuals will be travelling, or that all those travelling share an identified common purpose and will be carrying on the same activity, as required by the definition of “group of persons”.
It is also important to note that the Bill imposes strict limits on the scope of the warrant in relation to organisations. We need to be clear that activity against an organisation must be for the purpose of a single investigation or operation, and the Secretary of State and judicial commissioner will both need to be satisfied that the warrant is sufficiently limited to be able to meet the necessity and proportionality case. It is not just that it needs to be necessary and proportionate; it must be sufficiently limited to legitimise that.
Joanna Cherry
I am thinking about the example of the man in the hat. Is that really apposite here? We are talking about targeted interception warrants and targeted examination warrants. We cannot intercept someone’s communications, or examine them, before we have identified who or where they are. Simply knowing that there is a man in a hat is of absolutely no use to us until we find some way to narrow it down and identify who the man in the hat is, even if just that he is a man living in a particular place.
Mr Hayes
The hon. and learned Lady may have misunderstood. Part 2 targeted warrants, even if they are thematic, cannot be used to trawl information collected en masse or in bulk. Targeted interception warrant applications must specify the scope of the activity to be intercepted. They cannot be open-ended; they are time-limited and must provide sufficient information for the Secretary of State to assess that the activity proposed is necessary. Indeed, all targeted interception warrants will be time-limited to six months.
Where the interception of calls between a particular handset and a group of individuals, for example, may help to identify a kidnapper—we have heard the example of kidnapping—or show where a kidnapper is, the details of what they are planning or where they might be holding the victim, it is of course possible to identify individuals to whom the warrant relates at the point when it is sought. Where that is the case, the warrant requesting agency will be expected to add the identities of the suspects to the warrant as they become known. That is a further assurance and an important new safeguard, as the hon. and learned Member for Holborn and St Pancras knows. It will allow the Secretary of State and the judicial commissioner to oversee the conduct taking place under the warrant. That obligation will be given statutory force through the code of practice, as he said. Even though it will be in the code of practice, it will have statutory force.
Mr Hayes
That is true, it is in the code. I think I indicated that earlier. None the less, it is an obligation. The reason we added to the codes, largely following the Joint Committee report, was that we wanted to provide additional assurances without the rigidity of placing too much on the face of the Bill.
There is always a tension—I spoke about it in our morning session—between how much is placed on the face of a Bill, which of course provides a degree of certainty but by its nature simultaneously provides rigidity, and how much is placed in supporting documentation. Codes of practice are important supplements to a Bill, and, in their final form, to an Act. It should be emphasised that they are not merely advisory documents—they are legally binding in their effect. As I also emphasised, these are draft codes of practice that we expect to publish in full, partly as a result of this Committee’s consideration and what we learn from it.
The warrant application process will allow the Secretary of State to understand the potential risk that communications will be intercepted incidentally to the purpose of testing or training, and to approve the measures to be taken to reduce the chance of communication being accidentally intercepted. Clear safeguards are in place to protect the privacy of the citizen, so I invite the hon. and learned Member for Edinburgh South West to withdraw the amendment.
Joanna Cherry
I am not minded to withdraw the amendment. For the same reasons that the hon. and learned Member for Holborn and St Pancras gave earlier, and the reasons that I gave in relation to amendments to clause 13, I will not insist on a vote just now—I suppose that means that I do withdraw the amendment, but I reserve the right to bring it back at a later stage.
The Chair
For clarification, when the hon. Lady says that she will bring it back at a later stage, it will be on Report.
Joanna Cherry
Indeed. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 15 ordered to stand part of the Bill.
Clause 16 ordered to stand part of the Bill.
Clause 17
Power of Secretary of State to issue warrants
Keir Starmer
I beg to move amendment 11, in clause 17, page 13, line 5, leave out “Secretary of State” and insert “Judicial Commissioners”.
This amendment, and others to Clause 17, seeks to remove the role of the Secretary of State in formally issuing interception warrants and instead requires Judicial Commissioners to issue such warrants.
Keir Starmer
No, it does not. With all due respect, thinking on accountability and safeguards in this field is on the move. The sort of regime that was perhaps thought appropriate five, 10 or 15 years ago is now accepted as not appropriate. One of the points of this legislation in many respects is to bring it up to date and make sure that scrutiny and safeguards are more powerful. The fact that an ex-Home Secretary thinks their role was very important and need not be interfered with did not surprise me, but neither did I find it persuasive.
I have probably exhausted my point. The amendments are intended to reflect the position set out by David Anderson for the very good reasons that he draws attention to in paragraph 14.56(a): the political accountability card is overplayed in resisting this argument.
Joanna Cherry
I just want to address the joint amendments briefly. I want to draw attention to amendment 101, which was tabled on behalf of the Scottish National party and reflects a later amendment to delete clause 19. Scottish Ministers issue warrants at present in relation to serious crime. If the amendments were taken on board, their role would be replaced by judicial commissioners, and they are comfortable with that. I simply draw attention to that consequential amendment.
I support everything that the hon. and learned Member for Holborn and St Pancras has said in support of the group of amendments to clause 17. I have just three points to make: three reasons why I support the amendments. First, I associate myself with the argument that arguments concerning Ministers’ democratic or political accountability for surveillance warrants are misconceived and misplaced. Secondly, one-stage judicial authorisation is the norm in many comparable jurisdictions. Thirdly, and picking up another point made by David Anderson, judicial authorisation would encourage co-operation from technical firms in the United States of America.
I am grateful to the hon. and learned Member for Holborn and St Pancras for exploding the myth, also exploded by David Anderson, that Ministers are democratically accountable for their role in issuing warrants, because of course it is a criminal offence to disclose the existence of a warrant, and that will remain the case under clauses 49 and 51.
What is often advanced and has been advanced by Government Members is that a corollary to this argument is that Ministers are politically accountable for the agencies and will be required to resign if things go wrong. That is incorrect. Although the Home Secretary is responsible for setting the strategic direction of the Government’s counter-terrorism policy and the Cabinet Minister is responsible for MI5, MI5 is like the police: operationally independent. MI5’s director general retains operational independence for day to day decision making. Historically, when terrorist attacks have tragically succeeded, they have not led to political resignations in this country. Despite inquests and inquiries following the terrible tragedies of the 7/7 attacks and the ghastly murder of Fusilier Lee Rigby, and despite the fact that those inquests and inquiries uncovered internal errors in the agency’s handling of information relating to those responsible for the attacks, this did not result in the political accountability that is now so strongly claimed.
The reality is that the oversight we have for such decisions and the accountability for the agency is provided by a patchwork of mechanisms, including the ISC—although I dissociate myself with the comments made by the hon. and learned Member for Holborn and St Pancras on the limitations of the ISC—and also by public inquiries and legal challenges brought against the Government. No doubt we could argue that such oversight and accountability as there is in relation to the operation of the security agencies could be enhanced, but it is simply not correct to argue that political accountability is provided by the ministerial sign-off on warrants, because it is not. I have been in the House for only nine months, but when questions around these issues are asked of Ministers, I have seen them repeatedly reply, probably quite properly, that they cannot answer for reasons of national security.
My second point is that one-stage judicial authorisation is the norm in comparable jurisdictions. It happens in America, where federal, investigative or law enforcement officers are generally required to obtain judicial authorisation for intercept. A court order must be issued by a judge of a US district court or a US court of appeals judge. In Australia, law enforcement interception warrants must be issued by an eligible judge or a nominated administrative appeals tribunal judge. In Canada, it is unlawful to intercept private communications unless the interception is in accordance with an authorisation issued by a judge. In New Zealand, police can only intercept a private communication in tightly prescribed circumstances, including requiring a warrant or emergency permit that can only be issued by a High Court judge. If the United Kingdom wants to be able to claim that it is in a world-class league for good practice in surveillance, in my submission, it should adopt one-stage judicial authorisation.
Those of us who are lawyers in the Committee or have ever dealt with the law are familiar with the concept of a judge being got out of his or her bed in the middle of the night to grant an interdict in Scotland or an injunction in England, in civil matters of far less importance than the sorts of matter the Bill deals with. In the aftermath of—God forbid—another attack in the United Kingdom such as 7/7, judges would be as readily available to deal with warrants as Ministers of the Crown are at present.
Thirdly, judicial authorisation would encourage co-operation from US technical firms. That point was pressed home by David Anderson QC in his review, when he said that given the United States tradition of judicial warrants, Silicon Valley technical firms feel uncomfortable with the United Kingdom model of political authorisation. Those firms operate in a global marketplace, which underlines the need for us to adhere to procedures fit for a world-leading democracy. The United Kingdom is alone among our democratic allies with similar legal systems in permitting political-only authorisation. The SNP supports the amendments for those three reasons.
Mr Hayes
This is an important debate, as my hon. and learned Friend the Solicitor General said. The shadow Minister is wrong, as I described earlier, factually, philosophically and politically. I will try to deal with those in turn.
The factual case is this. Accountability is a much more sophisticated thing than the shadow Minister suggests. Accountability is about who makes decisions, as well as about the decisions they make. People who are elected, by their nature, are accountable to those who elect them. The judgments they make and the powers they exercise reflect that direct relationship with the electorate. It is almost undeniably true that those of us sitting in this room and others like us are bound to be more influenced and affected by the wider public because we do not do a job unless they continue to have faith and belief in us. We are elected by them; we are answerable to them.
The Home Secretaries, the Northern Ireland Secretaries and the Foreign Secretaries who make these decisions are elected constituency Members of Parliament who every day, every week and every month are communicating with constituents who have profoundly held views about the very matters over which those Secretaries exercise their judgment, in a way that people who are not elected simply do not. That line of accountability to the wider public should not be understated or underestimated.
Joanna Cherry
On a point of order, Mr Owen, the amendments are also in my name, so will I, too, have to state my position on them?
Joanna Cherry
I would like to respond to one or two of the points made by the Minister, if I may briefly.
The Chair
There is a bit of a job share going on among the Front Benchers and I am getting a little confused. The mover of an Opposition amendment is the person who finishes on behalf of the Opposition. Mr Starmer has had the opportunity to do that and you have had your opportunity to speak; we are now going to vote.
Joanna Cherry
I hear what you are saying, Mr Owen. My position is that the amendments are crucial to the Bill. I am not insisting or objecting—
The Chair
Order. The Question is that the Committee agrees to withdraw the lead amendment. If you do not wish that to happen, you may object and we will proceed to a vote.
The Chair
If you wish to speak to any amendment, you may make your position clear at that time, even if you are not the mover of the amendment—
Joanna Cherry
My name is not on amendment 61, but is on amendment 93, but that is an amendment to clause 27.
The Solicitor General
It is a pleasure to serve under your chairmanship, Mr Owen, for the first time in what I am sure will be a number of important sittings.
May I address the amendment moved by the hon. and learned Member for Holborn and St Pancras? I am grateful to him for rightly pointing our way to paragraph 4.7 of the draft code. Indeed, by reference, paragraph 4.8 gives a clear basis for the decision maker to assess the nature of the proportionality. Therein lies something of the problem with regard to the approach to be taken in the clause. It is tempting, on the face of it, to include the test in the primary legislation, but it might provoke more questions than answers.
Naturally, when one makes a bald statement about proportionality, people want to know more, so where does one end in terms of adding to the primary legislation the detail that is necessary for decision makers to reach a considered conclusion? My simple argument is that the amendments therefore are not necessary. What makes this the right balance is the combination of the primary legislation that sets out the framework and a living document—the code of practice—that will be more easily amendable and accessible in terms of any changes that need to be made in the light of experience and practice.
We do not want to end up with a situation where this type of warrantry can only be obtained when all other avenues have been exhausted, a bit like the position when one comes to an ombudsman. That would be an artificial scenario to end up with and would cause problems operationally. I can think of examples where the exhaustion of other avenues will just not be practicable. For example, in a kidnap situation where an individual’s life might be in danger, this type of warrantry would probably be the most appropriate step to take before any other type of intervention. Of course, there are occasions where other means of intelligence gathering, such as live human intelligence sources, might be high-risk or result in a higher degree of collateral inclusion.
I am concerned that we do not end up, despite the best intentions of the hon. and learned Gentleman, with an inflexible approach on the face of primary legislation. It is far better, in my submission, to keep the balance as it is, as clearly outlined in the code of practice and the framework within the clause.
Keir Starmer
I am grateful to the Solicitor General for the way he has approached this, but it misunderstands the amendment. Of course, whether information could be reasonably obtained by other means is relevant to the assessment of proportionality and necessity. The amendment proposes that, having taken all the factors into account, if it transpires at the end of that exercise that the information could have been reasonably obtained by other less intrusive means, it is not proportionate—that is the end of the exercise. That, in our submission, is the right test that should be on the face of the Bill. At this stage, I will withdraw the amendment with a view to raising it at a later stage if it is appropriate to do so. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 17 ordered to stand part of the Bill.
Clause 18
Grounds on which warrants may be issued by Secretary of State
Joanna Cherry
I beg to move amendment 30, in clause 18, page 14, line 20, after “security”, insert “or”.
The Chair
With this it will be convenient to discuss the following:
Amendment 85, in clause 18, page 14, line 20, after “security” insert—
“where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed”
This amendment, and others to Clause 18, seeks to require that the grounds for an interception or examination warrant are tied to a threshold of reasonable suspicion of criminal behaviour; and that reference to a separate ground of “economic well-being, etc.” is deleted from the face of the bill.
Amendment 86, in clause 18, page 14, line 21, after “crime” insert—
“where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed”
Amendment 31, in clause 18, page 14, line 21, leave out “or”.
Amendment 32, in clause 18, page 14, line 22, leave out paragraph (2)(c).
Amendment 35, in clause 18, page 14, line 33, leave out subsection (4).
Joanna Cherry
These amendments would delete the separate ground for interception of economic wellbeing from the face of the Bill and require that grounds for interception are tied to a threshold of reasonable suspicion of criminal behaviour.
The Bill re-legislates for RIPA’s three broad statutory grounds for issuing surveillance warrants. The Secretary of State may issue warrants for interception, hacking and so on
“in the interests of national security…for the purpose of preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.
That final ground can apply only where it relates to the acts or intentions of persons outside the British islands.
I support the amendments because all three main statutory grounds are, in my submission, unnecessarily vague and are left dangerously undefined. As the decision will continue to lie with the Secretary of State, the test will be met by whatever he or she subjectively decides is in the interests of the national security or economic wellbeing of the UK, having regard to popular sentiment rather than to what is necessary and proportionate, as we have now heard from the Minister’s own mouth. The tests mean that individuals are not able to foresee when surveillance powers might be used, and they grant the Secretary of State a discretion that is so broad as to be arbitrary. The Joint Committee on the draft Bill recommended that the Bill should include a definition of national security, and I call upon the Government to produce such an amendment. If the Government sprinkle the Bill so liberally with the phrase “national security”—indeed, it is the Government’s job to defend national security—they need to tell us what they mean by that phrase, so I call upon them to define it.
The Joint Committee also recommended that the phrase “economic wellbeing” should be defined, but the ISC went further and said that economic wellbeing should be subsumed within a national security definition, finding it unnecessarily confusing and complicated. I heartily endorse the ISC’s view in that regard. The third ground is an unnecessary repetition unless there is something sinister behind the definition of “economic wellbeing,” and many Members of the official Opposition, and indeed of my own party, have serious concerns about what that might be about.
Recently, the Prime Minister went so far as to say, ridiculously in my view, that the Labour party is now a “threat to national security”. I am not a member of the Labour party, although I once was when I was a student.
Joanna Cherry
I am very happy to join Labour in many aspects of this Bill, but I have taken a slightly more radical path in middle age as an SNP MP. It is a disgrace to suggest that the Labour party is a threat to national security, and such loose language shows us that the continued undefined use of the term “national security” in enabling legislation is not sustainable.
The ISC also queried both the agencies and the Home Office on the economic wellbeing ground, and it reported that neither the agencies nor the Home Office have “provided any sensible explanation.” I hope that we might get a sensible explanation from the Government today, and I wait to hear whether we get one. Regrettably, the recommendations of the ISC and the Joint Committee have been dismissed, and the core purposes for which the extraordinary powers can now be used remain undefined and dangerously flexible within the Bill.
That is the nub of my concerns about the definitions of “national security” and “economic wellbeing.” The SNP amendments go slightly further than the Labour party is prepared to go at this stage by requiring reasonable suspicion. At the moment, the three grounds contain no requirement for reasonable suspicion that an individual has committed or intends to commit a serious criminal offence, nor even suspicion or evidence that a serious crime has been or is going to be committed. In my submission, that gives licence for speculative surveillance.
Briefly, on the national security ground, the courts have in the past responded with considerable deference to Government claims of national security, viewing them not so much as a matter of law but as Executive-led policy judgments. As a legal test, national security is meaningless unless the Government attempt to tell us what they mean by it. The second ground is similarly broad and open-ended because the Government have not sought to clarify the circumstances in which national security, as opposed to the prevention and detection of serious crime, will be in play.
I invite the Government to table an amendment to tell us what they mean by national security, to explain why it is necessary to have a ground revolving purely around economic wellbeing, to explain why they have discounted the recommendations of the Joint Committee and the ISC, and to tell us why there is no requirement for reasonable suspicion in these grounds.
Simon Hoare
In opening, let me address what I detect is the elephant in the Committee Room, as amplified by the amendment as it was. As I made clear in the July 2015 debate on the Anderson report and on Second Reading, I am not a lawyer, so I view the proposal through the narrow prism of the man on the Clapham omnibus, for want of a better phrase: a practical proposal to try to keep my constituents and others as safe as the Government possibly can. I do not view it through the perfectly proper prism of trained legal eyes and I would not be able to do that.
Coming to the breadth point that the hon. and learned Lady who speaks for the SNP has been making, it is clear to me that, from a legal point of view or from a lawyer’s point of view, the narrower, tighter and more prescriptive the language in statute, the better. It narrows, eliminates, eradicates or whatever the opportunity for a wider debate about the interpretation of this or that word, almost like Coolidge, whose immediate response when told that a senator who had always opposed him had died, was: “I wonder what he meant by that.” I think we should be rather careful. I make no apology for viewing this as just an ordinary guy—a father, a husband, a constituent and a Member of Parliament—who believes it is my duty to support any Government of the day who are seeking to keep our country safe.
Joanna Cherry
Does the hon. Gentleman also accept that, as Members of Parliament, we have a duty to protect our constituents’ civil liberties and privacy? Lawyers look for narrow definitions and certainty not for their pleasure, but to protect their clients. The reason why Members of Parliament should look for narrow definitions and certainties is to protect their constituents.
Simon Hoare
Up to a point, Lord Copper. I find myself in broad agreement with the hon. Member for City of Chester. Likewise, I could not give a tinker’s cuss about most of these things as long as I can look a constituent in the eye were something horrible to happen on the streets of Shaftesbury, Blandford Forum, Gillingham or any of the villages in my constituency. They might look at me and say, “Mr Hoare, are you convinced that you supported everything you possibly could to avoid this atrocity?” I would prefer to say, “Yes, I did.” If it impinged upon or offended against the virgo intacta of civil liberties as a sort of purist academic—I use that word not in an abusive way—definition, I would side with the security argument at every step and turn.
I am not using that as the Luddite argument that someone who has done nothing wrong has nothing to be afraid of. It is absolutely right that to govern is to choose. It straddles that often imperceptible divide between the application of the rule of law and discharging the first duty of the state—to keep the realm safe—and preserving the sacred and long-cherished liberties and freedoms that we all enjoy.
I accept what the hon. and learned Lady says on that point, but it is not just Liberty and Amnesty and other organisations that have access to legal counsel. It is not that the statue, as it emerges through all our processes, would be available only to us and the good guys. It would be available to those who wish us well, but I am going to hazard a guess that one or two of those who wish this country ill—whether in terms of national security, serious crime or acting in an injurious way to our economic wellbeing—may just have recourse to a legally trained brain or two themselves. They, too, would be able to say, “Ah, we’ll do it that way”, because the Home Secretary, the Foreign Secretary, the Secretary of State for Northern Ireland or the Defence Secretary would be so hogtied by the narrow definitions contained in the statute of the Bill, because people sought to stand—this is a phrase I used on Second Reading—like vestal virgins, defending the flame of civil liberty, because that is the flame that must be defended above all others and national security must be secondary to it. That is a perfectly acceptable and reasonable position to take, but it is one with which I profoundly disagree. It offends everything that motivates me as a politician.
We need to be very careful about having, either in the proposed amendments or during the progress of the Bill in Committee and on Report, an obsessive regard to trying to narrow down our language. Providing that the double lock with the judicial oversight remains for all circumstances whereby these warrants and other facilities can be granted—as long as that judicial view is there—that would seem to be in order to secure the provision for the short, medium and longer term, so that we do not have to come back through the legislative process to continually update the narrow language in the Bill to reflect circumstances or address scenarios that, without sounding too much like Donald Rumsfeld, in 2016, we did not think existed or could exist.
It is not from some sort of bovine, recidivist, reactionary, “We are the law and order side of the Tory party” sentiment that I find this quest for the narrowing down of our language to be wrong. It would fetter and constrain the decisions of Ministers and those who, on a daily basis, put their lives at risk under the rule of law to keep us safe. I shall be opposing this set of amendments, just as I will any other amendment, not because my Front Bencher or my Whip advises me to, but merely because I think that there is nothing intrinsically wrong—this is the non-lawyer’s approach—in having broad definitions that provide accountable scope to those who take the decision, so that they are able to take those decisions in response to circumstances as they arise.
Joanna Cherry
I listened carefully to the Minister, and I noted that he said he wanted to provide a bridge on the issue of national security and can perhaps deal with issues and political fears related to that, but that he does not want to significantly change the language on economic wellbeing and is not happy with the SNP amendments in relation to reasonable suspicion. I do not want to get too bogged down on trade union rights and I certainly do not want to kick down the bridge that the Minister wants to build, but I have to say that, on trade union rights, actions speak louder than words. This Government have introduced some of the most draconian anti-trade union legislation that has been seen in this country for many years—worse than Mrs Thatcher’s. In that context, I do wonder whether we can be assured about the Government’s intentions in relation to trade unions. However, the Minister is an honourable man; I take him at his word and will listen to what he has to say in the future on this issue. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 ordered to stand part of the Bill.
Clauses 19 and 20 ordered to stand part of the Bill.
Clause 21
Approval of warrants by Judicial Commissioners
Keir Starmer
I beg to move amendment 62, in clause 21, page 17, line 4, leave out from “must” to “the following matters” in line 5 and insert “determine”.
Keir Starmer
I am grateful for that intervention. There are several different positions here, and we are finding our way. The amendments would take out the review element and make it clear that it is a double lock. There would then be a separate decision by the Secretary of State and a decision by a judge on the same material. Of course, a judge would always give weight to the Secretary of State’s view, but they would still come to a decision of their own. That is position No. 1, and let me be clear that that is what the amendment is aimed at—a true and equal lock.
Joanna Cherry
Does the hon. and learned Gentleman agree that amendment 89, tabled by my hon. Friend the Member for Paisley and Renfrewshire North and I, would specifically take out subsection (2) and the reference to judicial review? That would make clear what he is saying: amendment 62, which I also support, would amend subsection (1) so that the judge would determine the review in regard to necessity and proportionality, and judicial review would come out completely.
Keir Starmer
I agree. I notice that my name is not on amendment 89. I think it should have been, because amendment 62 only works if subsection (2) comes out, but that is neither here nor there at this stage. I am not quite sure what happened, but given that both amendments have been tabled, it does not matter one way or another.
To be clear, the position is that it should be a substantive decision by the judge according to necessity and proportionality, and those terms obviously have their own special application. Through amendment 89, the review, whether by judicial review principles or otherwise, would come out, making it a true double and equal lock.
It is a new approach and a new provision, so it is for Parliament to decide on the appropriate way forward, but the amendments would give clarity and a real safeguard with an equal lock. That is the position. There probably is a fall-back position, which is that if it is to be a review of some sort, amendment 89 should stand on its own feet—that the review should not be on the principles of judicial review, and something more would need to be written into the Bill.
I do not know what response the Minister will give, but this matter goes to the heart of the issue, and it may be that further consideration needs to be given to the precise test. As it stands, the test is insufficiently precise and will lead to difficulties in its application. It is a matter of real concern to the judiciary. Lord Judge does not make such comments without a good deal of thought. If he is concerned about the provision, the Government should be, too. The simple way through is to have a simple but substantive double and equal lock.
The Solicitor General
I am grateful to the hon. and learned Gentleman. I remind myself that we will be able to debate those new clauses but I thought it important to look, in essence, at the full picture of David Anderson’s recommendations, bearing in mind that we had quite a lively debate about the role of the Executive. It would be a mischaracterisation of Mr Anderson’s view about the role of the Executive to say that somehow there was a wholesale move away from the Executive’s position with regard to warrantry and what Government Members certainly strongly feel is the important role of the Executive.
Coming back to where we are with regard to the judicial review test, we have already heard reference to the noble Lord Pannick. The intervention he has made is powerful and it is important that he thinks the test is robust. The criticism is, perhaps, not justified. Of course, that is not the only basis on which we have reached that conclusion. We all know—those of us who are lawyers and those who are not—the growing importance of judicial review in our public life. It is a concept that has evolved and that will continue to evolve. It is flexible, too.
Joanna Cherry
It is so general. I have advised people on the potential for judicial review. Does the Minister agree that it is difficult to advise a client on the potential for judicial review in the absence of a reasoned decision? In this Bill, there is no duty on the Secretary of State to give a reasoned decision, so judicial review scrutiny will be happening in a vacuum in the context of a decision for which no written reasons have been given because the Bill does not demand it.
The Solicitor General
Herein lies the problem. We have the judicial lock—the commissioners, of course, will be giving reasons—so that there is a check and balance upon the decision of the Executive. The hon. and learned Lady makes a proper point, because Executive decisions are administrative decisions that are judicable. I want to avoid further unnecessary and, frankly, unhelpful litigation that will get in the way of the important work of warrantry, which has to be undertaken, bearing in mind not only the interests of national security but, looking down the scale, the various scenarios that will confront commissioners, such as serious crime cases. The flexible scrutiny will allow differing approaches to be taken. Returning to the main point, I am worried that we might end up creating something that is too inflexible, which will create injustice rather than solve the problem.
Joanna Cherry
But how will the judicial commissioner scrutinise the Secretary of State’s decision, having regard to judicial review principles, when she is under no duty to give reasons for it? How will they do it practically?
The Solicitor General
They will have access to all the material that the primary decision maker has. The hon. and learned Lady is right to ask the question but, simply speaking, the judicial commissioner will have access to the material that the Secretary of State has. In fact, the judicial commissioner will be able to ask for more material, so there should not be any fear that the vacuum she mentioned will exist in relation to the judicial lock.
Returning to the obvious experience of judicial commissioners, I am keen to ensure that we end up in a position where commissioners feel that, on a case-by-case basis, they are not only free to agree with the Secretary of State, but are absolutely free to disagree. If there is not that element of flexibility, this double lock will be meaningless. Again, without casting any imputation upon the good intentions of those who have tabled amendments, my concern is that, first, this amendment is based on a difference of opinion on the nature of the judicial commissioner stage. Secondly, there is a danger that we might end up in a position where decisions are being second-guessed in a way with which the judiciary would feel uncomfortable, and where the balance between the actions of the Executive and proper scrutiny by the judiciary is not clearly delineated.
The Solicitor General
I am not going to point to that because, as I have said, it is important to have wide discretion. But equally, as Sir Stanley Burnton said, there will be other approaches and judges will be compelled to take a much closer look or hands-on approach—I think Sir Stanley said “stringent approach”—when looking at the case. But that will depend on the case before the commissioner. For example, a case of extreme importance with potentially draconian impacts deserves a very close look under the microscope. That is important. What I want to get across is that there should be not a sliding scale, but a gradation and wide discretion in the test that allows differing approaches to be taken.
In response to the hon. and learned Gentleman, I would be surprised to see bald decisions on Wednesbury unreasonableness. Bearing in mind that, most of the time, European convention on human rights points will have to be engaged, and, by dint of that, necessity and proportionality will have to come into play anyway. Perhaps the point is too axiomatic to be made, but it is important that we do not get too fixated by a worry that judges will take an old-fashioned clubbish approach to whether the Home Secretary is totally out or order. I do not believe that will be the case, bearing in mind the calibre and experience of the commissioners who have done the work up to now and who I expect will carry on doing it in the unified commission that we will create.
In a nutshell—the point does not improve on repetition—there is a danger that in going down the seductive line of seeking greater clarity, we may end up fettering the reviewer’s discretion, which I do not think is in anyone’s interest and does not support the thrust of what all hon. Members want: an effective lock mechanism that properly involves the judiciary in a way that is unprecedented but welcome in our mature democracy.
Joanna Cherry
I have heard nothing that answers what in my submission is a knockout point about lack of reasons. I am not tooting my own trumpet because it was not my idea. I got the point from my learned devilmaster, Laura Dunlop QC, a distinguished silk at the Scottish Bar and former law commissioner. I asked her to look at this and she said the first thing that occurred to her was how can there be scrutiny under judicial review principles when there is a vacuum of any reasoning. I have not heard any answer to that question in what the Solicitor General has said, with all due respect to him.
On that basis, I remain of the view that amendments 62 and 89 will be essential in due course, but following the course of action we have taken today, I will not insist on them at this stage. I reserve the right to bring them forward at a later stage, about which the Chairman has advised me.
Keir Starmer
I am grateful to the Solicitor General. I have listened carefully to what he has said. There is a difference between us, because I seek to ensure through the amendment that the judicial commissioner is a proper decision maker.
To make the argument that the judges might be fettered is really to misunderstand the amendment that I have tabled. The duty of the judge is to apply the test that Parliament sets out in statute. That is straightforward, and if Parliament is clear about the test, the judge is exercising his or her duties properly in applying the test. There is no question there, but there is this fundamental point between us as to whether it should be review or decision making. I think that is clear enough.
In light of the argument, at this stage I will not push this amendment to a vote, but I will reserve it for a later stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Joanna Cherry
SNP amendment 102 is very similar to amendment 39, which the hon. and learned Member for Holborn and St Pancras spoke to, but there are two differences. First, on the areas in which a judicial commissioner must instruct the special advocate, I have deleted
“in the interests of the economic well-being”
in line with an earlier amendment. Secondly, in relation to the appropriate Law Officer who appoints special advocates, I have inserted, for the purposes of subsection (7)(b), the Lord Advocate as opposed to the Advocate General. The reason for that is that subsection (7)(b) deals with
“the consideration of items subject to legal professional privilege”,
which would relate to devolved rather than reserved matters in general terms. In my submission, it would be respectful for the Lord Advocate as well as the Advocate General to be consulted about special advocates.
I am wedded to the notion of special advocates. I do not have a huge amount to add to what the hon. and learned Gentleman said, other than to point out that David Anderson QC, in paragraph 18 of his written evidence to this Committee submitted following his oral evidence, states that he would
“like to confirm my view that the right of the Judicial Commissioners under the dual lock system should be clearly acknowledged”
and
“use standing counsel to act as amicus where appropriate in relation to applications for the approval of warrants”.
The special advocate scheme that I advocate goes a bit further than that. The purpose of the special advocate would be
“to represent the interests of any person or persons subject to the warrant or the wider public interest”
in the protection of privacy. The amendment would place a judicial commissioner under a duty to appoint a special advocate in a case involving a claim of national security or one that is subject to legal professional privilege. The appointment of the special advocate would ensure that the material produced to support an application is subject to adversarial testing as far as possible. That is the broad thrust of the amendment.
The Solicitor General
I am grateful to the hon. and learned Member for Edinburgh South West and the hon. and learned Member for Holborn and St Pancras. The hon. and learned Lady was very clear about the different basis of her amendment. My concern is that there are two schools of thought here. There is the amicus curiae school of thought, with which I have a great deal of sympathy. One of the roles of the Law Officers is, when we are approached by various jurisdictions, to consider whether the attorney himself should intervene or whether the court should have an amicus appointed. The hon. and learned Gentleman is right to talk about some of the confusion that can exist in regard to inherent jurisdiction. I am going to take that point away and consider it.
I am concerned about a full-blown replication of the important special advocate system that we have to assist, for example, the Special Immigration Appeals Commission, or of the genesis of the Justice and Security Act 2013 and the closed material procedure. There is an important difference between the public interest in having special advocates and this type of scenario. In such cases, there are affected parties—usually respondents to important applications—for whom huge issues are at stake and who need that sort of quality representation within what we accept are exceptional and unusual departures from the principle of open justice. That is why special advocates were created. They perform an invaluable and important role.
I do not see the read-across from that to this scenario. What we have here is an investigatory procedure. It takes place at the early stages—to take a case example—of the investigation of a crime or a threat to national security. There may not be at that stage an identifiable suspect; there is, therefore, a difference and a difficulty in identifying the prejudice that could be caused to the interest of an individual who is a party to the proceedings. It is a different scenario and, tempting though it might be to introduce that type of regime, it would serve only to introduce delay, bureaucracy and extra expense with no tangible benefit to the integrity of the system.
In a nutshell, I will consider carefully the amicus curiae point, but I have wholly to reject a wider approach and the creation of a special advocate system which, frankly, would go beyond even the American jurisdiction, with which comparison is often made—in the foreign intelligence surveillance court in the US they have amici curiae available to assist the court. On that basis, I urge the hon. and learned Member to withdraw the amendment.
Keir Starmer
I have nothing to add. In the light of what the Solicitor General has said I will not press the amendment. I look forward to what he produces and to further discussing that. I beg to ask leave to withdraw the amendment.
Joanna Cherry
I have nothing to add either.
Amendment, by leave, withdrawn.
Question proposed, That the clause, as amended, stand part of the Bill.
The Chair
With this, it will be convenient to discuss:
New clause 1—Power of Secretary of State to certify warrants—
“(1) The Secretary of State may certify a warrant in those cases where—
(a) The Secretary of State has reasonable grounds to believe that the conduct authorised by the warrant is necessary pursuant to section 18(2)(a) (national security) and relates to—
(i) the defence of the United Kingdom by Armed Forces; or
(ii) the foreign policy of the United Kingdom.
(b) The Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(2) A warrant certified by the Secretary of State under subsection (1) is subject to approval by a Judicial Commissioner.
(3) In deciding whether to approve a warrant certified by the Secretary of State under subsection (1), the Judicial Commissioner must determine whether—
(a) the warrant is capable of certification by the Secretary of State under subsection (1); and
(b) in the opinion of the Judicial Commissioner, approving the warrant is necessary on relevant grounds under section 18(2)(a) and subsection (1)(a) or (b) of this section.
(4) Where a Judicial Commissioner refuses to approve a warrant certified by the Secretary of State under this Section, the Judicial Commissioner must produce written reasons for that decision.
(5) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a warrant under subsection (3), the Secretary of State, or any special advocate appointed may ask the investigatory Powers Commissioner to decide whether to approve the warrant.”
This new clause is intended to replace existing Clause 21 and provides for the Secretary of State to certify warrants in cases concerning defence or foreign policy before they are considered by a judicial commissioner.
New clause 5—Power of Secretary of State to certify warrants—
“(1) The Secretary of State may certify an application for a warrant in those cases where the Secretary of State has reasonable grounds to believe that an application is necessary pursuant to section 18(2)(a) (national security) and involves—
(a) the defence of the United Kingdom by Armed Forces; or
(b) the foreign policy of the United Kingdom.
(2) A warrant may be certified by the Secretary of State if—
(a) the Secretary of State considers that the warrant is necessary on grounds falling within section 18; and
(b) the Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(3) Any warrant certified by the Secretary of State subject to subsection (1) is subject to approval by a Judicial Commissioner.
(4) In deciding to approve a warrant pursuant to this section, the Judicial Commissioner must determine whether—
(a) the warrant is capable of certification by the Secretary of State subject to subsection (1);
(b) the warrant is necessary on relevant grounds subject to section 18(2)(a) and subsection (1)(a) or (b); and
(c) the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.
(5) Where a Judicial Commissioner refuses to approve the person’s decision to approve a warrant under this section, the Judicial Commissioner must produce written reasons for the refusal.
(6) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, approves or refuses to approve a warrant under this Section, the person, or any Special Advocate appointed, may ask the Investigatory Powers Commissioner to decide whether to approve the decision to issue the warrant.”
Keir Starmer
I do not wish to speak to new clause 1. It stands or falls with the clause 17 amendments and is to that extent withdrawn along with them.
Joanna Cherry
My new clause 5 is in the same category as new clause 1, the ground of which I think we have covered. The new clauses are slightly different, in that they followed David Anderson’s initial recommendation, but we will obviously revisit the matter at a later stage so I will not take up time unnecessarily to labour the point.
Question put and agreed to.
Clause 21, as amended, accordingly ordered to stand part of the Bill.
Clause 22
Approval of warrants issued in urgent cases
Joanna Cherry
I beg to move amendment 91, in clause 22, page 17, line 29, at end insert—
“(1A) A warrant under this section can only be issued in an emergency situation posing immediate danger of death or serious physical injury to a person.”
This amendment, and others to Clause 22, seek to require urgent warrants can only be issued where it is necessary in an emergency situation posing immediate danger of death or serious physical injury; require that a Judicial Commissioner must immediately be informed that such a warrant has been issued; and reduce the period within which a Judicial Commissioner must decide whether to authorise the warrant to 24 hours after issue.
The Chair
With this it will be convenient to discuss the following:
Amendment 40, in clause 22, page 17, line 30, after “must”, insert “immediately”.
Amendment 41, in clause 22, page 17, line 35, leave out from “ending” to the end of line 36 and insert
“24 hours after the warrant was issued.”
Amendment 42, in clause 22, page 17, line 35, leave out from “ending” to the end of line 36 and insert
“48 hours after the warrant was issued.”
Joanna Cherry
Bear with me a moment, Mr Owen, I have my notes in a bit of a schmozzle, as we say in Scotland—[Interruption.] Or as they say in Ireland, to be accurate. In Scotland they would say they were in a fankle. If you give me two minutes, I will sort myself out.
Joanna Cherry
Thank you, Mr Owen, and apologies to Committee members. The purpose of the amendments is to—sorry, I have lost my train of thought completely.
The Solicitor General
I think we were dealing with urgent cases. I hope that is of some assistance.
Joanna Cherry
Yes, I am very grateful to the Solicitor General. I skipped ahead to modifications, so I will skip back to urgent. The purpose of the amendments is to specify that urgent warrants can be issued only when they are necessary, in an emergency situation that poses an immediate danger of death or serious physical injury, and that a judicial commissioner should be informed immediately that an urgent warrant has been issued. They also seek to reduce the period within which a judicial commissioner must decide whether to approve the issue of a warrant to 24 hours after its issue.
There were differing recommendations from the Joint Committee and the Intelligence and Security Committee. I think I am correct in saying that the ISC recommended 24 hours and the Joint Committee 48. In terms of case law, recent decisions of the European Court of Human Rights suggest that 48 hours would be an absolute minimum, so I would insist on that as a fall-back position.
Victoria Atkins
I sat with my hon. Friend the Member for Fareham and my hon. Friend and neighbour, the Member for Boston and Skegness, on the Joint Committee, where we debated this in great detail. It is right to say that it was not a unanimous decision of the Committee to change the time limit for the urgency provisions. Indeed, I said to the Committee that if that point was ever raised, I would make clear that the decision was not based on any evidence we heard. I will not say that members of the Committee drew the figure out of the air, but—[Interruption.]
Victoria Atkins
Okay, out of the air. The Joint Committee arrived at that figure on the basis of no evidence. That may assist the hon. and learned Lady.
Joanna Cherry
I am grateful to the hon. Lady for being so precise and clear about that. Essentially, the concern about clause 22 is that the scope of the urgent mechanism is extremely broad and ill defined. In my view, it could fatally undermine any safeguard provided by a mechanism for judicial authorisation or indeed judicial review in the double lock.
The Bill provides that an urgent warrant can be issued by the Secretary of State in a case where she considers there is an “urgent need”, which is not defined. We then have the three-day period. As the hon. Lady said, no specific reason has been given for the selection of three days. The Joint Committee took the view that it should be shortened significantly to provide for approval within 24 hours. I think the ISC suggested 48 hours—I apologise if I have got that the wrong way round.
The purpose of the amendments is to remove the urgent provision in the Bill altogether or to restrict it to very limited circumstances, with the urgent authorisation having to take place during a 24-hour period. The concern underlying the amendments is that in their absence, the provisions for urgent warrants in the Bill will drive a coach and horses through even the double lock provision, because they will enable the judicial authorisation part of the procedure to be bypassed in very loosely defined circumstances. That is the case as precisely as I can put it.
Keir Starmer
I will be brief. There is a real concern about the provision for urgent cases being three days. Although we need such a provision, that period allows warrants to be operable before the double lock can apply, and therefore the period should be as short as possible.
The problem is not only that three days is too much but that three days can, I think, be five days, because it is three working days, and therefore there is the potential for three days to morph into more than three. If I am wrong about that, I will happily be corrected. I have put my name to the amendments suggesting 24 and 48-hour periods, to give the Government the option to reduce the threshold to either of those and put it in terms of hours, which removes any possible confusion about the use of the word “days”.
The Solicitor General
This is, of course, an important issue that has already seen a good deal of consideration for the Government and a move away from the original proposal to three working days; the hon. and learned Gentleman is right about that.
Although we are considering the matter carefully, at this stage the right balance is being struck between the interests of the security services and the other agencies in ensuring that crime is detected and prevented at the earliest possibly opportunity, and the interests of preserving the balance between the rights of the individual and the need to deal with crime and threats to national security. I am happy to consider amending the relevant draft codes to deal with the question about the notification to judicial commissioners, so that it is made clear on the face of the code that that should happen as soon as reasonably practicable. That wording is more appropriate than “immediately”, given that it may take a small period of time to draw together the materials that the commissioner will wish to review when considering whether to approve the warrant.
The hon. and learned Member for Edinburgh South West made a point about decision making in a vacuum. The commissioner will have the decision of the Secretary of State and all the materials upon which that Minister has made the decision, as well as access to further material. I think it is clear that the decision maker will have everything they need and more to come to an informed and reasoned decision based upon the principles of judicial review. On the basis of my undertaking to consider amending the draft code of practice, I hope that the hon. and learned Member for Holborn and St Pancras feels able to withdraw the amendment proposing the word “immediately”.
Let me deal with the central points about the decision and the length of time within which the warrant should be approved. The effect of the amendments would be to reduce that, and I recognise that the Joint Committee that undertook the pre-legislative scrutiny of the Bill made a similar recommendation. We have therefore responded in an appropriate way by shortening the window within which urgent action can be taken. That has been widely welcomed. It is an important consideration and an example of how, throughout this procedure, the Government have taken note of reports, listened and acted accordingly on those recommendations.
It is not in anybody’s interests to create so tight a statutory framework that decisions end up being rushed. I therefore consider that the three working days now provided for in the Bill should give sufficient time for the judicial commissioner to be presented with and to consider the grounds upon which the Secretary of State decided to issue the urgent warrant. My worry is that by reducing the time period even further, we would give the commissioner even less time, which would lead to the sort of decision making that would perhaps not be in anybody’s interests, let alone those of the state.
Amendment 91 seeks to define urgency on the face of the Bill and to replace the definition currently provided for in the draft statutory codes of practice with a narrower definition. As the Committee will appreciate, we must provide law enforcement and the security and intelligence agencies with an operationally workable framework. We will have failed with this Bill if we provide the agencies with the powers that they need, but with ones that cannot keep up with the pace and scale of the threats that we face. I know that it is always a challenge for legislators to try and—to use the modern phrase—“future-proof” legislation, but it is important that we create a framework that is not only clear and simple to understand, but sufficiently flexible to take into account the fact that, from month to month, the nature of the threat changes.
I am afraid that the effect of the amendment would be to curtail that ability because the definition would be too narrow. The draft statutory codes of practice, which we have all been considering, define urgency, which is determined by whether it would be reasonably practicable to seek the judicial commissioner’s approval to issue the warrant in the requisite time. That time period would reflect when the authorisation needs to be in place to meet an operational or investigative need.
The code sets out the three categories with which we are familiar: first, where there is the imminent threat to life or serious harm, and I gave the example of a kidnap case earlier. The second is where there is an valuable intelligence-gathering opportunity, where the opportunity to do so is rare or fleeting—that might involve, for example, a group of terrorists who are just about to make that trip overseas and are making the final preparations to do so. The third is where there is a time-limited significant investigative opportunity—here I speak with years of experience of dealing with drugs cases—such as the imminent arrival of a major consignment of drugs or firearms, when timing is of the essence.
I am afraid that narrowing the definition of urgency so that it only relates to an immediate danger of death or serious physical injury to a person would mean significant lost opportunities when it comes to investigation and gathering of intelligence. It would have an impact on the ability to act in a way that would allow interception at a time, for example, that would be apposite to capture a particular drugs seizure.
Another example would be the terrorist cases that I deal with week in, week out—in terms of the function of the Law Officers granting consent to prosecution. If, for example, a group was making final preparations to travel out to Syria to join Daesh, it would cause a problem for the security and intelligence agencies if they were not able to seek urgent authorisation to intercept telephones because there was no immediate danger of death or serious physical injuries.
In my considered opinion, I am afraid that the amendment would allow a significant gap in the security, intelligence and law enforcement agencies’ ability to keep us safe. I do not think that any hon. Member in this House wants that to happen. I know that it not their intention but it is my genuine concern. On that basis, I invite hon. Members to withdraw the amendment.
Joanna Cherry
I have listened carefully to the Solicitor General. The difficulty for him and the Government is this: according to recent case law from Strasbourg, a 48-hour timeframe for authorisation would be the maximum to harmonise the process with that recent case law. The case of Zakharov v. Russia included that a complaint for urgent interception could occur without judicial authorisation for up to 48 hours. There really is no reason why the UK should allow a longer period for approved surveillance than Russia. The difficulty with three working days is that if they fall over a weekend, it can mean five days or, indeed, if it is a bank holiday weekend, six days. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 ordered to stand part of the Bill.
Clause 23
Failure to approve warrant issued in urgent case
Joanna Cherry
I beg to move amendment 43, in clause 23, page 18, line 7, leave out “may” and insert “must”.
This amendment, and others to Clause 23, would require a Judicial Commissioner to order that material collected under an emergency warrant which he does not subsequently authorise, be destroyed, except in exceptional circumstances.
The Chair
With this it will be convenient to discuss amendment
Amendment 44, in clause 23, page 18, line 9, leave out paragraphs (3)(b) and (c) and insert—
“(3A) If the Judicial Commissioner determines that there are exceptional circumstances, the Judicial Commissioner must instead impose conditions as to the use or retention of any of that material.”
Joanna Cherry
I will keep this fairly brief. The amendment would require a judicial commissioner to order that material collated under an urgent warrant that he does not authorise subsequently be destroyed, except in exceptional circumstances. As the Bill stands, should material be obtained under an urgent warrant that is later unapproved by the judicial commissioner, the judicial commissioner may, but is not required to, order destruction of material obtained. Once again, it is my argument that the provision, as it stands, creates a significant loophole that could be used to bypass the legal protections that purport to be provided by the judicial review mechanism.
An urgent warrant allows the relevant agency to access material that it may not be authorised to access in law. Permitting the retention of that material in anything other than exceptional circumstances creates a clear incentive to use the urgent process in inappropriate cases so, in order to ensure that the applying agencies—the agencies that apply for warrants—only use the urgent process where strictly necessary, the Bill needs to ensure that there are no advantages to be gained from seeking an urgent warrant where it is not strictly necessary. The amendment would ensure that where a judicial commissioner does not authorise the use of the warrant retrospectively, the position must be that the material collected is destroyed, except in exceptional circumstances.
The Solicitor General
I am once again grateful to the hon. and learned Lady for setting out her place clearly and with admirable succinctness. There is a problem with the amendment because it very much begs the question of what might constitute exceptional circumstances. The question of who will determine whether the threshold had been met in a given instance is also raised. Introducing that caveat to the Bill would unnecessarily complicate the commissioners’ decision-making process. The commissioners will be extremely well qualified to decide how material should be used when cancelling a warrant. They will take into account all the relevant circumstances on a case-by-case basis, and the clause, as drafted, allows them to do just that without the necessity of introducing subjective terms.
The amendments also suggest that the only two viable options following the failure to approve a warrant issued in an urgent case are to destroy the data or, in undefined exceptional cases, to impose restrictions on their use. That is unnecessarily limiting. There may be occasions when vital intelligence is acquired that could be used to save lives or to prevent serious crime, and where using that intelligence may not involve any further undue incursions into privacy. In that situation a judicial commissioner may wish to allow the intercepting agency to continue with its work without restriction in the interests of the great benefit it might have. Of course, that is a decision for the commissioner to determine, and clause 23, as drafted, allows just that. I am afraid that the amendments would mean that a judicial commissioner could not choose, after carefully considering the facts of the matter at hand, to allow such vital work to continue unrestricted. My worry is that the unintended consequences of such a proposal could seriously inhibit the work of the intercepting agencies.
Finally, the amendments would entirely remove the ability of a commissioner to decide what conditions may be imposed upon material selected for examination. By removing clause 23(3)(c), the remainder of the clause would relate only to material obtained under a warrant. Of course, a targeted examination warrant does not authorise the obtaining of any material, but rather the examination of material obtained under a bulk warrant, which is why clause 23(3)(c), as drafted, includes a specific provision that allows a judicial commissioner to direct how material that has been selected for examination under a rejected urgent warrant should be used.
In effect, the amendments attempt to change a carefully constructed safeguard that gives judicial commissioners absolute control over the actions of the intercepting agencies. I fear that the unintended result of these amendments would be an overall reduction of the judicial commissioners’ powers. For those reasons I invite the hon. and learned Lady to withdraw her amendment.
Joanna Cherry
I have nothing to add, so I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 23 ordered to stand part of the Bill.
Clause 24
Members of Parliament etc.
Keir Starmer
I beg to move amendment 104, in clause 24, page 18, line 38, leave out subsections (1) and (2) and insert—
‘(1) This section applies where a warrant issued under this Part would seek to authorise any activity which may involve access to special procedure material.
(2) Special procedure material subject to subsection (1) will include—
(a) communications which are subject to legal professional privilege;
(b) journalistic material which a person holds in confidence; and
(c) communications sent by, or intended for, a member of the relevant legislature.
(3) The warrant subject to subsection (1) may only be granted on application to a Judicial Commissioner.
(4) The Judicial Commissioner must be satisfied that there are reasonable grounds for believing that—
(a) a criminal offence has been committed;
(b) the material is likely to be of substantial value to the investigation of that offence;
(c) other proportionate methods of obtaining the information have been tried without success or were not tried because they were bound to fail;
(d) it is in the public interest that the warrant is granted, having regard to the—
(i) benefit likely to accrue to the investigation and prosecution if the information is accessed,
(ii) importance of the prosecution, and
(iii) importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege, the integrity of journalists’ sources, and/or communications with members of relevant legislature.
(5) Material is subject to legal professional privilege means—
(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;
(b) communications between a professional legal adviser and his client or any person representing his client and any other person with or in contemplation of legal proceedings or for the purposes of such proceedings;
(c) items enclosed with or referred to in such communications and made in—
(i) connection with the giving of legal advice, or
(ii) connection with the contemplation of legal proceedings or for the purposes of such proceedings.
(d) communications made with the intention of furthering a criminal purpose are not subject to legal professional privilege.
(6) A person holds journalistic material in confidence for the purposes of this section if—
(a) it is held subject to such an undertaking, restriction or obligation;
(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.”.
This amendment establishes a consistent approach to the safeguards afforded to parliamentarians, legally privileged material and journalists seeking to protect their sources.
Joanna Cherry
Picking up on what the hon. and learned Gentleman just said, the purpose of amendment 104 is to address a lack of consistency of approach in the Bill regarding the protection afforded to correspondence with Members of Parliament, journalists and lawyers. I stress that the purpose behind the amendment is not to seek a particular privilege for parliamentarians, lawyers or journalists, but to protect the correspondence of members of the public with lawyers, parliamentarians and journalists.
The Bill contains different approaches. Clause 24 affords protections to Members of Parliament subject to targeted interception warrants, but not to journalists seeking to protect their sources. Similarly, although the provisions later in the Bill on access to communications data to target journalistic sources provide for authorisations to be subject to judicial review, access to other comms data that might engage the privilege afforded to Members of Parliament or to legally privileged material is not so protected.
Amendment 104 would provide consistency of approach to all three categories of privileged information, modelling the approach broadly on the provisions in the Police and Criminal Evidence Act 1984—an English Act for which I must say I have much admiration. I am still trying to get to grips with it, but I think it is a good piece of legislation. It protects legally privileged material and journalistic material from interference during police searches.
The amendment would also provide a special procedure for access to MPs’ and journalists’ correspondence, which would be dependent on independent judicial authorisation, as opposed to authorisation by politicians. With all due respect to the Home Secretary, I did not find her triple lock on protection for parliamentarians terribly convincing. That is not a point about the present Government—it could apply to any Government of any persuasion—but it seems to me that having the Prime Minister as the triple lock does not give the appearance of political impartiality. Where parliamentarians’ communications are being interfered with, the authorisation should be judge-only.
Last night, I chaired an event with speakers from the Bar Council, the Law Society of England and Wales and the National Union of Journalists. They all consider that the protections in the Bill for journalists, for legal professional privilege and for parliamentarians are not sufficient. My own professional body, the Faculty of Advocates, which is the Scottish equivalent of England’s Bar Council, also considers that the protections in the Bill are not sufficient, as does the Law Society of Scotland.
I will quote what the Law Society of Scotland said in its evidence to the Joint Committee:
“On the 14 December we provided oral evidence to the Joint Committee, alongside the Law Society of England and Wales, expressing our shared and serious concerns in relation to professional legal privilege and the provisions of the Bill. Legal professional privilege”—
referred to in Scotland as the obligation of confidentiality—
“is key to the rule of law and is essential to the administration of justice as it permits information to be exchanged between a lawyer and client without fear of it becoming known to a third party without the clear permission of the client. Many UK statutes give express protection of LPP and it is vigorously protected by the courts. The ‘iniquity exception’ alleviates concerns that LPP may be used to protect communications between a lawyer and client which are being used for a criminal purpose. Such purpose removes the protection from the communications, allowing them to be targeted using existing powers and not breaching LPP.”
I do not wish to be seen to be making any special pleading, either as a lawyer and a politician or on behalf of the journalist profession. It is more about special pleading on behalf of the members of the public who contact journalists, parliamentarians and lawyers, and who wish to do so in confidence for a very good reason.
The Solicitor General
I am grateful to the hon. and learned Member for Holborn and St Pancras for seeking not to get ahead of himself with respect to the arguments on legal professional privilege. I feel a degree of sympathy, because the hon. and learned Member for Edinburgh South West was inevitably going to deal with these matters in the round. Although different considerations apply to each category—parliamentarians, journalists and legal professionals—both hon. and learned Members are absolutely right to lay emphasis not on individuals in those professions but on the client, the source and the constituent. That is why these roles have a special status: it is about the wider public interest. The Government absolutely understand that and we place it at the very heart of our consideration of how warrantry should operate in these areas.
As you will know, Mr Owen, there has already been significant movement by the Government as a result of the various reports that we know all too well. I am delighted that matters of legal professional privilege are now in the primary legislation in great measure. The debate will therefore be about the extent to which safeguards are placed in the primary legislation and about what form they take. I will heed the hon. and learned Gentleman’s exhortation and not stray too far into that area.
I will therefore deal with the amendment to clause 24 and the question of parliamentarians. We heard last year the Prime Minister’s statement about the issue and the important requirement that he or she is to be consulted before the Secretary of State can, with judicial commissioner approval, issue a warrant to acquire communications sent by or intended for a Member of a relevant legislature. The clause applies to all warrants for targeted interception, with the exclusion of warrants authorised by Scottish Ministers, and includes the all-important requirement for the Prime Minister to be consulted before a targeted examination warrant can be issued to authorise the examination of a parliamentarian’s communications collected under a bulk interception warrant.
Part 5 contains similar provisions for equipment interference carried out by the security and intelligence agencies. The important protection in clause 24 will apply to the communications of Members of Parliament, Members of the House of Lords, United Kingdom MEPs and Members of the devolved Parliaments and Assemblies. It is important to observe that for the first time, what was a doctrine for the best part of 50 years is now codified and enshrined in primary legislation.
It is important to remember in the spirit of the wider public interest that nobody, least of all parliamentarians, is above the law. The Wilson doctrine has perhaps been misunderstood for many years as a blanket exemption for parliamentarians, but that is exactly what it was not. It was actually an explanation that there will be times when the national or the public interest demands that the communications of Members of Parliament be intercepted because there might be criminal purpose behind them. We hope that that will never happen, but sadly human experience teaches us otherwise. It is therefore important to strike a balance between the proper exercise of the privileges of being a Member of this place or of the other Assemblies and Parliaments in the United Kingdom and the principle of equality before the law.
The amendments introduce the concept of special procedure material and try to combine the approach to the safeguards afforded to the three categories that I have discussed. To put it simply, I submit that what is on the face of the Bill and in the accompanying codes of practice already provide those safeguards and indeed go beyond what can be encompassed in primary legislation. At this stage, I will not say anything further, because I want to deal with points that I know hon. Members will raise about the other categories.
Keir Starmer
I have already indicated that I am not putting the amendment to the test. I beg to ask leave to withdraw the amendment.
Joanna Cherry
That is my position as well. I am happy to have addressed the principle at this stage and to look at an amendment at a later stage.
Amendment, by leave, withdrawn.
Clause 24 ordered to stand part of the Bill.
Clause 25
Items subject to legal privilege
Keir Starmer
I beg to move amendment 49, in clause 25, page 19, line 22, after “items”, insert “presumptively”.
Investigatory Powers Bill (Fifth sitting) Debate
Full Debate: Read Full DebateDepartment: Attorney General
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Attorney General
Investigatory Powers Bill (Fifth sitting)
Joanna Cherry ExcerptsThursday 14th April 2016
(8 years, 8 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 April 2016 - (14 Apr 2016)
Keir Starmer
In the light of the statement you have just made, Mr Owen, I want to thank the Bill Office team for the hard work they have done on tracing down the amendments—particularly amendments 252 to 256—so that they can be starred for today’s purposes. They are working extremely hard and we are all really grateful. I also thank the Government, because although some of these amendments do not add a great deal to other amendments that have been tabled, amendments 252 to 256 are substantive. The Government could have taken the view that they have not had sufficient time to prepare for them, through no fault of their own. I also thank you, Mr Owen, for starring them and allowing us to debate them so that we can move on through the Bill today.
Let me turn to the amendments to clause 30, which deals with modifications. As you will remember, Mr Owen, on Tuesday we debated at some length the necessity and proportionality tests when a warrant is to be issued, as well as the role of the Secretary of State, the scrutiny that the Secretary of State applies to a warrant and the role of the judicial commissioners. Although there was disagreement between us on who should exercise precisely which function, there was agreement that there should be intense scrutiny at all stages to ensure that the warrant is necessary and proportionate and correctly identifies the people, premises and operations to which it relates.
That can be seen in clause 15(1) and (2), which we touched on on Tuesday and which relate to the subject matter of warrants. Clause 15(1) states that a warrant may relate to
“a particular person or organisation”
or
“a single set of premises”.
Then there is the thematic targeted interception warrant in clause 15(2), which sets out the group of persons who could be identified.
Clause 27 complements clause 15 by setting out the requirements that must be met by the warrants. I draw attention to clause 27, because clause 30, dealing with modification procedures, relates back to it. The requirements that must be met under clause 27 are as follows. A warrant that relates to a particular person or organisation must name or describe that person or organisation. A warrant that relates to a group of persons related by a purpose or activity must describe the purpose or activity. A warrant that applies to more than one organisation must describe the investigation and name or describe the persons involved. Therefore, on the face of it, there is scrutiny in the process. Then there is a requirement to set out in some detail on the face of the warrant what it actually relates to—the people, activity and premises, as set out in subsections (3), (4) and (5) of clause 27.
Clause 27(8) sets out that
“Where…a targeted interception warrant or mutual assistance warrant authorises or requires the interception of communications…or…a targeted examination warrant authorises the selection of the content…the warrant must specify the addresses, numbers, apparatus, or other factors, or combination of factors, that are to be used for identifying the communications.”
That is important because it sets out the higher level of protection for content, either under a targeted intercept warrant itself or under an examination warrant on the back of a bulk warrant. The requirements under clause 27 sit with all the scrutiny, checks and safeguards of the double-lock mechanism. They are all additional important safeguards.
We then get to clause 30, which states:
“The provisions of a warrant issued under this Chapter may be modified at any time by an instrument issued by the person making the modification.”
This is to modify any of the warrants I have just described, which will have set out, on the face of the warrant, the details of the application of the warrant. The modifications that can be made are set out under clause 30(2)(a) and (b). Subsection (2)(a) relates to adding, varying or removing names, descriptions and premises. Those are the three subsets under clause 27—in subsections (3), (4) and (5)—which are all required. Clause 30(2)(b) relates to the factors that are relevant to content warrants, either as a targeted content warrant or as an examination warrant following on from a bulk one.
Clause 30(2) states:
“The only modifications that may be made under this section are”,
suggesting that it is rather limiting. However, if we go back to clause 27, I think—I will be corrected if I am wrong—that the only thing that is left out in relation to modification is the testing and training activities. Everything else is up for grabs in relation to modification. It is “only” those provisions, but what is not said is that that is practically everything that will ever be on the face of any warrant, save for a training warrant and a testing warrant. Therefore, the scope of modification is very wide.
Then there is a subdivision in clause 30(4) between “major” modifications and “other” modifications. That does not quite sit with clause 30(2), but a major modification is essentially clause 30(2)(a), but without the removing: if a name is removed, it is not a major modification, but if a name, description, organisation or premises is added or varied, that is a major modification. Everything else, which is what is left in clause (30)(2)(a) and the factors in clause 27(8), is described as “minor”.
I want to trace through the journey of a modification, starting with a major modification. These are considered to be the most important modifications. The first issue that crops up is who can make a modification. Under clause 30(5), it is the Secretary of State, a member of the Scottish Government in certain cases or a senior official. The first, obvious point is that there is no double lock. There is no reference to a judicial commissioner. There is no notification requirement and no requirement for the judicial commissioner to consider the warrant; it simply is the Secretary of State and this additional senior official in certain circumstances.
I should mention in passing that a major modification can even be made in an urgent case by someone described in clause 30(6)(d) and (e) as
“the person to whom the warrant is addressed, or…a person who holds a senior position in the same public authority”.
That is in addition to a senior official. In an urgent case, they can add a name, a premises or an organisation.
We then move on to the purposes. For major modifications, we jump straight to clause 30(9), where I acknowledge there is a necessity and proportionality test—the decision maker has to think about the necessity and proportionality of the amendment. Where the decision is made by a senior official rather than the Secretary of State, there is a duty to notify the Secretary of State. That is it for major modifications. The Secretary of State—there is separate provision for Scotland—or a senior official makes the decision on necessity and proportionality grounds. They can add practically anything that could have been on the face of the warrant, apart from testing and training. I read into the duty to notify the Secretary of State that by implication she must consent to it, because otherwise she would presumably reverse the decision, although that is not expressed on the face of the Bill.
There is no duty to go to a judicial commissioner, no reference to a judicial commissioner and no notification to a judicial commissioner of the modification, which can be very wide. A warrant could be issued on day one to cover a given individual. On day two, three or four, another individual, premises or organisation can be added without the need to go through the double-lock process. That cuts so far through the safeguards as to make them practically meaningless in any case that comes up for modification.
Joanna Cherry (Edinburgh South West) (SNP)
The hon. and learned Gentleman will have seen David Anderson’s supplementary written evidence. In relation to clause 30, he wrote:
“New persons, premises or devices…may be added on the say-so of a senior official, without troubling…the Judicial Commissioner…I adhere to my opinion that any such additions should be approved by the Judicial Commissioner.”
Is that the general thrust of the hon. and learned Gentleman’s amendments?
The Solicitor General
Let me come back to the point. I disagree with the shadow Minister; I think the language is clear. I want to make it clear, on the record, that we do not seek, through the code of practice or through any sleight of hand in the drafting, to elide or blur divisions so that we can somehow get round the problem. If he and I were named on a warrant, another warrant would be needed in order to add another person, because the original warrant was targeted at named individuals: it did not have “and others unknown”. That is why we have introduced this provision to improve the position.
Joanna Cherry
Does it not ultimately boil down to the statutory interpretation of subsection (2)(a)? The Solicitor General, who is a very distinguished lawyer, considers that it does not permit adding a new person. David Anderson QC, an equally distinguished lawyer, has stated in written evidence that he considers it does. The shadow Minister, also a distinguished lawyer, has argued eloquently that he does not believe that the Bill or the code prevent adding a new person. What is required from the Government is absolute clarity, because of the wide ambit of these powers.
The Solicitor General
I am grateful to the hon. and learned Lady. I am not saying that another name cannot be added. With a wider original warrant that says “Persons A, B and others unknown”, of course an extra name can be added. If the warrant’s original terms of reference are narrow—if they just include A and B—adding person C requires applying for a new warrant. With the greatest respect, I cannot make it any plainer or clearer than that. An ordinary warrant cannot be turned into a targeted, thematic warrant; that is the point. If a new warrant is needed, it must be applied for, and then the double lock will work.
The Solicitor General
My hon. Friend is quite right about that, and I think commissioners would be concerned if for some reason there was an inappropriate overuse of mechanisms such as the one in question, which might appear in future evidence. I believe that we are getting the balance right and therefore the review will, I think, be a useful backstop, but nothing more, I hope.
Joanna Cherry
The Solicitor General has just said he thinks the Government are getting the balance right, but he has also said he will take the matter away and look at it carefully. When he does that, will he also look at the evidence of Sir Stanley Burnton, who told the Committee that he was concerned that substantial modification could be made to a warrant under the Bill with no judicial approval or even notification that names had changed?
The Solicitor General
I am very well aware of the evidence of Sir Stanley, which is why I have couched my remarks in the way I have. It is of course important to balance what he said against the view of his predecessor, Sir Anthony May, who in the 2015 annual report said:
“A case could be made however, that it would be appropriate to use thematic warrants more widely against, for example, a well-defined criminal or terrorist group working for a common purpose.”
I have said what I have said: my thoughts today are that the clause is perhaps getting an unfair battering. However, I listen to everything that is being said, including the hon. and learned Lady’s remarks.
Amendment 95 deals with the question of whether the Bill should require necessity and proportionality with respect to the consideration of minor modifications. I am going to think about it. It is a reasonable point and we may be able to return to it on Report.
To conclude, I think that, in the round, the Government have set out our position clearly. We will consider two points that have been raised, in particular, which I have addressed; but in general terms, while I will resist any amendments that are pressed to a vote today, I want more time to reflect. I hope that that will give Members an opportunity to reflect as well. For those reasons, I urge the hon. and learned Gentleman to withdraw the amendment.
Keir Starmer
I am grateful for that intervention. This is one of those matters on which we probably need to do as much of the work now as possible, because when the code finally comes back for a vote one way or the other, if there is a deficiency over an issue such as this, we will be put in the invidious position of voting down the whole code because we cannot change it. I am very happy to work with the Solicitor General to set out our concerns even more clearly and to see whether we can make improvements. I doubt that all my concerns would be met, but we might be able to draft a vastly improved model. With that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I was minded to push for a vote on clause stand part, but given what the Solicitor General has said and the very detailed arguments made by the hon. and learned Member for Holborn and St Pancras, I am content not to push the matter to a vote at this stage. Like the hon. and learned Gentleman, I would be very happy to work with the Solicitor General and the Government in looking at this clause.
The Solicitor General
I welcome the hon. and learned Lady’s remarks. They are noted, and I am sure we will be able to work on this constructively. I intend to make no more remarks for fear of repeating the observations I made a moment ago.
Question put and agreed to.
Clause 30 accordingly ordered to stand part of the Bill.
Clause 31
Approval of major modifications made in urgent cases
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
Clause 31 is linked to clause 30 and I am minded to oppose it, but I shall not do so at this stage as I would like to see what proposals the Government come back with.
The Solicitor General
I am obliged to the hon. and learned Lady.
Question put and agreed to.
Clause 31 accordingly ordered to stand part of the Bill.
Clause 32 ordered to stand part of the Bill.
Clause 33
Special rules for certain mutual assistance warrants
Question proposed, That the clause stand part of the Bill.
Mr Hayes
Without question, we will return to the matters in hand. The hon. and learned Member for Holborn and St Pancras is very helpful, but I appreciate your guidance, Mr Owen.
The effect of removing subsection (5) would leave the company alone to decide what reasonable steps were required to be taken for giving effect to the warrant. I do not think we should accept that position. Our engagement with overseas companies over the past few years has been clear. They require certainty of their obligations, and I know that is what the hon. and learned Gentleman is seeking. For that reason, Parliament enacted the Data Retention and Investigatory Powers Act 2014 as emergency legislation, to remove uncertainty.
I am not sure, given the threats we face, whether it is appropriate to leave a private company to determine whether it is obliged to do what is asked of it by legal instrument. The Bill already requires any requirements and restrictions under the law of the country where a company is based to be taken into account. In my view, it is wholly right that the UK Secretary of State makes that decision rather than a corporation.
The effect of the amendments in practice would be to transfer fundamental decision making to the corporation and I am not comfortable with that. I think it is right that these companies providing communications services to users in the UK should be required to comply with our law. I know that is not necessarily always their view but it is certainly mine and the Government’s. That must include UK warrants requesting the content of criminal and terrorist communications.
Members might recall the Home Secretary’s comments on Second Reading that made clear that we are working with the United States—I know the hon. and learned Gentleman wanted that assurance—to establish a new framework, which would release American companies from any perceived conflicting legal obligations.
The hon. and learned Gentleman makes a perfectly reasonable point about balancing a range of possibly competing or conflicting legal requirements but, frankly, multinational companies deal with that kind of thing all the time. These are companies dealing with all kinds of legal provisions and demands from all kinds of places in the world. This is not uncharted territory for them.
Joanna Cherry
It is incumbent on me to challenge something the Minister has just said. As I understood him, as far as possible it is desirable for the law of the UK in this respect to have effect abroad. How would the Minister feel if the French passed legislation that they wanted to have effect in England and Scotland?
Mr Hayes
That would be a more appropriate question to put if we were debating different amendments. I do not want to stray too far from your guidance, Mr Owen, so I will stick strictly to the amendments, rather than being encouraged down a tributary that I would not necessarily seek or want to navigate, particularly as it is implicitly about the European Union.
Let me return to the subject in hand. I accept that this is challenging but we need flexibility in the way we go about these things, coupled with determination that everyone must play their part, including these corporations, in helping to deal with the threat we face. We are trying to do that as much as we can through co-operation, as the hon. and learned Member for Holborn and St Pancras knows. It is vitally important that we retain the ability to take action against companies that do not comply with their obligations.
Once an agreement is reached it will be placed before Parliament under the Constitutional Reform and Governance Act 2010 in the normal way. On that basis, notwithstanding the hon. and learned Gentleman’s perfectly proper desire to probe the matter, I invite him to withdraw the amendment.
The Chair
Mr Starmer has indicated that he wishes to withdraw the amendment. Ms Cherry, did you wish to catch my eye?
Joanna Cherry
Yes. I do not have any amendments, but I wish to speak on these clauses.
Amendment, by leave, withdrawn.
Clause 34 ordered to stand part of the Bill.
Clause 35
Service of warrants outside the United Kingdom
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I wish to speak about the service and implementation of warrants outside the UK. What I have to say applies equally to clauses 35 and 36. The genesis of my submission is not corporate concerns but strict legal principle. Violation of that principle would have important international political and commercial implications.
The Minister said a moment ago that everyone must play their part; I presume that he meant in fighting terrorism and serious crime. I wholeheartedly agree, but everyone must play their part in accordance with law. Clauses 35 and 36 seek to replicate provisions that are already in DRIPA. At the time when DRIPA was passed, the Government claimed that RIPA had always had extraterritorial effect and that the provisions in DRIPA were simply intended as clarification, but that claim was misleading and ill-founded in law.
As I tried to indicate in my intervention a moment ago—it was partly in jest, as Conservative Members frequently complain about legislation from continental Europe, but it was also serious—in general terms, legislation passed by the UK does not have direct effect in other jurisdictions, just as we would not expect the law of France to have direct effect in the United Kingdom. For the Government to claim that RIPA had extraterritorial effect without the Act even saying so makes absolutely no sense.
The Minister referred to David Anderson’s report, “A Question of Trust”. David Anderson noted at paragraph 11.17 of the report that
“overseas service providers are generally unhappy with the assertion of extraterritoriality in DRIPA 2014, which they did not necessarily accept (despite the view of the UK Government) to have been implicit in the previous law and had not encountered in the laws of other countries.”
As a Scottish nationalist, I forebear from commenting on the unique assertion of the United Kingdom that its law applies in everyone else’s country when others do not claim that, but I will move on with the quote from David Anderson:
“While legal compulsion was in principle preferable to voluntary compliance, it was thought that the unilateral assertion of extraterritorial effect would be met by blocking statutes, was not ‘scalable to a global approach’ and was viewed as ‘a disturbing precedent’ for other, more authoritarian countries.”
There is a concern that, if the United Kingdom decides to tell the world that its legislation applies in other countries, it would be a spur for more authoritarian regimes to do likewise.
David Anderson went on to note that when countries seek to enforce their legislation extraterritorially, such powers might come into conflict with the legal requirements in the country in which the company that has been asked to comply through a legal request is based or stores its information. Companies explained to David Anderson that they did not consider it was their role to arbitrate between conflicting legal systems. That must be right. The protection of human rights should not be left to the good will and judgment of a company, nor indeed should the enforcement of important powers to fight terrorism and serious crime be left to the judgment of a company.
David Anderson went on to say that principled concerns had been expressed by companies:
“They expressed concerns that unqualified cooperation with the British government would lead to expectations of similar cooperation with authoritarian governments, which would not be in their customers’, their own corporate or democratic governments’ interests.”
During discussion of David Anderson’s reports, about the draft Bill and on Second Reading on the Floor of the House, we have heard frequently that the Bill, if the British Parliament gets it right, could be an international template. That is what worries me about the clauses: the example is not a good international one to set, unilaterally to declare that our law must apply in other countries, because there is a real risk that authoritarian regimes might do likewise. We would not want that.
Lucy Frazer
I am looking at the clause, which is not massively dissimilar to all the provisions in the White Paper about service on companies in or out of jurisdiction. The clause is on service, so I am struggling with the hon. and learned Lady’s talk about extraterritoriality.
Joanna Cherry
As I said, I am dealing with clause 35, “Service of warrants outside the United Kingdom”, and with clause 36, “Duty of operators to assist with implementation”, which serves clause 35 and imposes a duty on operators to assist with implementation outside the UK. That is why, as I said at the beginning of my submission, clauses 35 and 36 have to be discussed together.
I want to be clear that I am not saying that we should not have provisions that deal with extraterritorial enforcement, or that we should not have allowance for it. Clearly, we have to have that, but the question is how we go about it. Mutual legal assistance agreements have already been mentioned and, in my submission, the most appropriate and probably most successful way for the British Government to seek to access information held overseas or by companies based overseas, or to have provisions that will allow the Government to do so, is to extend and improve the use of the mutual legal assistance agreements.
In “A Question of Trust”, David Anderson concluded in recommendation 24 that
“the Government should…seek the improvement and abbreviation of MLAT procedures, in particular with the US Department of Justice and the Irish authorities”—
Ministers alluded to that—
“and…take a lead in developing and negotiating a new international framework for data-sharing among like-minded democratic nations.”
David Anderson’s report also referred to the work of Sir Nigel Sheinwald, and we have heard a bit about that already. David Anderson suggested that Sir Nigel’s could be the “decisive voice” in the matter. In a written statement in response to the Anderson review on 11 June last year, the Prime Minister said:
“the Government will be taking forward Sir Nigel’s advice, including pursuing a strengthened UK-US Mutual Legal Assistance Treaty process and a new international framework. As David Anderson recognises in his report, updated powers, and robust oversight, will need to form the legal basis of any new international arrangements.”
It is most regrettable that, in the light of what the Prime Minister said, this Bill is completely silent on the promised new framework. Instead, it simply returns to what I would submit is a rather lazy and potentially dangerous assertion of extraterritorial effect. It is concerning that a piece of legislation that purports to be comprehensive on this matter is silent on the significant issue of how surveillance operates in the global communications environment, despite the fact that the Prime Minister outlined the need for reform.
My argument is that these two clauses are wholly inadequate to achieve what the Government say they want to achieve. They fly in the face of legal principle and, importantly, they could cause international political difficulties as well as international commercial difficulties.
Investigatory Powers Bill (Sixth sitting) Debate
Full Debate: Read Full DebateDepartment: Attorney General
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Attorney General
Investigatory Powers Bill (Sixth sitting)
Joanna Cherry ExcerptsThursday 14th April 2016
(8 years, 8 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 14 April 2016 - (14 Apr 2016)
Joanna Cherry (Edinburgh South West) (SNP)
The clause deals inter alia with interception in immigration detention facilities, and it is that which leads me to oppose its inclusion in the Bill. We can see that there is some replication of previous legislation in the provisions that deal with interception in prisons and psychiatric institutions, but the provision on immigration detention facilities is new and it is deficient in several respects. The theory underlying it is deficient, because immigration detention facilities are dealt with in a part of the Bill that includes psychiatric hospitals and the facilities are defined to include immigration removal centres, which are short-term holding facilities in which people, including families with children, are held in the so-called pre-departure accommodation.
Immigration detention has been the subject of much discussion on the Floors of both Houses because it is done by administrative fiat and without limit of time. The person detained will not have been brought before a court or tribunal to have the lawfulness of their detention or entitlement to bail considered, unless they instigate such a process; and the powers to detain are very broad and cover a large number of scenarios. The Bill states that conduct is to be authorised if it is done in the exercise of any power conferred by or under the detention centre rules or the rules for short-term holding facilities.
The Minister for Security (Mr John Hayes)
It may help the hon. and learned Lady to abbreviate her remarks if I say that the provision is not intended and cannot be used to deal with someone’s asylum or immigration status. That is not its purpose. With that assurance, perhaps the last point she made will not quite hold the water in her mind that it currently does.
Joanna Cherry
That does not really give me the assurance I seek. I was going to say that, under the clause, conduct is to be authorised if it is done in the exercise of any power conferred by or under the detention centre rules, or the rules for short-term holding facilities and pre-departure accommodation made under sections 157 and 157A of the Immigration and Asylum Act 1999 respectively. The latter sets of rules do not actually exist. Rules governing the regulation and management of short-term holding facilities were made in 2002, but it took until 2006 for draft rules to appear covering similar ground for short-term holding facilities as the detention centre rules do for immigration removal centres.
Back in 2006 the Home Office consulted on draft rules, to which various persons responded. In 2009 the Home Office consulted on another draft of the rules, to which there were further responses, many of them adverse; a number of freedom of information requests and parliamentary questions followed. In April 2012 the rules were described by the then Minister, the right hon. Member for Ashford (Damian Green), as being “still under development”.
In March 2014, during the passage of the most recent immigration Bill, which became the Immigration Act 2014, Lord Taylor of Holbeach gave a commitment to Lord Avebury, who had been chasing the rules since 2006, that
“rules governing the management and operation of short-term holding facilities and the Cedars pre-departure accommodation will be introduced before the Summer Recess.”—[Official Report, House of Lords, 3 March 2014; Vol. 752, c. 1140.]
Lord Avebury was informed before the recess that the commitment would not be met. He continued to pursue the matter, and draft rules were finally published on 18 February this year, almost a decade after the first draft was published and some 14 years after they were envisaged. That wait does not appear to have produced a version markedly different from earlier versions or particularly tailored to short-term facilities. In those circumstances, it is very far from clear what powers are being given by the current Bill. That shall be the gravamen of my exception to the clause.
In his review of immigration detention, Sir Stephen Shaw paid special attention to the problems of short-term holding facilities and the dreadful conditions in some of them. We have all heard about that on the Floor of the House. His concerns led him to recommend that a discussion draft of the short-term holding facility rules should be published as a matter of urgency. In the meantime, after he had said that, Her Majesty’s chief inspector of prisons published a damning report on one particular facility, the Longport freight shed in Dover, describing the dire state of the facilities there. He said:
“on various occasions Home Office staff told us that they did not consider Longport to be a place of detention…despite detainees being in possession of legal authority to detain documentation and obviously being unable to leave. At this facility, the normal mechanisms of internal oversight and accountability that should apply to any form of detention were lacking.”
Under such circumstances, the notion of any lawful exercise of the powers contained in clause 44 seems fanciful.
There are also problems with immigration removal centres. The latest version of the detention centre rules dates from 2001. They were last amended in 2005 to update the name of the tribunal hearing immigration cases and bail applications, but by the time that was done the name itself was out of date because it had already been replaced by the immigration and asylum chamber of the first-tier and upper tribunals. The rules contain a broad range of powers from powers to fingerprint individuals and powers of search, to powers to identify survivors of torture or persons with a mental or physical illness; powers on medical information and notification of illness and death; powers to segregate and use force, and powers to carry out compulsory tests for drugs. There are also rules regarding visitors to centres and contractors.
My point is that the rules cover the sorts of matters that would be covered by prison rules but they apply to a different regime and to people who have not been detained by the courts or by due process of law. The overall effect is a lack of clarity. When one is working against the background of rules that do not exist or, if they do exist, lack clarity, a clause such as clause 44 potentially has a very far-reaching impact on people whose civil liberties are already severely undermined by the circumstances of their detention. The Government do not need to take just my word for that; it is a view widely held, including by a number of Government Back Benchers and peers.
Keir Starmer (Holborn and St Pancras) (Lab)
We will not oppose the clause but I wish to put on record our concern about immigration detention and the intercept of communications in immigration detention facilities. There is growing concern, as has already been said, about the fact of that detention, the length of it and the conditions. There have been a number of reports, to which the Government have responded. In those circumstances, it is incumbent on the Government to justify the clause, although we will not seek to delete it.
Mr Hayes
I will be equally brief. There is a misconception about this matter. The Bill as drafted simply ensures that any interception carried out at a detention centre and under detention centre rules is lawful. No purpose is intended other than the maintenance of safety and security of the people in those centres. It is clearly right that officers should be able to intercept attempts to send contraband material, for example, such as drugs, in particularly sensitive environments. The power cannot be used to deal with the outcome of any immigration cases, asylum applications and so on.
The Immigration and Asylum Act 1999 contains the power to make rules for management of immigration detention centres. Clause 44 provides that interception, carried out in accordance with those rules will be within the law. In a sense, it is as simple as that. I can see why the hon. and learned Lady might have misunderstood this, but I can assure her that that is what is in the Bill and, I put on the record, is the Government’s position. Rather than detain the Committee now, it might help if I send copies of the detention centre rules to Committee members, as they contain the essence of the argument that I have just made.
Joanna Cherry
My essential objection to the clause is that subsection (1) states:
“Conduct taking place in immigration detention facilities is authorised by this section if it is conduct in exercise of any power conferred by or under relevant rules”,
with the relevant rules described in subsection (2), and the underlying “relevant rules” are wholly inadequate. There has been a long history of problems with the rules, so the clause rests on a very shaky and unsafe foundation. I am concerned to protect the civil liberties of persons who are not criminals, who are not guilty of any violation of the law, but who are detained under immigration rules and whose civil liberties are already severely curtailed.
Mr Hayes
I have a great deal of regard for the hon. and learned Lady’s diligence, but she is tilting at windmills. The clause is pretty straightforward. The points she makes about the management of detention centres may be perfectly reasonable debating points for a different Bill at a different time, but this Bill is not really about the management of detention centres and similar places. That matter is rightly dealt with in the relevant legislation. This Bill is merely about the application of certain powers to those centres to ensure that they are lawful. It is not much more complicated than that. On that basis, I commend the clause to the Committee.
Question put, That the clause stand part of the Bill.
Keir Starmer
I am grateful.
Question put and agreed to.
Clause 47 ordered to stand part of the Bill.
Clause 48
Exclusion of matters from legal proceedings
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I oppose the inclusion of the clause in the Bill. Clause 48, with schedule 3, broadly replicates the existing procedure in section 17(1) of the Regulation of Investigatory Powers Act 2000, whereby material obtained by way of an intercept warrant cannot be used as evidence in ordinary criminal proceedings.
Schedule 3 makes a number of exceptions to allow intercept evidence to be considered in civil proceedings where there is a closed material procedure in place—that is where a party and his or her legal team are excluded. Those proceedings would include, for example, proceedings under section 6 of the Justice and Security Act 2013, proceedings in the Special Immigration Appeals Commission or under the Terrorism Prevention and Investigation Measures Act 2011. Schedule 3 makes no exception for criminal proceedings, except in so far as material may be disclosed to the prosecution and to the judge so that the judge might determine whether admissions by the Crown are necessary for the trial to proceed in a manner that is fair. Deleting clause 48 would remove that exclusion, so that there would be an exception for criminal proceedings. It would also permit intercept material to be treated as admissible in both ordinary civil and ordinary criminal proceedings, subject to the ordinary exclusionary rules applicable to other proceedings, including public interest immunity and the provisions of the Justice and Security Act in civil proceedings.
I am indebted to Justice, the human rights group of lawyers that includes members of all parties and none, for its help in formulating my argument for deleting the clause. Justice has long recommended the lifting of the bar on the admission of intercept material as evidence in civil and criminal proceedings. In 2006, it published a document “Intercept Evidence: Lifting the ban”, in which it argued that the statutory bar on the use of intercept as evidence was “archaic, unnecessary and counterproductive”.
The United Kingdom’s ban on intercept evidence in criminal proceedings reflects long-standing Government practice, but it is out of step with the position in many other Commonwealth and European countries, and it has proved increasingly controversial over time. Importantly, the European Court of Human Rights has recognised the value placed on admissible intercept material, in countries where it is available. It has said that admissible intercept material constitutes
“an important safeguard; against arbitrary and unlawful surveillance, as material obtained unlawfully will not be available to found the basis of any prosecution”.
Victoria Atkins (Louth and Horncastle) (Con)
Has the hon. and learned Lady taken into account the Criminal Procedure and Investigations Act 1996, which ensures fairness of disclosure in English and Welsh courts, as practised by many Members of the Committee, and is at the centre of the arguments against admission of this evidence?
Joanna Cherry
I have considered it, but we are not talking about disclosure, we are talking about the admissibility of evidence. As the hon. Lady will very well know, things may be disclosed to lawyers in the course of proceedings to try, as I said earlier, to make sure that there is a fair trial, but they are not necessarily admissible. I am talking about lifting the ban on the admissibility of intercept evidence.
Victoria Atkins
If there is something under the code that assists the defence or may undermine the prosecution, the prosecutor is obliged to make that known to the judge. A decision is then taken as to whether the disclosure of that material is so necessary that, in effect, the trial cannot continue.
Joanna Cherry
Of course the hon. Lady is absolutely right. I said that that was the case earlier, but that is not the end of the matter. As the European Court of Human Rights has recognised, where intercept material is admissible, its admissibility constitutes
“an important safeguard: against arbitrary and unlawful surveillance”.
I know many Government Members are not too keen on the European Court of Human Rights; they might find the Privy Council report published December 2014, “Intercept as Evidence”, more palatable. In paragraph 84, it confirmed that a fully funded model for the removal of the ban could result in a
“significant increase in the number of successful prosecutions.”
That report also reflected concerns of agencies and law enforcement bodies that removing the ban without full funding could reduce its effectiveness. I acknowledge there is a funding issue and I am sure the Government will want to talk about that.
What I am really saying is that the Bill is a lost opportunity to remove the ban on admissibility of intercept material in criminal proceedings, which could benefit all. The Committee has heard what the Privy Council and the European Court of Human Rights have said on that. Many other countries manage to operate effective surveillance systems in which intercept material is admissible in criminal proceedings in certain circumstances. As I said, there will always be public interest immunity and the provisions of the 2013 Act in civil proceedings to allay some of the concerns Government Members might have.
The Joint Committee on the Draft Investigatory Powers Bill recommended that the matter should remain under review, and in paragraph 675 of its report invited the Government to take note of the “significant perceived benefits” of using intercept material in criminal proceedings. There are other arguments in favour of removing this ban. Members may want to think about how the current bar on the use of targeted intercept material relates to a new focus in the Bill on expanded and untargeted access to communications data.
Victoria Atkins
How would the hon. and learned Lady recommend that prosecuting counsel deal with an application from the defence to reveal the methodology used by the security services in obtaining intercept material? If the ban is removed, how is prosecuting counsel to answer that?
Joanna Cherry
It is not about the methodology; it is about the admissibility of the material itself. Far be it from me to lay down rules, at this stage of proceedings, for the Crown Prosecution Service or the Crown Office and Procurator Fiscal Service in Scotland. That is something that will have to be worked out, but it will not be worked out in a vacuum, because the Privy Council has looked at this detail and many other countries have a system such as this that works.
It comes back to a continuing theme in my concerns about the Bill. Let us not be inward-looking. Members of my party are sometimes accused of being narrow nationalists, but I often think that is an allegation more accurately directed at the Conservatives. We should look at practice elsewhere in the world. Britain is not uniquely placed to decide how to have the best and fairest surveillance system. Our security services probably are world leading—I recognise that, and I mean no disrespect to them—but we are not here just to please them; we are here to protect our constituents’ interests, as well as human rights in general, and to produce legislation that is balanced and fair.
I oppose the clause because I think there are good arguments in favour of making intercept material admissible in criminal proceedings. As the hon. Lady has indicated complex procedural rules would have to be built up—we have had a ban in our two legal systems in Scotland and England for so long that we would have to go back to the drawing board and think very carefully. She is right to say that this is not an easy matter, but we are not starting with a blank slate. If we do not want to look to Europe—I know that people are not too keen on Europe at the moment—we can look to the experience of other Commonwealth countries.
Victoria Atkins
The reason I keep rising when the hon. and learned Lady mentions other countries is that England and Wales have an extraordinarily thorough—I want to say “generous,” but that is not the right word—disclosure regime, which is not mirrored elsewhere in the world. Look at the United States: the disclosure tests that occur in this country have very little relationship to what happens in America, so it is not right to compare the two.
Joanna Cherry
The hon. Lady makes a fair point that England and Wales have very clear disclosure procedures. Now, thank goodness, so does Scotland as a result of a number of Supreme Court decisions. We had a long way to go 10 years ago, but we have since come a long way. This is not about disclosure; it is about admissibility. Those are two very different things, as she well knows. Frequently things are disclosed that are not admissible.
Victoria Atkins
If evidence is admissible, the defence is quite within its rights to ask that question of prosecuting counsel. It is a question that is asked in a different form when a defendant suspects that there is an informant. How is prosecuting counsel to argue against that?
The Chair
Order. If the hon. Lady wishes to make interventions, they are to be short. She has an opportunity to make a contribution afterwards.
Joanna Cherry
At present, in the United Kingdom intercept evidence is not admissible in criminal trials. My purpose in opposing the clause is to make it admissible in criminal trials and proceedings, but there would have to be very careful rules and procedures, and the nature of our disclosure systems both north and south of the border will need to be taken into account.
I invite Members to consider, on the one hand, how the ban on the use of such material balances the new system that the Bill seeks to introduce of expanded and untargeted access to communications data and whether lifting the ban on the admissibility of intercept evidence in criminal trials would, as the Privy Council has said, increase the likelihood of successful prosecutions and, on the other hand, whether it might also reduce the reliance on administrative alternatives to prosecution, such as terrorism prevention and investigation measures, and on the use of untargeted forms of surveillance. Members will also have to consider whether the Government’s cost base analysis is accurate and sustainable. We cannot say that the ceiling would fall down on the security surveillance system in this country if we removed the ban, because the system operates effectively in other countries.
Keir Starmer
It is of course the long-standing practice of all Governments to maintain this exclusion. The current form is effectively to continue the regime as it has operated until now. The regime has been reviewed a number of times, and the last review was probably in 2014. As has already been mentioned, the Privy Council said that the regime’s removal could lead to an increase in the number of successful prosecutions. The exclusion is frustrating, and I was frustrated in a number of cases when I was Director of Public Prosecutions where, had it been possible to deploy such evidence, individuals who could not be convicted and locked up for serious offences might have been successfully charged and prosecuted. So the ban is a source of frustration because the net result is that, where someone cannot be charged because of this rule, there are only two possibilities in serious cases. One is that they continue to be subjected to surveillance, which can be extremely expensive and resource-intensive. The other is that they are put through some preventive measure, which has advantages and disadvantages but also a shelf life, which is normally shorter than the sort of sentence they might have received if the evidence had been admissible and a conviction had been obtained.
Keir Starmer
Thank you for your indulgence, Mr Owen. I am grateful to the Solicitor General for indicating that he will write, and I am more than happy to have it in writing. That information is important because it is central to the debate about the roles of the Secretary of State and the judicial commissioner. It is not just me. Other people need to be assured on the role and accountability of the Secretary of State. It is one thing to say, “She can be asked in a Committee about it”, but it is another to point to the legal route by which that can happen in practice in a way that allows a degree of accountability. It is not intended as a trick question, and if it can be dealt with in a letter, I would be grateful.
Question put and agreed to.
Clause 50 accordingly ordered to stand part of the Bill.
Clause 51
Offence of making unauthorised disclosures
Joanna Cherry
I beg to move amendment 79, in clause 51, page 41, line 18, at end insert—
“(4) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”
This amendment seeks to provide a public interest defence to the offence of disclosure in relation to a warrant issued under this Part.
The amendment is about whistleblower protection and would provide a defence for the criminal offence of disclosure in relation to a warrant issued under this part of the Bill. The offence as framed in clause 51 includes disclosure of the existence and content of a warrant as well as disclosure of the steps taken to implement a warrant.
The offence is subject to a maximum penalty of five years’ imprisonment. If committed, it is clearly a serious offence—the maximum penalty reflects that—but there are strong arguments that there should be a defence of disclosure in the public interest. By their very nature, surveillance powers are used in secret, with the vast majority of those subject to them never realising that surveillance has taken place. That means it is vital that sufficient checks, balances and safeguards are in place to ensure that the powers are used appropriately. I know that is why we are here, so apologies for stating the obvious. It is part of the checks, balances and safeguards to ensure that those who, in one way or another, witness or have knowledge of abuse or mistakes are able to bring that to the attention of individuals capable of addressing it, which may on occasion include bringing information to public attention. The provisions in clause 51 that criminalise the disclosure of information relating to the use of interception powers risk shutting down a vital route of ensuring accountability for the use of surveillance powers unless there is the defence of disclosure in the public interest.
Mr Hayes
This is an interesting amendment. It deals with the tension, which I think all Committee members recognise, between allowing the proper opportunity for those who have legitimate concerns to bring them forward to be dealt with and encouraging feckless complaint. Much of what we do in this House in framing law means dealing with that dilemma, and this is a good example.
The hon. and learned Gentleman—I think that the hon. and learned Lady said it first, actually—drew particular attention to the Joint Committee report. I refer to paragraph 629, which recommends that
“the Bill should contain an explicit provision for Communication Service Providers and staff in public authorities to refer directly to the Judicial Commissioners any complaint or concern they may have with the use of the powers under the Bill”,
and goes on similarly.
That is precisely what we intend and what we have tried to set out. That said, the hon. and learned Lady will understand that it is important to create a duty, as clause 49 does, not to make unauthorised disclosures. Clause 50 sets out the exceptions to that duty, and clause 51 provides for the offence of making an unauthorised disclosure. Providing a public interest defence of the kind that she discussed is unnecessary in light of the exceptions already in the Bill. In my view, it might even encourage feckless or unlawful disclosures.
Joanna Cherry
The defence would not apply to a feckless or unlawful disclosure. If somebody sought to pray in aid that defence, the jury would have to decide, under legal direction from a judge, whether what had been done was in the public interest. Something feckless—which I gather means “without good reason”—would not be in the public interest.
Mr Hayes
There is a balance to be struck, of the kind that I described. The hon. and learned Lady is right that the route to the commissioner must be clear and straightforward, allowing people of the kind that the hon. and learned Gentleman described to know how they can bring their concerns to his attention. That is why clause 203 provides the information gateway that I spoke about earlier. That is the point made by the Joint Committee. What we have done in clause 203 is essentially give life to the Committee’s recommendations about a direct route to the commissioner.
Joanna Cherry
Does the Minister accept that there might be situations in which an immediate disclosure is required to prevent conduct that is seriously unlawful? That is the situation where the defence is required. Somebody might find themselves in a position of having to make a public disclosure immediately to prevent unlawful conduct. Rather than going around the houses looking for advice or being assured after the fact that what they did was all right, they need to know that there is a defence of public interest to encourage them to make a disclosure immediately to prevent unlawful conduct.
Mr Hayes
Yes, but I am not so sure that, in the modern age, we do not live in precisely the opposite circumstance to the one the hon. and learned Lady sets out. All kinds of information are put into the public domain, whether for right or wrong and whether for good or bad reasons. That information cannot then be withdrawn and it is often taken to be fair and true, when it is anything but. I am not so sure that we do not need a process that is sufficiently rigorous that the commissioner is better placed to take a view on what is, or is not, in the public interest.
I will go further than that. It seems to me that, if we are going to have the commissioner, we have to vest power in his or her hands. If we then created all kinds of other means for dealing with these issues, I suspect that would undermine the commissioner’s significance and discourage people from taking their concerns to the commissioner.
However, I think perhaps we can reach a synthesis around the way we make the route known. In clause 203, we have done what the Joint Committee asked us to do—I note that there are distinguished Members sitting behind me who were on that Committee. But I am not sure that we have thought enough about how to inform people about the route they can take under clause 203, so I will ask my officials to look at that again. There is an information challenge here, because it is all very well for the cognoscenti—there are many of them in this room—to know about such things, but I am not sure that that is good enough. So I will meet the hon. and learned Lady halfway—halfway in my judgment, at least, even if not in hers—by ensuring that we look closely at how well informed people are about their ability to go down the route I have set out. On that basis, I ask her to withdraw the amendment.
Joanna Cherry
I wish to insist on the amendment.
Question put, That the amendment be made.
Joanna Cherry
Where we have encountered the phrase “economic wellbeing of the UK” before, there has been another subsection to say that that only applies to persons outside the British islands, but there is no such corollary in clause 53. Does the hon. and learned Gentleman agree that that is worrying? If I am wrong, no doubt I will be corrected by the Government.
The Solicitor General
It is with this amendment, I am afraid, that we have a strong disagreement. To say that there are no thresholds is a misrepresentation of the situation. Putting it bluntly, the Government’s worry is that creating a serious crime threshold will miss a whole panoply of crimes that are extremely serious to victims. I am thinking in particular about crimes relating to harassment, stalking and other types of offences that would not fall within the threshold of serious criminality.
It is important that we couch our remarks carefully—the hon. and learned Gentleman has tried to do that, and I respect him for it. We are not talking about targeted interception here; we are talking about the retention of evidential leads—information that could, not of itself build a case, but which, in combination with other material, could allow investigators to build a case against a suspect. The analogy is with existing comms data, namely telephonic records and mobile phone records—the sort of material that he, I and others on the Committee have regular use and an understanding of, as prescribed by the RIPA regime. We are all familiar with it. The difficulty is that, as the days go by, the reliance by criminals on conventional methods of telecommunication changes.
The old system, where the SMS message would be the way things would be done, is increasingly falling into disuse. WhatsApp, internet chat forums and all sorts of encrypted means of communication are now being used. There is no doubt that the ability of the agencies—the security and intelligence agencies, the police and other agencies—to obtain even those evidential threads is therefore becoming more difficult. We are not talking about content, nor should we be. I draw an analogy with the sort of drugs observance case where the police officers can see people coming and going from a house that is of interest, but cannot see what is going on inside that house. That is what we are talking about here. Adopting these amendments would be entirely the wrong step to take.
Joanna Cherry
It is interesting that the Solicitor General chooses the example of surveillance in a drugs operation to tell us what we are talking about. That would be a serious crime, but as the shadow Minister has drawn attention to, clause 53(7) allows authorisations to obtain data not just for serious crimes, but for a whole plethora of things, including protecting public health, taxes, duties, levies and so on. Notwithstanding his opening comments, does he not accept that it is telling that the example he chooses is one of serious crime?
The Solicitor General
Not all drugs supply is necessarily serious. We might be talking about a particular class of drugs, which might not qualify within the criteria. Is the hon. and learned Lady seriously suggesting that we should not have the capability to draw evidential leads on cases of harassment, stalking or other offences that we all know are a particular problem when it comes to the abuse of victims?
Joanna Cherry
Stalking is, in my respectful submission, a serious crime. The thrust of these amendments is that the authorisation should be for serious crime, and by a judge.
The Solicitor General
The hon. and learned Lady wants to have her cake and eat it. The hon. and learned Member for Holborn and St Pancras said he wants a much higher threshold. I am sorry, but we cannot play around with this. The Committee is dancing dangerously on the edge if it seeks, in an ad hoc way, to try to subjectively define what serious crime is.
The Solicitor General
I hear what the hon. and learned Gentleman says, but I do not agree with him about the threshold. It is set out in subsection (7). I can give another example: what about a missing person inquiry? We would not know whether it was a crime; it might well be a young person who has run away. We all have some direct or indirect experience of that.
I will address the point, but I have to be careful, because the case to which the hon. and learned Gentleman has referred is sub judice. I do not disagree with any of his characterisation, by the way, and of course I have read with care the Court of Appeal judgment of Lord Justice Lloyd Jones, but the hearing in the Court of Justice of the European Union is this week, I think. We will have to see how that develops.
I am very conscious of how case law develops in this area, and I am mindful of it, bearing in mind my duty as a Law Officer to uphold the rule of law. I am sure the hon. and learned Gentleman understands that, but where we are is in a sensible place. My worry is that if we start to get too restrictive, we will in effect end up in a position in which many serious matters—matters that are serious to the victim, but might not be serious according to other criteria—are lost or missed.
I have already mentioned necessity and proportionality. I should also pray in aid the fact that there will have to be compliance with a detailed code of practice and independent oversight and inspection of the regime by a senior judge, currently the Interception of Communications Commissioner. The current internal authorisation regime is working well. No deliberate abuse of it has been identified in any ICC reports, which speaks volumes for the integrity of the current system.
Joanna Cherry
Will the Solicitor General accept that there have been severe concerns lately about what turned out to be rather destructive surveillance activities by the Metropolitan police in relation to covert human intelligence sources? Does he agree that it is highly unlikely that such practices would have occurred if there had been a system of prior judicial authorisation, rather than internal authorisations?
The Solicitor General
The hon. and learned Lady knows, of course, that that matter is now being investigated, in an inquiry led by Lord Justice Pitchford. I am not saying that she is not entitled to mention it, but it really is a different set of circumstances. That particular means—the covert use of human intelligence sources—is not what we are talking about, with the greatest respect. We are talking about ensuring that authorities prescribed by statute have the capability to continue finding the sorts of evidential lead that until now have been almost exclusively the province of conventional telecommunications.
Joanna Cherry
Perhaps I can put another example to the Solicitor General. Towards the end of last year, it was revealed that, due to what a judge labelled systemic internal failings in how the National Crime Agency applied for a warrant, a number of trials were at risk of collapse. Earlier in the year, Mr Justice Hickinbottom lamented what he called an
“egregious disregard for constitutional safeguards”
within the NCA, in the case of Chatwani and others v. the National Crime Agency and others. Those are examples of where the system is not working.
The Solicitor General
I am familiar with what the hon. and learned Lady is talking about, but again, that involves a particular failure by the NCA on warrantry. Here we are talking about various agencies’ abilities. With respect to her, it is not the same. We are discussing a different regime. Tempting though it is to read over, that would be to frustrate the important work of many law, detection and investigative agencies in our country.
I do not see the purposes within the Bill as inconsistent in any way with the purposes set out in the exemptions from and limitations of the right to privacy in article 8.2 of the European convention on human rights. There has never been a serious crime threshold for the acquisition of communications data. No such limit is placed in article 8.2, which is why the Government’s position on this issue—I will not mention the case—is legally respectable and sustainable. That is why the provisions in the clause meet the challenge that faces the agencies in a way that is proportionate and necessary, and that keeps pace with the breathtaking rate of change of technology being taken advantage of by many people of good will, but also by people of less than good will. For that reason, I ask that the amendment be withdrawn.
Joanna Cherry
I beg to move amendment 228, in clause 53, page 42, line 21, leave out subsection (1)(b)(ii).
The Chair
With this it will be convenient to discuss the following:
Amendment 231, in clause 53, page 43, line 5, leave out subsection (4)(d).
These amendments to Clause 53 provide that in order to access communications data, a relevant public authority must seek a warrant from a Judicial Commissioner rather than undertake a system of internal authorisation. These amendments also provide for warrants to authorise conduct of a relevant public authority and require steps be taken by a telecommunications operator, removing the need for separate “authorisations” to public authorities and “authorisation notices” to telecommunications operators.
Amendment 131, in clause 55, page 45, line 24, leave out subsection (2).
Joanna Cherry
I am very much in agreement with everything that the hon. and learned Gentleman said on the last group. The Scottish National party’s position is that access to communications data should be by means of a judicial warrant. We share the concerns that he articulated about the lack of a proper threshold in clause 53(7). I do not intend to press these amendments to a vote. I associate myself with his position, and I reserve my position on this matter for a later stage. This is an absolutely crucial clause, and it is extremely concerning, as he said, that there is no proper threshold in it.
The Solicitor General
I am grateful to the hon. and learned Lady for her succinct remarks. I will simply make the following observations about her amendment. It would remove the ability of the relevant public authorities to apply for communications data authorisation to test equipment or for technology development purposes. It is vital that those who are authorised to acquire communications data are able to test existing systems and to assist the development of new equipment or systems. Without that ability, we will not know whether the equipment will provide the required information in a real-life investigation, and nor will we be able to fix errors in systems where they are detected. We fear that that could have a seriously detrimental effect on our law enforcement agencies’ ability to prevent and detect crime and may lead to mistakes, which are in nobody’s interest—least of all that of the public, whom we serve. Therefore, this is a vital further safeguard. With respect, we are somewhat puzzled about why the amendment was tabled, but we heard the hon. and learned Lady and we respect her position. For those reasons, we oppose the amendment.
Joanna Cherry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 110, in clause 53, page 43, line 39, after “detecting”, insert “serious”.
Joanna Cherry
I do not oppose the removal of safeguards from the Bill. However, this is the first time that internet connection records have raised their head in the Bill and I feel compelled to foreshadow the more detailed arguments that will be made when we reach clause 78.
The collection of internet connection records is one of the fundamental changes that the Bill seeks to introduce, and subsections (4), (5) and (6) of the clause contain the first mention in the Bill of such records. I think that I am correct in saying that they are in fact only mentioned in one further clause—clause 78.
Clause 54(6) sets out to define an internet connection record but fails spectacularly to do so because of its widely drawn language, which clearly attempts to cover every imaginable base. The Scottish National party understands that the police and other authorities need powers befitting the digital age but, as legislators, we cannot pass a clause with such a significant impact on civil liberties—on personal privacy—without a clear definition in the Bill.
The industry has made it clear that it is willing to work with the Government to try to help implement ICRs. The trouble is that the industry does not know what ICRs are—and it looks like the Government do not know either. I addressed that point in quite a lot of detail on Second Reading. It is interesting that the Internet Service Providers Association says:
“The Investigatory Powers Bill deals with highly complex technical matters, however, our members do not believe that complexity should lead to a Bill lacking in clarity.”
I very much associate myself with those comments.
We cannot legislate in a vacuum and if the Government cannot provide further detail and clarity so we all know what an internet connection record is and what we are legislating for, we will have no option but to try to remove the collection of such records from the Bill through our amendment to clause 78. But the Scottish National party objects to the inclusion of internet connection records not just because of the difficulty of defining them—in my speech on Second Reading, I suggested that they are not at all a sort of internet replication of a phone record, as the Home Secretary seemed to think they were—but because of their intrusiveness. They would provide a detailed record of every internet connection of every person in the UK over 12 months, with a log of websites visited, communications software used, systems updates downloaded, desktop widgets used and every mobile app used, and logs of any other device connected to the internet, such as games consoles or baby monitors. I said in that speech that that would be “fantastically intrusive” and I stand by that.
Law enforcement bodies can currently obtain similarly extensive internet connection data for specific surveillance targets in several ways. First, they can request that telecommunications operators in the future retain the data of specific targets. Secondly, they can request retrospective internet connection data on specific targets from operators who temporarily store such data for their own business purposes. Thirdly, if they are seeking to prevent or detect serious crime, they can request data or assistance from GCHQ, which has a remit to provide intelligence for those purposes. Intelligence sharing to tackle online child sexual exploitation will be fortified by the establishment in November last year of the National Crime Agency and GCHQ joint operations cell.
The Intelligence and Security Committee noted in recommendation I of its report on the draft Bill that the delivery of ICR proposals
“could be interpreted as being the only way in which Internet Connection Records may be obtained. However, this is misleading: the Agencies have told the Committee that they have a range of other capabilities which enable them to obtain equivalent data.”
The ISC recommended that the Bill be amended in the interests of transparency, but no transparency has been provided.
The Scottish National party believes that the case supporting this huge expansion of data collection by internet service providers and its benefit to law enforcement is deeply flawed and contradicted by the available evidence, and that it has been accurately described as overstated and misunderstood.
I reiterate that there are no other “Five Eyes” countries in which operators are or have been forced to retain similar internet connection data. In Europe, as we heard the Danish tried it and decided that it was not of any utility. They thought about trying it again recently, but decided not to repeat the experiment. David Anderson noted in his report “A Question of Trust”, on page 265, about the collection of that sort of internet connection data that
“Such obligations were not considered politically conceivable by my interlocutors in Germany, Canada or the US.”
He therefore said that a “high degree of caution” should be in order.
There is also a legal issue with the mooted collection of internet connection records, because in 2014 the Court of Justice of the European Union ruled in the Digital Rights Ireland case that indiscriminate collection and storage of communications data is a disproportionate interference with a citizen’s right to privacy. I therefore argue it is unacceptable that the Government are attempting to bypass that ruling to extend their policy of blanket data retention.
It will no doubt be argued that, provided there are sufficient safeguards, the Court’s concerns from that case do not apply. However, as we just heard, there are not independent safeguards because we do not have judicial authorisation for access to internet connection records. We have instead a long list of public officials who have access to such records through internal procedures. I want to make it clear that I do not seek to impugn the integrity of public officials, but the reality is that their primary concern will relate to the operational capacity of their agency. That is a perfectly understandable matter of organisational culture, but that is also a reality that mitigates in favour of independent third-party authorisation.
If we collect internet connection records, we face falling foul of European Union law. We will also face falling foul of European Union law if we collect them without proper independent authorisation. I oppose clause 54 because it is the first point at which internet connection records rear their head in the Bill and the Scottish National party is not convinced that the Government have made a case for internet connection records. We are not convinced that there are not alternative routes to get at the necessary information and we are concerned that the collection of such records will be in violation of the law and of civil liberties.
Keir Starmer
We shall not seek to vote down the clause, but I want to raise some serious concerns about internet connection records because, as has been said, I think this the first time that they appear in the Bill. Subsection (6) is important because that provides the definition that
“‘internet connection record’ means communications data which…may be used to identify, or assist in identifying, a telecommunications service to which a communication is transmitted by means of a telecommunication system for the purpose of obtaining access to, or running, a computer file or computer program, and…comprises data generated or processed by a telecommunications operator in the process of supplying the telecommunications service to the sender of the communication”.
That is a wide definition. I listened carefully to the evidence of senior law enforcement officials about their ask on internet connection records, and they made it clear that they were concerned to have the who, the how, the when and the location.
I appreciate that there are other provisions—in fairness, I will come to those—but my concern is that that definition is much wider than their ask. That is important because subsection (4) deals with the point of access to internet connection records and what the designated senior officer can authorise. I accept that that subsection contains the restriction that internet connection records cannot be obtained or accessed unless one of the purposes identified is complied with—
“which person…which internet communications service…where or when”.
That has a resemblance to what senior law enforcement told us was their ask, but the problem is that the definition in subsection (4) is much wider. It might be asked whether that matters. Well, it does matter because clause 78—the retention clause—as we have observed, provides that the Secretary of State may issue a retention notice in relation to relevant communications data. Clause 78(9) makes it clear that relevant communications data may be used to do a list of things—I will return to the list—and that internet connection records are included. That definition of internet connection records crops up again in clause 78(9). Therefore, anything within that description, so long as it also complies with the other bits of the subsection, may be retained.
The Solicitor General
As a preface to my remarks, which will have to be succinct, I do not want to stray into the debate on clause 78. I do not want to criticise the hon. and learned Member for Edinburgh South West, but she has made points that will properly be answered when we come to that debate. She is right to raise the point about the Danish experience and, like me, she has read the evidence in the Committees, but there are significant differences between what we are trying to do in the UK and what happened in Denmark. The Danish experience was not a great one. There are significant operational, financial and other differences that mean that the Danish Government are looking carefully and with a great interest at what we are attempting to do in the UK. This is not straightforward and it is not easy, but it is our duty as legislators to get ahead of the curve when it comes to the development of technology and to make sure we are not playing catch-up when it comes to criminals’ increasingly sophisticated use of the digital sphere.
Joanna Cherry
Setting the Danish experiment to one side, can the Solicitor General tell us why the other “Five Eyes” countries are not requiring operators to retain similar internet connection data? Why are no other western democracies doing that?
Joanna Cherry
I wish to speak briefly on clause 58. I indicate that I will also cover clauses 59 and 60, which I also oppose. The clauses provide for the establishment and use of a filter to gather and analyse communications data. They provide for a communications data request filter, which was a feature previously proposed in almost identical terms in the rather unpopular draft Communications Data Bill. The only change made is that under clause 58(5), which states that the Secretary of State
“must consult the Investigatory Powers Commissioner about the principles on the basis of which the Secretary of State intends to establish”
the filter.
The request filter essentially is a search mechanism that allows public authorities to conduct simple searches and complex queries of the databases that telecommunications operators will be required to build and hold. The Joint Committee on the Draft Communications Data Bill described the request filter in that Bill as
“a Government owned and operated data mining device”,
which, significantly, positions the Government at the centre of the data retention and disclosure regime. Access to the filter and the data it produces would be subject to the same self-authorisation processes as all communications data. In practice, the request filter would be a search engine over an enormous federated database of each and every citizen’s calls, text records, email records, location data and internet connection records. Those would be made available to hundreds of public authorities.
I am sure the Government will, as they have in the past, be keen to portray the request filter as a safeguard for privacy. However, the processing of such a huge amount of personal data, as permitted by the request filter, is a significant privacy intrusion. It is not only me who thinks that; the Joint Committee on this Bill noted that there were
“privacy risks inherent in any system which facilitates access to large amounts of data in this manner.”
When I asked the Solicitor General why other countries do not do that, he said that the lead must start somewhere, but I do not want my constituents to be guinea pigs for such a system. I can tell from my mailbox that many of my constituents are very concerned about such huge amounts of personal, private data being held and analysed in that way. They want to see serious crime tackled, but not at the expense of their privacy.
A balance has to be struck, and I fear that the request filter is more of an intrusion into privacy than a safeguard for it. It is a portal with the power to put together a comprehensive picture of each of our lives. We should not misunderstand that that is what the filter can do. It raises many of the same concerns as a large and centralised store, with the added security concerns of protecting multiple distributed databases.
Public authorities will have a permanent ability to access the request filter, which will make it an enticing and powerful tool that could be used for a broad range of statutory purposes. The ability to conduct the complex queries that the request filter will allow for could increase the temptation to go on fishing expeditions—that is, to sift data in search of relationships and infer that concurrences are meaningful. That was one of the many concerns expressed by the Joint Committee on the Draft Communications Data Bill about the request filter proposal.
With the request filter power, authorities could use communications data to identify attendees at a demonstration and correlate that with attendance at other public or private locations in a 12-month period, or identify those regularly attending a place of worship and correlate that with access to online radio websites, inferring risk. Those examples show that the new ability risks casting undue suspicion on thousands of innocent citizens and mining their personal contacts for patterns, which is an unacceptable intrusion into the privacy and civil liberties of our constituents and British citizens generally.
Keir Starmer
I will not be long, but I want to raise some concerns about the provisions. It is clear—the Minister will correct me if I am wrong—that the arrangements are to assist a designated senior officer who is considering whether to grant an authorisation, and therefore has got to that stage of the exercise, and more broadly to provide for effective ways of obtaining communications long before there is serious consideration of a particular authorisation. Subsection (1)(a) applies in relation to the contemplation of a possible authorisation, whereas subsection (1)(b) is a much wider way of organising the data so that someone can later find what they want more easily.
The arrangements are made by the Secretary of State but then exercised by the designated senior officer, and we have discussed who will be doing that. It is so concerning because the provision allows for the designated senior officer, who in many cases will be not a high-ranking individual in a public authority, to start to organise the data that have been obtained under a retention power. It is therefore a very wide ranging power indeed.
Joanna Cherry
I oppose the clause for the same reasons and I do not think I need to elaborate further.
Question put, That the clause stand part of the Bill.
Joanna Cherry
I oppose the clause for the same reasons.
Question put, That the clause stand part of the Bill.
Investigatory Powers Bill (Seventh sitting) Debate
Full Debate: Read Full DebateDepartment: Attorney General
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Attorney General
Investigatory Powers Bill (Seventh sitting)
Joanna Cherry ExcerptsTuesday 19th April 2016
(8 years, 8 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 April 2016 - (19 Apr 2016)
Keir Starmer
It is a pleasure to continue to serve under your chairmanship, Ms Dorries.
The clause sets out the relevant public authorities and designated senior officers for the purposes of part 3 of the Bill—in essence, those who may exercise the powers of obtaining communications data throughout this part. Last week, I drew attention to schedule 4 to the Bill and, in particular, to the large number of public authorities listed as “relevant”, including Food Standards Scotland, the Food Standards Agency, the Gambling Commission, the Office of Communications and the Northern Ireland Fire and Rescue Service Board. The list of relevant public authorities in schedule 4 is very long.
I also drew attention to the designated senior officers, who are authorised to obtain communications data. They are listed in the second column in schedule 4. To remind the Committee, if we take the Food Standards Agency, the designated senior officer is a grade 6 officer; if we take the Northern Ireland Fire and Rescue Service Board, the officer is the watch manager of control; and, to take one more example, for the Office of Communications, the officer is a senior associate. The point that I made last week was that, where there are wide powers of retention under the Bill, which we will come to later, the threshold for accessing the data is vital. The number of relevant public authorities is too wide and the level of the designated senior officers too low to provide a proper safeguard.
The amendment is intended to address that defect by setting out in the legislation a narrower set of relevant public authorities, listed in paragraphs (a) to (o) of proposed new subsection (1). It is a shorter and tighter list, but would none the less be a functional and effective one. Proposed new subsections (2) and (3) are an attempt to tie in other relevant public authorities to the particular power that would be appropriate for them to exercise. The relevant public authorities for the purposes of authorisation under clause 53(7)(g) are listed under proposed new subsection (2) and, similarly, those for clause 53(7)(h) are listed under proposed new subsection (3).
The amendment would tighten up the drafting of the Bill to limit the number of relevant public authorities and tie the lists more closely to the particular objectives set out in clause 53. Logically, therefore, it follows from the point that I was making last week and anticipates the one that I will make later this morning about the scope of the retention powers.
Joanna Cherry (Edinburgh South West) (SNP)
There is one small difference between amendment 135, which was tabled by the Labour party, and amendment 236, which was tabled by the Scottish National party. Amendment 236 includes, in proposed new subsection (2)(p), the Scottish Criminal Cases Review Commission, which is a separate body. I say that for completeness.
The Solicitor General (Robert Buckland)
It is good to serve under your chairmanship once again, Ms Dorries. I welcome the spirit in which the amendments have been tabled. There is a common sense of purpose among Committee members to ensure that the ambit of the authorities that have power to access communications data should always be strictly scrutinised. In that spirit, the Government have progressively reduced the number of such authorities. They have reviewed that number and keep it under review. The list of such authorities in the Bill is not simply a replication of the list in the Regulation of Investigatory Powers Act 2000, but has been the subject of careful consideration.
It has been judged that it is necessary for those public authorities to be allowed to access communications data for a narrow range of purposes. For example, insider trading needs to be investigated, and the Financial Conduct Authority is the body to do that. The Maritime and Coastguard Agency will need access to such information to locate people lost at sea. Bodies such as the Food Standards Agency and the Department for Work and Pensions have been given clear remits by Parliament to investigate certain types of criminality and civil matters, because such investigations often require dedicated resources and specialist knowledge. To unduly restrict those agencies in their work would cause an imbalance.
I know that the hon. and learned Gentleman shares those views, because in his previous incarnation as the Director of Public Prosecutions he made it clear, for example, that communications data should be available to organisations such as the DWP in investigating any abuse of the welfare system or other public funds. I therefore know that he has a common purpose in mind.
The Bill for the first time brings together all the public authorities with access to communications data in primary legislation. That is an important and welcome step up from previous practice. I should be clear that all the authorities listed in the Bill were required to make the case that they needed the power to access communications data. Therefore, as I have outlined, the list in the Bill is not just a blind replication of existing lists. As I have said, we removed 13 public authorities from the list in February last year. Amendments that were tabled by my right hon. Friend the Minister for Security and that we will debate shortly will introduce further restrictions on certain public authorities. That shows that the Government are taking great care in this area.
The Solicitor General
I shall try to assist the hon. and learned Gentleman. I will not be able to give him an exhaustive list here and now, as he is aware, and I am pretty sure that the information that he seeks is available in some form. We will, of course, help to signpost him to it.
I make the simple case about watch managers that there will be emergency situations, such as missing persons inquiries, in which fleetness of foot is essential. Suggesting that a more senior level of management would be appropriate risks important data being lost or not being available in those emergency situations. There are certain key situations where we are talking about the protection of life in which the balance needs to be struck in the way that we suggest in schedule 4.
With regard to schedule 4, public authorities cannot all acquire communications data for the full range of statutory purposes. Each can acquire data only for the purposes for which it has justified a need for them. That maintains the essential principle of proportionality, so that the public authorities concerned only have the powers for which they have made a compelling case.
To give some examples of the changes from RIPA, ambulance services will no longer be able to acquire communications data for the purposes of preventing and detecting crime, and the Prudential Regulation Authority will no longer be able to acquire communications data in any circumstances. In addition, the Bill allows for the ability of a public authority to access communications data to be removed, should a public authority cease to have a requirement to make those acquisitions. That is a very important check and balance.
To fill in some more detail in respect of the question the hon. and learned Member for Holborn and St Pancras asked about the detailed justification for each public authority, each authority has been required to provide evidence of utility and the need to acquire communications data. That included detailed consideration of the level of authorising officers, so that we got the balance right in terms of appropriateness.
Joanna Cherry
I note that the Solicitor General spoke of details of the “utility”, but the Digital Rights Ireland case sets out that states must limit the number of persons authorised to access and use this sort of data to what is “strictly necessary”. Does he agree that a long list of authorities, many of whose primary functions are wholly unrelated to law enforcement in the context of serious crime, is inconsistent with the requirement of strict necessity laid down in the Digital Rights case?
The Solicitor General
I am grateful to the hon. and learned Lady and can correct the record in this way. I should have used the phrase “utility and need”. I think that important word, to which she quite rightly draws my attention, answers the point. In one of the examples I have given, where a need was not demonstrated by the PRU, the power was removed entirely.
Among the bodies that the amendment seeks to remove are Her Majesty’s Revenue and Customs and the Ministry of Defence. I am afraid that both bodies are intercepting agencies, and communications data are part of their work in targeting interception so that the powers which we all accept are intrusive are used in as tightly constrained circumstances as possible. My worry is that the amendment, however well intentioned, might well have the contrary effect on that important targeted work and the need for those organisations to target their activities.
I remind the Committee that David Anderson QC concluded in his report:
“It should not be assumed that the public interest is served by reducing the number of bodies with such powers, unless there are bodies which have no use for them.”
The Joint Committee on the Draft Investigatory Powers Bill also recognised communications data as
“an important tool for law enforcement and other public bodies.”
For those reasons, I urge the hon. and learned Gentleman to withdraw the amendment.
Joanna Cherry
According to the list I have, Ms Dorries, amendment 236 is also to be dealt with. As I explained, there are small differences between amendments 135 and 236.
Joanna Cherry
I realise that, but I have not been asked whether I want to put amendment 236 to a vote.
The Chair
Amendment 236 is not formally before the Committee. As I said in the opening notes at the beginning of the Committee, if you wanted to put it to a vote, you had to make me aware of that at the beginning.
Joanna Cherry
For the assistance of the Committee, I and Mr Starmer have spent a long time discussing who would lead on which clause, in order to speed matters up. I wish to put amendment 236 to a vote, although I did not speak to it. I would like that to be recorded in the minutes. If I am to be prevented from doing so, so be it.
The Chair
Although this is unusual, as we have not actually moved on we can vote on amendment 236 so that the matter is transparent, with the leave of the Committee.
The Chair
Ms Cherry, would you like to speak to your amendment before the Committee votes?
Joanna Cherry
I have nothing to add to what Mr Starmer said and the points that I made in my intervention.
Simon Hoare (North Dorset) (Con)
On a point of order, Ms Dorries. It may be that I am in error, and if I am I apologise and will take your chastisement. I thought I was correct in believing that when we are in a Public Bill Committee, it is as if we are having a debate on the Floor of the House and we are therefore referred to as the hon. Member or hon. Gentleman or whatever, rather than using Christian or first name and surname. Can you confirm that? I know some people get frightfully anxious about all the traditions of the House, but I just wanted to make sure that my understanding is correct.
Mr Hayes
I know the hon. and learned Gentleman is probing. He is right that the clause sets out how the Secretary of State may, by regulation, add or remove public bodies listed in schedule 4 and make modifications accordingly, but it also sets out that the Secretary of State does so by means of regulations. He will have noted that in practice that means a statutory instrument, which is subject to the affirmative procedure, as is made clear in clause 63(3).
I understand the hon. and learned Gentleman’s point, which is reasonable, but there are limits on what the Secretary of State can do in the sense that the affirmative procedure must be followed, which will give an opportunity for further consideration. I am happy to confirm that the intention in the Bill and the spirit in which it was constructed are very much along the lines he described.
Joanna Cherry
I wish to oppose this clause.
Question put, That the clause stand part of the Bill.
Joanna Cherry
I beg to move amendment 241, in clause 67, page 53, line 8, leave out subsections (4)(a) and (b) and insert—
“(a) is an officer appointed by the Investigatory Powers Commissioner;
(b) works subject to the supervision of the Investigatory Powers Commissioner; and is responsible for advising—
(i) officers of the relevant public authorities about applying for authorisations; or
(ii) designated senior officers of public authorities about granting authorisations.”
The amendment provides for the SPoC scheme to be operated under the authority of the Investigatory Powers Commissioner.
The clause deals with the use of a single point of contact. The purpose of the amendment is to provide for the single point of contact scheme to be operated under the authority of the Investigatory Powers Commissioner. The Bill, as it currently stands, provides that authorisations shall be largely self-approved by officials and officers of public bodies, subject to the advice of a single point of contact. The single point of contact is within the organisation and is responsible for advising on the lawfulness of the authorisation. Local authorities, police forces and public bodies that are too small to have their own single point of contact are required by the Bill to enter into collaboration agreements with others and if the amendment is successful, it will necessitate leaving out clauses 69 to 71.
The Scottish National party’s preferred model would be judicial authorisation for access to communications data, as addressed in the amendments to clause 53 that we discussed in Committee last week—I have no doubt that they will be revisited on Report. But if we are to be stuck with the current model, we in the SNP think it only fair and right that the Bill should provide for the single point of contact scheme to be operated under the authority of the Investigatory Powers Commissioner. In my submission, that would give the sort of oversight that we were promised in advance of the Bill but that is absent from the Bill itself.
It is my argument that it is completely unacceptable for a public authority to be able to authorise itself to have access to revealing personal data. In making this argument, I do not seek to impugn the integrity of public officials or, indeed, senior employees of our law enforcement agencies, but rather to point out the glaring reality that the primary concern of such persons will relate to the operational capacity of their agencies. That is simply a matter of organisational culture: it is perfectly understandable, but it militates in favour of independent third-party authorisation. If we are to have an Investigatory Powers Commissioner, why not give him or her that power, so that there will be meaningful oversight?
In my argument, the value and credibility of any single point of contact model would be enhanced by ensuring its independence from the public authority that seeks to use the intrusive powers given under this part of the Bill. That would also remove the need for collaboration agreements, because the single point of contact advisers would be centralised within the IPC framework. It would lift a great deal of bureaucracy out of the public organisations and law enforcement agencies by putting oversight in the hands of the Investigatory Powers Commissioner, who would then be able to encourage, across the board, a standardised approach to the advice given and, importantly, consistency in the application of the law.
The provisions currently in the Bill consolidate existing practice on the guidance issue for single points of contact and the self-authorisation regime, but the Joint Committee on the draft Communications Data Bill recommended consolidation under the leadership of police forces. However, I would argue that, while the single points of contact remain embedded within the same organisations that seek to access this intrusive material, they cannot be considered to be independent for the purposes of the role they play in the authorisation process. If they are not independent, we risk passing legislation that conflicts with European law, which, for the time being at least, applies in the United Kingdom.
The amendment would mean that the single point of contact framework, if continued, would operate as part of an overriding single oversight body, under the auspices of the Investigatory Powers Commissioner. As I said, that would create a single consistent body of staff, capable of providing help, assistance and guidance before the final determination of any application. To my mind, that is a highly sensible and appropriate approach; I would like to know why the Government are not prepared to support it.
The Solicitor General
I am grateful to the hon. and learned Lady for her amendment and her observations, because they give me an opportunity to remind the Committee how important the single point of contact system is, and how envied it is by other parts of the world. Those are not just my words; paragraph 9.93 of David Anderson’s important report, “A Question of Trust” states:
“As to the authorisation of communications data requests, the police took a good deal of pride in the SPoC system, which was said to be ‘the envy of many friendly countries’.”
Mr Anderson makes a particularly important observation in paragraph 9.94, when he states:
“Within law enforcement generally, it was felt that SPoCs should have strong relationships with the investigators and this was more likely to happen where they were part of the same organisation, working to the same goal (albeit with distinct and independent responsibilities).”
I will finish the paragraph:
“Their effectiveness as a ‘guardian and gatekeeper’ could however diminish were they to become simply part of the investigation team”.
Here the hon. and learned Lady’s point is a strong one, but it has to be observed in the right context, which is that of the investigation. I absolutely agree with her about the importance of having an arm’s length approach, which is why the designated senior officer who is allowed to authorise an application must not be part of that operation. The draft code of practice contains helpful guidance from paragraph 4.28 to paragraph 4.47, and paragraph 4.48 then deals with the question of the designation of a single responsible officer.
Therefore, in the light of all the careful consideration that has been given to this tried and tested system, I argue that the balance is being properly struck here. Indeed, the extensive benefit and the safeguarding mechanism which the SPOC role brings to this process has been recognised by the Interception of Communications Commissioner, who in his report of March 2015 described the SPOC role as “a stringent safeguard”. These are people who are specially trained in the acquisition of communications data.
The Solicitor General
My hon. Friend is absolutely right. It is that oversight which I argue establishes the essential checks and balances here, to prevent the sort of abuse about which all of us on the Committee would, rightly, be worried. These are sensitive matters.
Joanna Cherry
At the Scottish Bar we often use the phrase “nemo iudex in sua causa”, which means “no man should be a judge in his own cause”. I am sure that that is used at the English Bar as well. Will the Solicitor General tell me how he is able to elide this principle, as the SPOC comes from the same organisation as the initial authoriser?
The Solicitor General
I thought I had made it clear to the hon. and learned Lady that the key word here is investigation. Those officers who are responsible for the course of the investigation are not the SPOC. That person is independent and they are at arm’s length. They are therefore able to exercise the objectivity and the sense of self-discipline that is essential if public authorities are to retain our confidence. It is all underpinned by the scrutiny of the IOCCO. In my submission, to move away from a tried and tested system that is internationally recognised would be, with regret, a mistake.
With respect to the hon. and learned Lady, I do not see how the process would be enhanced if it were to be done in the way that the amendment suggests. We already have oversight, as I have indicated. In fact, my concern is that the expertise within public authorities of how best to facilitate these sort of requests could be diminished, and there could be a detrimental impact on the relationships with both the service providers and the investigators. My worry is therefore that the understandable aims behind this amendment could be frustrated in a way that is perhaps not being properly foreseen.
Joanna Cherry
On a connected point, the evidence from Jo Cavan at IOCCO has expressed concern about the inclusion of subsection (3)(b), “the interests of national security”. I would like to probe this. It has been suggested that the justification for deeming the interests of national security to be almost an exceptional circumstance is unclear. What is the justification?
The Solicitor General
In a nutshell, we are talking here about rare and exceptional circumstances where it might not be possible to consult an SPOC. Where we are talking about national security, I would envisage a risk to the nation that all of us would understand if we saw it—rather like an elephant in a room. As I have said, though, it is couched with particular regard to the governing part of that clause, which is exceptional circumstances. Therefore the hon. Lady can be reassured that this is not some sort of back door by which this power would be misused. For all the reasons I have advanced, I urge the hon. Lady to withdraw the amendment.
Joanna Cherry
I am not prepared to withdraw the amendment.
Question put, That the amendment be made.
Keir Starmer
The two amendments can essentially be read together: they bite on clause 67(5) and (6) respectively. The purpose of this clause, as I understand it, is to provide a mandatory consultation exercise for designated senior officers, with a single point of contact. That will be particularly important where the designated senior officer has little if any experience of authorising and will therefore be particular important in some of the smaller relevant public authorities, which may not exercise this power on a regular basis, although I realise it is mandatory in all cases. The point of amendments 138 and 140 is to put in the Bill a requirement that, in the course of that consultation exercise, the single point of contact advises not only on issues such as appropriate methods, costs, resource implications, unintended consequences and so on, but, as set out in amendment 138, on
“the public interest in the protection of privacy and the integrity of personal data; and…the public interest in the integrity of communications systems and computer networks.”
Such an amendment is necessary because there is a lack of an overarching privacy provision that can be read into each of these clauses. When a designated senior officer is being advised, it would be prudent and sensible for them to be advised not only about costs and resources, but about privacy and integrity, which are critical to the operation of the Bill.
Joanna Cherry
The amendments are jointly supported by Labour and the Scottish National party.
Throughout this part of the Bill, public authorities and other decision makers are placed under a duty to consider a range of factors connected to the decision to access retained communications data. Those factors include cost and other resource implications and
“any issues as to the lawfulness of the proposed authorisation.”
These amendments include a specific duty to consider the public interest and the protection of individual privacy—that is, the protection of the privacy of our constituents; and the security of communications systems and computer networks—that is, the security of our constituents’ private data. Both David Anderson, in his independent review, and the Intelligence and Security Committee, in its report on the draft Bill, emphasise the importance of privacy principles and the need to make clear the legality of the use of surveillance powers in this new legislation.
Although we are focusing on a specific amendment to increase safeguards for individual privacy and security of data, we are concerned that throughout the Bill there appear to be statutory duties on public agencies, officials and agents and on judicial commissioners, to consider factors relevant to national security and the prevention and detection of crime, and the effectiveness of powers and resources expended, but there is no specific treatment of privacy standards and the public interest.
While the clauses that these amendments are attached to refer to
“any issues as to the lawfulness”
of the powers, the vagueness of this instruction is, in my submission, very contradictory. Surely it must be the first consideration of any individual considering the exercise of powers under the Bill that they should be legal. Legality should be a first consideration; treating it as just one at the end of a list of other factors to be considered seems entirely inappropriate. In this regard, it would be of huge assistance if the Minister could give us a fuller explanation of why statutory duties in the Bill have been approached in this way, with legality as a final duty; of the objectives of including the factors as provided in the manner in which they are drafted; and of why the protection of privacy and the public interest in the integrity of communications systems and computer networks will not be mentioned unless this amendment is made.
Mr Hayes
The hon. and learned Member for Holborn and St Pancras is right about the purpose of the clause, and I understand the reason for the amendments. The single point of contact may advise the applicant and designated senior officer of the cost and resource implications for the public authority, and the communications service provider of any unintended consequences of the proposed authorisation and any issues surrounding the lawfulness of the proposed authorisation—one of the points that the hon. and learned Member for Edinburgh South West raised.
The points about cost and lawfulness that the hon. and learned Lady raised are certainly part of the advice that the applicant should receive, as well as the appropriate methods to obtain the data they are seeking, while the designated senior officer will be advised on the practicality of obtaining the data sought. Bear in mind that the single point of contact can already advise on the lawfulness of proposed authorisations. For authorisation to be lawful, it has to be both necessary for one of the statutory purposes in the Bill, and proportionate in all circumstances.
The point the hon. and learned Lady made about privacy is a reprise of the debate we had at the very beginning of our consideration, when I argued—I thought pretty convincingly, but clearly not—that privacy is woven through the Bill. For the sake of emphasis, I say again that the protection of privacy and personal data must be a key consideration in gauging proportionality.
Joanna Cherry
I hear what the Minister is saying. As I understand it, he is saying that the issues highlighted by the amendments will be taken into account, so why not say so? What is the detriment in saying so and making it crystal clear? This is for the comfort of the many constituents and members of the public who are concerned about the privacy and integrity of their data, so why not say so in the Bill? What possible detriment could there be in following that course of action?
Mr Hayes
Let me rehearse the argument that I used originally, because despite what I described as its persuasiveness, it clearly was not sufficiently well articulated to convert the hon. and learned Lady to the cause of virtue. Let me rearticulate it: if privacy is separated out in the way that some argue we should have done and might do now, and it is identified in the desiccated way that those people suggest, its significance is curiously—one might even go so far as to say paradoxically—weakened as a defining characteristic of the purposes of the legislation. However, it is worth emphasising the point I made a few moments ago about the need to tie personal interests and the protection of private data in to the test of proportionality in the draft codes of practice.
I draw attention to the codes of practice at paragraph 3.18—the heading is “Further guidance on necessity and proportionality”—which says:
“An examination of the proportionality of the application should particularly include a consideration of the rights (particularly to privacy and, in relevant cases, freedom of expression) of the individual and a balancing of these rights against the benefit to the investigation.”
That could not be plainer in doing precisely what I have described, which is to look at the right to privacy—I do not like to use the word “right”; I prefer to use “entitlement”—the entitlement to privacy with the functioning nature of an investigation into the effectiveness of the process.
Joanna Cherry
As I understand it, the Minister is saying that privacy is so important and so woven into the Bill that to single it out would weaken its importance. Surely lawfulness is equally important and that has been singled out by the draftsmen in subsection (6)(d).
Mr Hayes
I have already argued that lawfulness is, again, an underpinning requirement in these terms. Just to be absolutely categorical, the designated senior officer is the one who makes the final assessment of necessity and proportionality, as required by the code of practice. They must have a working knowledge of legislation, specifically that which relates to necessity and proportionality and the entitlements of individuals in those terms.
I just think that the combination of the Bill and the codes of practice render the amendment unnecessary. I emphasised previously that the codes of practice are drafts and the final code of practice will reflect some of this Committee’s considerations. If I may turn my attention momentarily from the hon. and learned Lady, if the hon. and learned Member for Holborn and St Pancras feels that the code should be strengthened in that regard—I re-emphasise that I think they are pretty clear—I would of course be prepared to hear his argument. [Interruption.] Before I move on to the amendment about system integrity, I can see that he is champing at the bit, or maybe I am misinterpreting him.
Keir Starmer
The more I have listened to the debate on the amendment, the more convinced I have become that there is a need for an overarching privacy clause, to which I will turn our attention at a later stage. It follows from that that I will focus my energies elsewhere, and therefore I beg to ask leave to withdraw the amendment.
Joanna Cherry
I hear what the Opposition spokesman says in this regard, and I have much sympathy with it. However, I wish to press the amendment, for the simple reason that if privacy and integrity are as important as the Minister acknowledges, why not have them in the Bill? That would cause no possible detriment; it can only do good. Therefore, I wish to press the amendment to a vote.
Question put, That the amendment be made:—
Keir Starmer
Although there are numerous amendments, they will not take as long as the previous amendment, because to some extent they cover the same ground. Amendments 142 to 144 are intended to tighten up the test for journalistic material and apply a stricter test. Amendment 145 is an attempt comprehensively to redraft clause 68 to provide meaningful protection for journalist’s material and the protection of journalist’s sources. It is also an attempt to provide protection for other protected information, namely that which is subject to legal privilege and communications between MPs. This is a form that we have seen on previous occasions.
I invite interventions because I cannot now quite remember, but I do not think that in this part of the Bill there is a self-standing provision for MPs in relation to access to data. I will happily be intervened on if I am wrong, because then this would not apply. My concern when drafting this amendment was that, while in other parts of the Bill there is a specific provision—although we can argue about whether it is strong enough—for MPs’ correspondence in relation to accessing the communications data of MPs, there is no provision at this point in the Bill. That should be a cause of concern to everyone on the Committee, and it will certainly be a cause of concern to others.
Joanna Cherry
I am grateful to the hon. and learned Gentleman for the typically clear and concise way in which he has approached these amendments to clause 68, on which I wholeheartedly support him. On the question of protection for parliamentarians, the wording that has been used is a “relevant” parliamentarian. That will cover Members of the Scottish Parliament and the devolved Assemblies as well.
Keir Starmer
I am grateful for that. On looking at it, it is clear that clause 94 applies generally across this—actually, I am not sure that it does. I am sorry to pause on this, Ms Dorries.
Joanna Cherry
Perhaps I could assist the hon. and learned Gentleman. The phraseology that is used is “a member of a relevant legislature”, which is defined to include the Scottish Parliament and the devolved Assemblies.
Keir Starmer
I am grateful for that. The purpose of the amendment is really to cover all three protected areas—legal professional privilege, MPs’ correspondence and journalism—and to set out a comprehensive test for all three. It is similar to a provision that we have already looked at in relation to other parts of the Bill. I commend it as a constructive way to protect the interests that ought properly to be protected on the face of the Bill.
The Solicitor General
I will not revisit the arguments except to say that there are important differences between the regime for communications data and that which is contained within clause 94, for example, which deals with equipment interference. We will come on to that in due course. I remind the hon. and learned Gentleman that paragraph 6.4 of the code of practice contains specific reference to a number of sensitive occupations, including,
“medical doctors, lawyers, journalists, Members of Parliament, or ministers of religion”.
If there is any lack of clarity in the code as to whether this includes Members of the Scottish Parliament or indeed of other devolved institutions, I am sure that that could be cleared up, and it should be.
Joanna Cherry
My point is not about the definition of parliamentarians but on the question of legal professional privilege. I think I am right in saying that the Government do not currently recognise that comms data come within the definition of legally privileged material. Does he not agree with me that a phone call from or to a lawyer could, for example, identify a potential witness in a case, and therefore comms data should come within the definition of legal professional privilege?
The Solicitor General
I do not want to go back to arguments that we have already had on this or to anticipate any future arguments. With regards to legal professional privilege, sometimes it might be difficult to establish precisely what comes within and without that category. However, we are talking not about the content of what has been said or done but about the fact of a communication having been made, so communications data will rarely, if ever, attract legal professional privilege; it is difficult to think of an example when it would.
The Solicitor General
I am grateful to hon. Members for trying to sift their way through what appears to be something of a labyrinth at times. I do not want to overcomplicate the situation. The Government’s view is that, combined with the code of practice, we have the necessary protections in the Bill that acknowledge that the degree and nature of the interference in an individual’s rights and freedoms will of course be greater in these sort of circumstances, so considerations of the necessity and proportionality become highly germane because they draw attention to any such circumstances that might lead to an unusual degree of intrusion or infringement of rights and freedoms, in particular privacy.
Joanna Cherry
The Solicitor General is very generous in taking interventions. We currently have four silks arguing about whether LPP can apply to comms data. Too many lawyers spoil the broth perhaps, but is that not an indication that a code of practice is not going to be enough to resolve this issue? It should go before a judicial commissioner, as proposed by the amendment.
The Solicitor General
The hon. and learned Lady makes her point with force. Although the concerns she has about content and the issues that we have debated and will debate in part 5 are understandable, we are talking about a different nature of material and a different regime, where considerations can be distinct from those that apply in other parts of the Bill.
I will deal as quickly as I can with the points that have been made. I would argue that we have, in effect, a particular restriction that I would regard as not striking the right balance with respect to those who need it. We have to think in the context of the operational capability of our security and intelligence services in particular.
If there is a specific requirement for the use of PACE powers in these circumstances, I am worried that the requirements of clarity, consistency and transparency that we have to abide by will be undermined. The Interception of Communications Commissioners Office was clear in its rejection of the claim that public authorities had utilised RIPA to avoid the use of PACE. In fact, under this Bill part 3 authorisations for communications data to identify or confirm a journalistic source are subject to more stringent safeguards than under PACE, because the Bill replicates those procedures but at a higher level of authorisation, with a serving or former High Court judge, as opposed to a circuit judge, making the authorisation.
Making communications data accessible to those who have a lawful need for them at the right level of authorisation is a fine balance, but it is struck most effectively in the Bill as drafted. I am sure that Opposition Members do not intend us to reach a position where communications that have been made for the intent of furthering a criminal purpose are missed or are not accessible as they would want them to be. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras to withdraw the amendment.
Investigatory Powers Bill (Eighth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Home Office
Investigatory Powers Bill (Eighth sitting)
Joanna Cherry ExcerptsTuesday 19th April 2016
(8 years, 8 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 19 April 2016 - (19 Apr 2016)
The Chair
Thank you very much.
Clauses 70 and 71 ordered to stand part of the Bill.
Clause 72
Lawfulness of conduct authorised by this Part
Joanna Cherry (Edinburgh South West) (SNP)
I beg to move amendment 246, in clause 72, page 57, line 35, leave out from “subsection (1)” to end of line 40.
This amendment ensures that if conduct cannot be justified it must remain unlawful.
The Chair
With this it will be convenient to discuss amendment 148, in clause 72, page 57, line 36, leave out paragraph (b).
Joanna Cherry
I think I can take this in fairly short compass. The clause deals with the lawfulness of conduct authorised by this part of the Bill. The amendment would delete clause 72(2)(b), the effect of which would be that conduct would have to remain unlawful if it could not be justified. As it is currently worded, the clause allows an exception to that principle, and that is not an appropriate exception. Conduct is either lawful or unlawful. If it is unlawful, it should be characterised as such and should not be justified. Strictly, if the amendment were to be passed, subsection (3) would have to be left out as well, for tidying-up purposes.
The Solicitor General (Robert Buckland)
May I reassure the hon. and learned Lady that the provisions relating to lawfulness of conduct authorised by part 3 of the Bill replicate those that currently apply in the Regulation of Investigatory Powers Act 2000, and the Bill goes no further in providing indemnity from civil liability for conduct incidental to or reasonably undertaken in connection with a communications data authorisation? The clause is drafted to ensure that a person who engages in conduct only in connection with an authorisation cannot be subject to civil liability unless that activity could itself have been authorised separately under a relevant power. It must follow that the removal of that provision would mean that a person who was acting lawfully under an authorisation that had properly been granted under the Bill would be at risk of civil liability if some incidental or reasonably connected conduct were not expressly covered by the authorisation.
I can see the thrust of the hon. and learned Lady’s argument, but I hope that I have reassured her that the Bill does not go any further than the status quo. For that reason, I urge her to withdraw the amendment.
Joanna Cherry
I beg to ask leave to withdraw the amendment for the time being.
Amendment, by leave, withdrawn.
Clause 72 ordered to stand part of the Bill.
Clause 73 ordered to stand part of the Bill.
Clause 74
Certain transfer and agency arrangements with public authorities
Question proposed, That the clause stand part of the Bill.
Keir Starmer (Holborn and St Pancras) (Lab)
There are matters relating to this clause on which I would like to press the Minister. This is the clause that provides for what is effectively the transfer of certain functions between the Secretary of State and other public authorities. The functions to be transferred are the functions in clauses 58 to 60, at which we looked in some detail last week: the filtering arrangements for obtaining data. As set out in clause 58, it is for the Secretary of State to maintain and operate arrangements. It is then for the relevant public authority, acting through a designated senior officer, to effectively carry out the exercise, using authorisations as and where necessary and appropriate. We discussed that arrangement.
Clause 74 provides for a transfer of functions of the Secretary of State—which I take to include establishing, maintaining and operating arrangements—from the Secretary of State to another public authority. That seems to me to cut through the thrust and the purpose of clause 58, which has a clear hierarchy to it: the Secretary of State, then the designated senior officer. Subsection (1)(b) is freestanding and transfers any function exercisable by a public authority back the other way to the Secretary of State, so there is a complete provision for a swap of roles. Subsection (3) indicates that:
“Regulations under subsection (2) do not affect the Secretary of State’s responsibility for the exercise of the functions concerned”.
Then schedule 5, in the back of the Bill, is referred to, but that does not add a great deal.
The question for the Minister is: how is it anticipated that these powers are to be exercised? On the face of it, this is an odd structure for a Bill to set out. This structure goes from the Secretary of State down to the relevant public authority, with the Secretary of State having a much wider role of setting up the arrangements, only for us to find, several clauses later, that it is possible to flip the functions and have the public authority making the arrangements. That seems to remove some of the formality and the safeguards intended by clause 58.
Keir Starmer
I indicated would not press the amendments at this stage. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I oppose the clause. I hear what the Minister has to say, but I am not reassured by the Government’s approach. Harking back to something I said last week, I do not think that the Government have got the balance right, because in seeking to gather to themselves an extraterritorial application through United Kingdom law, there are hidden dangers.
If international companies are required to arbitrate between conflicting legal systems, it is leaving the protection of human rights to the good will and judgment of those companies. Companies such as the ones the hon. and learned Member for Holborn and St Pancras mentioned have already expressed concerns to David Anderson, for his report “A Question of Trust”, that
“unqualified cooperation with the British government would lead to expectations of similar cooperation with authoritarian governments, which would not be in their customers’, their own corporate or democratic governments’ interests.”
In my view, the most appropriate way forward is to pursue the route, which I am pleased the Minister has assured us that the Government are well down, of mutual legal assistance agreements with other states. If we do not pursue that route in the way that both David Anderson and Sir Nigel Sheinwald recommended with appropriate alacrity, and instead rely simply on clauses such as this one, which are spread throughout the Bill, we will create real difficulty for corporate entities. We will also create difficulties for the international enforcement of human rights, which I consider a bit more important than difficulties for corporate entities, although we should not set the latter to one side, because they are significant. For that reason, notwithstanding the Minister’s assurances, the SNP opposes clause stand part.
Mr Hayes
I will not make a case again for the clause, but I shall say this, in the spirit of helpfulness and kindness. It is really important that the Committee sends out a combined message to overseas communications service providers—on which the obligations will have an important effect because their commercial endeavours have a significant relationship with the powers we are trying to cement in the Bill—so that they have a very clear impression that we as a Committee of this Parliament are clear that we expect them to do their bit to do what is right. We should not, out of a sense of good will, allow ourselves to be misled and encouraged not to have high expectations or make serious demands of those organisations.
I simply say to the hon. and learned Lady that clause 76 is about giving a clear signal, as does clause 57, with which it should be read in tandem, that telecommunications operators should comply with the notice given, whether or not they are in this country. I accept that that is difficult and challenging—I made that point at the outset—but my goodness, it is vital that we take these steps. I know that she is open-minded and a woman of great good will, but we should not allow that to dilute in any way that common message to those big companies. I do not want those companies to get away with anything that that should not get away with.
Joanna Cherry
I am not so much concerned about the message we send out to the companies; I am more concerned about the message we send out internationally and potentially to authoritarian regimes. The difficulty is that if the British Government demand from these companies unqualified co-operation with British laws, that might encourage authoritarian Governments to do likewise. We clearly would not want that, so we need to be very careful about the messages we send out and think carefully about their full implications. That is why such matters should be approached by way of mutual legal agreement internationally, rather than the unilateral imposition of one Parliament’s will outwith the area where its sovereignty operates.
Question put, That the clause stand part of the Bill.
Keir Starmer
The message to my and all of our constituents is that, even if they are not a target, a record of the websites they have visited can be retained under a data retention order, and if retained will be retained for 12 months—every website they have visited. But if somebody later wants to access it, there is then a tighter test for that. The chilling effect of clause 78 is that the websites visited will be retained if a retention order is issued. We need to be absolutely clear about that. The tighter definition does not kick in until a later stage of the exercise, and that is a cause of real concern to our constituents, certainly to the people who have engaged with me on the topic, and to our fellows across both sides of the House.
Joanna Cherry
I note what the hon. and learned Gentleman says about web addresses being revealed. Is it not also the case that we see from the data released by the Home Office, after being pressed about its factsheet accompanying ICRs, that what will be revealed is not only web addresses and IP addresses, but the names, addresses, email addresses, phone numbers and billing data of customers—our constituents?
Keir Starmer
I cannot double check on my feet, but that sounds like the further evidence that was put before the Joint Committee when it was in the middle of its deliberations. In fairness, the Home Office did go beyond websites to include some, maybe all, of the matters to which the hon. and learned Lady just referred.
The way this will operate in practice is a cause of real concern. The Secretary of State, without the double check of a judicial commissioner, and operating against a low-level threshold—clause 53(7)—can issue a retention order that will permit the retention of a record of all the websites that somebody has visited. That record will then be kept for 12 months, albeit with a different test if it is to be accessed later.
The amendments—I think you have called them the first set of amendments, Ms Dorries—are intended to construct in the first instance a different framework around this power, because it is so extensive, and put it in the hands of a judicial commissioner rather than the Secretary of State. That would provide a greater safeguard in relation to clause 78, with independent oversight through the function of the judicial commissioner. Alternatively, amendments 152, 153 and 222 would give the Investigatory Powers Commissioner some oversight. In other words, the intention behind these amendments is to put some rigour and independence into the exercise of what is a very wide power that, in fact, is the starting point for the exercise of all the other powers under the parts of the Bill that we are now concerned with.
Anxiety has been expressed on a number of occasions about cost. Huge amounts of data could be required for retention under clause 78. The Government have estimated the cost at £170 million. That is considered to be a gross underestimate by those who will no doubt be called upon to actually retain the data. For those reasons, these amendments are intended to tighten up a clause that is very wide and very loose. It permits a huge amount of data to be retained, including websites visited by you, by me, or by our constituents.
Joanna Cherry
The Minister talked about the duty to take into account the likely benefits of the notice, but does my hon. Friend agree that something may be beneficial without being necessary?
Gavin Newlands
I agree with my hon. and learned Friend. We are not opposed to every measure in the Bill. There are benefits, but unfortunately they are not covered by enough safeguards and are not drawn tightly enough. I would like to make progress but I will give way once more.
Gavin Newlands
I appreciate what the hon. Lady says but, as I am not a lawyer, I am struggling to distinguish the difference between Scottish and English law. Perhaps my colleague could address that.
Joanna Cherry
My hon. Friend will no doubt agree that, in Scotland at least, it is the police who investigate serious crime, under the direction of the Lord Advocate.
Gavin Newlands
I hear what the Solicitor General has said, but I do not wholly agree with him. I reserve the right to bring this back at a later stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Joanna Cherry
I beg to move amendment 306, in clause 78, page 61, line 18, at end insert—
‘(2A) A retention notice may not require a telecommunications operator to retain any data belonging to a third party data, unless that third party data is retained by the telecommunications operator for their own business purposes.”
The Chair
With this it will be convenient to discuss amendment (a) to amendment 306, leave out “notice” and insert “warrant”.
Joanna Cherry
Amendment 306 would insert at the end of clause 78(2) a provision in relation to third party data. Third party data are defined in the code of practice as data that a communications service provider is able to see
“in relation to applications or services running over their network…but does not process that communications data in any way to route the communication across the network”.
To its credit, the Home Office has been unequivocal that such third party data would not be covered in the Bill; the Home Secretary informed the House on 4 November 2015 that the Bill
“will not include powers to force UK companies to capture and retain third party internet traffic from companies based overseas”.—[Official Report, 4 November 2015; Vol. 601, c. 969.]
The draft code of practice for communications data states at paragraph 2.61:
“A data retention notice can never require a CSP to retain the content of communications or third party data”.
The overly broad definition of relevant communications data, which now extends to 16 different definitions and sub-definitions, could however be interpreted as giving the Secretary of State the power to require a communications service provider to retain third party data, since the definition does not expressly exclude third party data unless this amendment is agreed. There are currently no clauses in the Bill that explicitly state that communications service providers will not be required to retain third party data. That is the purpose of the amendment. Given that they have been so clear on the Floor of the House and in the code of practice that that is their intention, if the Government will not accept the amendment, the Minister must tell us why. Where we are dealing with such potentially intrusive powers, we must be as clear as possible.
The Solicitor General
Amendment 306 is tabled, quite properly, to tease out from the Government the more detailed reasoning behind the important statement made by the Home Secretary on Second Reading. The hon. and learned Lady is quite right to refer to that statement. I once again reiterate the Government’s position that we will not be requiring the retention of third party data through these provisions.
The question is how best to achieve that; therein lies the tension. Attractive though the approach advanced by the hon. and learned Lady might be, there are some drafting issues and problems about legal certainty, which mean that putting those provisions in the Bill with suitable detail is problematic.
One of the main functions of the Bill—and one of my desiderata—is to ensure that it is resilient and stands the test of time. My concern is that if we end up with a definition that is too technologically neutral, it will either fail the test of time in this place, or be subject to challenge. As a Law Officer, legal uncertainty is something I have to take very seriously when considering how legislation is presented. That is why I commend the detailed provisions within the draft code of practice on third party data—paragraphs 2.68 to 2.72—that the hon. and learned Lady referred to. That is not only an explicit reiteration of our commitment but the sort of detail needed for those operating the provisions, which could not be properly put in the Bill.
It is generally well understood what third party data are, but perhaps I should briefly explain the important areas of detail that could not be covered on Second Reading. Where one communications service provider is able to see the communications data in relation to applications or services that run over their network, but does not process that communications data in any way to route the communication across the network, then that is regarded as third party data. For example, an email provider, such as Yahoo or Gmail, knows that a certain internet access service, such as BT Internet, was used to send email, but that fact is not needed or used to send it. So it is in everybody’s interest, not least that of the service providers themselves, that there is sufficient clarity about the data that can be retained under the provisions. As I have said, I think the code of practice is the right vehicle for this. It is also the appropriate vehicle for ensuring that there can be a sufficiently detailed definition of third party data for the reasons I have outlined. In those circumstances, I respectfully ask the hon. Lady to consider withdrawing her amendment.
Joanna Cherry
I am not happy about withdrawing the amendment in the absence of elaboration of what the Solicitor General means by drafting issues and problems of legal certainty. I am not clear at the moment why we cannot have both the amendment and the further elaboration that will be provided in the codes of practice.
Amendment proposed to amendment 306: (a), leave out “notice” and insert “warrant”.—(Gavin Newlands.)
Question put, That the amendment be made.
The Solicitor General
The hon. Gentleman makes a proper point about security. This, in respect of the code of practice and in collaboration with the industry, will be at the forefront of everybody’s mind. What is important is that the Government do not have a pick-and-mix or help yourself avenue within which they can mine data for their own capricious purposes.
The framework of the Bill quite properly severely circumscribes the circumstances within which the Government can seek access to that material. Most importantly, when it comes to content, the warrantry system—the world-leading double lock system we are proposing—will apply. An internet connection record is not content; it is a record of an event that will be held by that telecommunications operator. It relates to the fact of whether or not a customer has connected to the internet in a particular way. If it goes further into content, the warrantry provisions will apply. It is important to remember that framework when determining, and describing and putting into context, what we are talking about. The Committee deserves better than indiscriminate shroud-waving about prospects and concerns that simply do not arise from the measures in the Bill.
The hon. Gentleman quite properly raised the Danish experience. The Danish Government and authorities are in regular conversation with the United Kingdom Government. That dialogue goes on because they are naturally very interested to see how our model develops, although there are important differences that should be set out briefly. The Danish legislation was not technology neutral, unlike these proposals, because it specified two options that proved unworkable. We work with operators case by case so that the best option for their network at the appropriate time will be determined. The Bill builds on existing data retention requirements, such as the retention of data necessary to resolve IP addresses, which regime already exists under the Counter-Terrorism and Security Act 2015. The full cost recovery underpinning by the Government means that there is no incentive for communications service providers to cut corners, as I am afraid happened in Denmark. There are important differences between the two.
The hon. Gentleman rightly talks about IPV6. Although it is a great aim and something that all of us who have an interest in this area will have considered carefully, it still is, with the best will in the world, a way away, I am afraid. It will take a long time for all service providers to implement in full, and until then, there will be both types of system. Even with IPV6, CSPs may choose to implement address sharing or network address translation, meaning that it is not the guaranteed solution that perhaps has been suggested. Servers who host illegal material are much less likely to move to that system, meaning that, in practice, IPV4 may well remain with us. We therefore have to act in the interim, because, as has been said, the drift away from what I have called conventional telecommunications to the internet carries on whether we like it or not. We have to face up to the world as it is, rather than the world as we would love it to be, and therefore take into account the fact that we are in danger of being unable to detect criminality and terrorism.
Joanna Cherry
The Solicitor General says we have to face up to the world as it is. Why is it, then, that no other democratic nation in the world is implementing legislation of this sort?
The Solicitor General
The hon. and learned Lady has asked that question before, and I have said to her before that somebody has to step up, try it and make that change. I am proud that the United Kingdom is prepared to do that, as we have done it in so many ways.
Joanna Cherry
Is the Solicitor General aware that it is not that other countries have not looked at the problem? They have looked at the problem and decided that this is not the way to solve it.
Keir Starmer
As members of the Committee will have observed, these tidying-up amendments are consistent with previous amendments that would have entrusted decision making to a judicial commissioner rather than the Secretary of State. We had the discussion in principle in relation to those earlier amendments, which I withdrew, and I will not repeat my arguments now, although I would like to return to them at a later stage.
Joanna Cherry
As the hon. and learned Gentleman says, the amendments would require that review under clause 80 be by a judicial commissioner rather than the Secretary of State. Will the Government tell us why the provision of such a route of review would not, in their opinion, give the telecommunications providers greater reassurance that notices are not only lawful, necessary and proportionate but stable and legally certain? It seems to me that a review by a judicial commissioner, or at the very least by the Investigatory Powers Commissioner, would provide that reassurance.
The Solicitor General
The hon. and learned Lady asks a perfectly proper question. I reiterate the position that we have taken in principle: the Secretary of State is the appropriate and accountable person to be responsible for reviewing retention notices. However, although the Secretary of State must be responsible for giving notices and must therefore be the person ultimately responsible for deciding on the outcome of the review, that does not mean that she or he can make the decision on the outcome of the review without consultation—far from it.
Clause 80(6) ensures that the Secretary of State must consult both the Investigatory Powers Commissioner and the technical advisory board. The commissioner must consider the proportionality of the notice; the board must consider the technical feasibility and financial consequences of it; and both must consult the operator concerned and report their conclusions to the operator and the Secretary of State. Only then can the Secretary of State can decide whether to vary, revoke or give effect to the notice. That system provides rigorous scrutiny of the notice and maintains the accountability of the final decision resting with the Secretary of State. We therefore believe it is the best mechanism for review. Accordingly, I commend the unamended clause to the Committee.
Joanna Cherry
The clause relates to extraterritorial effect and the SNP’s opposition is for the same reasons as outlined in relation to clause 76.
Question put, That the clause stand part of the Bill.
Keir Starmer
I am grateful to the Minister. If he could point to the provision that makes good the submission he has just made, then that will deal with this particular point. Just to be clear, subsection (6) is intended to ring-fence and exclude from one of these warrants communications the interception of which would
“constitute an offence under section 2(1)”,
but only in relation to communications in the course of their transmission in the real sense of the term, not including those that are “stored”. I put on the record—if this is capable of being answered, so be it—that “stored” in subsection (6) has the same meaning as in clause 3, which is intended to include stored communications within the prohibition. I will not take it any further; the Minister has my point, which is that one would expect subsection (6) to protect the same content that is expressly protected by clause 3(4), but it does not—unless he or somebody else can point to another provision that adds to subsection (6), though that would be an odd way of doing it.
I will move on. Subsection (9) defines targeted examination warrants. This is important because subsections (1) to (8) deal with targeted equipment interference warrants—warrants issued in a targeted way; the targeted examination warrant deals with examining material obtained by way of a bulk warrant. It therefore serves a different purpose. Subsection (9) is an extremely wide provision:
“A targeted examination warrant is a warrant which authorises the person to whom it is addressed to carry out the selection of protected material…in breach of the prohibition in section 170(4)”.
To understand that, we need to turn to section 170(4), which raises questions that relate to an argument I made earlier on another, not dissimilar, provision. It states:
“The prohibition…is that the protected material may not…be selected for examination if (a) any criteria used for the selection of the material for examination are referable to an individual known to be in the British Islands at that time, and (b) the purpose of using those criteria is to identify protected material consisting of communications sent by, or intended for, that individual or private information relating to that individual.”
That is intended to give protection to individuals known to be in the British islands, by placing limits on the examination of their material: in relation to their material or their communications one needs a targeted examination warrant to get around the prohibition in clause 170(4). The point I make here is similar to the point that I made before: this is temporal. Whether a person is in the British islands or not depends on where they are physically. I am protected so long as I am in the British islands, but I fall out of protection—as would everybody else—the moment I leave them, whether I am leaving for a day, a week, a month or a year. That is a real cause for concern, as is the wide definition of protected material that immediately follows in clause 88(9); amendment 382 would limit the extent of that definition by stopping the clause after the words “Part 6”, which are on page 67, line 40, of the draft Bill.
In conclusion, this is a very wide-ranging clause, and it contains insufficient safeguards—if there are safeguards, they should be in the Bill. There are questions on subsections (6) in (9), taken in conjunction with clause 170(4), that the Minister will have to deal with.
Joanna Cherry
I rise to support the hon. and learned Gentleman in his submissions on these two amendments. As we have just reached part 5, I want to take the opportunity to make some general comments on it. Powers to conduct equipment interference—or “hack”, which is the more generally used term—are new; they do not exist in any previous legislation. They therefore require significant scrutiny, by the Committee and by parliamentarians generally, before they are added to the statute book. By its very nature, hacking is an extremely intrusive power, because it grants the authority to see all past and future information and activity on a computer or other device. Beyond the implications for privacy, the potential ramifications for the whole country’s cyber-security and for fair trials mean that hacking should be used only as a tool of last resort. The SNP’s position is that stronger protections must be added to the Bill.
Keir Starmer
I beg to move amendment 384, in clause 89, page 68, line 13, leave out from “information” to end of line 15.
This amendment acknowledges that “data” relating to the fact of a communication or the existence of information has meaning and must not be exempt from privacy protections afforded to other categories of data.
This amendment deletes the words
“or from any data relating to that fact”.
It is important because an equipment interference warrant can permit interference with equipment data, as in clause 88(2)(b). As we have seen, clause 88(9) makes provision for protected material, the definition of which includes equipment data. Over the page, clause 89 deals with the meaning of “equipment data”:
“(a) systems data;
(b) data which falls within subsection (2).”
Subsection (2), broadly speaking, refers to systems data as identifying data that are included in, attached to or associated with a communication but that can be separated from it and that, if separated,
“would not reveal anything of what might reasonably be considered to be the meaning (if any) of the communication”.
That is a logical way of approaching it—data linked to a communication that can be separated from it, but if separated, they would not reveal the meaning of the communication. Thus, it does not undermine the special protection given to the communication.
Then the final part of clause 89(2), paragraph (c), says
“disregarding any meaning arising from the fact of the communication”.
As has been said today, the fact of the communication, in many respects, can be as revealing as the content. However, the provision goes on to say
“or from any data relating to that fact”,
which broadens even further the exclusion from protection intended for communications.
In that way, the clause undermines the very protection being given to communications, so this short amendment would omit the words that I have indicated, in order to limit the exclusion from protection for the communication.
Joanna Cherry
May I add my supportive comments? This is a joint amendment from the Labour party and the Scottish National party.
Joanna Cherry
I rise to add my support to amendment 384 on behalf of the Scottish National party. Historically, communications data were considered much less revealing than the content of the communication, and consequently the protections offered to communications data under RIPA were weaker than those existing in the interception regime. However, as communications have become increasingly digital, the data generated are much more revealing and copious than before, allowing the state to put together a complete and rich picture of what a person does and thinks, who they do it with, when they do it and where they do it.
As the Bill stands, clause 88(9) would allow for the examination of potentially vast amounts of data on people in Britain obtained under bulk equipment interference warrants, as vague categories of “data” in 88(9)(a) and (b) are asserted to have no meaning. Data relating to the fact of a communication or the existence of information do have meaning and must not be exempt from the privacy protections afforded to other categories of data.
I urge the Committee to ensure that the Bill does not treat data relating to the fact of a communication or the existence of information relating to that fact as unimportant. In fact, there is extraordinarily high value to such material, precisely because it is highly revealing. It therefore demands equal protection.
Mr Hayes
All these disruptions and delays are adding interest and variety to our affairs. There is a straightforward argument for why the amendment is unnecessary, which I will make. If that is insufficient to persuade the Committee, I will add further thoughts.
The straightforward reason why the amendment is unnecessary is that it would undermine the principle that the most robust privacy protections should apply to the most intrusive kinds of data. I simply do not agree with the hon. and learned Lady that, for example, systems data—the highly technical data that will be separated out as a result of the endeavours in this part of the Bill—are better excluded from those extra protections. The unintended consequence of the amendment—at least, I hope it is unintended—is that it would lead to disproportionate access requirements for less intrusive data. That would be unhelpful and could, through confusion, hamper the work of the services.
Keir Starmer
I am grateful to the Minister, first for spelling out in detail the intended operation of the clause and, secondly, for indicating his willingness to write on the matter. This is something that ought to be in the Bill. My clear reading is that the amendment would not ring-fence anything from examination; it would simply require a warrant under clause 88 if equipment data, having satisfied all the other provisions under subsection (2)(a) to (c), included anything where there was a meaning arising from fact communication and so on. I will therefore press the amendment to a vote.
Joanna Cherry
I have nothing to add in support.
Question put, That the amendment be made.
Joanna Cherry
I want to add my voice in support of the hon. and learned Gentleman’s suspicions—sorry, submissions! We share suspicions about this clause. The clause unamended permits thematic, suspicion less warrants and these shade into general warrants. General warrants are anathema to the common law of England and Scotland and fall foul of international human rights law.
I am pleased that the hon. and learned Gentleman prayed in aid what David Anderson QC said about clause 90. If Members have read his supplementary written evidence to the Committee, they will have seen that at paragraph 5a he expressed grave concern about clause 90, describing it as “extremely broad” and continuing:
“The ISC noted this in relation to the EI power in February 2016…The Operational Case lodged with the Bill also acknowledged…that a targeted thematic EI”—
equipment interference—
“warrant may ‘cover a large geographical area or involve the collection of a large volume of data’. This matters, because as the Operational Case also acknowledged…the protections inherent in a thematic warrant are in some respects less than those inherent in a bulk warrant. The very broad clause 90 definition effectively imports an alternative means of performing bulk EI, with fewer safeguards. The Government’s explanation for this–that it will opt for a bulk warrant where extra safeguards are deemed necessary–may be argued to place excessive weight on the discretion of decision-makers.”
That concern—that it gives excessive discretion to decision makers—is one that the Scottish National party has as a thread running through the Bill. David Anderson goes on to say:
“If bulk EI warrants are judged necessary, then it should be possible to reduce the scope of clause 90 so as to permit only such warrants as could safely be issued without the extra safeguards associated with bulk.”
Even if the Minister does not consider the SNP’s and the Labour party’s concerns valid, what does he have to say about the lengthy passage that David Anderson has devoted to the matter in his supplementary written evidence?
Mr Hayes
I have done so already, but I will repeat it for the sake of the record. The powers are contained in the Intelligence Services Act 1994 and the Police Act 1997. I am more than happy to provide more information to the hon. and learned Lady on that detail, should she want me to do so.
Joanna Cherry
I am looking at the 1994 Act and it seems to me that it contains broad and vague enabling powers, which bear no resemblance to the powers in the Bill. Can the Minister contradict that?
Mr Hayes
One of the stated purposes of the Bill is to bring together those powers—to cement them and to put in place extra clarification and further safeguards. I have argued throughout that the essence of the Bill is delivering clarity and certainty. I would accept the hon. and learned Lady’s point if she was arguing that, at the moment, the agencies draw on a range of legal bases for what they do, for that is a simple statement of fact. We are all engaged in the business of perfecting the Bill, because we know it is right that these powers are contained in one place, creating greater transparency and greater navigability, and making legislation more comprehensible and more resistant to challenge. That is at the heart of our mission.
I said I would talk about breadth. The breadth of the circumstances in which equipment interference could be used reflects the fact that, at the time of making an application for a warrant, the information initially known about a subject of interest may vary considerably. Last week, we spoke about the kind of case in which there may be an unfolding series of events, such as a kidnapping, where a limited amount might be known at the outset when a warrant is applied for. The warrant’s purpose will be to gather sufficient information as to build up a picture of a network of people involved in a gang or an organised crime. That is very common and I intend to offer some worked examples in a number of areas.
Identifying members of such a gang can often come from interception arising from a thematic warrant. That might apply to interception, but frankly it might also apply to equipment interference where that is a more appropriate and more effective means of finding the information. Another example may be a group of people involved in child sexual exploitation. Frequently, partial information will allow for further exploration of a network of people who are communicating over a wide area, and who are careful about how they communicate, mindful of the activity that they are involved in. They will not be easy to discover or find, as they will very often disguise their identity. For that reason, it may be necessary to start by looking at sites commonly used to share indecent images of children and from there uncover information that leads, through the use of equipment interference, to those who are driving that unhappy practice. Those examples are not merely matters of theory; they are matters of fact. I know that in cases of kidnapping and in cases of child sexual exploitation, those techniques have been used and continue to be used.
Investigatory Powers Bill (Ninth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Home Office
Investigatory Powers Bill (Ninth sitting)
Joanna Cherry ExcerptsThursday 21st April 2016
(8 years, 8 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 April 2016 - (21 Apr 2016)
Hon. Members
Hear, hear!
Clause 91
Power to issue warrants to intelligence services: the Secretary of State
Joanna Cherry (Edinburgh South West) (SNP)
I beg to move amendment 405, in clause 91, page 70, line 8, after “crime”, insert
“where there is reasonable suspicion that a serious criminal offence has been or is likely to be committed”.
The Chair
With this it will be convenient to discuss the following:
Amendment 406, in clause 91, page 70, line 9, leave out paragraph (c).
Amendment 436, in clause 96, page 74, line 16, leave out subsections (12) and (13).
Amendment 464, in clause 91, page 70, line 25, at end insert—
‘(10) A warrant may only authorise targeted equipment interference or targeted examination as far as the conduct authorised relates—
(a) to the offence as specified under subsection (5)(b), or
(b) to some other indictable offence which is connected with or similar to the offence as specified under subsection (5)(b)”.
Joanna Cherry
The amendments, which were tabled by the Scottish National party and the Labour party, are part of the broad objective of altering clause 91 so that authorisation of warrants is carried out by judicial commissioners rather than the Secretary of State. There has already been quite lengthy argument about the general principle so I will not go into that in great detail. The amendments also deal with the grounds and circumstances in which warrants may be issued and attempt to tighten the safeguards in the clause.
Amendment 405 would amend the grounds on which warrants may be issued, adding at the end of subsection (5)(b) a reference to reasonable suspicion of serious crime taking place. That pertains to an argument I made in relation to part 2 of the Bill, which is that the grounds for issuance of a warrant should require reasonable suspicion. It will also be recalled that I argued that the economic wellbeing grounds should be removed from the Bill in relation to part 2, and I renew that argument in relation to this clause for the same reasons. There seems to be some tautology. As either the Joint Committee on the draft Bill or the Intelligence and Security Committee commented, it is difficult to see how
“the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”
can really mean anything above and beyond the interests of national security. Amendment 406 would therefore remove subsection (5)(c).
Amendment 463 would remove subsection (6), while amendment 465 would include a requirement of proportionality and a technical assessment in the consideration that is given to the issuance of a warrant. Amendment 465 would require that less intrusive methods have been used or considered and a technical assessment of proportionality accounting for the risks of the conduct proposed. Those requirements would apply when applications from the intelligence service, the Chief of Defence Intelligence and law enforcement are considered. In order to consider whether a warrant is necessary and proportionate, not only the intrusion but the methods will need to be assessed. The amendment would require the judicial commissioner, supported by independent technical expertise, to assess the proportionality of the conduct proposed in targeted equipment interference applications.
There is good reason behind the amendment. Again, I hark back to some of the more general concerns that were expressed by myself and the hon. and learned Member for Holborn and St Pancras. When malware is deployed there is often a risk of contagion, at home as well as overseas. We have had a recent and dramatic demonstration of that: the Stuxnet virus was believed to be an American-Israeli cyber-weapon intended to hack a single Iranian uranium enrichment facility. What happened instead was that it infected Chevron, the energy giant, and many other companies, as well as Microsoft PCs around the world.
That is a good illustration of how hacks intended for what we might call “good purposes”—to protect the public—can have unintended consequences. I believe that the phrase used by those in the know is the risk of hacks spreading into the wild. Technical experts have explained to me that the risk of hacks spreading into the wild cannot be overstated. In fact, a professor of security engineering at Cambridge University, Ross Anderson, wrote to the Science and Technology Committee about this very issue, saying—he did not mince his words— that
“It is only a matter of time before interference with a safety-critical system kills someone”.
The amendment would address these serious issues by making sure that we do not take the potentially dangerous and counterproductive step of hacking where other less intrusive and safer methods have been used, and that a technical assessment of proportionality accounting for the risks of the hack being proposed is carried out in advance.
The practice of equipment interference leads to the stockpiling of software vulnerabilities, which in turn puts millions of users of software at risk, and those millions of users of software are our constituents, the citizens of the United Kingdom, people who use these sorts of devices day in and day out for all sorts of aspects of their personal and professional lives. These hacks, if not used only where strictly necessary, and if there is not a proper technical assessment in advance, risk opening up the equipment of ordinary members of the public to criminals and fraudsters rather than just the intelligence agencies. Underlying the amendment is the idea that it is vital that when deciding whether to grant a warrant, the judicial commissioner should understand and account for the proportionality of the proposed interference methods before authorising them.
There is also the risk that hacks can malfunction, with severe consequences for critical infrastructures and even international relations. Whatever one thinks of Edward Snowden’s revelations and the propriety of them, the fact is that he put a lot of material into the public domain and we would be remiss if we did not consider that. He has revealed that malfunctions of hacking by the National Security Agency in America were responsible for the outage of the entire internet in Syria in 2012, which may have caused simultaneous flight-tracking issues and led Government and opposition forces erroneously to blame each other for the incident. That sort of thing could be a danger to our forces.
I went to a fascinating briefing yesterday morning about photonics. Before I went into the briefing, I did not really know what photonics was, because I am not a scientist by background, but I went along because there is a lot of research into photonics development going on in Scotland, particularly at Heriot-Watt University, which is in my constituency. One of the fascinating things that I learned at this briefing on photonics from a speaker from BAE Systems was how photonics—in layperson’s terms, laser technology—can now “zap” on to the visor of fighter pilots the information they need vis-à-vis radar and the like, so that they do not have to look down at a screen when they are looking for a target. If hacking goes wrong, those sophisticated technologies, which are needed for the defence of this country, may themselves go wrong and that may lead to the deaths of innocent civilians, which we all, regardless of which side we took in the vote last December, want to avoid in any bombing in Syria.
There is a high degree of public interest in the proportionality of hacking methods, and the security of data and the safety of citizens both at home and abroad are very real issues. The debate surrounding the Apple against the FBI case in America centred on whether the methods required to hack one particular device were proportionate, given the security consequences for all owners of iPhones. In the United States, the decision in that case was rightly entrusted to an independent judge.
Amendment 465 is crucial because of the potential damage to computer security and the corresponding vulnerability to criminal elements that results from hacking, as well as the potential dangers for our forces fighting abroad and for civilians. The use of various hacking technologies poses clear risks to those they are used against and to the wider public, which requires the addition of a technical proportionality test. I hope the Government are prepared to consider the amendment seriously.
Keir Starmer (Holborn and St Pancras) (Lab)
It is a pleasure to continue to serve under your chairmanship, Mr Owen. I echo your sentiments in relation to Her Majesty the Queen. [Hon. Members: “Hear, hear!”]
I have little to add to the hon. and learned Lady’s comments in support of the amendments, other then to outline why they were tabled. Clause 91(1) sets out the power to issue warrants, and paragraphs (a) and (b) outline the familiar necessity and proportionality tests, which bite on the very wide provisions of subsection (5). The Secretary of State therefore has to consider whether issuing a warrant is necessary for one of those broad purposes—
“national security…preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom”.
That is obviously a broad necessity test, and proportionality is assessed by reference to the same grounds. The provision is over-broad, which matters because the double lock works only if a judicial commissioner has scrutiny of the Secretary of State’s decision. If the Secretary of State’s decision is so wide, the judicial commissioner’s scrutiny will be correspondingly wide. That matters particularly in relation to the targeted examination warrants, which will be used where a wider bulk power has been exercised in the first place. The amendments would tighten the necessity and proportionality tests, giving them real practicality and effect.
The Minister for Security (Mr John Hayes)
It is a pleasure to serve under your chairmanship once again, Mr Owen, particularly on the auspicious occasion of Her Majesty’s birthday. The Solicitor General and I are members of a diminishing group who still hold to the spirit, and perhaps even the actuality, of the divine right of kings.
Chivalry forbids me from paying but scant attention to the fact that the hon. and learned Member for Edinburgh South West spoke to amendments not in this group. I will not spend too much time responding to what she said, but I might be able to respond to her a little when we come to the next group.
Joanna Cherry
I realised that I had done that inadvertently, for which I apologise. I will not add insult to injury by repeating my submission when we get to the next group. I look forward to hearing what the Minister has to say.
The Chair
There will be a lot of that today, because we have addressed many of these issues in greater detail previously and we will be moving on. Hopefully that will help, rather than hinder, proceedings.
Joanna Cherry
The Minister is generous in giving way. I fully accept his good faith in saying that that is not the intention or purpose, but he cannot bind future Governments. In saying that it is not the intention or purpose, he clearly recognises that there is a weakness and that the provision could be interpreted in the way that has been suggested. That is our concern: we are putting on the statute book a measure that might be exploited by a less scrupulous Government.
Mr Hayes
I am happy to draw to the attention of any future Investigatory Powers Commissioner the fact that that is not the case and will not be under the Bill. Of course the hon. and learned Lady is right: whether this is a good or a bad thing I leave it to others to judge, but I cannot bind future Governments. However, we can certainly consider and reconsider ways in which the message can be reinforced during the passage of the Bill. I do not want to go too much further, but I think that the signal I am sending will have been seen by people on this Committee and elsewhere.
Mr Hayes
Yes. It would absolutely not be permitted under the Bill. I do not want to go over it exhaustively, but that reinforces a series of pieces of legislation that deal with the question, many of which have been passed since the talisman case of the Shrewsbury 24, which has been raised in the House a number of times in different ways. However, I take the hon. and learned Gentleman’s point that there is a compelling case to be made for further consideration and assure him that we are engaged in that. I will not say more at this stage, but a signal has been broadcast to this Committee and elsewhere. My prejudices on these matters as a trade unionist are well known, although it is not my prejudices that shape legislation—heaven forbid.
To return to the amendment, it would restrict equipment interference warrants under clause 91 in circumstances
“where there is reasonable suspicion that a serious criminal offence has been or is likely to be committed”.
Again, I do not want to go over this exhaustively, but the problem with that is the character of investigations, which are by their nature dynamic; it is not always possible to anticipate the direction they might take or the material they might uncover. Not every individual involved in an investigation would themselves be suspected of committing a serious criminal offence, but their relationship with wider associates and potential facilitators of a crime might be crucial to identifying the extent of the organised crime gang and its international links and bringing the ringleaders to justice.
Restricting equipment interference warrants to where there is a serious criminal offence would be a significant reduction in the security and intelligence agencies’ current powers. I repeat: current powers. They are not new. We know how they are used and the effect of their use, but the amendment would restrict their ability to protect the national interest. Do not forget—not that you would, Mr Owen—the necessity and proportionality tests in the Bill that limit the circumstances in which the powers can be used, alongside the double lock.
My straightforward case is this: the powers are vital, to curtail them would damage our interests, and they are not here for any of the unintended consequences that people are understandably concerned about. I am prepared to look at how we can reinforce that. I invite the hon. and learned Lady to withdraw the amendment.
Joanna Cherry
Before I make my position on the amendments clear, it was remiss of me not to add the sincere good wishes of the Scottish National party to Her Majesty the Queen on the auspicious occasion of her 90th birthday.
When we looked at similar issues under part 2, we did not push the matter to a vote, and that is the course of action I wish to follow at this stage. I will withdraw the amendment now, but no doubt the whole issue of judicial warrantry will be revisited on the Floor of the House. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 465, in clause 91, page 70, line 18, leave out from “include” to end of line 19 and insert—
“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and
(b) the requirement that a risk assessment has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—
(i) the risk of collateral interference and intrusion, and
(ii) the risk to the integrity of communications systems and computer networks, and
(iii) the risk to public cybersecurity.”
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Joanna Cherry
I beg to move amendment 408, in clause 91, page 70, line 25, at end insert—
‘(10) Targeted equipment interference is only lawful if authorised under this Act.”
The amendment would require that targeted equipment interference cease to be conducted under the Intelligence Services Act 1994, the Police Act 1997 or indeed any other prior legislation, and instead be conducted under the provisions of the Bill. The Bill is a consolidated piece of legislation, and we tabled this amendment in the spirit of the Government’s laudable attempt to consolidate the legislation in this area. The amendment would ensure that equipment interference always benefits from the safeguards and oversight in the Bill. As we just set out, the Opposition parties want the safeguards to go further, but even if they remain as they are we would like them to apply to all targeted equipment interference. That would improve public accountability and clarify the state’s powers.
The Intelligence and Security Committee’s report on the draft Bill expressed concern about the fact that agencies conduct several forms of equipment interference that are not provided for in the Bill, so it is not just Opposition Members who are concerned. The ISC said that
“certain IT operations will require a different standard of authorisation…than Computer Network Exploitation and that similar activities undertaken by the Agencies will be authorised under different pieces of legislation.”
It concluded that, if that remains the case, the Bill will have failed to achieve transparency; operations will remain secret and thus not be subject to clear safeguards. It recommended that
“all IT operations are brought under the provisions of the new legislation…with the same authorisation process and the same safeguards.”
The amendment reflects the Intelligence and Security Committee’s recommendation that all types of equipment interference should be governed under one clear piece of legislation. I will be grateful if the Government take it on board in the spirit in which it is intended.
Mr Hayes
I will deal with this very briefly. The hon. and learned Lady is right that the amendment is neither invidious nor unhelpful; however, it is unnecessary because there is already a broad prohibition of unlawful interference with equipment in the Computer Misuse Act 1990. That means that any activity that fits within the definition of equipment interference provided in the Bill may constitute an offence unless it is lawfully authorised under part 6 of the Bill, where that authorisation is detailed, or under other relevant legislation.
On the hon. and learned Lady’s point about activities outside the United Kingdom—a prevailing theme of her concerns, understandably—the Bill sets out the circumstances in which it is mandatory for the agencies to obtain a warrant. That does not include cases in which the conduct takes place wholly overseas. The reality of operating outside our jurisdiction, as she knows, is quite different from operations conducted within or from the British islands. It is not our intention to introduce clauses that inhibit the agencies’ ability to act with agility or flexibility. I think that the amendment certainly does not assist in that regard, and is unnecessary. I hope she will withdraw it on that basis.
Joanna Cherry
Like the ISC, I am not wholly convinced by the Minister’s argument, but I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to take the following:
New clause 8—Equipment interference: risk assessment—
“A person making an application for a warrant involving equipment interference must make a detailed assessment of—
(a) the risk to the security or integrity of systems or networks that the proposed activity may involve;
(b) the risk to the privacy of those not being specifically targeted;
(c) the steps they propose to take to minimise the risks in subsection (a) and (b).
New clause 9—Critical national infrastructure: risk assessment—
“The person making an application for a warrant under this part must make a detailed assessment of the risks of the proposed activity to any critical national infrastructure.”
Joanna Cherry
The new clauses were tabled by the Scottish National party and reflect the arguments I made in support of amendment 465 on the necessity of carrying out risk assessments in advance of issuing a warrant. They are very much a corollary of that, and as that amendment has been withdrawn, I will not press the new clauses for the time being.
Question put and agreed to.
Clause 91 accordingly ordered to stand part of the Bill.
Clause 92 ordered to stand part of the Bill.
Clause 93
Power to issue warrants to the Chief of Defence Intelligence
Joanna Cherry
The bulk of the amendments in this group are SNP-only amendments. I think I am right in saying that the Labour party probably supports them, but I will leave it to the Labour party to confirm that.
Put simply, the set of amendments proposed by the Scottish National party would remove the power to issue equipment interference warrants from law enforcement chiefs, immigration officers, officers of Revenue and Customs, customs officials, the chair of the Competition and Markets Authority and the Police Investigations and Review Commissioner, and instead judicial commissioners would be responsible for issuing warrants on application from law enforcement chiefs. It is a disturbing anomaly that the Bill proposes that authorisation for the most intrusive form of surveillance—hacking—should be self-issued by a range of public bodies. Could the Government clarify the reason for that anomaly?
This process would put a range of actors, from chief constables to immigration officers, in charge of issuing hacking warrants. The proposal would give these individuals greater powers of intrusion than the security services have under later parts of the legislation—they are at least required to seek the authorisation of the Secretary of State for hacking activities. It is in my argument self-evident that the process should be for law enforcement officials to make an application for a judicial commissioner to decide the application.
I mentioned immigration officers. The Immigration Law Practitioners’ Association has produced a briefing for members of the Committee, and it has drawn to our attention the fact that under clause 96 persons appointed as immigration officers under paragraph 1 of schedule 2 to the Immigration Act 1971 are among those who can apply for these warrants for a serious crime that is
“an immigration or nationality offence”
as defined, or where the warrant is considered
“necessary for the purpose of preventing death or any injury or damage to a person’s physical or mental health or of mitigating any injury or damage to a person’s physical or mental health”.
The Immigration Law Practitioners’ Association has a long history of briefing, with some distinction, hon. Members on immigration matters. The issue that it identifies is that the wording of the clause does not identify which immigration offences are considered to be serious crimes or, indeed, whether they are all considered to be serious crimes, so there is a lack of transparency in the legislation.
I should address one other amendment, which is on a slightly different point. SNP amendment 435 is an attempt to import into clause 96 the proportionality and technical assessment requirements that I addressed in some detail in my argument in support of amendment 465 to clause 91. I will not rehearse that again.
Mr Hayes
Thank you, Mr Owen. A number of points have been raised. Clearly, law enforcement agencies use equipment interference to stop serious crime, but it is important to add that they also use it to help people at risk of serious harm. That might include locating missing people or helping vulnerable children; there is a whole range of preventive measures that anticipate harm. The Bill brings into a single place the powers that are already used in those ways; there are no additional powers here.
It is also important to point out that these matters were looked at, as were all matters, during the extensive scrutiny that the Bill enjoyed before it came to the Committee. None of the reports of the three Committees of the House, for example, recommended changing the current arrangements for the way in which these kinds of warrants are authorised and used. We have modelled the arrangements in the Bill on the current system under the Police Act 1997, which authorises property interference. That is how this activity is currently dealt with.
Joanna Cherry
I hear what the Minister is saying, but does he not accept the force of the argument that it is anomalous that the security services at least have to go to the Secretary of State, whereas law enforcement chiefs will be able to issue such warrants themselves?
Mr Hayes
I was coming to that argument, which was also made by the hon. and learned Member for Holborn and St Pancras. I simply say that the character of the warrants we are speaking about, which law enforcement chiefs apply for, is central to much of what happens now in the investigatory process. It is based on those chiefs’ special understanding of such investigations. They are clearly answerable for the effective policing of their area, and they certainly have the experience and expertise to make the right decisions on what equipment interference is necessary in an investigation of a serious crime. The status quo suggests that the system works and the powers that we are describing have real value in dealing with crime and in anticipating the other kinds of harm that I have described.
In drawing up a Bill, as I have argued previously, one looks to cement existing powers, but of course one also scrutinises what is not working. If we had thought that the current system was not working, we would certainly have looked to change it. The Bill is consistent with other powers in the 1997 Act, as I have described, such as property interference. It would arguably be anomalous to separate what the police do in respect of property from what they do in respect of technology. It might well, in the hon. and learned Lady’s eyes, deal with one anomaly only to create another.
Joanna Cherry
Does the Minister agree that there is another anomaly? To search someone’s house, north and south of the border, one has to have a warrant issued by a judge. The clause will allow people to hack into equipment, with all the information that it contains in this modern world, without a judge-issued warrant.
Mr Hayes
The hon. and learned Lady is right that these things need to be consistent, as I said in the previous discussion, but we have been arguing in favour of the double-lock throughout this consideration. I am not sure it would be sensible for us to use the Bill to change existing legislation that is doing its job. That was not the view of law enforcement itself; of David Anderson, when he looked at these matters; or of the Joint Committee when it considered them. It would be curious—I put it no more strongly than that—if we were suddenly to focus on this and make a considerable change to existing practice.
The use of covert human intelligence sources under the Regulation of Investigatory Powers Act 2000 is also well established. The current practice is subject to the chief surveillance commissioner, who has publicly affirmed that law enforcement chiefs apply themselves with due care and attention to ensure they are compliant with the law and acting in good faith. Not only has the scrutiny of the Committees I have described not made the point that the hon. and learned Lady makes, but it seems that my defence of the status quo is supported by the evidence of the commissioner.
Equipment interference warrants must be approved by the judicial commissioner, so the hon. and learned Lady’s argument that a judge deals with the search of a property, and my argument that a judicial commissioner will approve the kinds of warrant we are debating now, seem to be equivalent. Perhaps she thinks a judicial commissioner is not the best person to do that.
Joanna Cherry
The position that has consistently been put forward by the Scottish National party is that the judicial commissioner should not be in a double-lock system. He or she should be looking from the outset at the merits of necessity and proportionality. That has been our consistent position in relation to all provisions related to warrantry in the Bill.
Mr Hayes
The hon. and learned Lady, with due respect, is shifting the ground. On the one hand, she says that she compares the arrangements for searching a house, the warrant for which is approved by a judge, with this system, on the grounds that there should be judicial involvement in both. On the other, when I said that there will be judicial involvement in both, she returned to the argument that the Secretary of State should be involved. I think she needs to know what she wants.
Joanna Cherry
With all due respect, I have been crystal clear about this from the beginning. “Judicial involvement” is a very loose term. Judicial involvement, in which the judge is bound by the rules of judicial review, is a considerably lesser involvement than if he or she is able to look at matters purely on their merits, as in a system of pure judicial warrantry, advocated by the Scottish National party.
Mr Hayes
There were many other opportunities to consider the judicial review point that the hon. and learned Lady makes. In fairness, she has been consistent in having doubts about whether those are the appropriate terms on which a judicial commissioner should consider these matters. There has been much discussion about that, including in some of the Committees that I referred to earlier. Regardless of the terms—you will not allow us to explore those in any great detail, Mr Owen, because they are not strictly pertinent to the clause or the amendment—the process whereby a law enforcement chief, supported by a judicial commissioner, obtains a warrant is, in my judgment, sufficient to guarantee proper practice. It is certainly in line with what we know currently works. I would have to be pretty convinced at this juncture to make such a radical change to the Bill, and frankly, I am not.
Mr Hayes
The hon. and learned Gentleman has offered an interesting observation. My counter-observation—perhaps it is a little more than that; it is more of a considered assertion—is that the kind of investigation I have described needs to happen with speed, and certainly with expertise. I think we agree that that is supported by the evidence I have provided and the evidence that has been made available to the commissioner. There needs to be flexibility in the system, and I think that is provided for. He is right that there should also be a legal test and a legal check on that test, which we have also provided for in the Bill. My assertion is that the amendments would provide a single lock, but we are providing a double lock. What’s not to like? On that basis, I ask the hon. and learned Member for Edinburgh South West not to press her amendment.
Joanna Cherry
As the Minister will no doubt have gathered from the last few days in Committee, it is my opinion that there is a lot not to like in this Bill, but I am prepared to withdraw my amendment at this stage. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 96 ordered to stand part of the Bill.
Schedule 6 agreed to.
Clause 97
Approval of warrants by Judicial Commissioners
Mr Hayes
I beg to move amendment 258, in clause 97, page 75, line 4, leave out from “a” to “under” and insert
“decision to issue a warrant”.
This amendment, and amendments 259 to 262, each make a minor drafting change to take account of the fact that clause 97 may also apply in a case where a warrant has already been issued (see Clause 98).
The Solicitor General (Robert Buckland)
I am grateful to the hon. and learned Gentleman. We need not rehearse the arguments that we looked at in some detail a few days ago, but I will say what I said then: although the Bill covers those points, there is merit in considering the matter carefully, and I shall continue to give it anxious consideration.
The sliding scale approach, to coin a phrase, is clearly relevant. We must remember that the absence of the Secretary of State in the case of the other agencies is not a problem, because we want them to have integrity and operational independence. We must always remember that underlying principle. I am not criticising anyone, but that sometimes gets a bit lost in the debate.
Having said that, the hon. and learned Gentleman’s point is well made about the different considerations that would present themselves to the mind of a commissioner, bearing in mind that the Secretary of State and national security and all those factors are not involved. I need not, perhaps, add more to the debate on that; I simply commend yet another clause that covers the double-lock authorisation process and applies it for the first time to the area of warrantry in question.
Joanna Cherry
I have very little to say, other than that I support the thrust of the argument made by the hon. and learned Member for Holborn and St Pancras; but I also note what the Solicitor General said about giving the matter anxious consideration. I am grateful to him for that, because it is a central concern.
The Solicitor General
I have nothing further to add.
Question put and agreed to.
Clause 97, as amended, accordingly ordered to stand part of the Bill.
Clause 98
Approval of warrants issued in urgent cases
Joanna Cherry
I beg to move amendment 439, in clause 98, page 75, line 25, leave out “considered” and insert
“had reasonable grounds for believing there was an emergency situation posing immediate danger of death or serious physical injury or that the physical security or integrity of the nation was endangered”.
The Chair
With this it will be convenient to discuss amendment 440, in clause 98, page 75, line 27, after “must”, insert “immediately”
Joanna Cherry
Amendment 439 pertains to the approval of warrants issued in urgent cases. Simply, the amendment would provide that an urgent warrant can be issued only where there is a reasonable belief that it is necessary to do so for the purpose of protecting life or preventing serious injury. That is a recurrent theme, which I have addressed previously, and I will not repeat the arguments.
Keir Starmer
Our amendment 440 is modest and would insert the word “immediately”. I need say no more than that.
The Solicitor General
May I deal with the amendments in reverse order? On amendment 440, I am happy to consider amending the relevant draft codes to make it clear that the notification of judicial commissioners should happen as soon as is reasonably practical. That wording is more appropriate than “immediately”, given that it may take some small period of time to draw together the materials that the commissioner would want to review when considering whether to approve the issue of a warrant. On the basis that we might return to this issue at a future date, I invite the hon. and learned Gentleman not to press his amendment.
The amendment tabled by the hon. and learned Member for Edinburgh South West, to which she spoke with admirable brevity, is well understood by the Government, and the arguments remain as they did in our debate on clause 22. We want to create a workable framework, and if we limit the grounds, my concern is that the scenarios and case studies I set out in that debate—the drugs case and the Daesh case—would not be caught. We have a clear definition of “urgency” in paragraphs 41 to 44 of the draft code. The draft code also has a helpful flowchart that clearly sets out the parameters within which those seeking such warrants should operate. For those reasons, I respectfully urge her to withdraw her amendment.
Joanna Cherry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 98 ordered to stand part of the Bill.
Clause 99
Failure to approve warrant issued in urgent case
Keir Starmer
I beg to move amendment 441, in clause 99, page 76, line 10, leave out paragraph (b).
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 100 ordered to stand part of the Bill.
Clause 101
Requirements which must be met by warrants
Joanna Cherry
I beg to move amendment 275, in clause 101, page 79, line 19, leave out “describe” and insert “specify”.
The Chair
With this it will be convenient to discuss the following:
Amendment 452, in clause 101, page 79, line 21, leave out paragraph (b) and insert—
“(b) precisely and explicitly the method and extent of the proposed intrusion and the measures taken to minimise access to irrelevant and immaterial information”.
Amendment 453, in clause 101, page 79, line 22, at end insert—
“(c) the basis for the suspicion that the target is connected to a serious crime or a specific threat to national security;
(d) in a declaration with supporting evidence—
(i) the high probability that evidence of the serious crime or specific threat to national security will be obtained by the operation authorised, and
(ii) how all less intrusive methods of obtaining the information sought have been exhausted or would be futile, and
(e) in a separate “Cyber-Security Impact Assessment” all potential risks and damage to the security of the device targeted and communications systems more generally and how those risks and/or damage will be eliminated or corrected.”.
Joanna Cherry
Amendment 275 is a simple amendment to subsection (4), which sets out the matters that a targeted equipment interference warrant must “describe”. The amendment would change that word and require more specificity.
The Solicitor General
I am not sure whether that will make any practical difference, but I am happy to consider the hon. and learned Lady’s amendment.
Joanna Cherry
I am very grateful to the Solicitor General. I leave the other two amendments to the hon. and learned Member for Holborn and St Pancras.
Keir Starmer
Amendments 452 and 453 speak for themselves. Concern has already been expressed about the general nature of the requirements that must be met by warrants; this is a further example under the head of equipment interference warrants. Clause 101(3) sets out in some detail what is required, and the amendments would tighten that up by requiring more precision and more matters to be explicitly stated. They are a version of other amendments tabled to corresponding provisions for other warrants.
The Solicitor General
I am grateful to my hon. Friend, who speaks with many years of operational experience in the Metropolitan police. When he was a senior officer in that force, he had responsibility for investigations and took his responsibilities extremely seriously. I am grateful to him for his contribution. We have to balance any concerns about a jump to these powers with real-world responsibilities. I want clarity, but also an element of flexibility for those who investigate crime, so that they can get on with the job in an effective way and catch criminals. That is what we all want. I am worried that the amendment, well intentioned though it is, would complicate the process. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras not to press the amendment to a vote.
Joanna Cherry
I beg to ask leave to withdraw the amendment for the time being.
Amendment, by leave, withdrawn.
Clause 101 ordered to stand part of the Bill.
Clause 102
Duration of warrants
Keir Starmer
I beg to move amendment 635, in clause 102, page 80, line 21, leave out
“ending with the fifth working day after the day on which”
and insert “of 48 hours after”.
Mr Hayes
Let me make a general point about something that has punctuated our discussions; it may to some degree satisfy the hon. and learned Gentleman. The codes of practice are, of course, vitally important. They have metamorphosed over time and continue to do so, partly as a result of the scrutiny the Bill went through before it came to the House. The codes of practice are extremely detailed in respect of interference, as he will know, and on page 21 they deal with the relationship between equipment interference and privacy:
“Equipment interference agencies must not intrude into privacy any more than is necessary to carry out their functions or enable others to do so.”
The process by which an equipment interference warrant is authorised, and the subsequent use of that warrant, are properly constrained by those necessary requirements around intrusion and privacy. Notwithstanding that general point, the purpose of the amendments is twofold. As the hon. and learned Gentleman said, the first deals with the time before the judicial commissioner examines an urgent warrant. The second deals with the length of a warrant per se. Let me, for the sake of excitement, deal with them in reverse order.
The length of time that the initial warrant pertains was not challenged by any of the Committees that looked at the Bill, and there has been no great clamour or call about it, not least because of an understanding that these investigations or cases, as I said in an earlier debate, are often complex and dynamic; as they change rapidly, they require powers to pertain and continue over time. I will deal fairly dismissively—I do not mean that with undue contumely—with the second part of this short discussion.
Joanna Cherry
The Joint Committee and the Intelligence and Security Committee did deal with interception warrants and recommended 24 hours and 48 hours respectively. Given that hacking is potentially more significant and intrusive, would it not be logical to have a similar reduction in relation to hacking?
Mr Hayes
I think the hon. and learned Lady is probably considering a different matter from the one I am talking about. I may have been insufficiently clear, so let me briefly make my case again. I am speaking about the second aspect of the amendments, which is to change the length of time for which a warrant lasts. She will know that, on that issue of duration, David Anderson argued that a serious crime warrant should be extended to last for six months rather than three months, bringing it into line with national security warrants. He explained that, when a warrant lasts only three months, it is often necessary to start preparing a renewal application without a full understanding of the impact of the original warrant. It is important to point out in that respect that equipment interference is not necessarily more intrusive than other techniques. The amendment is out of line with David Anderson’s view in that it seeks to curtail duration of a warrant.
That brings me to the first part. I think I may have confused the hon. and learned Lady by dealing with the points in reverse order, but I come now to the first part of what the amendments will do, which is the matter to which she refers—the five days or three. She will know that there was considerable discussion about that in the earlier stages of scrutiny in the Joint Committee.
Joanna Cherry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 102 ordered to stand part of the Bill.
Clause 103 ordered to stand part of the Bill.
Clause 104
Modification of warrants issued by the Secretary of State or Scottish Ministers
Keir Starmer
I beg to move amendment 638, in clause 104, page 83, line 17, at end insert—
“(8A) Section 97 (approval of warrants by Judicial Commissioners) applies in relation to a decision to make a modification of a warrant issued under section 96 as it applies in relation to a decision to issue such a warrant, but as if—
(a) the references in subsection (1)(a) and (b) of that section to the warrant were references to the warrant as modified, and
(b) any reference to the person who decided to issue the warrant were a reference to the person who decided to make the modification.”
Investigatory Powers Bill (Tenth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Home Office
Investigatory Powers Bill (Tenth sitting)
Joanna Cherry ExcerptsThursday 21st April 2016
(8 years, 8 months ago)
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Joanna Cherry (Edinburgh South West) (SNP)
The Scottish National party has tabled leave-out amendments to the entirety of part 6. I sought the assistance of the Committee Clerks, to whom I wish to record my sincere and grateful thanks for their help over the last couple of weeks, on how to approach the amendments. It was suggested that I might press the question on stand part for the first clause of an objectionable part. For example, in chapter 1 of part 6, I could press the question on clause 119 and make my position abundantly clear, which might be a proxy for my objections to the whole part. Are you content for me to proceed in that way, Mr Owen?
Joanna Cherry
To deal with clause 119, I must outline why the Scottish National party wishes the entirety of part 6 to be removed from the Bill until such time as a convincing case has been made for the use of bulk powers and the legality of bulk powers has been determined. In our view, it is important not to pre-empt the terms of court judgments in cases currently considering bulk powers, as they will have a significant impact on the lawfulness of the approach set out in the Bill, which at present must, at the very least, be open to question.
The Government have produced an operational case in response to remarks made by a number of witnesses before the Joint Committee on the Draft Investigatory Powers Bill, who were concerned about the lack of such a case, and to the Joint Committee’s recommendation 23. The Home Office published a 47-page operational case for bulk powers alongside the Bill. That document was produced within three weeks, and the first half of it is introductory, covering topics such as how the internet works and what the dark net is. Only the second half of the document, characterised as an operational case, addresses the capabilities with which we are concerned.
Going goes through the operational case, we can see that each power—bulk interception, bulk equipment interference, bulk communications data acquisition and bulk personal datasets—has an average of about five pages devoted to it. Bulk interception has only about four. Most of the material dealt with is already public in other explanatory documents. It seems that, despite the opportunity to provide concrete, solid examples of how bulk powers bring unique value, most of the material in each section is kept at a high and general level.
For example, the first three pages of the four-page case justifying bulk interception cover an introduction to the power, the current legal position and new safeguards in the Bill. The fourth and final page provides three one-paragraph case studies, which members of the Committee will all have had the opportunity to read. One in particular deals with counter-terrorism, giving an example of where the security and intelligence agencies’ analysis of bulk data uncovered a previously unknown individual in 2014 who was in contact with a Daesh-affiliated extremist in Syria suspected of involvement in attack planning against the west.
The case study says:
“As this individual was based overseas, it is very unlikely that any other intelligence capabilities would have discovered him. Despite his attempts to conceal his activities, the agencies were able to use bulk data to identify that he had recently travelled to a European country. Meanwhile, separate intelligence”—
that is, separated from the bulk-generated intelligence—
“suggested he was progressing with attack planning. The information was then passed by the agencies to the relevant national authorities. They disrupted the terrorists’ plans and several improvised explosive devices were seized.”
Undoubtedly, every hon. Member on the Committee and in the House would wish such activities to be intercepted and prevented by the security services. I applaud the security services for the work that they do, but what concerns me is that analysing this case study in any meaningful way is challenging, because there is inadequate information to begin to test the accuracy of the case study or to challenge its conclusions. Nevertheless, I have had some initial analysis of it carried out, which suggests that perhaps the ends could just as easily have been achieved by the use of targeted interception. I will give a couple of examples to show why.
The case study refers to a previously unknown individual who was in contact with a Daesh-affiliated individual, who presumably was known. It is possible, therefore, that targeted interception may have uncovered this previously unknown individual. Although the Daesh-affiliated individual was already being monitored, there is no clear explanation in the case study of why bulk interception was necessary. It seems likely that intercepting the Daesh-affiliated individual’s contacts in a targeted manner might have identified the previously unknown individual.
That is just one of a number of issues raised about this case study by the analysis that I have had carried out. I will not take up the Committee’s time with them all, but that is one example.
The value that this case study has is that in this case a previously unknown individual was identified. Questions as to why targeted interception would not have worked are not addressed, nor are questions as to why other targeted capabilities were not used. The case study suggests that the initial identification is the only aspect in which bulk interception played a role, with the rest of the case study a result of other capabilities and separate intelligence. No information is provided about the scale of collateral intrusion undertaken when intercepting in bulk and there is no assessment of the proportionality of bulk interception. Also, given that the attack was not in the UK, there is no explanation of the necessity of UK agencies playing a role, although that is perhaps a slightly lesser consideration.
There is no information outside this case study as to the frequency of events of this kind or whether in similar cases different methods produced different results. As such, it is impossible to analyse it and make any kind of independent assessment of the necessity or proportionality of bulk power.
This is not nit-picking. These are very wide-ranging powers. The hon. and learned Member for Holborn and St Pancras, who speaks for the Opposition, described them as breathtakingly wide powers. They have never before been debated or voted on in this Parliament, and it is crucial that we get them right. We are debating and voting on them, at a time and in a climate whereby there is quite a lot of independent evidence available from the United States of America that suggests that bulk powers are not as efficacious as is suggested in the operational case produced by the Government.
I will say a little about what happened in the States, because it is important to loop to that to understand what the Scottish National party says would be the appropriate way to approach the production of an operational case to justify bulk powers.
In the USA, the Snowden revelations revealed that the National Security Agency was running a bulk domestic telephone records programme. The US intelligence community put forward strong arguments for keeping that programme going, and to bolster its position it compiled a list of 54 counter-terrorism events in which it said that section 215 of the USA Patriot Act, which underlined that bulk collection, contributed to a success story.
In America, two independent bodies undertook reviews related to those powers to determine whether the case studies put forward by the intelligence agencies were credible and accurate. They determined that only 12 of the 54 counter-terrorism events cited by the security services had any relevance to the exercise of bulk powers under section 215 of the USA Patriot Act. With access to classified material, one of the independent groups— the President’s Review Group on Intelligence and Communications Technologies, which is a very high-powered body set up under the auspices of President Obama—concluded:
“Our review suggests that the information contributed to terrorist investigations by the use of section 215 telephony metadata was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders”.
The other body, the Privacy and Civil Liberties Oversight Board, concluded very similarly that the programme of bulk collection under section 215 had
“shown minimal value in safeguarding the nation from terrorism. Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
I quote those two bodies because they are independent.
I am aware that Mr William Binney, who previously worked for the National Security Agency, gave evidence to the Joint Committee. His evidence could be summarised as “bulk powers cost lives”. He is concerned about the “needle in a haystack” argument. I am aware from previous discussions that certain members of the Committee have concerns about the evidence of Mr Binney. Even if we set his evidence to one side, we cannot set to one side the evidence of those two very high-level, independent American committees that looked at bulk collection in the USA. Their conclusions seriously question the information they were given by the security services that the bulk powers were necessary to prevent terrorist outrages. They also made suggestions on existing targeted capabilities.
Lucy Frazer (South East Cambridgeshire) (Con)
We have the analysis by David Anderson of the efficiency and efficacy of bulk powers, and he talks from paragraph 7.22 onwards about the importance of bulk powers. For example, he states:
“GCHQ explained that its bulk access capabilities are the critical enabler for the cyber defence of the UK, providing the vast majority of all reporting on cyber threats and the basis for counter-activity.”
Joanna Cherry
I cannot gainsay that. I am well aware that David Anderson would not go as far as I am going in these submissions. He has reached the conclusion that some bulk powers are necessary, but the passage in his report that the hon. and learned Lady quotes basically starts with a phrase along the lines of “GCHQ has assured me”. My point in drawing Members’ attention to what happened in the USA is that, although the US security services compiled a list of 54 counter-terrorism events in which they said bulk powers had contributed to a success story, one of the two committees I have quoted reached the view that it could not identify a single instance where bulk powers had contributed to a counter-terrorism success story. There is a debate to be had here.
Lucy Frazer
David Anderson goes on, in the same section of his report, to acknowledge that it is difficult for the public to take examples on trust. He recognises the limitations of what was shown to him, but states:
“The six outline examples at Annex 9 to this Report go a little way towards remedying that defect. They illustrate the utility of bulk data capabilities more generally”.
He recognises the limitations, but still acknowledges the efficacy of the powers.
Joanna Cherry
The hon. and learned Lady makes a good point. David Anderson acknowledges the efficacy of the powers and has been privy to certain information as he has a high security clearance. Not all of us can be privy to that information. I am suggesting that there should be an independent evidence base for the bulk powers. That would involve independent assessors with high security clearance undertaking forensic examination of the necessity and effectiveness of the bulk programmes.
We know, because the Home Secretary has told us—there was an interesting article about this in The Guardian today—that the bulk powers have been running for a long time. The headline of the article is, “UK spy agencies have collected bulk personal data since 1990s, files show”.
I will come back to that article in a moment, but we know that the bulk powers are operational. Given that they have been running for a while, a full list of cases where they have been required should be easy to provide. That should not be to this Committee, but to an independent review staffed by high-level individuals with the highest security clearance—the sort that David Anderson has. I have in mind such people as retired judges and retired professionals with an interest in the area.
Simon Hoare (North Dorset) (Con)
I do not want to paint this too simplistically—the purpose of the Bill, as I understand it, is to pull together a lot of existing things under one statute—but we all have fire insurance policies on our homes. We do not want to claim on those policies, but it is important to know that they are there in case we need them in an emergency. That is exactly what all these powers are there for. We need to ensure that the kit is there for our agents to use to keep us safe.
Joanna Cherry
These powers are not being used only in emergencies. That is the point. We are told that the powers are being used daily and that those data are being sucked up and collected daily, and the Bill seeks to put that on a legal footing. I am saying that there is not sufficient independently assessed evidence to justify the continuation of such powers and that we need a proper independent review.
I am suggesting that there should be independent, security cleared assessors to consider whether such powers pass the legal tests of necessity and proportionality. They would need to conclude that the powers were strictly necessary and that the same results could not be achieved using more proportionate and less intrusive means. The two American committees I mentioned concluded that the same information could be achieved using more proportionate and less intrusive means, so we in the United Kingdom should not legislate gung-ho for the continuation of such breathtakingly intrusive surveillance powers without being certain that they are necessary and proportionate. We do not have sufficient evidence to reach that conclusion.
Lucy Frazer
What does the hon. and learned Lady think the independent reviewer of terrorism legislation is for, other than to review these powers? He reviewed the powers in his report.
Joanna Cherry
I do not accept that the independent reviewer has carried out the exercise that I am suggesting. He fulfils a particular function, and we are talking about setting up a panel of individuals to consider the necessity and proportionality of these powers. They could consider in detail certain information that we, as hon. Members, would not be able to see. David Anderson is one individual who fulfils an important function and whose work has greatly assisted everyone on the Committee, and all hon. Members, in trying to understand what underlies the Bill.
Suella Fernandes (Fareham) (Con)
The hon. and learned Lady is asking the Committee to attach less weight to David Anderson’s review, as my hon. and learned Friend the Member for South East Cambridgeshire said, and inviting us to prefer the evidence of Mr Binney, a whistleblower whose evidence was clearly out of date, because the last time he was security cleared was 2001.
Joanna Cherry
Forgive me, but the hon. Lady was out of the room when I said that I am not asking the Committee to look at Mr Binney’s evidence. I am asking the Committee to look at the evidence of the US President’s Review Group on Intelligence and Communications Technologies and of the Privacy and Civil Liberties Oversight Board, which led to the repeal of section 215 and its replacement with the USA Freedom Act. I am not asking the Committee to look at Mr Binney’s evidence; I am asking the Committee to consider and take into account the background of two high-level independent US reports—the USA is our closest ally—that found that similar bulk powers are not necessary or proportionate.
I will not be side tracked by a suggestion that I am criticising David Anderson, because I am not—I make that absolutely clear. His review, “A Question of Trust”, was published prior to the Joint Committee of these Houses saying that a sufficient case has not been produced for bulk powers. David Anderson’s report was taken into account by the Joint Committee. I know that some members of this Committee, including the hon. Member for Fareham, sat on the Joint Committee, and one of its conclusions, recommendation 23, was:
“We recommend that the Government should publish a fuller justification for each of the bulk powers alongside the Bill. We further recommend that the examples of the value of the bulk powers provided should be assessed by an independent body, such as the Intelligence and Security Committee or the Interception of Communications Commissioner.”
The Joint Committee said that in the full knowledge of David Anderson’s report, having read and considered it. My point is that such operational case as has been produced by the Government does not live up to the Joint Committee’s recommendation 23, and does not adequately provide an operational case for the powers.
Mr Hayes
I know that this will disappoint the Committee, but I shall try to reduce the length of my peroration by making two things clear by way of an intervention. First, David Anderson was clear in evidence to this Committee that further review was not necessary. Actually, I am not unpersuaded by the argument for some process, although the hon. and learned Lady is doing a good job of changing my mind. Secondly, the Joint Committee was extremely clear that we would benefit from the ISC’s conclusions, and the ISC said that the powers are necessary, so I do not understand on which journey the hon. Lady is travelling, or to which destination.
Joanna Cherry
David Anderson said the following in paragraph 1.12 of his report, “A Question of Trust”:
“Though I seek to place the debate in a legal context, it is not part of my role to offer a legal opinion (for example, as to whether the bulk collection of data as practised by GCHQ is proportionate). A number of such questions are currently before the courts, which have the benefit of structured and opposing legal submissions and (in the case of the IPT) the facility to examine highly secret evidence, and which are the only bodies that can authoritatively determine them.”
There we have the words of the man himself. Although David Anderson seeks to place the debate in a legal context, he does not see it as part of his role to offer a legal opinion on the proportionality of GCHQ’s bulk collection of data. At least two cases now before the courts will result in judgments on whether the powers are proportionate.
Lucy Frazer
If the hon. and learned Lady reads the next paragraph, she will see that David Anderson is simply making a broad statement about the fact that he is not giving legal advice generally. He is putting forward recommendations for Parliament to consider.
Joanna Cherry
Indeed; he is putting forward recommendations. I am advocating an independent review looking at the operational case for bulk powers. It would look at whether the powers are necessary and proportionate, and it would provide an opinion that could then be laid before both Houses, for us to see if the Government’s case has been made. I am concerned that the case is not sufficient at the moment. I say that against the background not of Mr Binney’s evidence, but of the findings of high-level USA investigatory bodies.
Mr Hayes
I hesitate to advise an advocate on the construction of her argument, but the hon. and learned Lady would do better not to cite David Anderson and pray him in aid, because he told this Committee on 24 March that he was
“not persuaded of the case for”
an additional independent review of bulk powers, as
“it would be very difficult to say that the ISC had not had an independent look at these issues.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 6, Q2.]
The quote from David Anderson that she is using comes from the very beginning of his report, in which he sets out his general approach to his work. In an effort to make her an even more accomplished advocate than she already is, my advice would be to drop Anderson from her argument.
Joanna Cherry
With all due respect, hon. Members sitting behind the Minister brought up David Anderson; I made it clear that I accepted that David Anderson had reached a different view from mine on bulk powers, but I read from his report to make the point that at an early stage in it, he says that it is not his objective to give a legal opinion on the legality of the bulk collection of data.
Those of us who sat through David Anderson’s evidence in Committee on 24 March might also remember that he discussed the different views held about the legality of bulk powers. He said that, ultimately, that will be determined by the courts. The thrust of my argument is that given the serious concerns expressed by two independent United States committees, and the serious concerns about the legality of the powers, we should not be gung-ho about putting them in legislation until we have a proper operational case and have seen the outcome of the litigation. That is a thoroughly respectable approach to part 6, and one that is in accordance with the rule of law.
Simon Hoare
I am not persuaded by the argument that the United Kingdom Parliament should make United Kingdom law based on what some Americans whom we have never met or spoken to have said. The first duty of Her Majesty’s Government and of parliamentarians is surely to help keep our citizens and constituents safe. If we take that as our first point of principle and duty, and if the powers that are to be enshrined in the Act can fulfil that need, either now or in future, I fail to see why the proposals would cause such offence.
Joanna Cherry
I am glad to hear that the hon. Gentleman does not want the Americans to tell the British how to run their affairs. In very much the same way, I do not want the British establishment to tell Scotland how to run its affairs. We can have that argument another day—
Christian Matheson (City of Chester) (Lab)
We have already had that argument.
Joanna Cherry
I think the hon. Gentleman will find that the argument is alive and kicking north of the border, but we digress.
I can reassure the hon. Member for North Dorset that I have no intention of following the United States of America’s security policy. We should devise our own policy in the United Kingdom, so long as it remains the United Kingdom. I am saying that we should set up an independent review body, made up of people from the United Kingdom—not the Americans or French; let us not panic about the French or the Americans telling us what to do. I am suggesting that our own people, if I may use that phrase, should be on the body. I mentioned the American experience to show that our key ally in such matters has, as a result of two very high-level congressional committees, reached the view that bulk powers are not justified. That is my point; it is not that we should do what the Americans tell us to do. I can assure the Committee that that is far from being the position of the Scottish National party. My point is that we should look to the experience in other countries to inform our decision making.
Simon Hoare
The hon. and learned Lady is being customarily generous with her time, and robust in her argument. I do not envy her her position one jot or tittle. If she were saying—without saying it—that she had a fear that spooks out there were doing nasty and horrible things, and that it was our job to try to constrain them, I could understand some of the line of her argument, but I do not think she is saying that. I am therefore not entirely sure, in practical politics, what would be added by the creation of the body she advocates. I am confident that we have security services and others who act within the rule of the law.
Joanna Cherry
I am afraid that the hon. Gentleman’s confidence is somewhat misplaced, given the revelations today in a collection of more than 100 memorandums, forms and policy papers obtained in the course of a legal challenge on the lawfulness of surveillance. An article in The Guardian today says that the papers demonstrate that the collection of bulk data in the United Kingdom
“has been going on for longer than previously disclosed while public knowledge of the process was suppressed for more than 15 years.”
According to the article, The Guardian has surveyed the paperwork, which shows that the
“frequency of warnings to intelligence agency staff about the dangers of trespassing on private records is at odds with ministers’ repeated public reassurances that only terrorists and serious criminals are having their personal details compromised…For example, a newsletter circulated in September 2011 by the Secret Intelligence Agency (SIS), better known as MI6, cautioned against staff misuse.”
That internal newsletter said:
“We’ve seen a few instances recently of individuals 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”.
The internal memo goes on to say:
“Another area of concern is the use of the database as a ‘convenient way’ to check the personal details of colleagues when filling out service forms on their behalf. Please remember that every search has the potential to invade the privacy of individuals, including individuals who are not the main subject of your search, so please make sure you always have a business need to conduct that search and that the search is proportionate to the level of intrusion involved.”
It adds that, where possible, it is better to use “less intrusive” means.
The papers also reveal that there has been disciplinary action. The article states:
“Between 2014 and 2016, two MI5 and three MI6 officers were disciplined for mishandling bulk personal data. Last year, it was reported that a member of GCHQ’s staff had been sacked for making unauthorised searches…The papers show that data handling errors remain a problem. Government lawyers have admitted in responses to Privacy International that between 1 June 2014 and 9 February this year, ‘47 instances of non-compliance either with the MI5 closed section 94 handling arrangements or internal guidance or the communications data code of practice were detected.’ Four errors involved ‘necessity and proportionality’ issues; 43 related to mistransposed digits and material that did not relate to the subject of investigation, or duplicated requests…Another MI5 file notes that datasets ‘contain personal data about individuals, the majority of whom are unlikely to be of intelligence or security interest’.”
Simon Hoare
I fear that the hon. and learned Lady may be slightly over-egging this particular pudding. I read the article this morning in The Guardian. She has cited, perfectly properly, the two operatives who were found to be in breach, disciplined and then dismissed. I politely suggest to her that probably quite a lot of the figures that she quoted refer to the fact that agent X could not remember Auntie Doris’s postcode and checked it because he wanted to send her a get well card. It is hardly “Enemy of the State”.
Joanna Cherry
It may not be, but it is an indication of how easy it is for people to abuse the rules, and an indication that the rules are abused. I am not seeking to impugn the security services. I am seeking to draw the attention of members of the Committee and the public to the fact that the rules are sometimes abused. If we are to afford the security services generous and intrusive powers, we have to be sure that they are proportionate and necessary. My point is that we do not have sufficient evidence that they are.
I am conscious that I have taken up quite a bit of time with that submission. I will not take it any further. I have alluded to the fact that there are outstanding legal challenges, and I will make one or two more comments on clause 119. I have already made the point that the clause seeks to put bulk interception programmes that are already in operation on a statutory footing. They were disclosed for the first time by Edward Snowden in June 2013, and their existence has now been avowed by the Government. They have never before been debated or voted on by this Parliament. That is why I am taking my time with this point.
The approach that has been held to date is maintained in the clause. The bulk interception proposed by the clause will result in billions of communications being intercepted each day, without any requirement of suspicion, or even a discernible link to a particular operation or threat. I have information from Liberty that the agencies currently handle 50 billion communications per day. To put that in context, there are only 7 billion people in the world, and only 3 billion of them have access to the internet.
The Intelligence and Security Committee reported at the end of 2014 that there were just 20 warrants in place under section 8(4) of RIPA authorising this vast volume of interception. It is clear from the wording of the clause that although it purports to collect overseas-related communications, it will, for the reasons the hon. and learned Member for Holborn and St Pancras gave, collect the communications of persons who are resident in the United Kingdom. Internet-based communications have eradicated the distinction between external and internal communications. He told us that posts on social media sites overseas, such as Facebook, use overseas cloud storage, so the material there would be covered by clause 119.
Searches on Google are counted as an external communication. I do not know about other hon. Members, but I must do at least a dozen searches on Google per day. Those are external communications, even though I am a citizen of the United Kingdom. Be in no doubt: the handful of warrants that will be issued under this clause will be scooping up billions of communications by the United Kingdom’s citizens. Those communications will then sit somewhere and certain people in the security service will have unwarranted access to them. There are some people who do not respect the rules, as we know from the disclosures in The Guardian today, so there is that concern, as well as the concern about the security of the data. The vast majority of those communications that will be scooped up will be the communications of innocent people.
Byron Davies (Gower) (Con)
Does the hon. and learned Lady not accept that the primary object of the security services is to prevent crime—serious crime—and that is exactly what this measure is doing?
Joanna Cherry
Of course I do, but to give some comfort to the hon. Gentleman, who has a distinguished career in law enforcement behind him, I worked for many years as a senior prosecutor with the Crown Office and Procurator Fiscal Service in Scotland, so I am fully aware of the public duty of the security services and law enforcement agencies to prevent serious crime. However, I am also aware of the duty of parliamentarians to protect their constituents and to ensure that surveillance powers are proportionate and necessary. My point is that the Committee and this House do not have sufficient evidence at present to justify these breathtakingly wide powers, and that is why the Scottish National party wishes that part 6—
Joanna Cherry
I am coming to a conclusion now, so I will let the hon. Gentleman intervene.
Byron Davies
I am grateful to the hon. and learned Lady for taking a further intervention. This is about proactivity and preventing crime. I am afraid I am not persuaded, so far, by what she is saying.
Joanna Cherry
I am sorry the hon. Gentleman is not persuaded, but I think others outside this room will be. It is important that somebody voices these very serious considerations while the Government attempt to railroad this legislation through the House. This is not right, and my party will not hesitate to hold the Government to account for it, not because we are troublemakers, but because we are a constructive Opposition. Having the responsibilities of a constructive Opposition, we have looked at what is happening in other countries and at their experience, and we do not consider that this degree of surveillance of our constituents’ and British citizens’ personal communications has been justified as proportionate and necessary.
We are not saying that the security services should not have any powers. We have a nuanced approach to the Bill. Members of the Scottish National party did not sit on their hands and do nothing on Second Reading; we made a constructive contribution to the debate. However, I will not be dissuaded from holding these very serious concerns. They are not just my concerns; they are widely held, and there is strong evidence from one of our closest allies that they are well founded.
Simon Hoare
Nor should the hon. and learned Lady be doing anything other than what she is. She is fulfilling her role in an exemplary fashion, and I mean that in a sincere and heartfelt way. The one thing I would challenge her on—or ask her to substantiate—is this. We have had Joint Committees and all the other organisations having a look; we had a very thorough debate on Second Reading; we had a full day’s debate on the Anderson report back in July last year; and now we have detailed, line-by-line scrutiny of the Bill, and I think we will have two days on Report. I ask whether she used the word “railroad” in haste, and whether I could invite her to reflect on its use and perhaps recast her comment.
Joanna Cherry
I will not recast it. I gave very detailed reasons on Second Reading as to why I felt that the Bill was not being given sufficient time. I am aware that hon. Members may feel that I have held the floor for too long; I have spoken at some length, but this is hugely important. Many people across these islands are very concerned about this part of the Bill—ordinary citizens, corporate entities—and we are not giving it enough time. There is not enough time to discuss its detail. I have taken up about 40 minutes giving just an overview of why I oppose part 6. I could have a go at every clause, but I will not do that, because we would be here forever and we have limited time, so I will draw my comments to a conclusion. The Scottish National party’s position is that each and every clause of part 6 should come out of the Bill until such time as there has been a proper independent review and a proper operational case has been made for these powers.
Mr Hayes
The hon. and learned Member for Holborn and St Pancras, who speaks for the official Opposition, spoke, not untypically, with welcome brevity and a palpable understanding of these issues, but the hon. and leaned Lady took us on a seemingly interminable journey to a place that is somewhere between intuitive hostility to these powers and confusion—a murky place that I do not want to spent too much time in. Some of the things she said warrant a response, because it seems to me that they were founded on a misunderstanding— I put that as generously as I can—of the use of the powers, their purpose and the safeguards that pertain in that regard.
Let me be clear: a Google search by a person in the UK is not overseas-related. Clause 119 deals with overseas-related communications. Warrants must be targeted at overseas communications. That will provide strong protections for people on these islands.
The ISC privacy and security report concluded that it is unlawful for GCHQ to conduct indiscriminate interception. It is also impractical for it to do so. The hon. and leaned Lady must understand, as most members of this Committee do, that it would be impossible, undesirable and unnecessary for GCHQ to deal with all but a fraction of internet communications. The peculiar view that somehow those missioned to keep us safe are interested in a whole range of communications that bear no relation whatever to their task is—again, I am trying to measure my words carefully—unusual. I say that because it is certainly not the view of the vast majority of people in this country, who want those so missioned to have the powers necessary to guard us against very real threats.
The hon. and leaned Lady spoke, quoting the hon. and learned Member for Holborn and St Pancras, of breathtaking powers. I shall come to that in a moment. She needs to understand that the threats we face are equally—actually, I would say far more—breathtaking. Unless we equip those in the security and intelligence services and the law enforcement agencies with what they need to do their job, we will pay a very dear price indeed. That is what bulk powers are about.
The collection of large volumes of information through bulk powers and the use of those data are essential. Of course they have to be filtered, and search criteria must be applied, so that fragments of intelligence can be gathered and pieced together during the course of an investigation. This is, in essence, about establishing patterns of behaviour and confirming networks. That is what GCHQ is about. Unless we collect those large volumes of information, we cannot move to the targeted regime that the hon. and leaned Lady seeks. Through a mix of misunderstanding and misjudgment, she is making an unhelpful case to those of us who want the safeguards to be as sure and certain as they need to be; I entirely take the point about “need”.
Joanna Cherry
It has been a while since I have been so extensively and excessively patronised. The right hon. Gentleman says I tested his abilities to the limit—to such a limit that he has not made any effort whatever to engage with any of my points about the American experience. Will he or perhaps the Solicitor General deign to do that on a later occasion?
Mr Hayes
I will just finish my sentence. I do not think anyone can say there has not been adequate debate about bulk powers. Before I give way to my hon. Friend and then the hon. Lady—I do not wish to put a further spoke in her wheel, or perhaps I do—I want to say that the US National Academy of Sciences could not identify any alternative that is appropriate to bulk powers.
Joanna Cherry
That Minister said a little while ago that Google searches were not external to the UK. I think that is what he said. I am looking at a report of what Charles Farr told the Government in June 2014, which is in a report that we can all access on the BBC website. He said:
“UK intelligence service GCHQ can legally snoop on British use of Google, Facebook and web-based email without specific warrants because the firms are based abroad, the government has said. Classed as ‘external communications’, such activity can be covered by a broad warrant and intercepted without extra clearance, spy boss Charles Farr said.”
Forgive me, but “spy boss” is BBC language. Charles Farr’s correct title was director general of the Office for Security and Counter Terrorism. He told Privacy International that
“Facebook, Twitter, YouTube and web searches on Google—“
The Chair
Order. This is an intervention. We have noted the source. I call the Minister to respond.
Keir Starmer
We spent some time on clause 119, but it was right to take time on that important provision. We now move to the safeguards. I listened very carefully to what the Minister said a moment ago and to the observations of the hon. and learned Member for Edinburgh South West. As we move forward, there needs to be some clarity on the basis.
In essence, our position is not to seek to reduce the capabilities of the security and intelligence services, which of course currently operate the powers in question under other authorisations. We seek to ensure that there is proper justification for bulk powers—hence new clause 16, which we will vote on at the end, which would delay the provisions from coming into force until an independent evaluation has taken place. I speak only for my party in saying that there is no intention to reduce the capabilities of the security and intelligence services. I am not suggesting for a moment that there is any intention to do that on anybody else’s behalf, but I am simply making my position clear. I am not speaking for anybody else, because I should not.
Joanna Cherry
Does the hon. and learned Gentleman agree that the SNP proposal to put the powers to one side while an operational case is produced would not reduce the security services’ powers for the time being, pending the outcome of the court cases? They are already operating them, as we have heard, under section 8(4) of RIPA.
Keir Starmer
The hon. and learned Lady should not read into my observations any criticism of the approach that she has taken, or any suggestion that she or her party are seeking to reduce the capabilities of the security and intelligence services. I know her background and the work that she has done, and I know that would not be her position. I do not intend to impute that it is. I am keen to speak only for myself and my party.
The Bill brings a legal framework and definition to the powers, and a set of safeguards to go with the exercise of those powers. I think that is important. If the powers are to be exercised, I would rather they were exercised within a proper legal framework, with more effective safeguards than under the current framework. I think that is the only real difference of approach between us.
What we all have to bear in mind is not whether we personally have been persuaded by the case that the powers are justified, because we all have different experiences and backgrounds—I worked with the security and intelligence services for five years on very serious terrorist cases—but whether members of the public can have confidence that they are. That is why we have been pressing for further consideration and independent assessment of the operational case.
Clause 121 deals with the first part of the safeguards on the exercise of the bulk powers—the test of necessity and proportionality. The clause is in familiar form. Subsection (1) states that the Secretary of State has to consider
“that the main purpose of the warrant is one or more of the following…the interception of overseas-related communications, and…the obtaining of secondary data”
and then that
“the warrant is necessary…in the interests of national security,”
or on
“grounds falling within subsection (2)”
Subsection (2) adds that the warrant can be
“for the purpose of preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom”.
I will not test the Committee’s patience by going over the same ground about the economic wellbeing of the United Kingdom being relevant to the interests of national security. The point that I have made consistently on that applies just as much to clause 121, but I will not repeat it.
It is important to appreciate that the necessity of proportionality test set out in subsections (1)(b) and (2) has very broad criteria. When the Secretary of State is considering a warrant, clause 121(1)(d) requires him or her to consider that
“each of the specified operational purposes…is a purpose for which the examination of intercepted content or secondary data obtained under the warrant is or may be necessary”.
On the face of it, that provides some comfort. That is the examination part of the exercise, and it is important because it recognises the distinction that I have made between collating or bringing together data and accessing it. It relates to accessing, because it involves
“a purpose for which…examination…under the warrant is or may be necessary”,
which brings us into the territory of what the test is for examining the data that has been collected. As I said, the Bill states that the Secretary of State will consider
“each of the specified operational purposes”.
However, in clause 125(4), we get into a circular argument. It states:
“In specifying any operational purposes, it is not sufficient simply to use the descriptions contained in section 121(1)(b) or (2)”,
the two provisions to which I have just referred. It is not enough to say, “It is necessary for the operational purposes of national security or preventing serious crime,” or, “It is in our economic interests.” That is not enough,
“but the purposes may still be general purposes.”
That is all there is on the subject in the Bill. At the vital stage when we move from hoovering up or collecting communications to accessing them, the test of necessity and proportionality bites on something that is not quite as general as national security, which would not be much of a test at all, but could be not much more than that—“general purposes”. That is a cause for concern, which has prompted our amendments to tighten it up.
In crafting the amendments, we have had one eye on the code. I refer to paragraph 6.19, which suggests that some detail should be put in the application, stating:
“Each application, a copy of which must be retained by the applicant, should contain the following information:
Background to the operation in question:
Description of the communications to be intercepted and/or from which secondary data will be obtained, details of any CSP(s) and an assessment of the feasibility of the operation…
Description of the conduct to be authorised, which must be restricted to the interception of overseas-related communications…
The operational purposes for which the content and secondary data may be selected”.
What is envisaged in the code includes:
“An explanation of why the interception is considered to be necessary…A consideration of why the conduct to be authorised by the warrant is proportionate…An assurance that intercepted content and secondary data will be selected for examination only so far as it is necessary”
under section 134. Paragraph 6.26 of the code adds further guidance on necessity and suggests, at the bottom of page 43:
“For example, if a bulk interception warrant is issued in the interests of national security and for the purpose of preventing or detecting serious crime, every specified operational purpose on that warrant must be necessary for one…of these two broader purposes.”
So the code operates on the basis that the detail will be provided in the application, even though it is not necessary under the Bill. I would therefore have thought it would be hard for the Minister and the Government to resist the amendments, which would simply lift the requirement to include the detail in the application from the code and put it into the Bill, so that we and the public could be assured that the test would be stricter than the combined effect of clauses 121 and 125(4).
Investigatory Powers Bill (Eleventh sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Home Office
Investigatory Powers Bill (Eleventh sitting)
Joanna Cherry ExcerptsTuesday 26th April 2016
(8 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 April 2016 - (26 Apr 2016)
Mr Hayes
I beg to move amendment 614, in clause 138, page 110, line 8, leave out subsection (4).
This amendment leaves out provision that is not relevant in the context of bulk acquisition warrants.
This is a technical amendment and I do not intend to make a great fuss of it unless anyone wants to ask me for more detail.
Amendment 614 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
Joanna Cherry (Edinburgh South West) (SNP)
I wonder whether I might address the Scottish National party’s “leave out” amendments at this stage, Ms Dorries. On Friday, because the SNP had tabled “leave out” amendments to the whole of chapter 1 of part 6, I made some general comments about the overarching clause at the beginning of that chapter. With your forbearance and if it is acceptable to you, as clause 138 is the overarching clause at the beginning of chapter 2, I propose to do the same now.
Joanna Cherry
I am grateful, Ms Dorries.
As I explained last week, the Scottish National party wish to have part 6 removed and set to one side until a convincing operational case has been made. I noted with some interest the Minister for Security’s comments this morning that he sees some force in the arguments that were made last week. I am pleased to hear that, because I rather had the impression from the way he responded to my arguments last week that he was not going to address any of my points. I look forward to hearing his response to my arguments regarding the United States of America’s experience in relation to bulk powers. If he is not prepared to address them, I very much hope that the Solicitor General will, as I know that he takes his duties very seriously and my points about bulk powers pertain to their legality as well as their efficacy.
The Minister commented last week that the different approach that I was advocating was perhaps indicative of the fact that my party was not and has never been in government. I would like to correct him on that: the Scottish National party has been in government in Scotland for nine years. Unfortunately at the moment we do not have responsibility for national security, but we always co-operate closely with the British Government on such matters—as when Glasgow airport was attacked by terrorists in 2007, for example. We also have a strong record in fighting crime, with the result that recorded crime is at a 41-year low in Scotland. We are not soft on crime or terrorism, and in the coming years we very much hope to devise a security policy for an independent Scotland. We have looked at the experience south of the border; we will also look to international experience. It was on that basis that I addressed in some detail the experience and the reversal of procedures and the approach in the United States of America in relation to bulk powers. It is important that we take cognisance of what happened in the United States of America as well as look at international legal norms in relation to these matters.
The concerns I articulated last week in relation to bulk powers are not felt only by the party for which I speak; they are widely shared by three parliamentary Committees that looked at the draft Bill, by MPs from all parties, including the party of government, NGOs, the technical sector, communication service providers and eminent legal commentators—I refer to the letter written to The Guardian at the time of Second Reading, now signed by more than 250 leading lawyers from across the United Kingdom. They took particular issue with the legality of the bulk powers against the background of a report by the UN special rapporteur on the right to privacy, Joseph Cannataci. He produced a report in March this year about privacy and digital rights generally. He did not mince his words, but said that many of the powers in the Bill are of questionable legality, having regard to recent judgments of the European Court of Justice and the European Court of Human Rights. He singled out the proposals for bulk powers as undermining the very spirit of the right to privacy and said that the benchmarks provided in European jurisprudence indicate that surveillance should be targeted, by means of warrants which are focused and specific and based on reasonable suspicion.
When the Minister had rather lost his patience with me last week, he quoted Ruskin. Let me quote Robert Burns on how the rest of the world looks at this Parliament and how the rest of the world will look at what decisions we take on the Bill:
“O wad some Power the giftie gie us
To see oursels as ithers see us!”
This country was in at the founding of the United Nations. When the United Nations special rapporteur says there is a serious issue with the legality of proposed legislation, no matter how we feel about Europe and the ECHR, we cannot just sweep that to one side.
Even David Anderson QC, the independent reviewer, has described the Bill as,
“a work in progress … laced with technical detail, some of which could usefully be clarified or improved”.
I take this opportunity, because it is very important and I know that he would want me to take this opportunity, to clarify exactly what David Anderson has and has not said about the legality of bulk powers. I shall do that using his own words. In the supplementary written evidence to this Committee, which all hon. Members will have read, dated 12 April of this year, he says at paragraph 9:
“As to the necessity of bulk powers and the extent to which I came or did not come to a conclusion on this issue, the position is as set out in my supplementary written evidence to the Joint Bill Committee of January 2016, paras 4-9”.
If we turn to that supplementary written evidence, his paragraphs 4 to 9 appear under the heading, “Need for bulk powers”:
“It was put to David Davis MP on 16 December (Q177) in relation to ‘bulk interception, bulk acquisition of the collection of communications data”—
Which we are concerned with in this chapter—
“and bulk equipment interference’”—
that is the next chapter—
“that I had looked at them and pronounced myself ‘satisfied that those powers were necessary’. While there is much truth in that comment, I should like to clarify what I did and did not conclude in relation to the need for bulk powers. The central point is that the appointed Commissioners and the IPT are best placed to judge whether each of these powers is necessary and proportionate. The Commissioners have the advantage of longer and more thorough exposure to the exercise of those powers than did I; and the IPT in a number of cases has had the additional advantage of detailed and formally presented argument from both sides”.
Suella Fernandes (Fareham) (Con)
Does the hon. and learned Lady agree that all three independent assessments concluded that the mass surveillance she suggests is complete fantasy? In his evidence to the Joint Committee, Professor Clarke from the Royal United Services Institute endorsed the approach. The idea that the state somehow has a huge control centre where it is watching what we do is complete fantasy. Not only is there a limit to capacity but there is no interest in carrying out such activities.
Joanna Cherry
The hon. Lady may recall that, when I spoke about this on Second Reading, I said that I was not going to use the phrase “snoopers charter” because it is counterproductive, and nor was I going to use the phrase “mass surveillance,” but that I was going to use the phrase “suspicionless surveillance.” What is happening under section 94 of the Telecommunications Act will continue to happen if we pass these powers without questioning them properly: bulk acquisition warrants will authorise the acquisition of huge amounts of communications data on everybody living in the United Kingdom, which will then be analysed by computers at GCHQ without any further need for authorisation. My argument is that that is a form of suspicionless surveillance. While it may have some utility, as David Anderson has said, I am not convinced that it is either necessary or proportionate. I made some fairly detailed arguments last Thursday about the inadequacy of the operational case and will not repeat them.
Lucy Frazer (South East Cambridgeshire) (Con)
I do not want to misquote the gentleman from BT as I do not have his exact words in front of me, but when we heard evidence from him on our first day in Committee, he said clearly that much of that information was already being collected. I would also like to point out, as I did in a speech on the Floor of the House, that it is clear that Google is already accessing this material and people seem to accept that—Google is analysing the content of our emails.
Joanna Cherry
I will deal with the hon. and learned Lady’s second point first. I accept her legitimate concerns about the extent to which private entities such as Google and others collect private data. Parliament should be looking at that, although it is not really the subject matter of this Bill. However, the crucial difference between Google’s collection of comms data and the UK Government’s, or its agencies’, is that Google does not have the coercive power of the state. It may have great corporate power—in fact, there is no “may” about it—but it does not have the state’s coercive power.
The hon. and learned Lady’s first point was that these powers already exist. We found out only very recently, when the Home Secretary announced it on 4 November last year, the day the draft Bill was published, that the data were already being collected in bulk under section 94 of the 1984 Act. That had never previously been admitted by the Executive—apparently it was known only by a handful of Cabinet Ministers. Parliamentarians had previously been led to believe that communications data retention and acquisition took place under the Regulation of Investigatory Powers Act 2000 and the Data Retention and Investigatory Powers Act 2014, because that legislation specifically permits the agencies to require comms data on national security and serious crime grounds.
As I said earlier, when section 94 of the 1984 Act was passed, no one envisaged that those powers would be used in that way. The mere fact that the powers are already being used does not necessarily mean that they are proportionate or that we should not carefully scrutinise their necessity and proportionality now that they are being put on a proper statutory footing. In an intervention on the hon. and learned Member for Holborn and St Pancras last week, I made the point that, if we follow the course of action the Scottish National party advocate, which is to remove parts 6 and 7 from the Bill until a proper operational case has been made, and if the agencies who are already using these powers say that they are legal under existing legislation, we will not be jeopardising national security, because the powers will continue to be used—although I stress that their underlying legality is open to question.
I do not want to take up much more time, but I want to make the point that, in the digital age we live in, communications data provide a detailed and revealing picture of somebody’s life. If we look at how comms data are defined under DRIPA and RIPA, we can see that they include the date, time, duration and type of communication, the type of communication equipment used, its location and the calling and receiving telephone numbers. That sort of information can reveal personal and sensitive information about an individual’s relationships, habits, preferences, political views, medical concerns and the very streets they walk on. That point was made in the Digital Rights case by the Court of Justice of the European Union:
“Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.”
Joanna Cherry
I read last night very carefully what the Chair of the ISC, the right hon. and learned Member for Beaconsfield (Mr Grieve), said on Second Reading. He had three concerns, which were,
“the authorisation procedures for the examination of communications data… the agencies’ use of equipment interference”
and,
“the process for authorising the obtaining of bulk personal datasets”. —[Official Report, 15 March 2016; Vol. 607, c. 837-8.]
Does the Minister agree with me that a careful reading of the hon. and learned Gentleman’s remarks leads to the conclusion that he had outstanding concerns about the bulk powers?
Mr Hayes
In your absence, Ms Dorries, I have said that part of my mission was to take the hon. and learned Lady from the fog of doubt to the light of understanding, and earlier she herself described a chink of light. I am happy to consider what more we might do on the operational case. I do not want to go too far on that, because I have to look closely at walking the tightrope between what we can and cannot say publicly about the work of our intelligence and security services. Nonetheless, a powerful case was made on that subject and it is a matter of continuing interest to us.
The hon. and learned Lady quoted at length the evidence from America, but she will know that, in fact, the evidence from America is extremely mixed. A series of pieces of work has been done on these matters. In July 2014, the US Privacy and Civil Liberties Oversight Board said on bulk data collection that:
“Overall, the Board has found that the information the program collects has been valuable and effective in protecting the nation’s security and producing useful foreign intelligence…The program has proven valuable in the Government’s efforts to combat terrorism as well as in other areas of foreign intelligence…the program has led the Government to identify previously unknown individuals who are involved in international terrorism, and it has played a key role in discovering and disrupting specific terrorist plots”.
That builds on earlier work done in the United States to examine the powers. In 2012, the Senate looked at these matters and came to similar conclusions. It is not fair to say that international experience is at odds with what we are doing and with what we are cementing in the Bill. I know that the hon. and learned Lady, being scrupulously fair and reasonable, would want to put a balanced position on the American experience.
Joanna Cherry
I am grateful to the Minister for giving way so that I can put a balanced position. The Privacy and Civil Liberties Oversight Board’s report of January 2014 talks at page 11 specifically about the bulk telephone records programme, saying that:
“Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack”.
That is what the board concluded about the bulk telephone records programme in the United States of America, which is closest to what we are discussing at present in chapter 2.
Mr Hayes
Ms Dorries, I am sure that you will not permit me to stray too far into a detailed consideration of how the United States has viewed these matters, but I simply say to the hon. and learned Lady that the Senate Committee that I mentioned in 2012 described the,
“ability to collect information and act quickly against important foreign intelligence targets”,
as significant. The US National Academy of Sciences report, “Bulk Collection of Signals Intelligence: Technical Options”, said that:
“For investigations that have little or no prior targeting history, bulk collection may be the only source of useful information”.
I could go on and on, but to do so would tire the Committee and no doubt put me on the wrong side of the Chair, so I will not.
To conclude, we have had a long but important debate about this issue. The use of the powers under the Bill is subject to oversight by independent judges, the Interception of Communications Commissioner and the Intelligence and Security Committee, and none of them has raised concerns about the lawfulness of the powers. The hon. and learned Member for Holborn and St Pancras rightly said that, for the first time, we are considering these matters in a single piece of legislation and enjoying this debate. It is right that we should do so and that we should put safeguards into place, but it is just as right that we should maintain the capabilities necessary to deal with threats to our national security. I say without equivocation or hesitation that the powers are critical to that purpose and must continue to be used in our national interest.
Question put, That the clause, as amended, stand part of the Bill.
The Solicitor General
I take the hon. and learned Gentleman’s point; it is one that we understand. Again, however, I must make the point that at the point at which warrants are served in this context, it is not possible to know what part of the data that is being collected will be examined and for what purpose. Therefore, the question of detail is not a question of reluctance on the part of the authorities—it is just about practicability. It is not possible, of course, to anticipate that.
May I just deal with amendment 683? Under the Bill, a warrant will only include the operational purposes for which it may be necessary to examine the data. The Bill makes it clear that that may include all of the possible operational purposes for which data may be selected for examination. The effect of the amendment would be to require all possible operational purposes to be specified on a warrant, regardless of whether they were necessary. I am sure that that is not the intention of the hon. and learned Gentleman, but that was the point that I was making about the amendment perhaps not quite achieving the purpose for which it was tabled.
Having said that, I would argue that in clause 141, in combination with clause 151, we have an adequate and sufficient safeguard to ensure sufficient granularity when applications are made. It will not be good enough for the authorities simply blithely to quote “national security”; there will have to be greater granularity in applications. I would say that that is clear from the Bill, and combined with the code of practice I think there is enough here for hon. Members to be reassured that this process is not a mere rubber-stamp exercise and is a proper and effective safeguard.
The hon. and learned Member for Edinburgh South West made remarks in her interesting speech about the United States experience. It is important that I briefly put on record the important distinction between the United States regime of collecting domestic telephone records, which was pursuant to the Patriot Act—that has now been repealed by Congress—and the particular powers under section 702 of the Foreign Intelligence Surveillance Act 1978, as amended. Those powers are what the US Privacy and Civil Liberties Oversight Board addressed in its reports in July 2014 and more latterly this year.
Those powers to collect the content of electronic communications from targets outside the US are germane to the questions in this debate. As my right hon. Friend the Minister for Security said, the American board clearly found that there was value in and an important role for that particular programme. It is important that we take care to draw distinctions between different functions.
Joanna Cherry
I agree we must take care. The Solicitor General was careful to say that the conclusions he just mentioned were drawn in relation to the gathering of data outwith the United States of America. He would agree that the USA has strict constitutional rules about the gathering of its own citizens’ data, which is what we are concerned with here. It is not just about overseas, but our own citizens’ data.
The Solicitor General
I share that anxious concern, which is why I think we not only have avowal here, but an enhancement of safeguards. There is no doubt about it: the Bill represents a dramatic improvement on blithe reliance on the 1984 Act, to which the hon. and learned Lady correctly referred, and then nothing ever being said or debated in this House or the other place about the extent of those powers and the important judicial safeguards we have here.
Underpinning all that—this is within the code of practice—is the oversight of the commissioner, who will be able to inspect and review and ensure that the powers are not being abused in a way that the hon. and learned Lady and I would find abhorrent. It is always a pleasure to hear a Scot quote the great Unionist Robbie Burns—[Laughter.] As a great patriot, he would have shared the Government’s anxiety to ensure that the security of our citizens is protected in a proportionate and necessary way. I therefore think that the clause strikes the right balance.
Joanna Cherry
I am sorry, Ms Dorries. I was catching the shadow Minister’s eye to establish who is to speak first on this clause. That is why I did not stand up.
Keir Starmer
I am sorry, Mr Dorries. It is my fault. We had a very late night last night on other matters. I should have notified you this morning about who is to be leading on each of these provisions, and I did not do that. If it helps the Committee, I can indicate that when we get to each of the bulk powers, the clause that introduces the bulk power will be subject to considerable debate for obvious reasons. I anticipate, although I cannot say with certainly, that the pattern will be pretty similar to the one we have just seen, and that as we go through the following clauses we will go at much greater speed.
I have been trying to divide the work between me and the hon. and learned Member for Edinburgh South West. We had agreed that she would lead on this clause, and she was just checking with me that that was my understanding. I apologise. We were tied up in another debate yesterday and I did not give you notice as I should have done, Ms Dorries.
Joanna Cherry
I can confirm that that is what the hon. and leaned Gentleman and I agreed. I apologise for any inconvenience caused by my momentary inadvertence, Ms Dorries.
The Scottish National party’s approach to chapter 3 of part 6, which deals with bulk equipment interference and is introduced by clause 154, is to oppose the inclusion of bulk equipment interference warrants in the Bill until such time as a proper and adequate operational case has been produced. I will speak at some length on this matter because it is of great importance.
I remind hon. Members that when I spoke earlier this morning I said that David Anderson had reached
“no independent conclusions on the necessity for or proportionality of…bulk equipment interference”.
In paragraph 8d of his supplementary written evidence to the Joint Committee in January—he reminded us in his supplementary written evidence to this Committee in April that he still holds this view—he said that he reached no independent view
“on the necessity for or proportionality of…bulk equipment interference…which in view of pending IPT litigation and the limited nature of my remit…I touched upon only briefly in my report…The remarkable potential for this capability is evident from the Snowden allegations relating to the hacking of and implantation of malware into systems operated by persons not themselves suspected of wrongdoing”.
Hon. Members will recall that last Thursday I addressed the issue of how bulk equipment hacking could cause severe problems for our security services. I gave examples of how in the past it has led to the outage of the internet in Syria. I also referred to modern defence systems and said that it could disrupt the radar and photonic systems of our fighter pilots in Syria, which could result in danger not only to them but, perhaps more importantly, to civilians on the ground. All of us, no matter which side of the debate on bombing Syria we were on, want to avoid that.
Similarly to chapter 2 powers, the use of targeted hacking by the agencies was only very recently acknowledged by the Government through the Home Office’s publication of an equipment interference code of practice, although it made no mention of bulk hacking capabilities, which are now to be put on a statutory footing by part 2 of the Bill. The scope of a bulk equipment interference warrant, as outlined in clause 154, is astonishingly broad and will pave the way for intrusions over and above those revealed by Edward Snowden, pinpointing hacking as the modus operandi of surveillance. As with bulk interception, clause 154—particularly subsection (1)(c)—and the clauses that follow provide that the main but not sole aim of the warrant must be to facilitate the obtaining of overseas data, but that does not prevent data on UK residents being collected as a subsidiary objective or in pursuit of the main aim. I addressed that issue at some length on Thursday last week, so I do not wish to take up the Committee’s time by unnecessarily addressing it again.
The bulk hacking warrants under clause 154 will authorise interference with any equipment whatever, because of the definition of equipment in clause 156. The provisions will afford interference with any equipment whatever for the purposes of obtaining communications equipment data or information. They will enable bulk warrants to be issued in the interests of national security or economic wellbeing, or for the prevention and detection of serious crime. The hon. and learned Member for Holborn and St Pancras and I have already spoken at some length about those grounds, so I will not reiterate those points. I shall simply repeat what I have said before: I am concerned about the economic wellbeing ground and that the prevention and detection of serious crime ground is not rooted in reasonable suspicion.
The Home Office has told us that, as bulk equipment interference has previously been practised under the Intelligence Services Act 1994, which it says allows for interference with property or wireless telegraphy, the powers in the Bill are not entirely new. The Home Office also says that the intelligence services can acquire a warrant under the 1994 Act to search a property or intercept a person’s phone calls. There is, though, no mention in that Act of bulk or mass equipment interference.
Chapter 3 of the Bill, which begins with clause 154, is therefore very much an innovation on the outdated Acts, such as the 1994 Act. There is a significant expansion of such powers as already exist. Indeed, the Snowden documents revealed that even British intelligence agencies expressed concern that such mass hacking practices as had taken place to date, purportedly under the 1994 Act, might be illegal. If the British intelligences agencies are themselves concerned about the legality of the powers under which they are currently operating, that is all the more reason for us to scrutinise carefully the legality of the powers set out in chapter 3.
Having looked at the clock, Ms Dorries, I am mindful of the fact that the Committee rises at 11.25 am. I have to be in the Chamber soon for Justice questions, so I wonder whether this might be an appropriate point at which to pause. I will perhaps have a little more to say when the Committee sits again this afternoon.
The Chair
It is for the Whip to move that the debate be adjourned. It is not for me to end the Committee early.
Ordered, That the debate be now adjourned.—(Simon Kirby.)
Investigatory Powers Bill (Twelfth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Home Office
Investigatory Powers Bill (Twelfth sitting)
Joanna Cherry ExcerptsTuesday 26th April 2016
(8 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 26 April 2016 - (26 Apr 2016)
Joanna Cherry (Edinburgh South West) (SNP)
It is a pleasure to welcome you back to the Chair, Mr Owen. Before the Committee adjourned for lunch, I was addressing clause 154, which is the opening clause of chapter 3 of part 6 of the Bill and deals with bulk equipment interference warrants. I explained that the Scottish National party wishes to see these provisions removed until such a time as the Government have produced what we consider to be an adequate operational case.
Bulk equipment interference is often described colloquially as hacking or bulk hacking. The guide to powers that accompanied the draft Bill made it clear that bulk hacking is a significant step beyond conventional surveillance powers, and remarked that bulk equipment interference is
“used increasingly to mitigate the inability to acquire intelligence through conventional bulk interception and to access data from computers which may never otherwise have been obtainable.”
Labelling mass interception powers as conventional is a bit odd when the Bill avows them for the very first time. The quote I just read out also underlines the fact that the Bill makes a considerable demand for unbridled access to all information. That is particularly worrying in the light of the very broad definition of “equipment” that is found in this part of the Bill. I am sure you will forgive me for skipping forward slightly, Mr Owen, but this does relate to clause 154. Clause 173 defines equipment as
“equipment producing electromagnetic, acoustic or other emissions or any device capable of being used in connection with such equipment”.
That is very open-ended and could even include cars and aircraft, which relates to the analogy with fighter aircraft that I made earlier. We are concerned that the power is open to potential abuse—not necessarily, as I have said before, by the current Government, but possibly by future UK Governments, as well as by other states that will follow our lead in legislation—because there is such loose language.
Following scrutiny of the draft Bill, the Intelligence and Security Committee reported that
“the Committee has not been provided with sufficiently compelling evidence as to why the Agencies require Bulk Equipment Interference warrants”
and
“therefore recommends that Bulk Equipment Interference warrants are removed from the new legislation.”
Before we adjourned this morning, I alluded to the fact that David Anderson QC had expressed concern about bulk equipment interference and said that he had not addressed the necessity and proportionality of such a power.
Despite what the ISC said, the power for bulk equipment interference warrants remains in the Bill. My argument is that that is rather concerning because bulk hacking, as I will call it, is by its very nature indiscriminate, as acknowledged in the draft Bill’s explanatory notes, which state that
“bulk equipment interference is not targeted against particular person(s), organisation(s) or location(s) or against equipment that is being used for particular activities”.
Instead, systems, services and software that have been carefully constructed to provide security are intentionally corrupted by bulk hacking to impose the eyes and ears of the intelligence agencies on every phone call, text message and web click.
To use an analogy from the offline world, granting this power would be equivalent to allowing the secret services to break into an innocent person’s house, bug it and leave broken windows for anyone else to get in, without the person knowing it has happened. The problem with the digital world is that the data can be rich and revealing, as I said this morning on communications data. Most of us put everything online nowadays, and our equipment will therefore be like a filing cabinet, with diaries, calendars, video archives, photo albums, bookshelves, address books and correspondence files.
Digital forced entry entails not only intrusion into highly personal spaces but control over those spaces. The individual who has hacked into a piece of equipment can not only access what is stored on it but add or delete files, send messages from it masquerading as the person to whom it belongs, turn it on or off and covertly activate cameras and microphones. It really is quite extraordinarily intrusive.
We heard about that in evidence on 24 March, when Eric King referred to GCHQ’s Optic Nerve programme, which involved hacking into webcams. Whatever one might think of it, many people use webcams for sex chat online. I am not talking about people who abuse children, which is obviously utterly reprehensible. Many consenting adults send indecent images to one another online using webcams. If they are doing that in the privacy of their own homes, and it is not illegal or hurting a child, I do not see any problem with it.
GCHQ’s Optic Nerve programme broke into individuals’ privacy. Such extraordinary power over the private lives of citizens fundamentally alters the relationship between citizen and state. If we allow this to go ahead without a proper operational case, it could breed distrust in law enforcement, which could have significant repercussions for the rule of law.
The equipment interference and bulk hacking envisaged in clause 154 have security repercussions. I alluded to those last week, so I will not go into detail. However, if we create a weakness in a piece of equipment in order to let the good guys—the security services—in, that weakness exists as a portal for the bad guys, as in criminals and terrorists, to get into the same equipment.
There are serious security concerns about bulk interference. This power is especially excessive, dangerous and potentially destructive. It is one of the most intrusive powers in the Bill, and it jeopardises the privacy of ordinary, innocent people who live in these islands. SNP Members urge fellow members of this Committee and parliamentarians to follow the Intelligence and Security Committee’s advice and remove these bulk equipment interference powers from the Bill until a convincing case has been made for not only their utility but their necessity and proportionality.
Keir Starmer (Holborn and St Pancras) (Lab)
I, too, welcome you back to the chair, Mr Owen. This bulk power is, like the others, very wide. Equipment interference includes what is commonly known as hacking, which can be done remotely or by attaching monitoring devices to computers or communications equipment. As has been mentioned, equipment is defined very broadly, covering anything that produces electromagnetic or other emissions. The power is therefore very wide.
It is unsurprising that the ISC was initially sceptical and that David Anderson has raised a number of concerns. I will not repeat the points made by the hon. and learned Member for Edinburgh South West, who spoke for the SNP, but I want to draw attention to the relationship between this bulk power and thematic warrants, which was one of the concerns raised by David Anderson.
If one looks at the structure of clause 154(1), skipping for the moment subsections (2) and (3), and lays it alongside clause 88, the similarities in the description of the warrant are apparent. Part 5 deals with equipment interference and targeted warrants; chapter 3 of part 6 deals with bulk equipment interference warrants. Clauses 154 and 88 are very similar in structure and scope—the difference is that clause 90 qualifies clause 88. The difference we are discussing is that we have, in essence, the same power for equipment interference, but we do not have the qualification of the subject matter that is clause 90. We have already discussed clause 90 at some length and, for a targeted power, it is itself extremely wide.
Mr Hayes
I acknowledge that it is certainly true that much rests on the operational case. In all our sermocinations, it has been clear to me that the hon. and learned Gentleman has identified that as crucial in advancing his argument that we need to provide still more transparency. He has done so in a reasonable way, because he acknowledges that there is a line to be drawn between the explanation of that case and revealing what cannot reasonably be said publicly because it would compromise the work of the agencies. I acknowledge that.
Of course, what the hon. and learned Gentleman did not say, although he knows it—perhaps he felt that there was no need to say it—is that the warrant must be deemed to be necessary for one of the core reasons: national security, serious crime or, where it is linked to national security, economic wellbeing. Access to the data must be deemed to be necessary on the grounds of the operational purposes. There is a test at each stage of the process and, in my judgment, that test is robust, but I again acknowledge that there may be a virtue in being clearer about the operational case. I was making a point about existing power—that power is currently available through the Intelligence Services Act 1994. Therefore, it is not new, but the safeguards are. Drawing those together in a single place, and therefore allowing the more straightforward exploration of both their purpose and their effect, is certainly new.
Above and beyond that, the oversight that is given additional strength in the later part of the Bill is there to ensure that all that is done meets the test that we have set, in terms of protecting private interests and so on. I acknowledge the argument about the operational case being a powerful one, but I think the structure of what we have put together stands scrutiny.
There is another argument that has not been used much in the Committee. In a sense, I hesitate to explore it now because in doing so I may be opening a hornets’ nest, but I am not a timid Minister, so why would I not want to face the stings that I might unleash? It is necessary to make the language future-proof, as far as one reasonably can. One of the criticisms of what we are doing—bringing the powers together in a single Bill, creating safeguards of the type we are building, trying to be as comprehensive as we can in this legislation—is that, because of the rapidly changing character of technology and the resultant effect that that has on both the threat and our ability to counter it, this legislation may be relatively short-lived.
If we look, albeit with the benefit of hindsight, at what has happened previously, we see that the legislation that the Bill replaces has, for the most part, been iterative—it has been a response to that dynamism. The language in the Bill is designed to be as carefully constructed as possible to allow the Bill to stand the test of time. Central to that is the advent of the double-lock mechanism, which should ensure that the powers are not misused by a future Government. That relates to something the hon. and learned Member for Edinburgh South West said in a previous sitting of the Committee. I think she argued that I cannot bind the future, and I said, with some reluctance, that that was true.
Joanna Cherry
Jo Cavan from IOCCO—the Interception of Communications Commissioner’s Office—told us on 24 March that the double lock and warrantry applies to only 2% of authorisations under the Bill. Does the Minister agree that he should be very cautious praying in aid the double lock as a safeguard when it applies only to such a small percentage of authorisations?
Mr Hayes
Yes, but the hon. and learned Lady knows well that the double lock applies to some of the most contentious parts of the process and, at the end of the day, is the involvement of the judiciary in a process that has been exercised at the sole discretion of the Executive up until now. The significance of that marriage between Executive authority and judicial involvement is considerable. All but the most mean-spirited of critics would want to warmly acknowledge that, and I see the warmth emanating from the hon. and learned Lady as she rises.
Joanna Cherry
I am not going to be mean-spirited. I acknowledge that the Government have made a significant step in the right direction by introducing judges into the warrantry process. I have my reservations about the degree of the introduction—I would like to see full-blown judicial warrantry—but my point is about how far that double-lock process can be seen as a safeguard when it applies to only 2% of the authorisations under the Bill. My point is not that it is not a safeguard but that it applies to only 2% of authorisations.
Mr Hayes
The double lock applies to all the most intrusive powers. We can have a debate about whether—I do not want to put words into the hon. and learned Lady’s mouth—she wanted to rob the Executive, rob the people’s representatives, of all their authority. She may have felt that it was unnecessary for those accountable to the people—the personification, as I hope I am, of the people’s will—to have any involvement in these matters, but I do not take that view. I believe in representative government and I think we have got absolutely right the marriage between Parliament and the judiciary—but we stray, I sense, from the precise detail of this part of the Bill.
My judgment is that we have reached the place that we need to get to in order to get the marriage between safeguard and effectiveness right, with the caveat that I have already introduced on the operational case, and in the knowledge that a bulk equipment interference warrant can be used to authorise the selection and examination of material obtained by the warrant and does not require a separate examination warrant and permits the disclosure of material acquired in the manner described in the warrant. I think that this is an important additional power and on that basis I hope that the Committee will agree to this part of the Bill.
Question put, That the clause stand part of the Bill.
Joanna Cherry
Part 7 of the Bill deals with bulk personal dataset warrants. In common with our position on other bulk powers in the Bill, the Scottish National party wishes the powers in part 7 to be removed from the Bill until such time as a convincing operational case has been made by the Government; that should be by way of an independent review of the necessity and proportionality of these powers.
The power to acquire bulk personal datasets does not currently exist. These are essentially databases held by either the private or the public sector. They are defined in the clause as,
“a set of information that includes personal data relating to a number of individuals”
where
“the nature of the set is such that the majority of the individuals are not, and are unlikely to become, of interest to the intelligence service”.
This is where our concern lies. The powers in this part of the Bill will afford the opportunity and the power to recover huge amounts of personal information, largely relating to private citizens who are innocent and not under any suspicion whatsoever. Bulk personal datasets will cover both manual and electronic records. So, for example, they will cover medical records. The definition given of personal data is a broad one. It,
“has the same meaning as in the Data Protection Act 1998 except that it also includes data relating to a deceased individual”.
The acquisition, retention and examination of these databases will be governed by a warrant system similar to the one we have just considered for bulk interception and bulk hacking. The warrants will be issued under the double-lock system. The Committee has had detailed submissions on the SNP’s position on double-lock systems so I will not take time discussing that unnecessarily.
Part 7 talks about class warrants and specific bulk warrants. Class warrants concern applications for descriptions of personal data—for example, health data or travel data. Under the terms of the Bill that is the default type of bulk personal dataset warrant. Both the Joint Committee and the Intelligence and Security Committee recommended that class bulk personal datasets be removed from the Bill, yet they remain. The Intelligence and Security Committee reported that the acquisition, retention and examination of any bulk personal dataset is sufficiently intrusive that it should require a specific warrant, and I would say there is considerable force in that argument. It is instructive to look at what the Chair of the Intelligence and Security Committee said about part 7 and bulk personal datasets in his speech on Second Reading. It is sometimes represented as a full retreat from the position of the Intelligence and Security Committee, but that would be a misunderstanding. The right hon. and learned Member for Beaconsfield (Mr Grieve) said:
“The third issue is that the Committee expressed concern about the process for authorising the obtaining of bulk personal datasets. It is undoubtedly necessary and proportionate that agencies should have the power to obtain them”—
That is his view, not mine—
“because they can be vital to their work in helping to identify subjects of interest, but they largely contain private information on large numbers of people of no relevant or legitimate interest to the agencies at all”.
There was an intervention at that stage, but he went on to say:
“Intrusiveness needs to be fully considered as part of the authorisation process, which was why the Committee recommended that that could be done far better if class-based authorisations were removed from the Bill and a requirement made that Ministers should authorise the obtaining and periodic retention of each dataset”.—[Official Report, 15 March 2016; Vol. 607, c. 838-9.]
I have no doubt that the shadow Minister will have more to say about this aspect, but I draw attention to it at this stage because while my party’s opposition is based on the fact that we would like to see this part of the Bill removed completely until a convincing operational case has been made, there are others who, although content with aspects of it, have expressed severe reservations about the class warrants.
Keir Starmer
I am grateful for that intervention. There is a particular sensitivity about health and mental health records. The very fact of their being retained, examined and filtered—because that is what will happen—is of huge concern to many people. That is why the amendments suggest that they be either excluded or subject to a higher test to prove that it is really necessary. Although it was not formal evidence, the Committee had a briefing session with the security and intelligence services where the question arose whether they do in fact access health records. In those exchanges, the answer was, “No we don’t, at the moment.” When I asked why, in those circumstances, it was necessary to have this power, the answer was: “Because we can’t rule out that at some future date it might be necessary to get these records, in circumstances that we cannot foresee at the moment—so we would not want to restrict the ability to get them.”
That was an honest answer about the way that these records are dealt with. In formal evidence, the answer was that the internal guidance does subject accessing mental health records to a higher threshold. In a sense, the agencies have thought this through for themselves. They have recognised the extra sensitivity of such records and have their own internal processes to make sure that they are applying a higher test. That is a good approach.
Joanna Cherry
I remember the evidence that the shadow Minister alluded to. Does he agree with me that, notwithstanding the fact that agencies are telling us that they take steps to be more sensitive in relation to mental health data, the very fact that mental health data are going to be scooped up and available to others may act as a disincentive to certain members of the public to seek assistance with their mental health problems?
Keir Starmer
I am grateful for that intervention. I am concerned about that issue; that is why we need to give particular care and attention to the operation of these bulk powers in relation to sensitive personal data—and mental health data are among the most sensitive. In a sense, the second set of modifications that we will come to later is aimed at putting in the Bill what is in fact current practice. Therefore it would not inhibit what the security and intelligence services are doing, but would make it clear to citizens that a safeguard is in place and reduce their anxiety about the extent of the use of these bulk powers.
I will say more about that when I get to the amendments, but they are issues that go to the breadth of the bulk personal datasets that we are now dealing with.
Mr Hayes
The amendments relate to the question of whether warrants under this part of the Bill should ever allow the retention or examination of bulk personal datasets relating to various forms of medical information. The hon. and learned Gentleman qualified that to some degree by saying that he could see how there might be occasions on which health data were relevant to an investigation, but he rightly asked whether the safeguards were adequate and whether constraints on storage and use of that kind of information were in place.
Let us look first at the safeguards that are already contained in the Bill. These safeguards already ensure that no bulk personal datasets would be retained or examined unless it was appropriate to do so. Specifically, under the Bill, the security and intelligence agencies may retain and examine a bulk personal dataset only for the statutory purposes outlined in the Bill. Each warrant is subject to the double lock, and so must be approved by both a Secretary of State and a judicial commissioner. Each retention of a bulk personal dataset by the intelligence agencies is considered individually based on a strict consideration of necessity and proportionality. The Investigatory Powers Commissioner will also oversee the acquisition, retention, use or disclosure of bulk personal datasets by the agencies. The draft code of practice, as the hon. and learned Gentleman has said, makes clear that, when considering whether to retain and examine bulk personal datasets, the agencies will assess the degree or extent of the intrusiveness which retaining and examining the datasets would involve—that is to say, the degree or extent of interference with individuals’ right to privacy.
The draft code says more than that, though. It also makes clear that when considering whether to apply for a warrant in this class, agencies must consider factors such as whether the nature or the provenance of the dataset raises particularly novel or contentious issues, or whether it contains a significant component of intrusive data—I mentioned this in an earlier discussion. An agency would need to apply for a specific bulk personal dataset warrant if it sought to retain such a dataset comprised of medical records. None the less, notwithstanding those safeguards, which I felt it was important to outline, I can see why this matter warrants careful consideration. Before I go into that consideration, however, I want to say the following. I am prepared in this specific instance to confirm that the security and intelligence agencies do not hold a bulk personal dataset of medical records. Furthermore, I cannot currently conceive of a situation where, for example, obtaining all NHS records would be either necessary or proportionate.
That is where my note so far prepared ends, but I want to go further. Before I do, in order to build anticipation and excitement, I give way to the hon. and learned Lady.
Joanna Cherry
The Minister may be about to answer this question, but I am very interested, as I am sure all hon. members of the Committee and people outwith this room will be very interested, in what he has just said—that the security agencies do not currently hold a bulk personal dataset in relation to medical information. As the Bill stands, unamended, does he not agree that there is nothing in it to prevent them acquiring such a bulk personal dataset in future, if they were able to make a case for it?
Mr Hayes
I may fall foul of my officials, which I would never choose or seek to do, except where I felt that it was right in the national interest, with the benefit of the wisdom of the Committee—enhanced, as I have said it is, with the addition of my right hon. Friend the Member for Chelmsford—and where I feel that the public expect us to go further. The hon. and learned Lady is right that we need to go further. Let me rehearse some of the ways in which we might do that—I will commit to none today, but I offer them to the Committee for further thought.
Keir Starmer
That may well be. I listened carefully to the answer that was given—
Joanna Cherry
On the example that the Solicitor General has just given, does the hon. and learned Gentleman agree that such information could be obtained with a far more targeted warrant?
Keir Starmer
It may well be that it could be dealt with in a more targeted way. As a general proposition, where targeted powers can be used they should be used. That is a theme that goes through the Bill and the code.
Investigatory Powers Bill (Thirteenth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Home Office
Investigatory Powers Bill (Thirteenth sitting)
Joanna Cherry ExcerptsThursday 28th April 2016
(8 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 April 2016 - (28 Apr 2016)
Keir Starmer
We come to part 8, “Oversight arrangements”. Clause 194 deals with the appointment of the Investigatory Powers Commissioner. The second set of amendments to the clause deal with appointments; I will deal with them when we come to that group.
There are numerous amendments in the first group, but they all relate to the structure of the oversight mechanism, because the structure set out in the clause is considerably different from that proposed by David Anderson in “A Question of Trust”. His recommendation 82 was that there should be a new independent surveillance and intelligence commission. In its scrutiny, the Joint Committee on the draft Bill asked why that had not been done, because, according to its recommendation 51,
“the work of the oversight body will be significantly enhanced by the creation of a Commission with a clear legal mandate.”
That was the clear view of David Anderson. The Joint Committee asked why that recommendation was not carried out. The Government response, as I understand it, was that it is too costly. At the moment, that is the only basis suggested for not acting on David Anderson’s recommendation, or that of the Joint Committee.
Our view is that such a commission, with a “clear legal mandate”, would be far better. Unless there is some significant difference in costs, there seems to be no good reason for not having it. Will the Minister tell us what calculations lie behind the suggestion that one model would be very costly and the other not so?
This issue was raised by the Interception of Communications Commissioner’s Office when it gave evidence on the structural divide that it thought there should be between the judicial function and the audit function. In its written and oral evidence, it said it would be more appropriate for those functions to be split, so that the same group of individuals did not look at both aspects. The amendment would create a commission with a clear legal mandate. It would split the functions in a way that those who exercise those functions at the moment think is appropriate. It also challenges the suggestion that the only reason not to implement the recommendation is that it is too costly.
I intend to press the matter to a vote. I will press amendment 741, and if I lose that vote, I will take a view on pressing the others, as there are so many of them, but for the record, I stand by all the amendments.
The Solicitor General (Robert Buckland)
I thank the hon. and learned Member for Holborn and St Pancras for setting out his case. He will be glad to know that there is more to this than mere cost. I say “mere”, but Ministers and parliamentarians have a duty to ensure we do not burden the Exchequer with unnecessary cost. My primary argument is focused on that. The amendments would only put us in the same position as we will be in under the Bill, but at greater cost.
The Home Office estimates that at least an extra £500,000 would be needed to staff and finance the proposed body. That is not an insignificant sum, which is why the Government are urging restraint when pursuing what might seem an entirely rational, reasonable and logical conclusion. I accept that a number of the bodies and individuals mentioned by the hon. and learned Gentleman would support the thrust of these amendments.
The Solicitor General
The impact assessment published alongside the Bill contains the figure. It is supported by that document, so there has been empirical research. I do not have the full figures, but I imagine that the research is based on estimates of staffing levels. The body would also have to deal with new corporate functions, such as human resources, IT, non-executive directors and procurement, as the hon. and learned Gentleman knows well from his experience as Director of Public Prosecutions. This would be a non-departmental public body similar to, say, the Crown Prosecution Service. As an independent body and a key part of our constitutional arrangements for the prosecution of crime, it would obviously need that structure to maintain its independent role.
The amount of money is not insignificant, and the question I must ask is: what would the measure achieve? I remain unconvinced that it would achieve anything more than the current proposal does, because the powers and duties of the proposed body would remain exactly the same as the commissioner’s responsibilities, and the number of inspectors, technical experts and judicial commissioners employed by the organisation would remain exactly the same.
Joanna Cherry
The Interception of Communications Commissioner’s Office said that a separate body would promote greater public confidence, because it would be independent, with an appropriate legal mandate, and would be public facing. Does the Solicitor General accept that the amendment would promote public confidence if the oversight function were separate from the judicial function?
The Solicitor General
I am grateful to the hon. and learned Lady for her intervention. I know the spirit in which she supports this amendment, because she genuinely and sincerely believes that more needs to be done to promote public confidence. My simple response to her is that the current proposals do promote public confidence in not only the organisation’s operational ability, but, importantly, its ability to deal with the role of inspection.
I respect those who believe that there should be an absolute and complete separation. I suppose it flows from the philosophical view that the desideratum of our constitution should be separation of powers in its pure form. I am afraid that I do not subscribe to that view, and never have done. I think that the British system of checks and balances, which this Bill epitomises, is the better way to achieve the balance between the need for Executive involvement and responsibility for important decisions—on warrantry, for example—on the one hand, and judicial involvement and input into the process on the other. We are achieving that balance in this Bill.
While I respect the philosophical intention behind this other approach, my worry is that we are pursuing too much of a rationalist, purist approach to separation of powers, rather than keeping to the spirit of what the Bill is all about. I am supported—perhaps not quite to the fullest philosophical extent, but certainly practically—by the comments we have heard from people with a strong interest in and knowledge of this area.
There is a value in having a relationship, even a distant one, between the two functions that I have talked about. Indeed, Lord Judge made that point in his evidence to this Committee, when he described how the Office of Surveillance Commissioners works. He said that he “strongly recommended” a model in which the inspectors act as a check on how an authorisation was implemented and then feed back, if necessary, that information to the authoriser, so that there is a full awareness of how warrants are to be put into practice.
There is a strong argument that there is stronger oversight from having one indivisible body that can scrutinise the full lifespan of a warrant, from initial request for authorisation through to implementation. David Anderson himself believes that:
“I have considered whether it would be difficult to combine the judicial authorisation function and the inspectorate in a single organisation, and concluded that it would not…Whilst the judicial function is obviously a distinct one, there is considerable benefit in dialogue: the Judicial Commissioners could advise the inspectorate on matters to look out for on their inspections, and the inspectors could in turn suggest that a warrant be referred back to the Judicial Commissioners if they formed the impression that it was not being implemented as it should be, and that the Judicial Commissioners might wish to consider modifying or cancelling it.”
I accept that the Bill does not prescribe the precise approach in practical terms, but the point is that we want the Investigatory Powers Commissioner to decide what the working relationship should be between the two functions of his or her office. The fact that the Bill is silent on that emphasises the point that we want the degree of operational independence and robustness that I believe the current framework provides.
Of course, there is nothing new about this, because the current oversight bodies—the offices of the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner—are provided for in statute in exactly the same way that it is proposed that this body be provided for in this Bill. I am sure that if the current commissioners—we heard them give evidence—felt that their independence was in any way being constrained, we would have heard about it by now. What we get is oversight, and the bodies responsible for oversight focusing on the core tasks of carrying out inspections and investigations, and avoiding the sort of administration, human resources and IT functions that I have mentioned.
Joanna Cherry
I hear what the Solicitor General says about the essential philosophical difference between those who believe in separating powers properly and those who do not, but does he accept that if the one body has judicial audit and inspection responsibilities, the judicial commissioners will effectively be checking their own homework? Does he really think that that will promote public confidence?
Keir Starmer
I intend to deal with funding under clause 208. I appreciate that new clause 19 is in this group, but that is probably only because it contains the word “commission”, so I will deal with it at a later stage. However, I have listened to what the Solicitor General said.
The amendments are supported by the Interception of Communications Commissioner, who was most concerned about the structural division of the two functions. The Solicitor General says that there are advantages in being able to do an end-to-end review, and that it brings focus; I can see that. If it were an end-to-end review of someone else’s work, that would be a good thing. The structural problem is that, within that end-to-end process, the same team takes the steps and does the overseeing. That is more than just a philosophical issue. It is a practical issue with how oversight works. I am therefore unpersuaded.
Joanna Cherry
The hon. and learned Gentleman will recall that Jo Cavan, the head of the Interception of Communications Commissioner’s Office, not only covered that in her written evidence, but was asked about it by me in her oral evidence to the Committee. She reiterated the position that we set out very strongly.
Keir Starmer
I know that the Interception of Communications Commissioner feels very strongly on this point. I think that he raised it in evidence, and he has certainly raised it with me. For that reason, I will press amendment 741 to a vote. I will review my position on the remaining amendments, depending on how that vote goes.
Keir Starmer
The amendments are fundamental and important, because one of the main features of the Bill is the role of the judicial commissioners and the role, therefore, of judges in the double lock. The Home Secretary made a great deal of introducing that judicial element when the Bill was published in draft form, and again when it came back before the House in its current form. The Government have repeatedly and understandably emphasised that point throughout the scrutiny process. The amendments are focused on the appointment of the judicial commissioners. The way in which senior judges are appointed in this country has evolved over time, but we now have a clear and agreed way that has gone through numerous processes and consultations, with numerous recommendations on how it should properly be done.
We welcome the fact that, following the pre-legislative scrutiny, the provisions in clause 194 have been amended, but it remains the case that the Prime Minister will appoint the judicial commissioners, which is most unusual. The change from the draft Bill is that the Prime Minister must now consult the Lord Chief Justice. That is a step in the right direction, but it is fundamental, under our unwritten constitution, that judges are appointed independently of the Executive and those in political positions, and are not appointed by the Prime Minister.
The step of requiring the Lord Chief Justice to be consulted does not go as far as the Joint Committee on the draft Bill wanted. It recommended that the Lord Chief Justice be responsible for appointing the commissioners, to “ensure public confidence”. It was clear about how the separation of powers should operate in this important field. The Joint Committee also recommended:
“The Judicial Appointments Commission must also be consulted to ensure that the appointments procedure is fair and transparent.”
It wanted a move away from the Prime Minister making the appointments to the Lord Chief Justice doing so, drawing on the Judicial Appointments Commission, which was set up to ensure the transparency and independence of the appointments regime.
In short, the Prime Minister should not be involved. The Interception of Communications Commissioner’s Office agrees, stating in its evidence to the Joint Committee:
“It is inappropriate for the Judicial Commissioners to be appointed by the Prime Minister”.
It, too, said there should be a role for the Judicial Appointments Commission. As I said, the Judicial Appointments Commission has evolved over time. It was set up to ensure the independence of the judiciary, by requiring vacancies to be advertised and published, with the criteria for appointment and so on.
The changes proposed in the amendments are ones of principle that are rooted in the separation of powers and in line with the view of Lords Constitution Committee on judicial appointments. That Committee has affirmed that judicial independence is a basic constitutional principle, and it found wide agreement among those that gave evidence to it that the appointments process must be designed in such a way as to reinforce judicial independence and that judges should not be appointed through a political process.
The amendments are fundamental to the how the judicial commissioners are to be appointed. If there is to be public confidence in the double lock, judicial commissioners should be appointed independently, in accordance with the understanding and arrangements under our unwritten constitution.
The Minister for Security (Mr John Hayes)
It is a pleasure to serve under your chairmanship as ever, Mr Owen. It is important, as we consider this part of the Bill, that we test some of its provisions in the way the hon. and learned Gentleman has.
The Government take this part of the Bill very seriously. Along with the safeguards added earlier in the Bill, oversight plays an important part in making sure that we have the checks and balances that we all seek. In that respect, there is space for an informed debate about the balance that we are seeking to achieve, as the hon. and learned Gentleman suggests. The roles of the Executive and of the judiciary, which we have already begun to explore in the brief debate to which my hon. and learned Friend the Solicitor General contributed, are central to those considerations.
Mr Hayes
That is helpful, because the hon. and learned Gentleman has qualified the point that I was going to come on to make. The amendments could take the Lord Chief Justice out of the process altogether, and I am sure that the hon. and learned Gentleman would not want that—indeed, he has confirmed as much. However, there is also a point to be made about the practicalities and effectiveness of the system, which Lord Judge commented on when I questioned him on 24 March. I asked,
“in terms of the appointment of the judicial commissioners, would the Judicial Appointments Commission be a better place to appoint them, or do you rather like the model we have come up with?”
He said that
“I much prefer the model you have come up with”,
and finished by saying:
“There is no point whatever in involving the Judicial Appointments Commission, ignoring the fact that it has got far too much to do anyway and not enough people to do the work.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 73, Q237.]
I will not comment on the arrangements or resources of that body, but on a different occasion, when speaking in particular about the Prime Minister’s role in the proposals, Lord Judge described that as a “perfectly sensible system.”
It is therefore clear that there is a view that the arrangements being put in place are a reasonable balance between the Executive and the judiciary, and that changing them would not necessarily lead to greater effectiveness or practicality. The people being appointed will already been through Judicial Appointments Commission process, as the hon. and learned Gentleman generously said. It is also important that we are clear about lines of accountability and the character of independence. To an extent, that reflects the broader debate that my hon. and learned Friend the Solicitor General stimulated. It is important that there is separation between the roles of the people involved to avoid any sense of patronage, and that the Prime Minister continues to play a role, to affirm the significance of the Executive’s engagement in everything that we are discussing in the Bill.
That is a much broader point. Although I do not want to go back into all of this, Committee members will be aware that the double lock that we have created is itself a compromise. On one hand, there is the position adopted by those who are sceptical about judicial involvement in the business of issuing warrants—the former Home Secretary Lord Reid, for example, and a number of Members of this House, including some from my own party. On the other, there are the recommendations of David Anderson, who is clear that in order to add more validation to the process and insulate it from challenge, it is important to create a role for the judiciary. Given that balance, which is a pretty finely tuned one, I am reluctant to take the Prime Minister out of the business of appointments.
Joanna Cherry
I hear what the Minister is saying about the Government’s keenness to retain the involvement of the Prime Minister. Could his concerns be met and a compromise reached via amendment 740, which the Scottish National party support? It would retain the Prime Minister’s involvement and provide that he or she would make an appointment only following a recommendation by either the Judicial Appointments Commission, the Judicial Appointments Board for Scotland or the Northern Ireland Judicial Appointments Commission. Of course, as the Minister has reminded us, those bodies would be appointing from an existing pool of appointed judges, so it would not take up too much of their time; they would be considering people with whom they were already familiar. Is that the way forward? It is important to ensure that the Judicial Appointments Board for Scotland is involved, if not the Scottish Ministers, given the Scottish Ministers’ current responsibility for appointments to the Office of Surveillance Commissioners.
Mr Hayes
The hon. and learned Lady is right to interpellate in that way. There is certainly a good argument to be made for what she has just described, and I am not insensitive to it. However, I challenge more fundamentally the suggestion that the Prime Minister’s engagement—and, further, the Prime Minister’s engagement in the way that we have set out, rather than in the way that she has just described—would in some way be injurious to the independence that is critical for those involved in the oversight process.
Joanna Cherry
It will not be, provided that he or she appoints on the recommendation of the independent bodies. That is what we do at the moment for judges, both north and south of the border. In Scotland, the First Minister appoints judges to the supreme courts of Scotland on the recommendation of the Judicial Appointments Board for Scotland. In England and Wales, as I understand it—I am willing to be corrected—the Prime Minister makes his appointments on the recommendation of the Judicial Appointments Commission and the Lord Chancellor, but presumably they have gone through an independent judicial scrutiny process. Amendment 740 would simply replicate those procedures for the judicial commissioners. I do not understand what possible objection there could be.
Mr Hayes
The hon. and learned Lady ascribes to me a lack of willingness to hear the argument, which I have made clear is not a feature of my approach to the provisions, and a certain stubbornness. Far be it from anyone to accuse me of that. I am not insensitive to that argument, as I have emphasised.
Mr Hayes
Again, that is an argument about fine tuning. I do not say that with any pejorative implication. It is reasonable to say that the Prime Minister’s engagement has to be of a kind that does not either mean, or arguably, perhaps, give the appearance of, a lack of independence—I think that is what the hon. Gentleman is suggesting. Thus we end with the idea of the hon. and learned Member for Edinburgh South West about changing the chronology, or perhaps rather more than that, actually altering the process by which the Prime Minister is involved.
On the factual point that the hon. Gentleman raised about the Prime Minister’s engagement, of course the current commissioners are appointed on that basis, and there is no suggestion that their independence has been compromised.
Then we come to the issue of deployment, and I want to talk about the difference between deployment, in the way that the hon. and learned Lady is no doubt about to prompt me to.
Joanna Cherry
Does the Minister agree that, although there may be no suggestion that the current commissioners’ independence has been compromised, the appearance of independence is important for public confidence?
Keir Starmer
I am grateful to the Minister. In the circumstances, I will not press the amendments. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 194 ordered to stand part of the Bill.
Clause 195
Terms and conditions of appointment
Joanna Cherry
I beg to move amendment 745, in clause 195, page 149, line 34, leave out “three” and insert “six”.
The Chair
With this it will be convenient to discuss the following:
Amendment 746, in clause 195, page 149, line 36, after “may”, insert “not”.
Amendment 860, in clause 195, page 150, line 18, at end insert—
“(e) the Commissioner is unfit to hold out office by reason of inability, neglect of duty or misbehaviour.”
Amendment 861, in clause 195, page 150, line 18, at end insert—
“(6) Before removing a Judicial Commissioner the Prime Minister must consult—
(a) the Lord Chief Justice of England and Wales,
(b) the Lord President of the Court of Session,
(c) the Lord Chief Justice of Northern Ireland,
(d) the Scottish Ministers, and
(e) the First Minister and Deputy First Minister in Northern Ireland.”
Joanna Cherry
It is a pleasure to serve under your chairmanship, Mr Owen. Clause 195 deals with the terms and conditions of appointment for judicial commissioners, and amendments 745 and 746 address the term of the appointment. The Bill provides for the judicial commissioners to be appointed for short terms of three years, subject to a potential rolling renewal. The amendments would extend the length of term served to six years and remove the prospect of renewal. The thinking behind that is that secure judicial tenure is designed and recognised as one of the key safeguards of judicial independence.
The provision for the judicial commissioners to be appointed by the Prime Minister and for their terms to be short and subject to renewal only at the discretion of the Prime Minister could pose a significant barrier to the commissioners’ functional or apparent independence. Three years is a very short term, and a judicial commissioner wishing to extend his or her term may be influenced in their behaviour by a desire to please the current Administration. In saying that, I take fully on board the fact that an extremely distinguished English judge, Lord Judge, has said that that is unlikely to happen, but he cannot speak for other judges or the future, just as this Government cannot speak for future Governments. That is why judicial independence is so important.
We may feel complacent about judicial independence at present. I do not mean to be pejorative about the English system, but I like to think we have proper judicial independence in Scotland—as I said earlier, judges are appointed by Her Majesty the Queen on the recommendation of the First Minister after they have consulted the Lord President and after the Judicial Appointments Board for Scotland has made a recommendation. We have judicial independence under the current system in Scotland, but those judges are of course appointed for an indefinite term, until such time as they have to retire. Under the Bill, the plan is to have judges appointed by the Prime Minister. I have heard what the Government say, but without the further safeguards we have just been discussing, judges will be appointed for very short periods of three years, at which time their renewal will come up. If the amendments are made, the term of appointment will be six years, which is probably quite long enough to be doing this sort of important and taxing work, and there will be no renewal thereafter.
The six-year terms would allow the commissioners to develop their expertise and avoid any concerns about stagnation. Importantly, six-year terms would ensure that the judicial commissioners’ tenure does not undermine their crucial independence from the Government, and the perception of their independence from the Government and from the officers, agencies and public bodies they are monitoring.
Victoria Atkins (Louth and Horncastle) (Con)
It is a pleasure to serve under your chairmanship, Mr Owen.
The point of the three-year term is surely that the Government are hoping to recruit High Court judges at the very top of their game—High Court judges who have a long career behind them and ahead of them. The idea of the three years is to give them the choice to pop out of the High Court or the Court of Appeal and do their three years, and then if they wish to return to service in the courts, they have been out for only three years. It is an attempt to encourage judges to apply, rather than to count against it.
Joanna Cherry
I hear what the hon. Lady is saying. Initially, I thought she was going to suggest that it would be for judges who were at the end of their judicial careers and would be coming up against retirement anyway. Her point gives me a difficulty with the six-year amendment, but not with the non-renewal amendment. If judicial commissioners are appointed only for three years with a renewal at the end, my fear pertains in so far as they would be there for a very short period of time. They would probably be anxious to stay on for longer, and could well tailor their decision making to guarantee a longer stay. That may not be a concern at present, as I have taken trouble to say, but that does not mean that it could not be a concern for the future.
The oversight of some of the most intrusive and far-reaching powers of the state is important work. Therefore, in tailoring the provisions for the appointment of the judges, we should look not so much to what might be convenient for judges, but to what is necessary to secure proper independence in the eyes of the public. That is about as much as I can say about amendments 745 and 746.
I am pleased to say that amendments 860 and 861 were suggested to the Scottish National party by the Law Society of Scotland, and we have decided to table them because we think they would improve the Bill. They deal with the circumstances in which a judicial commissioner may be removed from office. At present, clause 195 allows for the removal of a judicial commissioner who is bankrupt, disqualified as a company director or convicted of an offence. The clause does not permit the removal of the commissioner for being unfit by reason of inability, neglect of duty or misbehaviour. It is important, in the eyes of the Law Society of Scotland—I endorse its views—that the possibilities of unfitness for office by reason of inability, neglect of duty or misbehaviour are provided for in the Bill.
Very regrettably, it sometimes happens in Scotland—this has happened in my lifetime—that a judge, albeit of the lower courts, has to be removed for reasons of inability, neglect of duty or misbehaviour. I realise that we are dealing with judges at the very senior end of the spectrum, and I very much hope that such steps would never be necessary, but there is no harm in providing for such steps to be taken. Would it not be a very serious matter if a judicial commissioner dealing with the oversight of such far-reaching and intrusive laws were unfit for office by reason of his or her inability, neglect of duty or misbehaviour? We would want to be rid of them, in the best interests of everybody. I commend that aspect of the Law Society of Scotland’s amendments.
If amendment 861 were made, before removing a judicial commissioner the Prime Minister would be required to consult the Lord Chief Justice in England and Wales, the Lord President of the Court of Session in Scotland, the Lord Chief Justice of Northern Ireland, the Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland. That additional safeguard of consultation with the heads of the UK jurisdictional judiciaries and the devolved Administrations would provide a check on unjustified attempts to remove the judicial commissioner.
The purpose of the amendments is to prevent unjustified attempts to remove the judicial commissioners and to add grounds for their removal if they were unfit for office by reason of inability, neglect of duty or misbehaviour. I am interested to hear what the Solicitor General has to say about the amendments.
The Solicitor General
Once again, the hon and learned Lady puts her argument succinctly and clearly. I am sure she will forgive me for characterising her as a guardian of independence of the judiciary. Although that is an admirable position to take, I do not think it is necessary in this instance.
I will deal first with the length of appointment. My hon. Friend the Member for Louth and Horncastle put it very well and I do not need to improve upon the argument. We need a relatively significant term—three years—to attract serving High Court judges, but not a term of such length that it would be difficult for them to return to High Court work in the normal course of events. That is why we think three years is an appropriate period. For retired High Court judges, we have to remember the constraints that we are under. A three-year period, with that renewal term, strikes the correct balance. The renewal term is there because this will be technical role, and knowledge and expertise will be developed by the commissioners. Allowing a reappointment will retain that expertise in a balanced and fair way. A six-year period would just be too long, bearing in mind the quality that we want to attract to fill these important and sensitive posts.
I will deal with the question of unfitness. I am sympathetic to the intention behind the amendments, but it might be argued that the proposed wording gave too much discretion to the Prime Minister to remove a commissioner. The conditions listed in clause 195 for removal from office are precisely the same as those for which a High Court judge can be removed from post. Since having held the position of a High Court judge is the qualification for office as a judicial commissioner, the reasons for removal from the two posts should be precisely the same. If a commissioner is demonstrably unfit to perform the role, he or she can still be removed from post if the Prime Minister and, importantly, both Houses of Parliament agree to the removal. That is an admirable check and balance, which deals with the point of competence and fitness to which the hon. and learned Lady quite properly points us.
On the need to consult the judiciary and others concerned in the appointment of commissioners before removing them, I do not think that is necessary because there are only two ways in which a commissioner could be removed from office: first, because the individual had failed to meet the standards expected of a High Court judge; and secondly, via the mechanism of Prime Minister and Parliament agreeing that that person is no longer fit. Those are adequate safeguards that stop the mischief of a commissioner being removed from post on the whim of the Prime Minister alone. I strongly reassure the hon. and learned Lady that there is absolutely no power for the Government—any Government—to remove a judicial commissioner just because they disagree with that commissioner’s views. I can say a Government would not do that, but I am able to go further and say that, on the basis of this framework, the Government simply cannot do that. That is absolutely right and fulfils the objectives that the hon. and learned Lady wishes to achieve through her amendment. On that basis, I urge her to withdraw it.
Joanna Cherry
I have listed carefully to the Solicitor General and the hon. Member for Louth and Horncastle and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 195 ordered to stand part of the Bill.
Clause 196
Main oversight functions
Joanna Cherry
I beg to move amendment 752, in clause 196, page 150, line 43, at end insert
“and under section 217 (technical capability notices)”
The Chair
With this it will be convenient to discuss amendment 747, in clause 196, page 151, line 19, leave out subsection (4)(a)
Joanna Cherry
The clause provides for oversight functions. The purpose of the amendments—amendment 752 in particular—is to provide for consistent oversight functions.
Under clause 218, obligations to remove electronic protections, which we will come to under part 9, or encryption can be issued either as a national security notice or, more likely, as a technical capability notice by the Secretary of State. As drafted, the Bill does not require judicial authorisation or a test of necessity or proportionality for either a national security notice or a technical capability notice. I argue that the powers are so far-ranging that they should be subject to oversight by the proposed new oversight body. Amendment 752 would make it clear that the commissioners have responsibility for oversight of national security notices and technical capability notices.
Amendment 747 would remove clause 196(4)(a). The Bill provides for the Secretary of State to modify the functions of the Investigatory Powers Commissioner and the judicial commissioners by secondary legislation subject to the affirmative procedure. The amendment would remove that power. I acknowledge that the Joint Committee had every confidence that such a power would only be exercised responsibly by the Secretary of State, but in the light of the commissioner’s important function holding Ministers and public agencies to account, I consider that granting Ministers a delegated power to alter the commissioner’s powers is inappropriate. One way of removing that power would be to leave out subsection (4)(a); another would be to take out clause 205 completely, but we will come to that later.
Mr Hayes
I can add little to the contribution of my hon. Friend, who has articulated these things better than I could. Nevertheless, I should emphasise two points. The hon. and learned Member for Edinburgh South West is right to say that the clause provides for IPC oversight of technical capability notices in subsection (1), and it lists the main oversight functions that should be undertaken. I accept that she is making quite a refined case, but my argument is that the clause already provides the oversight she seeks, because the notices are
“of statutory functions relating to”
the activities. That is a wide-ranging role for the commissioner, with absolutely proper capacity to probe, through oversight of public authorities, the necessary powers and an expansive remit to consider all such matters.
Amendment 747 would give the commissioner the function of keeping under review, including by way of audit, inspection and investigation, the exercise of the functions by Ministers. I am still less persuaded of that. It is a less refined and pretty basic argument about the relative functions of the Executive and the commissioner. I do not want to lecture the Committee on the importance of the separation of powers—we have already had an interesting discussion about that—but it is absolutely right that the process of scrutiny and review should be carried out by the legislature, as my hon. Friend the Member for Fareham implied. By the way, that includes the Scottish Parliament, which will of course have a role, alongside the Welsh and Northern Irish Assemblies. I consider that role to be of the utmost importance, and I would not want in any way to limit or inhibit the capacity for reflection and review with such an amendment.
As well as all that, we doubt that the amendment would provide for appropriate allocation of the skill and resources of the commissioner, whose key function is to provide oversight of the powers as defined in the Bill. I can see what the hon. and learned Lady is getting at—as I say, her amendments are at least in part an attempt to refine what is before us—but I do not feel that I am any more persuaded of their virtue than is my hon. Friend. On that basis, I invite her to withdraw the amendment.
Joanna Cherry
To clarify, we are currently dealing just with amendments 752 and 747; I have not yet made my submissions on the other amendments. I am not prepared to withdraw the amendments and would like to press them to a Division.
Question put, That the amendment be made.
Joanna Cherry
I beg to move amendment 748, in clause 196, page 151, line 42, leave out from “must” to end of line 44 and insert
“have due regard to the public interest in avoiding acts prejudicial to”.
The Chair
With this it will be convenient to discuss the following:
Amendment 750, in clause 196, page 151, line 47, leave out subsection (c) and insert—
“(c) privacy and the integrity of personal data; and
(d) the security and integrity of communications systems and networks.”
Amendment 751, in clause 196, page 151, line 48, leave out subsections (6) and (7).
Joanna Cherry
The hon. Member for Fareham and the Minister have already anticipated what I am going to say in support of the amendments, so I will try to be brief. The Bill requires the Investigatory Powers Commissioner and the other judicial commissioners to prioritise
“national security, the prevention or detection of serious crime…the economic well-being of the United Kingdom”
above all other considerations in the exercise of their functions. It also imposes a particular duty not to
“jeopardise the success of an intelligence or security operation or a law enforcement operation…or unduly impede the operational effectiveness of an intelligence service, a police force…or Her Majesty’s forces.”
The amendments would create a “due regard” duty for judicial commissioners to exercise their functions in a manner that considers the range of important public interests that their oversight function is designed to preserve, including the protection of individual privacy,
“the integrity of personal data; and the security and integrity of communications systems and networks.”
Amendment 750 is consistent with other amendments in that it would remove the reference to
“the economic well-being of the United Kingdom.”
Amendment 751 would remove the exceptionally broad particular duty to refrain from impeding the work of the agencies, the police or the armed forces.
We have already had lengthy submissions on the issue of the economic wellbeing of the United Kingdom. On the “due regard” issue, the response from the hon. Member for Fareham and the Minister was that clause 196 is adequate as it stands, because we have heard evidence from a number of people involved in the system that everything is done properly and above board.
In these Houses yesterday, as a result of the second inquest into the Hillsborough tragedy, we had a classic example of it coming to light that the establishment and the state had not performed their duties properly. Sometimes the state and the establishment do not perform their duties properly; sometimes things that are not specifically laid down are not done properly. To take the Hillsborough example, until we had article 2 of the European convention on human rights and the particular duty to involve the family and next of kin in inquests, we would not have had what the Home Secretary read out to us yesterday, the detailed questions for the jury and the detailed answers that the jury members had to give. They were the result of a specific requirement to involve and respect the wishes of the next of kin, and of duties under article 2.
Joanna Cherry
I can reassure the Minister that the SNP and the Labour party are jointly working at present to produce an amendment later today with an overarching privacy clause for the Bill, which would be a new clause to be debated next week. However, I have to say that, given the Government’s attitude to date in relation to most of the amendments that we have tabled, I have no confidence that that new clause will be accepted, so I intend to push press this amendment to a Division.
Mr Hayes
I am a little hurt, frankly. I regard the caricature that the hon. and learned Lady has painted of my approach to all of these considerations as—I would not say insulting—hurtful. Far from the stony-faced zealot that I think she seeks to portray me as, I am the very model of this listening Government.
Joanna Cherry
The hon. Member for Hove quoted exactly what the witness said. The Solicitor General is trying to say that the witness was mistaken, because the clause pertains only to oversight functions and not judicial functions, but does that not illustrate the very difficulty of having the judicial and oversight functions mixed up together? Subsection (5) states:
“In exercising functions under this Act”.
It does not say, “In exercising oversight functions”.
Joanna Cherry
I wish to insist on the amendments.
Question put, That the amendment be made.
Investigatory Powers Bill (Fourteenth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Home Office
Investigatory Powers Bill (Fourteenth sitting)
Joanna Cherry ExcerptsThursday 28th April 2016
(8 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 April 2016 - (28 Apr 2016)
Joanna Cherry (Edinburgh South West) (SNP)
I beg to move amendment 760, in clause 197, page 152, line 27, leave out “directed” and insert “requested”.
The Chair
With this it will be convenient to discuss the following:
Amendment 761, in clause 197, page 152, line 28, leave out “must” and insert “may”.
Amendment 762, in clause 197, page 152, line 39, leave out
“in a manner which the Prime Minister considers appropriate”.
Amendment 763, in clause 197, page 152, line 42, leave out
“contrary to the public interest or”
and insert “seriously”.
Amendment 764, in clause 197, page 152, line 45, leave out subsections (4)(c) and (4)(d).
Joanna Cherry
The clause deals with additional directed oversight functions. It binds the Investigatory Powers Commissioner to conducting reviews of the work of the intelligence services or the armed forces, subject to the direction of the Prime Minister. While the commissioner may request that the Prime Minister gives such a direction, the Prime Minister will only issue a direction at his or her discretion. The amendments to subsection (1) would make it read as follows: “So far as requested to do so by the Prime Minister and subject to subsection (2), the Investigatory Powers Commissioner may keep under review the carrying out of any aspects of the functions of” the intelligence services and so on.
The amendments to subsection (4) would make it read: “The Prime Minister must publish any direction under this section except so far as it appears to the Prime Minister that such publication would be seriously prejudicial to national security, or the prevention or detection of serious crime”.
The amendments would remove the power to direct that such reviews take place, and replace it with the power to request that the Investigatory Powers Commissioner undertake such a review. At present, the Bill provides that any direction made may be published only in such a form as is deemed appropriate by the Prime Minister, and may be redacted for a number of very broad reasons, including that it may be prejudicial to
“the continued discharge of the functions of any public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner.”
That could include, for example, the Food Standards Agency.
The amendments to subsection (4) would limit the power to keep any request or direction secret. That would increase the effectiveness of the mechanisms for transparency and accountability in public decision making, including in respect of the conduct of the intelligence agencies and the armed forces. The provision in the Bill for the Prime Minister to direct the commissioner to undertake work that is outside the ordinary scope of its statutory duties would undermine the perception that the commissioner is independent, whereas a power to request, with discretion, keeps the perception—and reality—of the independence of the commissioner. The alternative would be to remove the clause from the Bill completely. I hope that the amendments will be acceptable to the Government, and that there will be no need to vote the clause down.
The Minister for Security (Mr John Hayes)
As the hon. and learned Lady says, the clause makes provision for the Prime Minister to direct the Investigatory Powers Commissioner to undertake additional oversight of the security and intelligence agencies. I say “additional” with emphasis, because clause 196 creates a range of oversight functions that are supplemented by clause 197. I think there may be a misapprehension here that the oversight is exclusively at the diktat of the Prime Minister. That is certainly not the case.
The principal oversight functions are given legislative life in clause 196. Clause 197 provides a further opportunity for oversight through investigations, as a result of the direction that the hon. and learned Lady referred to. That has many virtues. It adds alacrity, because of course it would not always be appropriate to wait for the annual report of the commissioner. It means that where matters of imminent concern are drawn to the attention of the Executive through the Prime Minister, or indeed to the attention of the Prime Minister, he can exercise this function with speed and diligence. To take out the whole clause, which would be the effect of the amendment, would take out the additional directed oversight functions that supplement clause 196 in a beneficial way.
Of course, the Prime Minister’s ability to make such directions is subject to the public interest and defined by need. It is important to add that anything the Prime Minister does in this regard cannot be prejudicial to national security, the prevention or detection of serious crime or the economic wellbeing of the UK. Indeed, the opposite is true. He acts in defence and promotion of those things. Once again, I understand that the hon. and learned Lady is probing, and it is right that she does so. However, on careful reflection, she will come to the conclusion that rather than adding to the Bill, this literal subtraction would be unhelpful.
The Joint Committee said nothing about this matter. Although it looked at these things with impressive diligence, it came across no evidence of which I am aware that suggested that such a measure was imperative. The amendment certainly would not enhance oversight. Part of my job here is to protect the hon. and learned Lady. The amendments we debated immediately before our brief lunch would have had the effect of minimising consideration of public interest. In this case, she would be minimising the ability to exercise additional oversight. On that basis, and in defence of the existing provisions, of what is right, and—might I say mildly—of the hon. and learned Lady’s own interests, I invite her to withdraw her amendment.
Joanna Cherry
Well, Mr Owen, I am not going to fall into that trap, just as I did not before lunchtime. I am not sure whether it is flattery or compliment, but whichever it is, I will not fall for it. There is good reason for the amendment, as I have explained, and I wish to press it to a vote.
Question put, That the amendment be made.
Joanna Cherry
On reflection, Mr Owen, I do not think that there is much point in doing so; we all know which way this is going. I think that the marker has been laid down in relation to clause 197.
Question put, That the clause stand part of the Bill.
Mr Hayes
I agree, and that is precisely why, when members of the Opposition probe, it is important that my hon. and learned Friend the Solicitor General and I explain where that probing leads. The interface between members of this Committee is designed for that exact purpose. It allows us to test the Government’s arguments, to examine the Bill with care and to identify where it can be strengthened, and as part of that to find out where the Opposition, having probed, will ultimately be satisfied that the Government got it right the first time round. I have been on both sides of this process over many years; I have been in the shoes of the hon. and learned Member for Holborn and St Pancras, so I know exactly what that is all about.
In this case, drawing on my experience as a Member of Parliament, I can imagine where the amendment might lead. I do not think it is the intention, but it could well be the result. Furthermore, although certainly not intended, it is possible that the obligation under the amendment to notify a person of minor errors that did not cause significant harm to any individual would not only be burdensome—the hon. and learned Gentleman acknowledged that fact, which has to be taken into consideration—but might discourage the agencies and others from going about their work in the way that they do. If they felt that even the most minor accidental error would be notified to the individual concerned, it could inhibit or change the way that they went about their work.
Joanna Cherry
I can reassure the Minister. If he looks at subsection (9), he will see that “relevant error” in subsection (1) is defined as
“an error…by a public authority in complying with any requirements which are imposed on it by virtue of this Act or any other enactment and which are subject to review by a Judicial Commissioner, and…of a description identified for this purpose in a code of practice under Schedule 7, and the Investigatory Powers Commissioner must keep under review the definition of ‘relevant error’.”
Is he reassured that it is not just any old minor or accidental error, but a relevant error within the description of his own draftsman?
Mr Hayes
The hon. and learned Lady must recognise that the amendments would reduce the discretion that is already in the Bill. To that end, she is right that there is provision in the Bill for the information to enter the public domain via the report that the commissioner is bound to make on both the number of relevant errors and their seriousness, but the discretion that the Bill provides, which I am defending with some confidence, is important in excluding those purely technical, accidental, petty errors whose notification to those who choose not only to tilt at windmills but to invent the windmills they tilt at would be highly undesirable.
Joanna Cherry
Throughout our line-by-line consideration, the Minister has been very keen on referring us to the terms of the codes of practice. Perhaps the definition of “relevant error” in the codes of practice could be addressed to remove the need to include any “minor” or “accidental” error, depending on what one means by accidental. I suggest that the Minister’s concerns may be ill-placed when we have the definition of a relevant error and should perhaps be looking at that.
Mr Hayes
I did not expect such a full debate on this matter, but it seems we are going to have one, Mr Owen. Imagine that a minor or technical error was notified to the individual concerned during the course of an active investigation. That has the potential to compromise the way the investigation proceeds. Relevant errors can be minor—I accept the hon. and learned Lady’s point—but the real issue is that the commissioner will have the expertise and independence to assess the relevance of the facts and decide what is in the public interest. If we are to have an oversight arrangement that affords the commissioner that kind of authority, to oblige publication as the amendment proposes would add little and might do much worse, which would be undesirable.
The intention behind amendment 776 is unclear to me. Removing subsection (8)(b) would mean that, contrary to what I just said, the commissioner would not be obliged to publish the number of relevant errors. I think that subsection is important, because we want to know the number. We are all interested in the reporting regime’s transparency and we are having a very informed debate about this part of the Bill. I am sure that that was not the intention, but it might be the effect.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 198 ordered to stand part of the Bill.
Clause 199
Additional functions under this Part
Joanna Cherry
I beg to move amendment 792, in clause 199, page 154, line 17, at end insert—
“(1A) A Judicial Commissioner may refer to the Investigatory Powers Tribunal any matter the Commissioner considers may have involved the unlawful use of investigatory powers.”.
This amendment would give the Judicial Commissioners power to refer issues of concern to the IPT without having to rely on a complaint being made.
The amendment, which would insert a new subsection in clause 199, was proposed by the Equality and Human Rights Commission and is jointly tabled by the Scottish National party and the Labour party. It would give the judicial commissioners power to refer issues of concern—matters that came to their notice and about which they were concerned—to the Investigatory Powers Tribunal without having to rely on a complaint being made.
Under the Bill as drafted the unlawful use of investigatory powers may not receive sufficient scrutiny, because often the subjects of surveillance will be unaware of it and so not in a position to make a complaint. The amendment would improve the safeguards in the Bill by addressing that problem so that where judicial commissioners are aware of a concern, they can refer it to the Investigatory Powers Tribunal. The judicial commissioners decide whether to approve the issue of warrants and are well placed to identify issues of systemic concern and of law requiring resolution by the tribunal. They are, in fact, much better placed to do so than those subject to surveillance, because they have an overview of the whole picture. It is therefore sensible to permit them to refer matters of concern to the tribunal.
The amendment is in line with a number of recommendations made during prelegislative scrutiny. Recommendation 66 of the Joint Committee on the Draft Investigatory Powers Bill was that
“The Judicial Commissioners should be able to make a direct reference to the Investigatory Powers Tribunal where they have identified unlawful conduct following an inspection, audit, investigation or complaint.”
Recommendation 16 of the Royal United Service Institute’s report, “A Democratic Licence to Operate”, says:
“The judicial commissioners should have a statutory right to refer cases to the IPT where they find a material error or arguable illegality or disproportionate conduct.”
The Interception of Communications Commissioner’s Office, in written evidence to the Draft Bill Committee, made similar recommendations.
In their response to prelegislative scrutiny, the Government did not accept those recommendations, but they appear to have agreed that judicial commissioners should have this power, as it is referred to in the draft codes of practice. For example, the draft code of practice on interception of communications states:
“The Commissioner may, if they believe it to be unlawful, refer any issue relating to the use of investigatory powers to the Investigatory Powers Tribunal”.
However, there is no express power to do this in the Bill. We argue that the referral power needs to be set out clearly in the Bill for two reasons.
First, such an important power should be in primary legislation, rather than in a draft code of practice that may be subject to revision after the passage of the Bill through Parliament. If it is in the Bill, any change to the power in future would be subject to greater parliamentary scrutiny, requiring the amendment of primary legislation rather than the mere revision of codes of practice. Secondly, providing for the power in codes of practice but not in the Bill creates uncertainty, which the amendment would resolve. Without the amendment, there may be a lack of certainty about whether the judicial commissioners have what would be a crucial power, and it could be argued that the codes of practice cannot create such a power without it being in the Bill.
The confusion over those issues could be resolved in a straightforward manner by the Government accepting the amendment. Their general response to prelegislative scrutiny referred to the fact that courts and tribunals do not usually have the power to carry out investigations on their own initiative, but the amendment would not give the tribunal that power; rather, it would give the judicial commissioners the power to refer an issue to the tribunal, which the tribunal would then investigate on the initiative of the judicial commissioners. In support of that approach, I note that the Investigatory Powers Tribunal explains on its website:
“The Tribunal adopts an inquisitorial process to investigate complaints to get to the truth of what has happened in a particular case, unlike the adversarial approach followed in ordinary court proceedings.”
I suggest that that approach is appropriate in situations such as those envisaged in the Bill, where the victims of the measures will not have knowledge of them but the judicial commissioners will. They may therefore refer to the IPT, and because the IPT is an inquisitorial rather than an adversarial body, it is well placed to investigate a referral from the judicial commissioners. I ask the Government to take on board the amendment in the spirit in which it is intended and indicate that they will agree to it.
The Solicitor General
I am grateful to the hon. and learned Lady for the way in which she has sought to persuade the Committee of her case. She is quite right that the IPT has an inquisitorial procedure rather than an adversarial one, but it still needs a claimant. It would be wholly inappropriate if the commissioner ended up being the complainant and therefore a party to the proceedings. With respect to her and those who proposed the amendment, although I appreciate their intentions, they mischaracterise the process. There will indeed be a claimant, but that will be the individual or body that is the subject of the error. Where the error is serious, the judicial commissioner will inform that person or body of their right to apply to the IPT for a remedy. As all authorities are already required to provide the IPT with all the information it needs in the course of its investigations, it is difficult to see the benefit of the amendment.
Joanna Cherry
I hear what the Minister says. I wonder whether the amendment might benefit from tightening up, perhaps by making the referral body the Investigatory Powers Commissioner. I will give it further consideration, but for the time being I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 199 ordered to stand part of the Bill.
Clause 200 ordered to stand part of the Bill.
Clause 201
Annual and other reports
Keir Starmer
I beg to move amendment 808, in clause 201, page 156, line 37, leave out “the Prime Minister” and insert “Parliament”.
The Chair
The amendment is not moved.
Clause 201 ordered to stand part of the Bill.
Clause 202 ordered to stand part of the Bill.
Clause 203
Information gateway
Joanna Cherry
I beg to move amendment 824, in clause 203, page 158, line 33, at end insert—
‘(1A) A disclosure pursuant to subsection (1) will not constitute a criminal offence for any purposes in this Act or in any other enactment.
(1B) In subsection (1), a disclosure for the purposes of any function of the Commissioner may be made at the initiative of the person making the disclosure and without need for request by the Investigatory Powers Commissioner.”
We had our old friend economic wellbeing a moment ago, and now we have our old friends whistleblowing and the public interest. Clause 203 is, rather intriguingly, titled “Information gateway” and provides that a disclosure to a commissioner will not violate any duties of confidence or any other restriction on the disclosure of information. This amendment would put it beyond doubt that voluntary, unsolicited disclosures are protected and that a whistleblower is protected from criminal prosecution.
The amendment reflects a concern, which we have already heard in the Committee, that provisions in the Bill may inadvertently risk discouraging or preventing individuals within public authorities or agencies, or in communication services providers, from approaching the Investigatory Powers Commissioner with concerns or communicating with the commission frankly.
The Solicitor General
I am sure the hon. and learned Lady is going to outline her arguments with brevity, but may I assist her? I recognise the sentiment behind the amendment and am of a mind to give them further consideration. On that basis, I invite her to withdraw the amendment.
Joanna Cherry
I am grateful for that. We have had a lot of debate about these issues already, and I am very grateful to the Solicitor General for indicating that he is going to look at them seriously. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 203 ordered to stand part of the Bill.
Clause 204
Funding, staff and facilities
Keir Starmer
I beg to move amendment 833, in clause 204, page 158, line 41, leave out
“The Secretary of State must”
and insert “The Treasury must”.
Keir Starmer
I have listened carefully to what the Minister has said, and it is now on the record, so on that basis I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 204 ordered to stand part of the Bill.
Clause 205
Power to modify functions
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I wish to oppose the clause, in relation to submissions I made earlier about clause 196.
Question put, That the clause stand part of the Bill.
Joanna Cherry
I beg to move amendment 839, in schedule 7, page 216, line 17, at end insert—
“(5A) A statutory instrument for the purposes of paragraph (4) must be accompanied by a report by the Investigatory Powers Commissioner on the content of the draft code and his consultation response.”
The Chair
With this it will be convenient to discuss amendment 840, in schedule 7, page 216, line 34, at end insert—
“(5A) A statutory instrument for the purposes of paragraph (4) must be accompanied by a report by the Investigatory Powers Commissioner on the content of the draft code and his consultation response.”
Joanna Cherry
The amendments are self-explanatory. They require any code of practice, or any proposed revision to a code, to be accompanied by a report by the Investigatory Powers Commissioner. The report would be on the merits of the proposed revision and be required before any revision was laid before Parliament. The report would allow the commissioner to draw to the attention of Parliament any relevant information about the scope of the code or its potential impact, which to my mind is a sensible and reasonable amendment.
Mr Hayes
Here we are again debating the creative tension between obligation and discretion—how much we oblige bodies to do in the Bill, and how much discretion we afford to those we empower through the Bill. The hon. and learned Lady does the Committee a service in drawing attention to how far we go in that respect. My view is plainly that discretion matters; I am sure she agrees. I emphasise yet again that the published codes of practice are draft codes. We would hope that our work in the coming days and weeks will allow those codes to reflect much of what we have said during our consideration of the Bill.
I am not implying that changes cannot be made to the Bill, but I would hope that they would be considered in concert with changes to the codes. If the Bill becomes an Act, we will soon bring the codes of practice into force, but before doing so, the Secretary of State is required to undertake a consultation process. The Bill specifies that the Secretary of State must consult the Investigatory Powers Commissioner as part of that. The amendment would require the commissioner’s response to consultation on any draft codes of practice, and any views on the content of those codes, to be published alongside the statutory instrument that seeks to bring the codes into force. I recognise the intent; I assume the aim is to increase transparency.
Joanna Cherry
The Minister will have looked at written evidence and have received briefings from various organisations, as all Committee members have, and so will be aware that many bodies have grave concerns about the fact that so much relevant information will be in codes of practice. This minor amendment seeks to address that concern. When the codes of practice are crystallised, proposed revisions will be accompanied by a report from the Investigatory Powers Commissioner that will inform parliamentarians about the utility, and the pros and cons, of proposed revisions. That is the only purpose behind the amendment.
Mr Hayes
I said that I understood the intent, and I meant it. I do understand that the hon. and learned Lady’s intent is both to inform and to provide transparency, but there is another tension at the heart of our discussion about this part of the Bill, and perhaps more generally: the tension between the independence of the commissioner, and what we oblige him to do. It is not just about obligation and discretion; it is about independence and proper parliamentary engagement, involvement, scrutiny and the power of the Executive.
I suppose the point I am making is that the commissioner may well want to publish information in the way the hon. and learned Lady describes, and there is nothing in the Bill that prevents him from so doing. Indeed, the commissioner may take the view that he wants to publish all kinds of things with both surprising and interesting regularity, but that is very much a matter for the commissioner. Indeed, as the hon. and learned Lady knows, some existing oversight commissioners take that approach; they publish without a statutory requirement to take such action.
If the commissioner is, as we wish him or her to be, an independent assessor of those things, the more discretion we give them over such decisions the better, because that allows them to exercise their judgment and, by so doing, affirm their independence.
Joanna Cherry
I hear what the Minister says, but the commissioner will have many demands on his or her time and, as we know, may have a limited budget. The amendment would require the commissioner to furnish parliamentarians with the benefit of his or her expertise and experience when changes are proposed. Does the Minister not accept that such a requirement would be a good thing?
Mr Hayes
I accept that this is a matter for debate, and the way I have approached it reflects that, I hope. These tensions, as I have described them, although creative, are the subject of different opinions. As we have navigated our way through this part of the Bill, it has been clear in our discourse that we are all in the business of trying to perfect the legislation, in the words of the hon. and learned Member for Holborn and St Pancras. I do not think there is an open-and-shut case on very much of this, actually, and you will not often hear a Minister say that, Mr Owen. I hope that we can get to a place where we all feel that the Bill is better for the scrutiny.
Joanna Cherry
I would like to press it to a vote.
Question put, That the amendment be made.
Investigatory Powers Bill (Fifteenth sitting) Debate
Full Debate: Read Full DebateDepartment: Attorney General
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Attorney General
Investigatory Powers Bill (Fifteenth sitting)
Joanna Cherry ExcerptsTuesday 3rd May 2016
(8 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 3 May 2016 - (3 May 2016)
Keir Starmer
The amendments go in pairs: amendments 853 and 854 are to clause 216, amendments 845 and 855 to clause 217 and amendments 852 and 859 to clause 220. They all have the same purpose and intent: to subject the powers in the clauses to the double-lock mechanism—in other words, to involve the judicial commissioners in those powers.
Clause 216 is concerned with national security notices. Subsections (1) and (2) make the power to issue such notices subject only to the test that they be
“necessary in the interests of national security”
and “proportionate”. There is no specific reference to any operational purposes; it is a very broad power. Once a notice is issued, subsection (3) takes effect:
“A national security notice may…require the operator to whom it is given—
(a) to carry out any conduct, including the provision of services or facilities, for the purpose of—
(i) facilitating anything done by an intelligence service under any enactment other than this Act, or
(ii) dealing with an emergency (within the meaning of…the Civil Contingencies Act 2004);
(b) to provide services or facilities for the purpose of assisting an intelligence service to carry out its functions more securely or more effectively.”
The Secretary of State issues a notice; once that notice is issued, the requirement on the operator is very broad. To be fair, subsection (4) makes it clear that a national security notice cannot be used to sideline or cut across a warrant or authorisation that is required under the Act, but the clause does make a very wide-ranging power available to the Secretary of State and it seems subject to pretty well no check, balance or safeguard.
The amendments would subject the procedure to the double-lock mechanism, to ensure that such a notice would go before a judicial commissioner, who would consider whether it was in the interests of national security and proportionate under subsections (1) and (2). The Joint Committee raised concerns about this issue when it looked at the draft Bill, and in particular how the lack of a definition of national security means that the power granted by the clause is very wide indeed.
Joanna Cherry (Edinburgh South West) (SNP)
Does the hon. and learned Gentleman agree that, in the absence of a definition of national security, it is difficult to foresee the kinds of activity or intrusion that obligations under the clause could entail? Is it not therefore providing a blank cheque power to the Government?
The Solicitor General
There are clear reasons for not going down that route. We are talking about the preparatory stage as opposed to the stage of interference with privacy. If the Government’s position was that there was a loophole—a gateway—to allow such interference, the hon. and learned Gentleman’s argument would have real strength, but that is far from the case. This is all about the preparatory stages—the necessary stages that need to be taken by communications service providers before we get to the application for what we all accept is an intrusion.
I am afraid I cannot share with hon. Members their analysis that we need a “now and forever” definition of national security in law. There is a good reason why national security is not defined in statute. Any attempt to define it in the Bill runs a real risk of restricting the ability of this country to respond to constantly evolving and unpredictable threats. It is vital that legislation does not, however unintentionally, constrain the ability of our security and intelligence agencies to protect this country. The examples are all around us: who would have imagined a few years ago cyber-attacks of the nature and on the scale that now threaten us? My concern is that if we try to rigidly define what we mean by national security, we run the risk of defeating the means by which we can keep this country safe.
Joanna Cherry
I hear what the Solicitor General says about the measure only facilitating preparatory steps, but under the terms of clause 218(8) we will never know whether the notices exist or their contents, so we will not be able to know whether we are dealing with preparatory steps or whether they could go beyond that.
The Solicitor General
I have gone as far as I can to explain the types of scenarios that the national security notices would be used for. In essence, they deal with the nuts and bolts rather than the intrusion. If somehow there was a gateway into intrusion, the hon. and learned Lady would be absolutely right, but I assure her that there is not, so the worries that she and other people and organisations have about a blank cheque, while understandable, are unfounded. I can assure her in Committee and I am happy to continue to make the assurance that the function of this type of notice is not intrusion.
Indeed, we have oversight because national security notices will be overseen by the Investigatory Powers Commissioner. The commissioner will have a duty to report at least once a year on what he or she has found and to make recommendations on where improvements can be made. The commissioner will also have the power to report on an ad hoc basis on any issue that he or she considers appropriate.
Joanna Cherry
I respectfully support everything that the hon. and learned Gentleman has said.
The Solicitor General
In arguing in opposition to the amendments, I first want to address the last point that the hon. and learned Member for Holborn and St Pancras made. I can come back to his point about the tests, but in a nutshell, they are inherent to the Bill. The tests of necessity and proportionality are part and parcel of the decision-making process that the authority will be enjoined to carry out.
Joanna Cherry
The Intelligence and Security Committee described the clause as a
“seemingly open-ended and unconstrained power”.
Does the Solicitor General not agree that it is therefore essential that the tests of necessity and proportionality are spelled out in the clause, as they are in other parts of the Bill?
The Solicitor General
I hear the hon. and learned Lady, but I am not convinced that the basis of her argument is right given the breadth of the power. As I said in the context of national security notices, the technical capability notice is only a preliminary step. It will allow the subsequent implementation of a warrant, which will then be subject to the tests of necessity and proportionality. I would not want the Committee to operate under a misapprehension. It is my strong, and I hope clear, assertion that we are dealing with an earlier stage of the process, so we should not be driven to the conclusions that I know critics of the Bill want us to reach.
May I deal with encryption, which, as the hon. and learned Gentleman rightly characterised, is at the heart of the matter? I put it on the record that the Government recognise the vital importance of encryption. It has become part of our daily lives. It keeps our personal data and intellectual property secure and ensures safe online commerce, and the Government work closely with industry and business to improve their cyber-security. I can reassure the Committee that in the preparation of the code of practice, there has been close consultation with the interested parties in the industry to ensure that it comprehensively reflects the realities and needs of those who operate in this sphere. Not only does the code of practice replicate the provisions of RIPA, but it goes further, with a degree of specificity that is not possible in primary legislation. It will be a flexible, living instrument that will form a clear prospectus within which everyone can work. I make no apology for the measure being in a code practice, which is where it should be, rather than in primary legislation. With the best will in the world, we all know that it is difficult to amend primary legislation and ensure that it keeps pace with the somewhat breathtaking changes that occur in this particular field of operation.
I also want to talk about the role of GCHQ, which plays a vital information assurance role and provides advice and guidance to allow the Government, industry and the general public to protect their IT systems and use the internet safely. As the director of GCHQ, Robert Hannigan, made clear in his speech on 8 March:
“I am accountable to our Prime Minister just as much, if not more, for the state of cyber security in the UK as I am for intelligence collection.”
In the past two years the security and intelligence agencies have disclosed vulnerabilities in every major mobile and desktop platform, including some of the big names that underpin business here in the UK. In September 2015, Apple publicly credited CESG, the information assurance arm of GCHQ, with detecting a vulnerability in its operating system for iPhones and iPads, and we all know where that vulnerability could have led. The vulnerability was fixed as a result of that intervention, so the suggestion, which I know has not been advanced in this Committee—and I hope will not be—that the Government are opposed to encryption, or would legislate to undermine it, is wholly wrong.
We have to ensure that we have the necessary capabilities to keep our systems safe. Encryption is now, in effect, the default setting for most of our IT products and online services, and although it can be a power for good in keeping the law-abiding safe and secure, sadly it is used easily and all too cheaply by terrorists, paedophiles and other criminals. Therefore it can only be right that we retain the ability to require telecommunications operators to remove encryption in strictly limited circumstances, with strong controls and safeguards, so that we can address the increasing technical sophistication of those who would seek to do us harm. If we do not do that, we must simply accept that there are areas online that are beyond the reach of the law, where criminals can go about their business unimpeded and without the risk of detection. I do not accept that, and I know the general public do not accept it either. That is our starting principle.
Joanna Cherry
Clause 218(8) and (9) provides that the recipient of a notice must comply with it but must not disclose either its existence or its contents. Does that mean that if an Apple against the FBI scenario were to occur in the UK, Apple would not be able to disclose even the fact that it had been served with a notice, let alone challenge it in court? That is how I read it.
The Solicitor General
Not without the permission of the Secretary of State. I will return to the mechanism in question, but I am grateful to the hon. and learned Lady for raising that point. I am sure I will be able to provide her with clarity as I develop my remarks.
The starting principle is shared by David Anderson, who in his important review said:
“My first principle is that no-go areas for law enforcement should be minimised as far as possible, whether in the physical or the digital world.”
That view was shared by the Joint Committee on the draft Bill and is shared by the Select Committee on Science and Technology, both of which recognise that, in tightly prescribed circumstances, it should remain possible for our law enforcement and security and intelligence agencies to be able to access decrypted communications or data. That is what clauses 217 and 218 are all about: strong safeguards to ensure that obligations to remove encryption can be imposed only in limited circumstances, subject to rigorous controls.
The Solicitor General
The hon. Gentleman is right to make that important point and to steer us back on to the straight and narrow. I am not criticising the Committee for trying to bring the Bill to life with some examples. We are indeed talking about communications service providers, not third parties, which is important in the context of the Bill.
Joanna Cherry
Are we not concerned here with the “relevant operator”, which is defined in clause 217(2) as
“a postal operator…a telecommunications operator, or…a person who is proposing to become a postal operator or a telecommunications operator.”?
That definition is the basis of the concern for companies such as Apple.
The Solicitor General
The hon. and learned Lady is absolutely right to bring us back to clause 217(2). The problem that hon. Members are anticipating is that the provisions will somehow catch parties that no one would regard as appropriate. I think I have given clear assurances on that third party problem.
The Solicitor General
In endeavouring to answer my right hon. Friend’s point, may I deal first with the question about telecommunications operators? Some assistance may be gained from clause 223(10), where a telecommunications operator is defined in a way that includes Apple. The famous Apple case—the California case—was about the use of a password, which is slightly different from the question of encryption, but it does demonstrate the important tussle between the need to balance public safety and privacy. In that case, the FBI, with an appropriate search warrant, was asking for the chance to try to guess the terrorist’s passcode without the phone essentially self-destructing—after so many tries, everything gets wiped.
We are talking about an attempt to obtain communications data within the robust legal framework that we have set out, with the double lock and all the other mechanisms that my right hon. Friend and the Committee are familiar with. I am grateful to him for raising that case, but there are important differences that it would be wrong to ignore. In a nutshell, without the powers contained in the Bill, a whole swathe of criminal communication would be removed from the reach of the authorities. That is not in the interests of the constituents he has served with distinction for well over a quarter of a century—he will forgive me for saying that—or any other of the constituents we represent.
I was going to come back to the obligations imposed under a technical capability notice, with particular regard to the removal of encryption. The obligations imposed under such a notice will require the relevant operator to maintain the capability to remove encryption when it is later served with a warrant notice or authorisation. That is different from merely requiring it to remove encryption. In other words, it must maintain the capability, but there then needs to be the next stage, which is the warrant application and the notice of authorisation, where there is of course the double lock. The company on which the warrant is served will not be required to take any steps, such as to remove encryption, that are not reasonably practicable.
In a nutshell, this measure is about not an interference with privacy but sets out the preparatory stage before a warrant can be applied for. The safeguards provide the strict controls that I assure the Committee are needed in this sphere of activity. We are maintaining and clarifying the existing legal position.
Joanna Cherry
I am anxious to clarify what the Solicitor General said about the justiciability of the issuing of such a technical notice. As far as I can see, the Secretary of State is the gatekeeper to justiciability, because the contents of a notice can be revealed only with his or her permission. Where does it say that that can be justiciable, because I cannot find it?
The Solicitor General
I think it is clause 220, but I will get some further assistance on that point for the hon. and learned Lady before I resume my seat. I am grateful for that intervention.
The Bill does not drive a coach and horses through encryption. It does not ban it or do anything to limit its use. A national security notice—we debated this matter on clause 216—cannot require the removal of encryption, which further supports my argument that there is no blank cheque in the context of these notices. On the issue of civility, rather than keep this Committee waiting, I will write to the hon. and learned Lady to clarify the point that she rightly raised.
The Solicitor General
I am glad that my hon. and learned Friend has reminded us of that. I referred earlier to that consultation process. The next stage is when the Secretary of State decides to proceed. I will consider that issue even more carefully to ensure that the Committee is furnished with as much information as possible before Report.
Let me deal with the amendments tabled in the name of the hon. and learned Member for Holborn and St Pancras and others. On amendment 846, the Bill already makes it absolutely clear that a communications service provider will not be obligated to remove encryption where it is not reasonably practicable for them to do so. I do not think the amendment adds anything, and in many cases it would have the effect of inhibiting law enforcement agencies and the security and intelligence services from working constructively with tele- communications operators as the technology develops. I am sure that that is not the intention of the amendment. Depending on the individual company and the individual circumstances, it may be entirely sensible for the Government to work with a company to determine whether it would be reasonably practicable for it to take steps to develop and maintain the technical capability to remove the encryption it has applied to communications or data.
My worry about the amendment is that we would end up with communications services that can be used by criminals and others to communicate with each other unimpeded. We know that internet gambling sites, which have chat room provisions, are used by criminals for entirely unrelated criminal activities. I am sure that that is not the intention behind the amendment. Therefore, with respect, I urge hon. Members to reconsider it.
I will not deal in detail with amendment 847, because I do not think the hon. and learned Gentleman seeks to press it. Although I oppose it, I will move on without argument to amendments 848 and 858. We have discussed similar amendments on extraterritoriality in relation to other powers in the Bill. I pray in aid the arguments I used earlier. The provisions in the Bill allow a notice to be given in the most appropriate manner, taking into account the preferences of each company, which is an example of the adaptability of the legislation to the real world.
Amendment 848 is unnecessary because the clause is about not the acquisition but the development and maintenance of a technical capability. Conflict of law issues are much more likely to arise in respect of giving effect to a warrant, and we already have protection in the Bill for such cases. Admirable though the amendment may seem, it is therefore unnecessary.
Amendment 849 is unnecessary because it duplicates provisions in clauses 218, 216 and 217. I have discussed clause 218(3), which stipulates that the Secretary of State must consider a wide range of matters before giving a notice. That detailed assessment already speaks to the issues raised by the amendment. The Secretary of State has to be satisfied that the conduct is proportionate, justified, necessary and practicable.
Joanna Cherry
I am sorry to interrupt the Solicitor General’s flow, but I sense he is coming to the end of his argument. Will he clarify something? Am I right in understanding that there is nothing in the clause to prevent someone who is intent on evading surveillance from using open-source encryption software that is personally generated by the user? That would mean they could encrypt files and email communications themselves, independent of any provider, and therefore remain untouched by this legislation.
The Solicitor General
That question is about the definition of the provider. I am sure we will be able to provide some clarity on that before I draw my remarks to a conclusion. I am grateful to the hon. and learned Lady for raising that point.
Amendment 850 relates to consideration by the Secretary of State of the effect of a notice on the privacy and human rights of people both here and outside the kingdom. The amendment is unnecessary because of the point I made before, which I will reiterate: the clause is not about notices authorising an interference with privacy. A warrant provided for elsewhere in the Bill is required to do that, and we have already considered the potency of the double lock and the test to be applied. A point that is relevant to all the amendments in this group is the statutory function of the Investigatory Powers Commissioner to oversee the use of notices. I raised that in the context of national security notices, and I pray it in aid here again.
Amendment 857 seeks to narrow the category of operators to whom a technical capability notice can be given. I am worried that that would limit the effects of law enforcement. We know about the diversification of criminality and terrorism in order to find new ways to avoid protection. I am concerned that narrowing the legislation would allow loopholes to get larger. It is therefore important that the obligations relating to the technical capabilities for a range of operators can be imposed by the Government in order to ensure we keep ahead of the curve.
The hon. and learned Lady made the powerful point that the clause does not relate to personally applied encryption. However, measures in part 3 of RIPA 2000 provide for where law enforcement agencies can require an individual to remove encryption that he or she has applied themselves. We know that the Bill generally does not cover all the agencies’ powers. This is perhaps a welcome opportunity to remind ourselves of the existing provisions in part 3, so I am grateful to her.
Of course we accept that it may well be appropriate to exclude certain categories of operator from obligations under the clause—I am thinking, for example, of small businesses; we are always mindful of the burden of regulation on small businesses—but it is our intention to use secondary legislation to achieve that. It would not be appropriate in primary legislation to impose blanket exemptions on services with a communications element that are not primarily communications services. To do so would send a rather alarming and clear message to terrorists and criminals that communications over certain systems will not be monitored. That sort of carve-out recalls the point that I made about the use by criminals of seemingly unrelated or innocuous communications channels in other internet facilities or apps, in order to hide their illicit enterprises.
I know that I have taken up an inordinate amount of the Committee’s time. I am obliged to the Committee and to you, Ms Dorries, for your indulgence. I hope that I have set out the reasons why I urge hon. Members to withdraw the amendment, and I pray in aid my arguments as advancing the case that the clause should stand part of the Bill. I urge the hon. and learned Gentleman to withdraw the amendment.
Joanna Cherry
The Scottish National party is not happy with this clause without amendment. I was going to press it to a vote, but having heard what the Solicitor General said about the clause, and pending his writing to me, I am willing not to press it. I just lay down a marker in that respect.
Question put and agreed to.
Clause 217 accordingly ordered to stand part of the Bill.
Clause 218
Further provision about notices under section 216 or 217
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
The SNP takes the same position as it did on the previous clause.
Question put and agreed to.
Clause 218 accordingly ordered to stand part of the Bill.
Clause 219
Variation and revocation of notices
Mr Hayes
I beg to move amendment 734, in clause 219, page 170, line 8, at end insert
“(and in the application of section 218(3) and (4) in relation to varying a relevant notice, references to the notice are to be read as references to the notice as varied).”
This is a technical amendment. Ms Dorries, I should have welcomed you to the Chair earlier, but I do so now. The amendment is uncontentious and makes a drafting correction to clause 219. On that basis, it should not cause the Committee any undue concern, and I move it in that spirit.
Amendment 734 agreed to.
Clause 219, as amended, ordered to stand part of the Bill.
Clause 220
Review by the Secretary of State
The Chair
With this it will be convenient to consider new clause 23—Review of the Operation of this Act—
“(1) The Secretary of State shall appoint an Independent Reviewer to prepare the first report on the operation of this Act within a period of six months beginning with the end of the initial period.
(2) In subsection (1) “the initial period” is the period of four years and six months beginning with the day on which this Act is passed.
(3) Subsequent reports will be prepared every five years after the first report in subsection (1).
(4) Any report prepared by the Independent Reviewer must be laid before Parliament by the Secretary of State as soon as the Secretary of State is satisfied it will not prejudice any criminal proceedings.
(5) The Secretary of State may, out of money provided by Parliament, pay a person appointed under subsection (1), both his expenses and also such allowances as the Secretary of State determines.”
I inform the Committee that I consider clause 222 and new clause 23 to be alternatives. If the Committee decides that clause 222 should stand part of the Bill, I will not put the Question on new clause 23. If the Committee decides that clause 222 should not stand part, when the Committee comes to decisions on new clauses, I will put the necessary Questions on new clause 23 without debate.
Joanna Cherry
I take it, Ms Dorries, that I am entitled to make a submission as to why the clause should not stand part of the Bill, and should instead be replaced with new clause 23.
Joanna Cherry
In short, it is welcome that following the recommendation of the Joint Committee on the draft Bill, there is now some sort of sunset provision in the Bill. Those who sat on the Joint Committee or read its report will recall that various people who gave evidence made a strong case for a sunset provision in the legislation. The Information Commissioner summarised that case by saying:
“The draft Bill is far reaching and has the power to affect the lives of all citizens to differing degrees. For these reasons, the bill should include a sunset clause or other provisions requiring effective post legislative scrutiny. This would ensure that measures of this magnitude remain necessary, are targeted on the right areas and are effective in practice. To fail to make this provision risks undermining public trust and confidence. It will also enable the legislation to be considered in the light of the latest jurisprudence from the”
Court of Justice of the European Union and the European Court of Human Rights. Various variations on the Information Commissioner’s proposal were put to the Joint Committee by other witnesses, including medConfidential, Dr Paul Bernal, the right hon. Member for Haltemprice and Howden (Mr Davis), Privacy International and the Interception of Communications Commissioner’s Office.
The Home Secretary expressed reservations about having a sunset provision, but it is good to see that there is now some such provision in the Bill. What is missing from it, however, is an independent element.
Mr Hayes
I am not unsympathetic to that suggestion, but let me qualify that slightly. There is an argument to say that we would want another reviewer involved in the process, because what we want is as much empiricism as possible. We have neither the time nor the patience for a long debate about the philosophical character of empiricism, and I am not an empiricist, philosophically, but in terms of legislation, it matters. There is an argument for introducing still more independence into the process.
The hon. and learned Gentleman is right to say that, of course, the Secretary of State would want to take into account the views of all those in positions of authority who have taken a view on the Bill and its implementation and effects in her or his report. I certainly would not want to exclude from that consideration any of the authoritative reports published on the Bill. I think that probably meets the hon. and learned Gentleman halfway, and perhaps a little more than halfway.
Any parliamentary review would take evidence from a range of witnesses. It is, again, almost inconceivable that the independent reviewer would not be a key witness, as our current independent reviewer was to the Joint Committee and other Committees of the House. It would—again, as the Joint Committee did—be likely to appoint technical advisers, who would inform the process and work in concert with the ISC. While the Government support a post-legislative review of the Bill, that review should be conducted by Parliament—by legislators drawing on external expertise and evidence, as the Joint Committee recommended. I therefore invite hon. Members not to press the new clause to a vote.
Joanna Cherry
I will not press new clause 23 to a vote.
Question put and agreed to.
Clause 222 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Simon Kirby.)
Investigatory Powers Bill (Sixteenth sitting) Debate
Full Debate: Read Full DebateDepartment: Home Office
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Home Office
Investigatory Powers Bill (Sixteenth sitting)
Joanna Cherry ExcerptsTuesday 3rd May 2016
(8 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 3 May 2016 - (3 May 2016)
Joanna Cherry (Edinburgh South West) (SNP)
I beg to move amendment 869, in clause 223, page 172, line 41, leave out sub-paragraph (i) and insert—
‘(i) is about an entity to which a telecommunications service is provided by that telecommunications operator and relates to the provision of that service,”
This amendment clarifies the definition of communications data, limiting requirements on organisations to be providing data about the services that they supply.
It is a pleasure to welcome you back to the Chair, Mr Owen. This is an amendment to the interpretation clause dealing with telecommunications definitions, in particular subsection (5), which deals with the definition of communications data. The amendment would replace subsection (5)(a)(i) with the purpose of clarifying that the definition of communications data applies to the providers of the relevant telecommunications services, rather than allowing an organisation to be required to provide data about services it does not provide. Without the amendment, the definition of communications data is flawed because it does not tie the data to the provider of the telecommunications service and therefore seems set to encompass third-party data, which I know the Home Office denies is the intent.
The amendment would make two small changes. First, it specifies that the telecommunications service has to be provided by that telecommunications operator—in other words, it avoids pulling in third-party data. Secondly, it specifies that the data relate to the particular service provided and not to a different one. I will be interested to hear what the Solicitor General has to say about this amendment, which seeks to clarify and tighten up the clause.
The Solicitor General (Robert Buckland)
It is good to see you back in your place, Mr Owen. I look forward to a fruitful session.
I welcome the hon. and learned Lady’s remarks. We considered these issues in the context of part 4, in particular third-party data. I do not want to rehearse the arguments about why we consider the code of practice to be the appropriate place to enforce the commitment made by my right hon. Friend the Home Secretary on the Floor of the House on Second Reading. However, the Government note the strength of feeling on this issue, as evidenced by the outcome of the vote on an earlier amendment. We have heard that message loud and clear, so we are considering whether we could do more to make the commitment clear. I hope that that gives the hon. and learned Lady some reassurance that we are taking these matters seriously, and I am grateful to her for raising them.
The aim of the amendment appears to be to prevent a public authority from obtaining third-party data and to prevent a communications service provider from being required to retain those data. I am not sure that the amendment achieves that desired outcome. It would remove third-party data from one element but not from all elements of the definition of communications data. I do not think there is any debate about the need to get the definition of communications data right, but it must correctly and logically classify the data held by CSPs or what can be reasonably obtained by them. The principle of communications data is clear; changing the definition so that the classification of data changes depending on which provider holds it would cause a degree of confusion that I am sure the hon. and learned Lady does not intend.
My first argument is that the clause is not the right place to prevent public authorities from obtaining third-party data or to prevent a CSP from being required to retain them. Clause 53(5)(c) makes it clear that a communications data authorisation can provide for the obtaining of third-party data where that is reasonably practicable for the communications service provider. That maintains the existing provision under the Regulation of Investigatory Powers Act 2000. Where a CSP holds communications data, whether in relation to its services or those provided by a third party for its business purposes, or where it is able to obtain them, they should be available to the public authorities for the statutory purposes in the Bill. We should not put them out of the reach of law enforcement agencies, based solely upon which company holds the information.
I suspect that the hon. and learned Lady’s intent may be to stop a service provider being forced to comply with an unreasonable requirement relating to third-party data—[Interruption.] I am grateful to her for indicating her assent. I assure her and the Committee that, in my view, the Bill already does that. A provider is required to comply with a request for comms data, including third-party data, only where reasonably practicable for them to do so. There is no need to impose a further restriction on that basis.
I recognise the sensitivities of third-party data, but I am afraid that a blanket restriction on its acquisition is not the way forward. We consider that the Bill and the code of practice strike the right balance. On the basis of my earlier assurances to the hon. and learned Lady about getting the language clear, I invite her to withdraw the amendment.
Joanna Cherry
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 223 ordered to stand part of the Bill.
Clause 224 ordered to stand part of the Bill.
Clause 225
General definitions
Joanna Cherry
I beg to move amendment 870, in clause 225, page 177, line 11, at end insert—
‘(a) an advocate,
(b) a barrister,
(c) a solicitor.’
This amendment provides a definition of a “professional legal adviser” relating to use of the term in clauses 25, 100, 135 and 171.
I am grateful to the Law Society of Scotland for drawing my attention to the necessity of this amendment. When we debated the clauses on legal professional privilege—we have done so on a number of occasions during this Committee’s proceedings—I drew attention at an early stage to the Law Society of Scotland’s evidence to the Joint Committee. It gave evidence alongside the Law Society of England and Wales and expressed its shared and serious concerns about the requirement to provide for the protection of legal professional privilege on the face of the Bill. It is pleased that the Government have taken steps to do that, although it is not happy with the extent of the protection provided. That is perhaps a debate for another day.
The purpose of the amendment is to deal with the definition of items subject to legal privilege at line 29, on page 175. The amendment deals with the definition in relation to Scotland and would define a “professional legal adviser” as a person who is an advocate—that is, of course, the correct professional designation for counsel in Scotland or a Scottish barrister—a barrister or a solicitor. The aim is to avoid leaving the definition of a “professional legal adviser” open to too wide or ambiguous an interpretation. It will limit the definition of those who are qualified to provide professional legal services to advocates, solicitors and, in certain circumstances, barristers. I will be interested to hear what the Solicitor General has to say about the proposed definition of a “professional legal adviser”.
The Solicitor General
When I saw the amendment, I was reminded of points I made earlier regarding the dangers of over-defining either legal professional privilege itself or those who are subject to it. Let us remind ourselves that legal professional privilege exists not to create a special category of person—in this case, a lawyer—who is exempt from requirements by which the rest of us have to abide, but to protect the client and the integrity of the advice that a lawyer may give to their client. My concern about the proposed definition is that it limits the definition of what items would be subject to legal privilege. For example, legal executives might well be in the position where they are giving advice and are covered by legal professional privilege. Even paralegals could be, should be and would be covered by legal professional privilege.
I absolutely accept the intention behind the amendment, but however well intentioned it might be, trying to define “professional legal adviser” in the Bill would actually damage and undermine the importance of legal professional privilege. We have had many debates about it, but I think the Bill serves to protect that privilege. We are continuing to discuss the precise extent to which that is reflected in all parts of the Bill, but there is no doubt about the Government’s clear intention. I am proud to be a Minister supporting this approach because I always felt that RIPA was deficient in that respect—I held those views long before I became a member of the Government. I am pleased that we are making such progress.
Joanna Cherry
I am interested in the Solicitor General’s point about legal executives or paralegals. Does he agree that, in so far as communications with such individuals would require protection, they would be protected by subsection (1)(b)(ii), which specifies
“communications made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings”?
The Solicitor General
That is a good point, but there is a danger that we overcomplicate the situation and end up restricting what is commonly understood as the important legal professional privilege that exists between lawyer and client. Instead of overcomplicating it, it would be far better to keep maters straight and reflect the position provided for in the Police and Criminal Evidence Act 1984, which applies here in England and Wales, the Police and Criminal Evidence (Northern Ireland) Order 1989 and the definitions relating to Scotland. The other statutes for England, Wales and Northern Ireland do not define “professional legal adviser” and I do not see a compelling need to do so here. As I have explained, the Bill goes a long way towards protecting that important legal privilege and serving the interests that that privilege is all about. It is not about the lawyers but the client. Fundamentally, it is that communication that merits special protection.
Joanna Cherry
I wholly accept that it is not about lawyers but about the client, but is there not a need to define what is meant by “professional legal adviser”? That is all this is about really.
The Solicitor General
The hon. and learned Lady puts her case with her customary spirit and brio, if I may say so, but despite her attempts to persuade me, I am concerned that if we seek to narrow the definition in the way the amendment would, the sort of unintended consequences that I know the hon. and learned Lady would be very reluctant to see happen might flow. We should not, in the context of primary legislation, start to define what is better explained in other ways. For that reason, I urge her to withdraw the amendment.
Joanna Cherry
I hear what the Solicitor General has to say, and in the circumstances I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 225 ordered to stand part of the Bill.
Clauses 226 to 231 ordered to stand part of the Bill.
Schedule 9 agreed to.
Clause 232 ordered to stand part of the Bill.
Schedule 10
Minor and consequential provision
The Minister for Security (Mr John Hayes)
I beg to move amendment 634, in schedule 10, page 235, line 33, leave out paragraph 46.
This amendment omits the amendments of paragraph 19ZD of Schedule 3 to the Police Reform Act 2002. Paragraph 19ZD is to be repealed by the Policing and Crime Bill.
The Chair
With this it will be convenient to consider:
New clause 24—Duration of this Act—
“(1) This Act expires at the end of one year beginning with the day on which it is passed (but this is subject to subsection (2)).
(2) Her Majesty may by Order in Council provide that, instead of expiring at the time it would otherwise expire, this Act shall expire at the end of a period of not more than one year from that time.
(3) Such an Order may not provide for the continuation of this Act beyond the end of the year 2022.
(4) No recommendation may be made to Her Majesty in Council to make an Order under subsection (2) unless a draft of the Order has been laid before, and approved by a resolution of, each House of Parliament.”
Joanna Cherry
New clause 24 is a true sunset clause, modelled on clause 1 of the Armed Forces Bill currently before Parliament. We had a spirited debate before the break about potential replacements for clause 222, which is a clause of review. The new clause is another alternative—a sunset clause in the true meaning of the term, which would provide for the Act to expire at the end of a certain period, subject to certain provisos. I do not intend to push the new clause further at this point, given the position we took in relation to new clause 23.
Mr Hayes
Clearly, the sunset clause that the new clause proposes is being debated—briefly, I hope—as we approach the sunset of our consideration of this important Bill. A sunset provision is often a feature of emergency legislation and has indeed been appeared in legislation of the kind that we are now debating. It is usually because the legislation has been introduced to meet some particular short-term challenge and Parliament is given limited time in which to consider the legislation responding to that challenge. That is not the case in respect of this Bill, which has had extensive prelegislative scrutiny, both before its draft incarnation and since. It has now had considerable scrutiny by the Committee, and will no doubt continue to be scrutinised as it progresses through its further stages. I am therefore not sure a sunset clause is appropriate.
The hon. and learned Lady is well aware of the three independent reviews that preceded the publication of the Bill, and of the three Committees of this House that have considered the Bill in considerable detail since then. One of those—the Joint Committee—considered at length a sunset clause and a review of the legislation. We debated that a few minutes ago under an earlier group of amendments. As I said at that time, rather than proposing a sunset clause, the Joint Committee suggested a review of the legislation. I understand that suggestion, given the dynamism of the circumstances that the Bill is designed to address—the need to deal with changing technology and so on and so forth. Indeed, the Government, taking full account of the sagacity of the Joint Committee, have built that into the Bill in clause 222, which we have debated at some length.
The complexities of this legislation are acknowledged and understood. I can see why the hon. and learned Lady makes a case for this sort of consideration. In David Anderson’s report on these matters, which I will not quote at immense length unless the members of the Committee wish me to do so, he makes clear that although it is important to consider the effects of the Bill, it is not necessary to accelerate that process in the way that the new clause would. He also makes clear, as others have, that it is vital that the legislation stands the test of time and is fit for the future. I am therefore uncomfortable with introducing specific deadlines of the kind proposed in the new clause.
The hon. and learned Lady has repeatedly and rightly argued that many of the provisions of the Bill require considerable investment. The obligations such as those in respect to data retention require a lot of thought, a good deal of planning and an investment of time and effort from communications service providers and others. Putting that infrastructure into place is a testing business; it is the right thing to do, but it is testing none the less—a point made by the hon. Member for City of Chester and others during the course of the Committee’s consideration. Then to say that we are going to look at all of that again in 12 months’ time sends out a very unhelpful signal to those we are missioning to do that work. We have gone about this business thoroughly. We have discussed this at length with communications services providers throughout the process and time and again they have said that they want certainty; they want a reasonable degree of surety about what is expected of them. I think they would be reticent about investing in the way that they need to if they felt that this all might change in 12 months’ time.
The Home Secretary put the case as well as it can be put when she told the Joint Committee that “advances in technology” are not
“going to move according to sunset clauses established by Parliament.”
Although it is important that these matters are reviewed—as I said on clause 222, we have set into motion the means by which they will be reviewed—I do not think a sunset clause of the type proposed is the right way forward. On that basis, given the assurances that I have offered, I hope the hon. and learned Member for Edinburgh South West will see fit not to press the new clause.
Joanna Cherry
Yes, I confirm I will not press the new clause.
Question put and agreed to.
Clause 233 accordingly ordered to stand part of the Bill.
New Clause 12
Warrants: notification by Judicial Commissioner
“(1) Upon completion of conduct authorised by a warrant under this Part, or the cancellation of a warrant issued under this Part, a Judicial Commissioner must notify the affected party, in writing, of—
(a) the conduct that has taken place, and
(b) the provisions under which the conduct has taken place.
(2) The notification under subsection (1) must be sent within thirty days of the completion of the conduct or cancellation of the warrant.
(3) A Judicial Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (2) if the Judicial Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security investigation relating to the affected party.
(4) A Judicial Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (3).”.—(Joanna Cherry.)
This amendment would introduce a requirement that all equipment interference produces a verifiable audit trail. This will be particularly vital to the success and legitimacy of prosecutions. It is recommended that further provision for the independent verification of audit trails is included in Part 8 (Oversight Arrangements).
Brought up, and read the First time.
The Chair
With this it will be convenient to discuss the following:
New clause 13—Audit trail of equipment interference—
“Any conduct authorised under a warrant issued under this Part must be conducted in a verifiable manner, so as to produce a chronological record of documentary evidence detailing the sequence of activities (referred to hereafter as ‘the audit trail’).”.
New clause 18—Notification by Intelligence and Surveillance Commissioner—
“(1) The Intelligence and Surveillance Commissioner is to notify the subject or subjects of investigative or surveillance conduct relating to the statutory functions identified in section 196, subsections (1), (2) and (3), including—
(a) the interception or examination of communications,
(b) the retention, accessing or examination of communications data or secondary data,
(c) equipment interference,
(d) access or examination of data retrieved from a bulk personal dataset,
(e) covert human intelligence sources,
(f) entry or interference with property.
(2) The Intelligence and Surveillance Commissioner must only notify subjects of surveillance under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.
(3) The notification under subsection (1) must be sent by writing within 30 days of the completion of the relevant conduct or cancellation of the authorisation or warrant.
(4) The Intelligence and Surveillance Commissioner must issue the notification under subsection (1) in writing, including details of—
(a) the conduct that has taken place, and
(b) the provisions under which the conduct has taken place, and
(c) any known errors that took place within the course of the conduct.
(5) The Intelligence and Surveillance Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of an on-going serious crime or national security investigation relating to the subject of surveillance.
(6) The Intelligence and Surveillance Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”.
Joanna Cherry
The new clause relates to part 5 of the Bill, which deals with equipment interference—more colloquially known as “hacking”. The effect of the new clause would be to require that the targets of hacking, or the targets of equipment interference, are notified after the fact, as long as that does not compromise any ongoing investigation. The effect of the new clause would mean that the judicial commissioners were under a mandatory statutory duty to notify those subject to surveillance once a particular operation or investigation had ended. At present, unlawful surveillance only comes to light as the result of a chance leak, whistleblowing or public interest litigation of the sort brought by Liberty and other non-governmental organisations and concerned citizens. That is deeply unsatisfactory and is also potentially contrary to our obligations under the European convention on human rights. If a person’s article 8 and other Human Rights Act-protected rights have been infringed, in order to have access to an effective remedy, as required under human rights law, the person must first be made aware of a possible breach. This was stated by the Court in Strasbourg in Klass v. Federal Republic of Germany back in 1978 and reiterated more recently in Weber and Saravia v. Germany in 2006. In both cases, the European Court of Human Rights reiterated
“that the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of monitoring powers, since there is in principle little scope for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their legality retrospectively.”
More recently, in the case of Zakharov v. Russia in December 2015, the Grand Chamber of the European Court of Human Rights found that judicial remedies for those subjected to interception in Russia were generally ineffective, particularly in light of the total absence of any notification requirement with regard to the interception subject, which meant that there was no meaningful ability to mount retrospective challenges to surveillance measures, and therefore such provision as there was in Russia was ineffective. Do we want to be passing legislation that is as ineffective in the protection of our constituents’ rights as that in Russia?
The Bill, as it stands, provides a new power for the Investigatory Powers Commissioner to inform someone subjected to a surveillance error by a public authority, but not by a communications service provider, if the commissioner is made aware of it and considers it sufficiently serious, in the public interest, not prejudicial to national security, and so on. We debated that at some length last week. For an error to be serious, it must have caused significant prejudice or harm to the person concerned.
As we also discussed last week, the Bill states that a breach of the Human Rights Act is not, in itself, sufficient for an error to be considered serious, which is a serious shortcoming of the Bill. When notifying someone of an error, before making a decision the Investigatory Powers Commissioner must ask the public authority responsible for the error to make submissions to the commissioner about the matter concerned. That is a narrow, arbitrary and highly discretionary power that will relate only to the most serious errors that judicial commissioners discover during their very limited audit of the use of surveillance powers, which highlights the conflicted position in which judicial commissioners may find themselves, and it does not discharge the Government’s human rights obligations to provide post-notification by default unless they can justify continued secrecy. That is very significant because the security repercussions of hacking into a device or network create an even greater imperative for post-notification, as we discussed at length when we debated amendments and clauses under part 5.
When we debated part 5, it was noted by me and others that a hack, once it has been carried out, may compromise the security of the hacked device, leaving it open to further exploitation by criminals or even other Governments. It is the equivalent of the state breaking into a house, conducting a search and then leaving without locking the doors and without the resident realising that all that has happened. It is one thing for the state to hack into a device where it is strictly necessary and proportionate, but it is quite another for the state to leave the scene, leaving individuals vulnerable to criminal attacks with no way of protecting themselves. If the Government wish their security and law enforcement agencies to have this significant power, they must accept the concomitant responsibility. The purpose of new clause 12, put briefly, is to put the judicial commissioners under a mandatory statutory duty to notify persons after the fact, once an operation or investigation has ended, unless there are very good reasons not to do so.
The Solicitor General
I have listened with great care to the arguments of the hon. and learned Lady. I absolutely agree that, where a serious error has occurred in the use of investigatory powers, the commissioner should be able to inform those affected. We have clause 198(1) to deal with that. However, I do not agree with the principle that as a matter of course, everyone or anyone subject to the use of a lawful investigatory power should be notified of the use of those powers, even with the caveat “unless it would damage an ongoing serious crime or national security investigation”. Such a principle would mean that we could not exclude the possibility of having to notify suspected criminals and terrorists that powers had been used against them, just because a specific ongoing investigation had stalled or indeed ended with evidence of wrongdoing, but without sufficient evidence to meet the prosecution test.
As hon. Members will know, suspected criminals and terrorists will often appear on the radar of the police and security services at different times and in different contexts. Clearly, it would not be at all appropriate to inform them that investigatory powers had been used in one case, as that could prompt them to change how they behave or communicate and hamper subsequent investigation.
National security is particularly important in relation to this matter, because the amendment would require the commissioner to make the subject of interest aware of the conduct that had taken place. That would not only run contrary to the long-standing policy of successive Governments of neither confirming nor denying any specific activity by the security and intelligence agencies; it would essentially require the techniques that they use in specific cases to be made public. That cannot be in the public interest. It would assist terrorists and criminals in their operations, which I am sure cannot be the intention behind the amendment.
Furthermore, the commissioner can delay notification only on the basis of serious crime rather than of crime generally, meaning that the amendment would require the commissioner to inform suspects in active criminal investigations that their communications data had been acquired. One example is an investigation into stalking. It may well not meet the serious crime threshold, but as we have discussed in another context, communications data could be essential, because they could show contact between two parties. My worry about the amendment is that it would require the stalker to be informed that his communications data had been requested, which surely cannot be the intent.
Joanna Cherry
Does the Solicitor General agree that new clause 12(3) deals with the very problem that he has just identified? It says:
“A Judicial Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (2) if the Judicial Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security investigation relating to the affected party.”
The Solicitor General
I am afraid that it does not, because it uses the words “serious crime”. I have given an example that might not be seen as a serious crime, although as we all know, stalking is absolutely no joke to the victims and can lead to extremely serious consequences for them. I know that the hon. and learned Lady agrees with me about all that.
Beyond the principled objections to the amendment, there are numerous practical problems. It would not be practical, for example, for the commissioner to make everyone whose data were subject to a data retention notice aware of that fact. The commissioner would have to require the relevant telecommunications operator to provide them with a list of all relevant customers, and that operator would have to inform the commissioner every time a new customer joined the service. I worry that it would be pretty easy for criminals to use that process to identify services that they could use to avoid detection, and that unreasonable burdens would be put on all the public authorities covered by the Bill.
Joanna Cherry
By way of probing, if we were to delete the word “serious”, so that the subsection read, “notification may defeat the purposes of an ongoing criminal investigation or a national security investigation,” would that deal with the Solicitor General’s concerns?
The Solicitor General
I am grateful to the hon. and learned Lady for the way in which she is seeking a reasonable compromise, but I worry that her proposed approach is, on that basis, unnecessary. We already have checks and balances in the framework of the Bill that allow for serious error to be properly identified and dealt with, and for those affected to be notified. As I was saying, I worry that we would end up placing unreasonable burdens on public authorities by requiring them constantly to make a case to the commissioner about whether what they were doing would hamper national security or crime investigations if suspects were told that investigatory powers were being used against them. It would be far better for the police to spend their time and money on getting on with the work of investigating criminals than on determining whether individuals should be informed about what we should not forget is perfectly lawful investigative activity, with the caveat I mentioned about serious error.
Furthermore, in the context of bulk warrants under parts 6 and 7 of the Bill, the public authority or commissioner would need to examine all the data collected under the warrant to identify those individuals whose data had been collected. That would be impracticable and would actually lead to greater intrusions into privacy, because, as we know, bulk data are not examined to that degree unless there is a specific purpose and a properly framed approach. I am sure that cannot be the intention of the amendment. These proposed new clauses are at best unnecessary and at worst frankly unhelpful, and risk undermining the work of our law enforcement and security and intelligence agencies.
On new clause 13 and the audit trail point, the draft code of practice, at paragraph 8.5, requires that
“When information obtained from equipment interference is used evidentially, the equipment interference agency should be able to demonstrate how the evidence has been recovered, showing each process through which the evidence was obtained.”
There will, however, be circumstances when equipment interference is used on an intelligence-only basis—that is, a non-evidential basis. Given those points, and given that it is in the interests of law enforcement and the intelligence agencies to ensure that where equipment interference is used to support a criminal investigation, that is done accordance with evidential standards, new clause 13 is, with respect, not necessary.
If that new clause is in fact about the enhancement of oversight, we have made it clear that while the powers of the new commissioner are being significantly increased, their resources will be greatly increased, which means that they will be able to audit, inspect and review equipment interference agencies as they see fit. In addition, the draft code of practice for equipment interference will require the relevant agencies to keep extensive records to support and enable oversight. There has been no suggestion from the current oversight commissioners in respect of property interference warrantry that a statutory requirement for an audit trail is necessary.
The hon. and learned Lady properly made reference to recent ECHR authorities, most notably Zakharov, a case that I have looked at in the context of these debates. We have to be careful about Zakharov, because it deals with the targeted interception regime—a particular aspect of the debate, as she knows—rather than the bulk regime, in relation to which it is sometimes prayed in aid. I give that caveat in the spirit of fairness, because of course the Zakharov case contained reference to Kennedy v. United Kingdom, a 2010 case in which the UK was found to be in compliance with article 8. In particular, the role of the Investigatory Powers Tribunal was seen as an important part of the checks-and-balances mechanism that allowed the Court to come to the conclusion that the article 8 requirements were satisfied.
Joanna Cherry
I would like to put my new clauses to the vote.
Question put, That the clause be read a Second time.
Joanna Cherry
I beg to move, That the clause be read a Second time.
The new clause relates to part 4 of the Bill, in particular clause 78, and to the retention of communications data. It would exclude the providers of rural or community access communication services and small service providers from the obligation to collect and retain data, which I believe would be in accordance with policy statements made by the Home Office. I am indebted to William Waites, Duncan Campbell and Adrian Kennard for drawing our attention to the need for this new clause and for assisting in its drafting. I can do no better than remind hon. Members of the statement submitted by Mr Waites on behalf of his organisation, HUBS CIC—document 53 in the written evidence submitted to the Committee—in which he explains:
“I am a founder and director of HUBS CIC, a Scottish Community Interest Company whose purpose is to facilitate broadband provision in rural and remote parts of the country outwith the reach of the large, well-known carriers.”
Hon. Members will be aware of this issue, which has been debated elsewhere in the House in this Session. The statement continues:
“HUBS’ members are small Internet Service Providers typically with tens to hundreds of individual end-user subscribers each. Together they provide the only available Internet service in large swathes of the West Highlands and the South of Scotland…HUBS does not provide service to end-users but instead makes bulk Internet services available to its members that would not otherwise be obtainable due to their small size.”
The members’ concern about clause 78
“is about how the data retention requirements…in particular, and the new obligations and duties on Telecommunications providers in general relate to service providers operating in the environment of HUBS’ membership…A typical member’s entire network infrastructure will cost on the order of tens or hundreds of thousands of pounds. It is optimised for lightweight, energy efficient operation. There are no data centres or indeed cabinets that have adequate physical security for safely storing the most intimate records of individuals’ on-line activities…Indeed it is recognised in general that keeping sensitive data secure is so important, that the best way to meet this obligation is simply to not record it.”
Therefore,
“Constructing facilities in each of these service providers to extract, record, securely store and make available any ‘Internet Connection Records’…would cost at least as much as their entire infrastructure…HUBS, though it is designed to enable the micro ISPs to benefit from economies of scale, cannot help here because it does not know the individual end users…Due regard should also be given to the social dynamics. If an ISP has a couple of dozen subscribers, two or three of which are actively involved in operating the network, data retention has a very different flavour.”
That is very often the position in rural and far-flung communities. It is like asking neighbour to spy on neighbour. I am sure that is not what the Government intend, but the new clause would spell that out. It would give providers of rural or community-access communication services and small service providers the reassurance they require in the Bill.
To put it shortly, the provisions in clause 78 are clearly designed for a very different environment from that which I have described, so those who operate within that environment are keen to have the Government’s assurance that they will be excepted from the requirements of the clause.
Mr Hayes
I think I can deal with this very briefly, because there are only two points to make. First, the amendment is flawed. The Department for Culture, Media and Sport tells us that the suggested designation is no longer used, if ever it was. That is a fundamental problem, but that is not a good enough argument alone. A better argument—my second point—is that restricting a retention notice to only large operators could result in large geographic gaps in capabilities or indicate to criminals that they should use only small providers. It is understandable that the hon. and learned Lady wants to defend the interests of small providers, but the provision could have unintended consequences of the sort I do not think she means.
Finally, the Joint Committee said:
“We believe that the definition of telecommunications service providers cannot explicitly rule out smaller providers without significantly compromising the data retention proposals as a whole.”
I appreciate the hon. and learned Lady’s intent, but I am not sure the form of the amendment is adequate or the arguments sufficient to be persuasive.
Joanna Cherry
I am not sure what the Minister is saying. Is he saying he could look at the amendment and make it better, or that the principle underlying it is not acceptable?
Mr Hayes
I am saying that it is not wise to designate providers based on their size. There will be niche market providers who may provide a particular function exclusively and there may be others providing in a particular area. Taking them out of the system would contradict the purpose of the legislation. Let me see if I can compromise. We have said throughout, and when we were debating an earlier group of amendments, that we understand that some smaller providers will face a significant challenge. I have also said that it is important to recognise that while large providers will have mechanisms to implement readily the changes we expect of them—
Joanna Cherry
Sorry, Mr Owen, I have lost my train of thought. The concern behind the amendment is that although certain assurances have been given, I have tried to explain that, without a guarantee that requirements will be placed on such providers, they may simply grind to a halt. Is there any way round that? That is the purpose of the amendment.
Mr Hayes
Let me try to make a more pithy intervention. Of course we understand that we need to support providers in meeting their obligations and we will take the steps necessary to do that. What I do not want to do is to exclude them in the Bill from the requirement because that would have consequences that the hon. and learned Lady does not intend.
Joanna Cherry
I am sure the last thing the denizens of the west or the south of Scotland want is some mass influx of terrorists to start using their small internet service providers. On the other hand, they do not want their hard-won and hard-fought-for internet access to be completely compromised by unreasonable requirements being put on it. They are concerned that, although assurances have been given, there is nothing in clause 17 to prevent the Government from putting what would be practically and financially crippling requirements on them. That is the purpose of the amendment.
Joanna Cherry
The arithmetic is inevitable, Mr Owen. I would like to think carefully about what the Minister has said, and go back to the organisations concerned and discuss it with them so I will withdraw the new clause for now.
Clause, by leave, withdrawn.
New Clause 25
Discharge of the powers, duties and functions: obligations
“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the following—
(a) the public interest in protecting national security,
(b) the public interest in the prevention and detection of serious crime,
(c) the public interest in the protection of the privacy and the integrity of personal data,
(d) the public interest in the security and integrity of communications systems and networks,
(e) the principle of necessity,
(f) the principle of proportionality; and that no interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means,
(g) the principle of due process, accountability and respect for the human rights of those affected by the exercise of powers under this Act, and
(h) the principle of notification and redress.”—(Keir Starmer.)
Brought up, and read the First time.
Christian Matheson (City of Chester) (Lab)
I can assure you, Mr Owen, that I will not detain you, the Minister or the Committee for long, save to endorse what my hon. and learned Friend the Member for Holborn and St Pancras has said.
If this is to be our final debate in Committee, I pay tribute to the forensic diligence exercised by my hon. and learned Friend throughout our proceedings and as exemplified by new clause 25 that he has tabled. The crux of so much of what we have discussed in Committee has been balance—where the right balance is between the protection of individual privacy and the ability of our security, intelligence and law enforcement agencies to protect us as a nation. We all have different beliefs about where the balance lies and it is the job of the Committee and the House to establish that balance.
As my hon. and learned Friend has made clear, adding this overarching new clause would give the public a level of comfort—a level of trust, indeed—that we have the balance correct. The new clause would remind us, right at the start of the Bill, of the principles that we think underpin the legislation. That would provide the public with the comfort that they require and also imbue a sense of trust in the final Act that we hand over to the judiciary, the Home Secretary and the agencies that are charged with protecting us. Given the structure of the Bill and the repeated application of certain measures to different areas of activity, an overarching clause would provide a solid foundation to the rest of the Bill’s structure.
I commend my hon. and learned Friend for his work, and in particular for the new clause, because it helps to achieve the balance between protection of privacy and the protection and defence of the realm. I hope that it goes a long way towards winning the support of more sceptical members of the public who might be looking for reasons why they should not support the Bill; now, we can give them a reason why they should.
Joanna Cherry
I add my support and that of the Scottish National party to the new clause. I will tell hon. Members about an example of such a clause in Scottish legislation, which they might wish to look at. In doing so, I pay generous tribute to honourable Labour and Liberal Democratic parties which passed it. In coalition in the first Session of the Scottish Parliament, they passed a wonderful piece of legislation, the Mental Health (Care and Treatment) (Scotland) Act 2003. It was based on a report produced by a committee chaired by the late right hon. Bruce Millan, a former Secretary of State for Scotland and a very distinguished gentleman.
The 2003 Act sought thoroughly to modernise and codify the law of Scotland on mental health and, in particular, to take into account the human rights of those who have mental health problems. To do that, it set out in section 1 of the Act general principles that everyone discharging functions under the legislation must stand by. It is a piece of legislation that has very much stood the test of time and it has greatly enhanced the protection of the human rights of those in Scotland with mental health problems. It has also balanced that against the protection of the public in certain situations. The new clause does not take a legislative approach that is without precedent. If Members want to see how it might be done, they can find a similar example to new clause 25 in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003.
Keir Starmer
I will. I hope that the hon. and learned Lady will mention the non-governmental organisations that have helped us. Thank you.
Joanna Cherry
I add my thanks to all those who have been mentioned so far. It has been a true pleasure to work so closely with the hon. and learned Member for Holborn and St Pancras. I pay tribute to the people behind the scenes who have greatly assisted Opposition Members in our preparation for this Committee.
A number of non-governmental organisations have been mentioned. I will not mention any one in particular; they know who they are, and they have been of great assistance to us. I also want to thank my hon. Friend the Member for Paisley and Renfrewshire North. This is my first time on a Bill Committee, and without his assistance, I would have been in even more of a guddle than I was on some occasions. I am very grateful to him for keeping me right.
The Chair
I add my thanks to all members of the Committee, the Clerks in particular, officials, the Official Report, the Doorkeepers and so on.
Question put and agreed to.
Bill, as amended, accordingly to be reported.
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Home Office
Investigatory Powers Bill
Joanna Cherry ExcerptsMonday 6th June 2016
(8 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Manuscript Amendments 6 June 2016 (PDF, 16KB) - (6 Jun 2016)
Keir Starmer
I am grateful to the Minister—that was what the Opposition pressed for.
There have been differences of approach to the test for judicial commissioners. On the one hand, colleagues on both sides of the House have made a powerful argument that the judicial commissioners should retake the decision. On the other hand, others have argued that the decision should be reviewed. The amendment strikes a third route, which is to apply a review test but to confine it to the stricter end of the judicial review principles.
As hon. Members know, I have been a lawyer for many years and have dealt with many public law cases, as other hon. Members have. The difference between strict scrutiny and long-arm judicial review is very real —it is a material difference. That is why the manuscript amendment is highly significant.
Joanna Cherry (Edinburgh South West) (SNP)
It has been a pleasure to work with the hon. and learned Gentleman on the Bill. Like me, as a lawyer, he will have advised clients frequently on judicial review. He will no doubt agree that judicial review looks to the reasons given for a decision. There is no duty on the Secretary of State to give reasons for her decision on whether or not to grant a warrant. How can there be judicial review when no reasons are given?
Keir Starmer
The hon. and learned Lady made that very important point in the Bill Committee. Normally when decisions are subject to judicial review, there are reasons for the decision. What is envisaged is that the decision itself, plus such material as has been looked at by the Secretary of State, will be put before the judicial commissioner. There will not be reasons, which makes the task more difficult, but what is important about the test set out in the manuscript amendment is that the judicial commissioner must ensure that the duties under the privacy clause are complied with, which means that he or she will have to look at that underlying material. It might well be a good point to say, “If there are reasons, it would be an easier task,” but I do not believe the task cannot be performed without reasons. In due course, the judicial commissioners may say, “We need further help on particular issues.”
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.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
I am grateful to the hon. and learned Lady for giving way, because I agree with what she is saying. May I suggest that there is one means by which the Government could demonstrate good faith? In order to get to a vote on new clause 21, we will first have to vote down new clause 5. If the Government are serious about listening to the House, could they not withdraw new clause 5 to allow us to have a vote on new clause 21?
Joanna Cherry
That is an excellent suggestion that the Government should consider carefully.
I also mentioned on Second Reading that the United Nations special rapporteur had expressed concern about the Bill’s provisions, especially the bulk powers. That is why it remains the SNP’s position that until such time as a case has been made for the necessity of bulk powers, they should be removed from the Bill.
I make no apology for tabling numerous amendments, because this is a constitutionally important Bill. Their purpose is to try to bring the Bill into line with international human rights norms and to make it properly lawful. If the Bill is passed in its current form, there is a real risk that it will be the subject of challenge. Many of the threads running through it, such as the retention of data and bulk powers, have already been the subject of successful challenges or are awaiting the outcome of decisions. We need to be careful about passing powers into law when their legality has already been questioned by the European Court of Human Rights in Strasbourg, the European Court of Justice in Luxembourg, and a court in England.
In reality, I know that our amendments will not be accepted because we are already running out of time. We simply have not had enough time to consider the Bill. We have two days for Report, which I know is unusual, but we have short periods of time to speak about important parts of the Bill. I am only at the stage of making some introductory remarks and will have to curtail what I say about part 8 in the interest of other Members getting the right to speak. That will happen as we go through each part of programme motion.
Mr George Howarth
I share the hon. and learned Lady’s concern that maybe there is not enough time to consider the Bill as fully as she or I would like, but I am a bit confused. If that is the case, why did she not oppose the programme motion?
Joanna Cherry
I knew that that was a pointless exercise that would have eaten into the time that we have, so not opposing it was a practical decision.
Mr John Hayes
More pointedly, the Committee stage finished a day early, so why did she not debate the Bill for another day in Committee?
Joanna Cherry
If anyone reads the records of that Committee, they will see that I made more than my fair share of contributions. I do not have any problem with that. My issue is that other Members—the people sitting behind me, the Labour Members and Government Members—will not get a chance to speak and that we will not get a chance to vote on more than a handful of amendments. Given the degree of concern expressed about the Bill, it is frankly ridiculous that we will get to vote only on maybe eight or nine amendments over the next couple of days out of the hundreds of amendments that have been tabled. I am not ashamed to say that that is no way to legislate. We need to look at the way we go about things.
I am going to have to cut my cloth according to how much time is left, and I want to try to address some of the key SNP amendments to part 8 of the Bill, dealing first with amendment 465 and 466 to clause 194. Part 8 deals with oversight. At an earlier stage in the process, the Government said that they wanted to create a world-leading oversight body, but they have failed to do that. Our amendments seek to say that in addition to the investigatory powers and judicial commissioners there should be a separate body, known as the investigatory powers commission. It is not just some little notion of mine or of the SNP; it is what was recommended by the Royal United Services Institute’s independent surveillance review, the Joint Committee on the Draft investigatory powers bill, and by David Anderson QC’s investigatory powers review. David Anderson said that there should be a new independent surveillance and intelligence commission. It is a matter not only of what it is called; it is matter of what it actually does. Other hon. Members have tabled amendments relating to separating out the judicial and audit functions, and in the unlikely event that we get a chance to vote on them, the SNP will support them.
In written and oral evidence to the Bill Committee, we heard from Joanna Cavan, the head of the Interception of Communications Commissioner’s office. She reminded us that the judicial commissioners will deal only with some 2% of the applications falling within the remit of the oversight body. The remaining 98% will be subject to post-facto oversight only, so it is vital that that oversight is independent and robust. Creating a separate commission, as recommended by the three bodies I mentioned, would help to form a distinction between the approval and post-facto audit elements of the oversight body and would avoid the idea that judicial commissioners might be marking their own homework. That is what Labour’s amendment 146 seeks to address and the SNP will support it if we get a chance to do so. Joanna Cavan also told us that she had spoken to a number of the UK’s international oversight counterparts and that some had expressed surprised that the UK was going down the route of putting both the approval and the post-facto audit elements into the same body. Those amendments are crucial and I will be pressing them to a vote if I possibly can.
I turn now to the SNP’s amendments 467 and 469 and the question of the appointment of the judicial commissioners. I listened to what the hon. and learned Member for Holborn and St Pancras said in his speech, but the SNP does not think that Labour’s amendment goes far enough. The Government have made much of the main safeguard in the Bill being the role of judicial commissioners and the double lock, so it is vital that we get the judicial commissioner appointment process right. I suggest that, like the Justices of the United Kingdom Supreme Court, the commissioners should come from the jurisdictions and the judicial pool across the United Kingdom, not just the English Bench, and that the public must be confident that they are selected on merit, rather than because they can be trusted by government to be conservative or pro the state in their decision making. The SNP amendments therefore propose that, as well as having consultation with the Lord Chief Justice of England and Wales, the Lord Chief Justice of Northern Ireland and the Lord President in Scotland, these appointments should be subject to recommendations made by the independent Judicial Appointments Board of Scotland, the independent Judicial Appointments Commission in England and Wales, or the Northern Ireland Judicial Appointments Commission.
Pete Wishart
As usual, my hon. and learned Friend is making a powerful case. Does she agree that the judicial commissioners are the big flaw in the Government’s proposals today? This idea that somehow the Prime Minister could simply just agree with what has been suggested by judicial commissioners is concerning, because he could also disagree with what has been proposed and suggested. Does she have any concerns about that?
Joanna Cherry
I do, but let us suppose the judicial commissioners have been selected by an independent board. The Judicial Appointments Board of Scotland, the Judicial Appointments Commission—in England and Wales—and the Northern Ireland Judicial Appointments Commission are not made up just of lawyers; there are lay people and people from other walks of life on these bodies. That is to give the public confidence in the independent appointment process of the judiciary, and it is very important that the public—our constituents, who have concerns about how far the powers in this Bill are going—have confidence that the judicial commissioners who will be performing the oversight functions and enforcing the safeguards on this Bill are appointed independently, rather than being the right chap for the job being chosen. I choose my words advisedly there.
I am very conscious of not eating up too much time, Mr Deputy Speaker. I have discussed two crucial amendments that I would like to put to a vote on part 8. I have tabled other amendments that others will perhaps be able to speak about, such as the measures on post-notification following surveillance and the notification of errors. I briefly wish to turn to amendment 482, which is designed to put it beyond doubt that voluntary, unsolicited disclosures are protected and that a whistleblower is protected from criminal prosecution. The amendment reflects our concern that provisions in the Bill may inadvertently risk discouraging or preventing individuals within public authorities or agencies, or in communication services providers, from approaching the Investigatory Powers Commissioner with concerns or communicating with the commission frankly. Throughout the Committee process, we attempted to amend the Bill by inserting a public interest defence for whistleblowers. Regrettably, the Government were not prepared to accept it, but I was happy that when I proposed an amendment similar to this one to part 8, the Solicitor General said in Committee that he recognised the sentiment behind the amendment and was of a mind to give it further consideration. I urge the Government now to make a gesture by supporting this amendment, which I may push to a vote if I get the chance to do so.
The Solicitor General
The hon. and learned Lady is absolutely right in her recollection, and I am giving this matter anxious consideration. I would, however, point out that clause 203, dealing with the information gateway, underpins the important principles that she outlines about the rights of whistleblowers. I hope that is of some assistance.
Joanna Cherry
I hear what the Solicitor General says, but we took clause 203 into account when framing this amendment, and we remain of the view that it needs to be put beyond doubt in the Bill that whistleblowers will be protected from criminal prosecution and that there will be a public interest defence. I will mention that again when discussing other parts of the Bill.
Time prevents me from talking about the fact that the right of appeal in respect of the Investigatory Powers Tribunal is, regrettably, curtailed, but I do not think we are going to get to deal with that today. What I really want to say in conclusion is that this Bill seeks to put on a statutory footing very extensive powers, and it is vital that there is proper oversight of the way in which they are exercised. Part 8, as it stands, is pretty mealy-mouthed. It does not even implement the central recommendation of RUSI, the Joint Committee and David Anderson that there should be a separate investigatory powers commission. Without these amendments proposed by the SNP on key recommendations about oversight, we cannot support the Bill in its current form.
Sir Simon Burns (Chelmsford) (Con)
I am pleased to take part in this debate, although I shall only speak briefly because I know that many of my right hon. and hon. Friends, and Opposition Members, wish to participate. What we are debating in this group of amendments is crucial, because we are dealing with investigatory powers and, specifically, the role of technology in policing the modern age. Although I represent a constituency in Essex, which sometimes seems a world away from Westminster, I can tell hon. Members that my constituents and I worry about the same things: how we protect our country’s visible and invisible borders; how we keep our local community safe; and how we spot young people at risk of abuse or of going off the rails, so that we can do something about it before it is too late.
I certainly want to ensure that our liberties are fully understood and protected. That is why I welcomed the fact that during the Committee stage, which I took part in towards the end, the Government, my right hon. Friend the Home Secretary, the Solicitor General and the Minister for Security were prepared to listen to arguments—particularly those made by the hon. and learned Member for Holborn and St Pancras (Keir Starmer)—that sought to strengthen the protections without compromising the aims of the legislation. It was refreshing, in many ways, not to have the normal Punch and Judy politics, whereby everything the Opposition proposed must be wrong because the Government had not thought of it first. That give and take, which is shown in Government new clauses 5 and 6, and in some of the amendments, particularly amendments 33 to 38 and 45 to 48, is important in meeting concerns about protecting civil liberties without compromising the main aims of the Bill. Those amendments have been tabled to make it clear that warrants or other authorisations should not be granted where information could be reasonably obtained by less intrusive means.
More than anything, however, we have to ensure the liberty of my constituents to live quietly and peacefully, free from attack—that is, of course, the most fundamental liberty of all—and it must be protected from those who wish them harm. Today such people live everywhere, and they have the powers, through the internet and modern communication techniques, to be everywhere, plotting, planning and executing their evil deeds. That is why I was pleased to see the supporting provisions that this group of amendments address in ensuring that we have not only those protections for my constituents and others, but a sympathetic and reasonable approach to protecting people’s civil liberties.
This Bill goes further than ever before in terms of transparency, making clear the most sensitive powers available to the security and intelligence agencies and the strict safeguards that apply to them. The controls on bulk powers and the double lock protection, which requires a sign-off for action by not just the Home Secretary but independent commissioners, are extremely important in winning public confidence in the measures being proposed. That will be discussed in greater detail when those Committee provisions come before us later in our proceedings on this Report stage.
I ask those who worry about interception powers to remember the following simple facts relating to technical capability. Since 2010, the majority of MI5’s top priority British counter-terrorism investigations have used intercepted material in some form to identify, understand or disrupt plots to harm Britain and its citizens. In 2013, this material was estimated to form between 15% and 20% of the total intelligence picture in counter-terrorism investigations. Data obtained by the National Crime Agency suggested that in 2013-14, interception played a critical role in investigations that resulted in more than 2,200 arrests and the seizure of more than 750 kg of heroin and 2,000 kg of cocaine, more than 140 firearms, and more than £20 million.
I believe that the power to intercept communications from potentially very dangerous people has helped to keep my constituents and those of other right hon. and hon. Members much safer and much more secure in their homes, in their jobs and on the streets they walk every day; but I also recognise the calls from some that we must be careful not to risk the fundamental liberties of our democracy as we do battle with potential terrorists. The Government have clearly been mindful of the Wilson doctrine and have tabled amendments, which I welcome, to require that the Prime Minister approve, rather than just be consulted on, all equipment interference warrants relating to parliamentarians.
We must ensure that the powers that we give to our police and security agencies, while they are sufficiently transparent, are also fit for purpose. Terrorists and other threats to my constituents’ safety are constantly evolving and adapting their techniques to trump the safety system. They do not want to get caught; they want to catch us out, and that is why we must be prepared to adapt our rules to keep pace with technology. We cannot use an analogue approach to tackling criminals in a digital age. Such an attitude just is not safe, and I am not prepared to go back to Chelmsford and explain to my constituents there and in Great Baddow, Chelmer Village, Beaulieu Park and Old Moulsham that I was not prepared to support measures designed to make them all more secure.
I support the proposals that my right hon. Friend the Home Secretary has outlined to strengthen judicial commissioners’ oversight and give commissioners a role authorising national security notices and technical capability notices, but we must not lose sight of the essence of why we need these proposals: we need them to help our police and security agencies to better identify the internet activity of potential threats, and indeed victims of crime, so they can do their jobs more quickly and effectively.
The people outside Westminster who think this is about stopping people being rude on Twitter, or cleaning up the Facebook jungle, are wrong. The Bill is about protecting those rights—the right to be irreverent or to disagree; the right to surf the net without being at risk from those who would do us harm. The Government have acted properly by being prepared to listen and to think again to a degree that I have not often encountered in the past. They have considered carefully, and we should be careful not to assume that our police and security agencies do not need these powers as amended, with the new safeguards that have been promised today. For those reasons, I shall support my right hon. and hon. Friends in the Lobby tonight.
Victoria Atkins (Louth and Horncastle) (Con)
Will the right hon. and learned Lady give way?
Ms Harman
It might well be useful for commissioners to have experience of both functions, but not at the same time and not using the same team of staff. I think ours is a relatively modest but important proposal. I am sure the hon. Lady can see that the arrangement could be clarified to create some sort of Chinese wall between the two functions. We are not suggesting that the functions be performed by separate organisations, but the hon. and learned Member for Edinburgh South West may be about to persuade us all that separate organisations are needed.
Joanna Cherry
I agree with the right hon. and learned Lady to an extent. Does her argument not boil down to the basic principle of Scots law and English law that no one should be a judge in their own cause? If one person grants a warrant then puts a different hat on and looks over whether that warrant was granted properly, they are being a judge in their own cause and there simply is not the proper transparency or oversight needed for public confidence.
Ms Harman
That is precisely my point. The Joint Committee on Human Rights and the independent reviewer have been helpful to the Government and bent over backwards in saying that separate organisations are not necessary—prima facie, one would say separate organisations are needed—but there should at the very least be Chinese walls. I therefore introduced the proposal in an amendment, and I hope to receive a response from the Government before the Bill goes to the Lords so that the matter can be looked at again, because we are a Joint Committee, and there are Members in the Lords who are eager to look at this. In the meantime, the Government’s responsibility, if they table amendments, is to submit a European convention on human rights memorandum with them. They have failed to do so. We regard those things as important. They are important for the House, so I urge them to do that. They should not table shedloads of amendments without producing an ECHR memorandum.
Joanna Cherry
Bearing in mind that the protection is for parliamentarians across these islands, does the right hon. Gentleman agree that the Presiding Officers in the Scottish Parliament, the Northern Ireland Assembly and the Welsh Assembly would have to be involved, not just the Speaker in this House?
Andy Burnham
That is a fair point, and the amendment tabled by my right hon. and learned Friend the Member for Camberwell and Peckham seeks to ensure that. Perhaps this is an issue that the Government need to think about. Of course the provisions should apply to Members of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. The point made by the hon. and learned Member for Edinburgh South West (Joanna Cherry) should be accepted.
On journalists and journalistic sources, we welcome the fact that the Government have moved to put protections originally in the codes underpinning the Bill into the measure itself. We note, however, that the National Union of Journalists believes that wider protections are still needed, and the Government should continue to work with it to get that right.
Finally, on legal privilege there has been the least progress of all. Serious concerns have been expressed by the Bar Council and the Law Society about the fact that the provisions would weaken privacy protections currently enjoyed by lawyers, but those concerns are not adequately reflected in the Bill. It is disappointing that Ministers have yet to meet the legal bodies. [Interruption.] I did not quite hear what the Solicitor General said. I am happy to give way if he wants to clarify the position.
Sir Edward Leigh
I can see what the difference would be in a time of national crisis. The information will be clearly set out by the Home Secretary and the Prime Minister. I do not believe that it would be beyond the abilities of any Speaker now or in future to take an informed decision and to be convinced by the Prime Minister and the Home Secretary that the interception was not a political interference but a matter of national security.
All hon. Members agree on that—that the communications can be intercepted if it is a matter of national security—and we all agree that they should not be intercepted because it is politically expedient to do so. All I am asking is that the Speaker, who by the nature of his office does not consider political expediency, can say, “Yes. This is a matter of national security.” I do not believe that that is beyond his abilities. After all, he is ably assisted—is he not?—by the Clerk of the House and a band of parliamentary Clerks, most of whom have spent years accumulating knowledge, wisdom and experience of the ways of the House. They are not radicals or people who will take decisions lightly or wantonly. Together, they form a deposit of institutional memory, which the Prime Minister and No. 10, by the nature of their daily tasks of government and political management, can never be. They must always, necessarily, take a short-term view. That is not a criticism but the nature of the office.
Each of the privileges of this House, in addition to being daily fought for and won over the centuries, exists for a reason. Like many traditions and customs, we interfere with them at our peril. I appeal to the Minister of State, who is deeply aware of the importance of traditions and customs. We may wonder today why this or that one exists, but if we disregard them, we will soon find that the dangers they protect us from are very real.
We also may doubt the day will ever come when a Prime Minister would dare to authorise the monitoring of Members’ communications for politicised reasons, but it is therefore better to remove even the possibility of that temptation existing by simply requiring the Secretary of State to consult the Speaker. It has been said before but it is worth saying again. Nearly 375 years ago, William Lenthall reminded the sovereign that the Speaker had
“neither eyes to see nor tongue to speak in this place but as the House is pleased to direct me, whose servant I am here.”
All I am asking in amendment 1 is that that tradition be maintained. We would do well to continue to put our trust in that defender of our law and our liberties.
Joanna Cherry
The Scottish National party has tabled a significant number of amendments to parts 2 and 5, and chapter 1 of part 9, which are under discussion, but given the constraints of time I will focus my fire on only a few of them, and mainly on part 2 and the system of judicial warrantry.
The Government have put their new double-lock system of warrantry at the heart of their arguments that there are sufficient safeguards in the Bill. In the SNP, we believe that the system of warrantry is too limited in scope and seriously deficient. We have tabled extensive amendments to extend the system of judicial warrantry beyond part 2, so that it would cover warrants to obtain, retain and examine communications data and police hacking warrants. We think the nature and scope of those warrants, and the grounds on which they are granted, are very important.
Amendments 267, 268, 272 and 306 to clause 15 deal with the scope of warrants. The problem with clause 15 as currently drafted is that it permits warrants to be issued in respect of people whose names are not known or knowable when the warrant is sought. This is confirmed by clause 27, which provides that a thematic warrant must describe the relevant purpose or activity and that it must
“name or describe as many of those persons as is reasonably practicable”.
Our amendments would retain the capacity of a single warrant to permit the interception of multiple individuals, but require an identifiable subject matter or premises to be provided. We have tabled associated amendments to clause 27. Taken together, they would narrow the current provisions, which effectively permit a limitless number of unidentified individuals to have their communications intercepted.
It is not just the SNP who are concerned about the scope of the thematic warrants. We heard evidence in Committee from Sir Stanley Burnton, the Interception of Communications Commissioner, and from Lord Judge, the chief surveillance commissioner. Both expressed detailed concerns about the breadth of clause 15 as currently drafted. They said it was too wide and needed to be more focused. David Anderson QC, although in favour of thematic warrants, said that clause 15 as currently drafted is “considerably more permissive” than he had envisaged. There we have three very distinguished experts working in this field underlining the necessity of the amendments.
That is a real concern, because it takes us back to our old friend, or in our case our old enemy, bulk powers. If we create thematic warrants, communications intercepted under bulk powers can be trawled through thematically to look for groups of people sharing a common purpose or carrying out a particular activity. One difficulty with that is that it provides for an open-ended warrant that could encompass many hundreds or thousands of people. That is just not right. It is suspicionless interference. It is not targeted and it is not focused. I urge hon. Members on both sides of the House, if they are concerned about supporting an SNP amendment, to comfort themselves with the fact that it is an amendment the necessity of which has been underlined by persons as distinguished as the Interception of Communications Commissioner, the Chief Surveillance Commissioner and the independent reviewer of terrorism.
I now turn to the grounds, set out in clause 18, on which warrants may be granted, and to SNP amendments 212 and 213. The purpose of the amendments is to remove the economic wellbeing of the UK as a separate purpose for granting a warrant and to require that grounds for interception are tied to a threshold of reasonable suspicion of criminal behaviour. We have tabled similar amendments to the grounds for seeking warrants in relation to communications data under parts 3 and 4, and hacking under part 5. If these amendments are not allowed, people simply will not be able to predict when surveillance powers may be used against them, because the discretion granted to the Secretary of State is so broad as to be arbitrary.
The Joint Committee on the draft Bill recommended that the Bill include a definition of national security, which, of course, is the first ground. I call on the Government, not for the first time, to produce an amendment that defines national security. The Bill is sprinkled liberally with the phrase “national security”. The Government need to tell us what they mean by that phrase, so I call on them to define it. This is not just theoretical or, as the hon. Member for North Dorset (Simon Hoare) called it, merely a law faculty debate; it is a serious issue about language being precise so that there can be some predictability. In the past, the courts have responded with considerable deference to Government claims of national security; they view them not so much as matters of law but as Executive-led policy judgments. As a legal test, therefore, “national security”, on its own, is meaningless unless the Government attempt to tell us what they mean by it.
Dr Murrison
I am listening with great interest to the hon. and learned Lady. She will be aware that the Joint Committee on the National Security Strategy has long been trying to define “national security” but has failed to come up with an answer. Will she not accept that the term must necessarily remain loose?
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.
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Home Office
Investigatory Powers Bill
Joanna Cherry ExcerptsTuesday 7th June 2016
(8 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Consideration of Bill Amendments as at 7 June 2016 - (7 Jun 2016)
Anne McLaughlin
I will come on to that point shortly.
The fundamental point is this: why should we as Members of Parliament be expected to vote through legislation that is to be reviewed? That seems an unprofessional way—to say the least—to do business, and I would feel very uncomfortable crossing my fingers and hoping for the best. I also appeal to Labour colleagues to be a little more circumspect about trusting this Government with their votes today.
Let us take a look at one of the countries I mentioned earlier that has already reviewed bulk powers—the USA. The Snowden revelations revealed that the National Security Agency was running a bulk domestic telephone records programme. The NSA and others put up a strong case for maintaining it. The NSA produced a dossier of 54 counter-terrorism events in which, it said, bulk powers contributed to success in countering terrorism, but two entirely independent American bodies reviewed all 54 counter-terrorism cases and determined that only 12 had any relevance to the use of bulk powers under section 215 of the USA Patriot Act 2001.
One of those groups—the President’s Review Group on Intelligence and Communications Technologies, which is a very well respected, high-powered and independent body, set up under the auspices of President Obama—concluded:
“Our review suggests that the information contributed to terrorist investigations by the use of section 215…was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders.”
The other body—the Privacy and Civil Liberties Oversight Board—concluded similarly. It said that it had
“not identified a single instance involving a threat to the United States in which the program”—
meaning the use of bulk powers—
“made a concrete difference in the outcome of a counterterrorism investigation.”
It went further, saying that it was
“aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
Whatever I think the outcome of the review will be—none of us knows, because it has not happened—it is none the less a recognition that the Government have failed to convince both the House and wider society of the necessity of the powers.
Joanna Cherry (Edinburgh South West) (SNP)
Does my hon. Friend agree that it is vital that the independent review looks at the American experience, given that America is one of our chief allies? Does she also agree that the Opposition should seek an assurance from the Government that the independent review will do so?
Anne McLaughlin
It would be very helpful if the Opposition secured that. We should not just follow suit—we support the review, but will not say, “Do as America does.” We must conduct our own review. Given the extent to which the Americans have looked at this, we need the same access.
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.
Keir Starmer
Obviously, I should be very interested to hear how that could be done at the outset, and I am sure that the Minister would as well.
Let me make two points to emphasise why there is such concern about bulk powers. It may well be possible, depending on the parameters that are set, to reduce the likelihood of obtaining through bulk powers material that is sensitive in one shape or form, but I do not think it is possible to eliminate it. It may well be that most of that is done at the filtering stage, rather than at the stage of the initial exercise of the bulk power. I am not seeking to explain why bulk powers inevitably capture such information, or to justify that; I am simply explaining why I think so many people are concerned about the bulk powers. That is why Labour has made it clear that, given the breadth of the powers, the operational case for them must be properly made and properly reviewed, and that is why the safeguards must be reviewed.
The issue of the safeguards may need to be revisited when the Bill is in the other place. As the right hon. Member for Haltemprice and Howden knows, the Tom Watson and David Davis case is currently midway between the Court of Justice of the European Union and the Court of Appeal. Although it touches on existing legislation and retention powers, it may have implications in relation to the Bill when it is given further consideration, and will certainly be important when it comes to consideration of safeguards. Let me also, in passing, echo the concern expressed by the right hon. and learned Member for Beaconsfield (Mr Grieve) in relation to operational purposes, an issue which also arose in Committee.
As for the review, the first stage is to ask whether the operational case has been made. I referred yesterday to an exchange of letters between the Minister and me. I hope that copies of the letters have been made available; I think that they have been made available to the House, and that every Member has them. However, I want to put on record what was being asked for, and what the response was. Let me say at the outset that this was a constructive exchange, which moved a significant issue significantly further forward.
I wrote to the Minister that the review to be carried out by David Anderson should be
“supported by a security cleared barrister, a technical expert and a person with experience of covert investigations”,
that it should
“Examine the operational case for the bulk powers in the Bill, not merely in respect of the utility of the powers, but also their necessity”,
that it should
“Have access to all necessary information as is needed to undertake the review effectively, including all information provided to the Intelligence and Security Committee”,
and that it should
“Take about three months to complete and…report to the Prime Minister in time for the findings to inform Lords Committee considerations of Parts 6 and 7 of the Bill.”
The Minister’s reply is important, as Members who have had an opportunity to read it will appreciate. He wrote:
“I can confirm that the basic framework for the review will be as set out in your letter…David Anderson has hand-picked this team and we are confident that together they have the range and depth of knowledge needed to undertake a comprehensive review.”
I was very anxious that David Anderson should pick as members of his team people whom he considered to have the necessary competences to help him with the review that he has been asked to carry out independently, and I am pleased that he has done so. I have been assured by him that he is very happy with his choices, and with the skills from which he will benefit as a result of that exercise.
The Minister’s letter continues:
“In relation to your second point”—
this is really important—
“it is absolutely the case that this review will be assessing the specific question of whether the bulk capabilities provided for in the Bill are necessary. The review team will critically appraise the need for bulk capabilities, which will include an assessment of whether the same result could have been achieved through alternative investigative methods.”
That goes to the heart of the issue. If that is the focus of the review, it will give comfort to the Labour team—and, no doubt, to members of the Scottish National party, notwithstanding their concerns—and to all our constituents as well.
Joanna Cherry
Does the hon. and learned Gentleman agree that the timetable for this independent review is such that, whereas the House of Lords will have time to scrutinise and debate it, the House of Commons will not? Does he agree that that is not acceptable in a democracy?
Simon Hoare
In a moment, because I want to give the hon. Lady the benefit of the words of Rudyard Kipling. I do not personalise this to her; rather I make it as a general point to her party. The SNP has demonstrated:
“Power without responsibility—the prerogative of the harlot throughout the ages.'”
The SNP is using a position of power to malign and undermine, as it has continually sought to do, the confidence of this House and of the country in the robustness and ethics of those in our security services, who, day in, day out, seek to use—I agree with the point made by the shadow Minister that they also require this—the public confidence that they have in order to make sure they have the right skills and tools to keep our constituents safe.
Joanna Cherry
I very much resent what the hon. Gentleman is saying. Is he aware that one of the founding members of the SNP, Sir Compton Mackenzie, was a member of the British security services? Is he aware that in Scotland we have one of the best records of crime prevention in the world? Is he aware that we have responsibility in Scotland—we run the Scottish Government and are now into a successful third term? Will he please reconsider his remarks, which SNP Members and most people in Scotland will find deeply offensive?
Simon Hoare
All I will say to the hon. and learned Lady, once she has calmed down from her faux anxiety, is that Compton Mackenzie must be turning in his grave, because there is a significant dereliction of duty here. One would think—this may be the case in Scotland, and if so, SNP Members must forgive my ignorance—that there is no organised crime, and that there are no paedophiles, people traffickers, terrorists and drug dealers. One would think there are no people who are trying to do us ill. Perhaps, to use the analogy of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), it is the view of the SNP that a quick rifle through a mail sack and the identification of a particular hand in a quill pen will be sufficient to interrupt some terrible deed. That may very well be, and SNP Members may be right that that will satisfy their constituents. I can tell them that it will not satisfy mine. My constituents look for the Government of the day, irrespective of the stripe, to carry out with seriousness and with democratic accountability the first duty of the state, which is to protect the realm and its citizens.
Simon Hoare
I am inclined to agree with the latter point, but at every step and turn, every SNP amendment, on my reading and on my hearing and my understanding, has been designed to delay and frustrate. We have had the canard that has run through the debate that we have not had adequate time to debate and discuss these issues. I will not rehearse the times, Mr Deputy Speaker, because you know them. You know how many Committees of this House have looked at the matter. The Bill Committee stood for a long period of time. We had a long debate on Second Reading. The Government, and the Ministers in particular, have bent over backwards to ensure that they can land this Bill in a shape and form that is acceptable to the vast majority of Members of this House and, one would hope, of the other place.
Joanna Cherry
If the hon. Gentleman thinks that all the amendments laid by the SNP were designed to delay or frustrate the Bill, how does he explain why his own Government accepted new clause 6 on “Civil liability for certain unlawful interceptions”—I do not know whether he was in the Chamber yesterday—which was an amendment tabled by me on behalf of the Scottish National party? I say again, perhaps he would like to reconsider his comments carefully.
Simon Hoare
Heaven rejoices when a sinner repents. Of course, Mr Deputy Speaker, it is marvellous news that there has been one amendment out of about 127,000 amendments that the SNP has tabled throughout this process that has been acceptable to Her Majesty’s Government. [Interruption.] Oh, it was just 1,000. It felt like 127,000. Forgive me. This is the fundamental point. The hon. and learned Lady is right, and that is why I find it surprising. The SNP is clearly a grown-up and mature party. It is now in its third term of government in Edinburgh. It will be discharging some of these duties. It will be consulted on different things by Ministers and by those responsible for appointing commissioners and all the rest of it. There seems to be a rather peculiar disconnect between the seriousness with which the SNP takes the duties of governance north of the border and this impression of flippancy it gives when it comes to national security.
Mr Carmichael
I am grateful to the Minister for that. We are now best served by allowing Mr Anderson to get on and do the job that we have given him. I merely say in passing that it would have been better if we had given him that job some time ago, so that this House might have had the benefit of his conclusions when debating this whole matter. None the less, I welcome the conversion of the Government, however late in the day it may have come, to the need and to the acceptance of what even the Labour party has said, which is that the operational case for the extent of the bulk powers that the Government have sought to introduce in this Bill has not yet been made. The operational case that they have published has been vague, to be kind to it, and it has certainly been lacking in any persuasiveness.
We will look very closely at David Anderson’s conclusion with regard to the necessity of these powers, because that should have been the first test that was set and that was required to be met. I take very little issue with the right hon. and learned Member for Beaconsfield (Mr Grieve), or indeed the hon. and learned Member for Holborn and St Pancras, when they talk about the protections that they think should be built into the Bill. Protections are necessary only if the powers are first judged to be necessary, which comes to the very heart of the points made by the hon. Member for North Dorset. The Bill has very much been a work in progress and I wonder whether we would have had the 104 Government amendments we had yesterday and the 20 that we have today, never mind those tabled by the Intelligence and Security Committee, by those on the Opposition Front Bench and by the Scottish National party, if the House had taken the approach to the Bill and its scrutiny that was being urged on us a few minutes ago.
On the question of bulk personal datasets, I share the substantial concerns that have already been expressed. That brings me back to the objection that I have already spoken about—to the operational case. That is another aspect of the Bill that the Government have failed to explain. The operational case is perhaps even more opaque than anything else in the Bill. Although the abuses—let us use that term—outlined by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and acknowledged by the right hon. and learned Member for Beaconsfield might be at the lower end of the scale, I have a strong suspicion that it was because they were at the lower end of the scale that they came into the public domain in the first place. When we are dealing with something that strikes in such a fundamental way at the relationship between the citizen and the state, there is, frankly, no such thing as a trivial abuse. Any abuse is serious, any abuse is to be taken seriously, and that is why I thought that the hon. and learned Lady was right to bring them to the House’s attention.
Joanna Cherry
I thank the right hon. Gentleman for his generous and measured comments earlier about the SNP’s role in the Bill. To pick up on his point, is not the problem that once the warrants have allowed bulk data to be scooped up there is no legal regulation of how it is analysed, which is why these individuals within the security services were able to break the rules—there are no warrants; it is about internal regulation?
Mr Carmichael
The hon. and learned Lady is absolutely right, and I draw on my own experience when I say that in giving power to public authority in this way it is important that we should be as specific and prescribed as possible.
To draw on my experience, I recall the passage of the Criminal Procedure (Scotland) Act 1995. At that time, I was a procurator fiscal depute in Aberdeen and one of the innovations introduced in the Act was the ability of a prosecutor to comment on previous convictions before a jury in Scotland. I have no doubt that at that time all sorts of undertakings were given at the Dispatch Box, but when we as prosecutors—and, I like to think, fairly measured prosecutors in the public interest—saw that provision, the discussion did not centre around how the undertakings had been given at the Dispatch Box but how we could use it, its extent, where the boundaries would lie and what would constitute a step over the line and a step just inside it. There were always some in the office who were quite keen for the line to be a little bit elastic.
That is a much more trivial example, because of course it was a measure for which there would have been obvious and immediate judicial scrutiny. If any depute were to overstep the mark in court, it would be immediately obvious and they would be pulled up on it. There will not be the same scrutiny, there is not the same oversight and we ask a great deal of those who serve in our security services if we give them such a wide range of powers with so little definition. The lack of definition, the lack of proportionality and the lack of necessity underpin my concerns, which, I think, are shared in other parts of the House.
Seema Kennedy
It is a great honour to follow the hon. Member for Belfast East (Gavin Robinson).
Many right hon. and hon. Members have spoken with great experience and expertise through the various stages of the Bill. Listening to the high quality of debate, especially yesterday, I was struck by the thought that if we conducted all our business in this Chamber in this manner, our stock and our currency as Members of Parliament might rise a little with our constituents and other members of the public.
I feel humbled to speak on this crucial piece of legislation and, specifically, against the amendments tabled by the SNP. This Bill is designed above all to keep our constituents safe from harm. Some hon. Members may know that I grew up in the Tehran of the 1970s. Though now fondly remembered for its nightclubs and miniskirts, it was a city pervaded by the fear of SAVAK, the brutal secret police whose agents infiltrated every factory, every school and every park, so I am compelled to say that I have witnessed, and my family has witnessed, mass surveillance, and this is not it.
The SNP amendment would effectively remove parts 6 and 7 of the Bill, which deal with bulk warrants and bulk data sets. These show our adversaries that we will use every technological tool to keep ourselves secure, but we will not compromise on our principles.
Joanna Cherry
I do not know whether the hon. Lady was present at the time, but on Second Reading I made it very clear that the SNP was not calling the Bill mass surveillance; we described it as suspicionless surveillance. Does she agree that parts 6 and 7 permit suspicionless surveillance?
Suella Fernandes (Fareham) (Con)
It is a privilege to speak in this debate, and indeed to have participated in the Committees that have considered the Bill: I was a member of the Joint Committee that scrutinised the draft Bill in February, and I was also a member of the Bill Committee earlier this year. I want to put on the record my appreciation of the Labour party’s constructive and fruitful contributions. This vital legislation has come far since its first iteration. It is an example of cross-party collaboration, so I am glad that party politics has been put aside in the name of national security. I urge all Members of the House to act in such a manner when we go through the Lobbies later today. However, judging by the words of the hon. Member for Glasgow North East (Anne McLaughlin), I do not think that will be the case.
I rise to speak against amendment 309 and the others relating to bulk powers. The Scottish National party Members says that those powers are disproportionate, that they have no utility and that they are therefore unlawful. The amendments propose removing most of parts 6 and 7, from clause 119 onwards, and with them the three types of bulk power afforded to our security and intelligence services—bulk interception, bulk acquisition of communications data and bulk equipment interference. Those powers allow for the collection of large volumes of data and are set out in clause 119 onwards. Further warrants are required before those data can be examined. The purposes of such examination, which are set out in the Bill, may be to pursue more information about known suspects and their associates or to look for patterns of activity that may identify new suspects. Crucially, those powers are not afforded to law enforcement services.
I have a few points to make. First, these powers are founded on a clear and robust legal basis. They are all available to the agencies in existing legislation. Bulk interception is covered in section 20 of the Regulation of Investigatory Powers Act 2000. Bulk communications data are covered in section 94 of the Telecommunications Act 1984. Bulk equipment interference is covered in sections 5 and 7 of the Intelligence Services Act 1994. If amendment 390 and the others were passed today, we would remove the vital powers on which our agencies rely to do their jobs and we would prevent them from acting on those powers.
Secondly, these powers are not novel or a quirk of the modern age; they have been around for decades. Back in world war one, our intelligence services tracked the worldwide network of German cables under the sea by using secret sensors. They were able to intercept telegraph messages on a bulk basis, looking for patterns in communications and signals from the enemy.
When cables ended, radio surveillance was necessary to break codes during world war two. That involved bulk interception of data by hand. That work was famously based at room 40 of the Admiralty. Alan Turing and his team at Bletchley Park would never have cracked Enigma were it not for the bulk interception of cyphers. That advanced cryptanalysis changed the course of history by enabling the allies to pre-empt enemy planning, saving countless lives and shortening the war.
Joanna Cherry
Does the hon. Lady agree that the difference is that, in the days of Bletchley Park, we were at war? We are not at war now. What we are concerned to do here is not to assist this country’s enemies, but to protect the privacy of the people who live here, who include her constituents.
Suella Fernandes
I am astonished by the hon. and learned Lady’s suggestion that we are not at war. Paris, Brussels, Jakarta—I do not need to go on. We are engaged in a worldwide conflict against Daesh, and it is a threat to our security every day and every night.
Kevin Foster
I thank the hon. Lady for that helpful and interesting intervention. First of all, I would not want to prejudge the review. In addition, if the review came back to us and said that these powers were absolutely right, and that they were vital for national security, I hope that we could look forward to the SNP’s immediate and wholehearted support. I have a funny feeling that we might not, however.
Let us not prejudge the review. As the Front-Bench spokesmen touched on in their exchange at the Dispatch Box, it is highly unlikely that if the review stated that something specific was not needed, such a measure would be proceeded with. How do we know what an independent review will come back with? If I knew, and I stood here and said so, the next accusation would be that the review was not independent because we already knew what it would come out with. That point does not support making the amendments, which remove these powers completely.
I have been satisfied by the changes that have been made throughout the process, as the Bill has come out of Committee into Report. Judicial safeguards have been strengthened, and there is now a stronger and more consistent judicial test for review of these warrants. Powers have been increased, as have the offences that apply if someone misuses data. The Government are striking the right balance between what we need in order to get hold of data that could keep our country safe, and the legitimate expectation of privacy. If data have been collected that are of no use, they can be removed and they will not be used for purposes beyond the original basis of the warrant.
Ultimately, in any unjustified use of a warrant, the Secretary of State remains answerable to this Parliament. If, for example, someone decided for some unknown reason that it would make sense to go into detail about political or trade union affiliation, they would be answerable to this House, and a Secretary of State would be most unlikely to survive that.
Joanna Cherry
Does the hon. Gentleman agree that the Secretary of State would be answerable to the House only if such activity came to light? It might not come to light.
Kevin Foster
I take on board the point that the hon. and learned Lady makes. However, as my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) mentioned, the Intelligence and Security Committee would almost certainly oversee what was happening. As was touched on with the Minister, although the Committee is not involved in live intelligence work, it carries out reviews and, as discussed in relation to one of the probing amendments tabled by my right hon. and learned Friend, there is an understanding of an exchange of information. I think it is highly likely that such activity would come to light eventually. Clearly, a Secretary of State who had sanctioned that would know that, bluntly, their job was over.
The powers in the Bill are proportionate to their aims. They have appropriate safeguards, and more work will be done following the review. It is wrong to prejudge an independent review by constantly asking, “What happens if they say no?” To put it the other way around, what happens if they say yes? I do not think that the amendments are right at this stage. It is appropriate to retain these parts of the Bill, and that is certainly what I will vote to do.
Tom Tugendhat
It is a pleasure to serve under your chairmanship, Madam Deputy Speaker, particularly as you are appropriately attired in something that may indeed be collecting bulk data.
We are talking about amendments that would fundamentally undermine the very Bill that we have come to support, and would change the very tone of the debate. I speak very much in support of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who has gone through various aspects in quite significant detail, explaining to us time and again why the controls over the collection of bulk data are entirely appropriate. I also speak in support of the hon. and learned Member for Holborn and St Pancras (Keir Starmer), who has been through the Bill with the eye he has as a former Director of Public Prosecutions, seeing both the loopholes and the potential abuses, and covering them off.
I also speak in support of the Solicitor General, who has done exactly the same for us, and the Minister for Security, who has brought forward a Bill that answers the very questions that this state must always ask itself: how we guard our citizens and keep them safe while also keeping them free. This Bill does exactly that.
My first encounter with bulk data collection came in the constituency of my right hon. and learned Friend the Member for Beaconsfield, where the Defence School of Languages was sited. I was going through vast amounts of Arabic text. Although I was doing so in a most junior and rather ineffective manner, I learned how it was done properly. I was only a student; the masters have learned from that great Scots mathematician John Napier, who in the 17th century developed the logarithm, and whose lesson to us all, through mathematics, is how to build the pattern, understand the shape and break the code. That is why bulk data matter. We cannot build patterns without data and without volume, and we cannot make shapes without substance.
The bulk data are not themselves intelligence. As an intelligence officer in Her Majesty’s armed forces I was very proud to work on intelligence. It is not the raw product. It is what is analysed, what is useful and what decisions can be made from. That is not the bulk or the mass—the intelligence is the product. I am sorry to say that there appears to be a slight misunderstanding as to what is the intrusion. The intrusion is surely not the clay from which the form is made, but only the detail on the individual that could be used against them. The Bill does not allow that without the tightest of safeguards, both from former judges and from serving Ministers.
Joanna Cherry
Is the hon. Gentleman aware that once the bulk data are collected by warrant there is an intermediate stage in which they are analysed in the way that he describes, but there is absolutely no legal regulation of how that analysis is carried out? That is our objection. How can I make it any clearer?
Tom Tugendhat
The hon. and learned Lady speaks with her usual eloquence, but I am afraid I am going to refer her to schedule 4, part 1, which is a table containing a list of authorities and officers. The people who analyse are listed there. They are inspectors and superintendents of the Prison Service; lieutenant commanders and commanders of the Royal Navy; majors and, as in my case, very junior lieutenant colonels of the Army; squadron leaders and wing commanders; general duties officers of grade 4 and above; and Secret Intelligence Service officers.
There is a list—a catalogue—in schedule 4 of people in our country, men and women across these islands, whom we have trusted with the intelligence procurement for our nation to keep us safe. It is they who will be doing the analysis, under supervision. It is only when they have got something that is worth taking that they will be allowed to use it. That is the provision we are talking about and the type of supervision. People will not be allowed simply to collect and analyse. They will be allowed to collect and analyse only under warrant. That is absolutely essential.
Joanna Cherry
I repeat again: does the hon. Gentleman accept that no warrant is required to carry out the initial computer analysis? Does he understand that that is what those of us who were on the Bill Committee and who have worked on the Bill for months uncovered? Unlike some of his colleagues, who shout from a sedentary position that we do not understand this, we do understand it—we have been analysing it for months. Does he understand that there is no regulation by warrant of the analysis carried out by the individuals that he describes? That is the nub of the matter.
Tom Tugendhat
The hon. and learned Lady is, I am afraid, picking on a hole in the Bill that is simply not there. [Interruption.] It is not there because the collection of bulk data is entirely categorised by the Bill. The Bill supervises entirely the ability to collect bulk data. The analysis is then done by trusted officers of the state. To accuse them of anything other than the highest forms of integrity would be an extraordinary statement to make in the House.
Mr John Hayes
What an interesting and important debate we have had. This group of amendments addresses bulk powers. It is right that we should consider these matters in considerable detail because, as has been said by Members from across the Chamber, they are matters of profound importance and public concern. The public want to be assured that the safeguards we put in place for these vital powers are right, adequate, properly considered and properly reviewed. Many hon. Members have contributed to the debate. Tellingly, the hon. Member for Belfast East (Gavin Robinson), my hon. Friend the Member for South Ribble (Seema Kennedy) and the hon. Member for Fermanagh and South Tyrone (Tom Elliott) spoke with personal experience of terror.
We all know the scale and nature of the threat we face, but though we know it, that does not mean that it should not be explored again and again in this House. For to explore it is to realise what we need to counter it. That is precisely what was done in speeches by hon. Members from all sides of the House. The threat is real, imminent and unprecedented in character. Our opponents are increasingly adaptable and flexible. Although their aims may be barbarically archaic, their means are up to date. They are entirely modern. They are prepared to use every device and every kind of communications medium to go about their wicked work, which is precisely why the Bill does what it does, why bulk powers matter and why the amendments that stand in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry), which I will deal with in a moment, are not ones I can accept—that will not come as any surprise to her, by the way.
An argument has been made that the operational case for bulk powers needs to be fleshed out more fully. Hon. Members will know that the Government did just that when they published the operational case for bulk. That informed the Committee consideration, which has been referred to several times during our short debate today, and has been a helpful way of establishing why bulk powers really count.
We are dealing with powers that have played a significant part in every major counter-terrorism investigation over the past decade, including in each of the seven terror attacks disrupted since November 2014. These powers enabled over 90% of the UK’s targeted military operations during the campaign in south Afghanistan, and they have been essential to identifying 95% of the cyberattacks on people and businesses in the UK discovered by the security and intelligence agencies over the past six months. My hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) is right to say that this is about real life operational necessity. I congratulate my hon. Friend the Member for Fareham (Suella Fernandes) on the role she played both on the Joint Committee and the Bill Committee. The threat she described so vividly is, as she said, worldwide and of a kind that would allow us to do nothing other than take the necessary steps to counter it in the defence of our freedoms.
I was perhaps a little unkind to the hon. Member for Glasgow North East (Anne McLaughlin) who spoke for the Scottish National party, although I make no apology for reprising what I said. Frankly, her contribution missed the point. The point is not whether the powers are necessary; it is whether we can put in place sufficient safeguards to ensure that they are used only when, how and where they should be. That was the point made by the Chair of the ISC and by the ISC when it had the chance to consider these matters. As the Chair of the ISC said, it then also had a chance to reconsider them, having been given further information of a secure kind—that is its function after all—and its members were persuaded that the powers were indeed necessary. It is right to have an informed, thoughtful debate about safeguards, checks and balances, and constraints, but we cannot have a grown-up debate about whether the powers count, because they are not new; they are existing powers. The Bill simply introduces additional safeguards, which I would have thought any reasonable Member would welcome.
Joanna Cherry
I gently suggest to the Minister that, as we have seen already this afternoon, patronising those of us who have taken the trouble to scrutinise the Bill, speak on it in detail and try to understand it does not get us anywhere. If the Government’s operational case for investigatory powers is so convincing and overwhelming, why have they now conceded the need for an independent review?
Mr Hayes
Let me repeat two things I said yesterday. First, the members of the Bill Committee all made a useful contribution, and the hon. and learned Lady is of course one of them. Secondly, the Government, in wanting to get the Bill right, are prepared to listen and learn, as Governments should be. I have been in the House for a number of years, and there has not been a single piece of legislation that has not been better for having received proper scrutiny, that has not altered during its passage and that has not been a better Act as a result of consideration by the House. We should be proud of that. I was simply saying that to focus on some of the detail around safeguards seems to be absolutely right, whereas the debate about the necessity of the powers has already been had. I think there is a general acceptance that the powers are necessary.
Mr Hayes
I do not know if the hon. and learned Lady was listening, but I read out three things: 90% of operations in Afghanistan, 95% of cyber-attacks, every single major counter-terrorism investigation over the last decade. I cannot be plainer about the necessity, but because the Government are so determined to ensure adequate safeguards, we have agreed to a further review. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer), generously said, the review is to be completed in exactly the form that emerged as a result of the discussions between the Opposition and the Government—an illustration of the House behaving at its best. The review, chaired by David Anderson, will be able to look not just at utility—the point I made to the Chair of the ISC—but at necessity, and it will be independent.
Andy Burnham
I am grateful for what the Minister has said. It must be possible to find a definition that excludes casual or voluntary bloggers from individuals who make their living from writing or who work for organisations regulated by the Independent Press Standards Organisation or other regulators.
Joanna Cherry
I and my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands) have added our names to the amendments tabled to clause 68 by the right hon. and learned Member for Camberwell and Peckham (Ms Harman), and we will give them our support if they are pushed to a vote. However, does the right hon. Gentleman agree that it is regrettable that the opportunity has been lost at this stage to have uniform protection across the face of the Bill for communications with journalists, lawyers and parliamentarians?
Andy Burnham
I made a similar point yesterday, when I said that it would have been helpful had we made more progress on these issues, and perhaps I can push the Minister on this, because I know he is meeting the Law Society and the Bar Council later this week.
The truth is that this raises quite complex issues. With all three professions, a slightly different set of issues arises, and we should not rush to legislate. We should move on the basis that we know what we are trying to achieve, which is to protect the ability of the public to go to an MP without fearing that there is any compromise on a private discussion. We want legal privilege—the privilege that belongs to the client—to be protected. We also want journalists to be able to protect their sources, as they want to do. If we work with the Government on that basis in good faith, I believe that we will be able to come to the right position.
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
Thank you very much, Mr Speaker; I have almost forgotten what the intervention was—[Interruption.] I do not doubt that, but to answer it, we do not know what ICRs are at the moment. They are not clearly defined—the shadow Home Secretary made that point himself earlier; nor do we know how effective they will be. People in the industry tell me that current technology, such as Tor, virtual private networks and what have you, may render them useless. We do not know what ICRs are at the moment, so I have to be honest with the shadow Home Secretary: I do not have all the answers.
Joanna Cherry
My hon. Friend sat on the Bill Committee with me and will remember that we heard evidence that if, for example, he wanted to see whether a missing child had been on Facebook, all that the internet connection record would show was whether they had been on Facebook, not whom they had been in contact with. Does he therefore agree that the utility of internet connection records for tracing missing children, which we all recognise is of the utmost importance, is perhaps being rather overblown?
Gavin Newlands
I wholeheartedly agree with my hon. and learned Friend.
Before I was intervened on the first time, I was saying that the Joint Committee on the draft Communications Data Bill said that
“storing web log data, however securely, carries the possible risk that it may be hacked into or may fall accidentally into the wrong hands, and that, if this were to happen, potentially damaging inferences about people’s interests or activities could be drawn.”
It is clear that the intelligence services and the police need powers that befit the digital age in order to keep us safe and to catch perpetrators. However, when seeking to introduce powers as intrusive such as ICRs, it is incumbent on the Government to ensure that their case is watertight. As my hon. and learned Friend said in Committee, we very much hope to be an independent country writing our own security policy, so we do not take our opposition to such measures lightly.
In drafting such a proposition, with such a loose definition, the Government are asking us all to trust them and to sign a blank cheque to allow the wide use of such powers without knowing what their full impact, costs or consequences will be. The Home Office has said that companies will be reimbursed for the additional costs placed on them, but that commitment does not appear in the Bill. The Government have earmarked £175 million to reimburse companies for the costs of meeting their new responsibilities. However, most in the sector believe that is a vast underestimation of what the true costs will eventually amount to. Owing to uncertainty about the extent and definition of ICRs and the extension of communication service providers that will be affected by the proposed provision, the cost is difficult to estimate, but industry figures have told me that they expect it to be anywhere between £1 billion and £3 billion.
I appreciate that the Minister, in a letter to the Committee, reiterated the Government’s intention to bear the cost of implementation, but without clearer information we cannot expect Parliament to sign a blank cheque. Between £175 million and £3 billion is a rather large range, and at a time when disabled people are losing benefits and the WASPI women cannot get the pension they were promised, this seems a rather anomalous and large black hole in potential Government spending. I have said in the past that the Government know the cost of everything and the value of nothing, but in this case they do not even know the cost.
This is a global problem and as such requires a global solution, and it is important that we reflect on what other countries have done to address the issue and that we learn any lessons from their experiences. It is unfortunate, therefore, that a similar scheme of logging data in Denmark has recently been abandoned. That scheme operated for seven years, and although I accept that there were differences in that scheme, there were many similarities. Upon its abandonment, the Danish security services expressed their view about the difficulty of being able to make proper and effective use of the large amount of data that had been gathered. It seems that, instead of spending their valuable time locating criminals, the security services will spend most of it working on spreadsheets and filtering out the useless from the useful. It should be noted that the Danish ICR model was proving too expensive and the cost spiralled out of control, that Australia considered the proposal but decided not to pursue it, and that, as we have heard, the United States is rescinding many of its intrusive powers and moving in the opposite direction.
It is for those reasons that we believe the case for ICRs has simply not been made. The Government have failed to convince us, and those working in the industry, that ICRs are necessary, proportionate and in accordance with the law. We tabled an amendment to remove them from the Bill, but it was not accepted, which leaves us no option but to vote against the Bill in its entirety. That is not a step that we take lightly, but, ultimately, it is a necessary step.
In the event that we are unsuccessful in bringing down the Bill, we will still attempt to ameliorate aspects of it in order to protect smaller companies, especially those that supply lifeline and low-profit services to rural communities. New clause 26, which I tabled along with SNP colleagues, would exclude the providers of rural or community access communication services and small service providers from the obligation to collect and retain data. I have mentioned the deep concern in the sector about the expense that the Bill will impose on industry. I am sure that the Government will not want to put any businesses in a perilous situation, particularly those that operate with smaller cash flows and tighter margins in rural Scotland in order to provide a vital service for their local communities.
The Committee was provided with written evidence stating that smaller internet service providers were still subject to the same demands as the much larger organisations that operate on the world stage. Organisations such as HUBS are supplying vital internet connections to some of the most remote communities. If the Government railroad these clauses through the House without proper regard for the impact they will have, they will seriously endanger those small businesses and restrict internet use for some of our rural communities.
The Solicitor General
It is a pleasure to speak at the end of a wide-ranging but important debate about the new power on internet connection records. It is right to remind ourselves of the context of the debate. Only last week, two individuals received significant prison sentences in Britain’s biggest known gun smuggling operation. It was analysis of communications data that provided vital evidence in that case. It allowed the investigative team to attribute telephone numbers and SIM cards to the defendants and to identify key locations.
However, communications data are changing. The world in which the hon. and learned Member for Holborn and St Pancras (Keir Starmer) and I started out practising is no longer the world as it is today. Telephone calls are very often not the means by which criminals and terrorists conduct their activity. Much of that has moved on to the internet via WhatsApp, via internet chatrooms and via the electronic internet communications that have become the mainstay of many criminal enterprises. It is vital that the legislation that we pass in this House not only attempts to keep pace with this breathtaking change, but tries to get ahead of it as far as possible.
Joanna Cherry
The Solicitor General will be aware of an exchange that I had earlier with the right hon. and learned Member for Beaconsfield (Mr Grieve) about the fact that there are other ways in which law enforcement agencies can obtain internet connection records. Does the Solicitor General agree that that includes getting the data retrospectively for specific targets from operators who already temporarily store such data for their own business purposes? It would therefore be misleading to imply that the provisions in the Bill are the only way of getting at internet connection records for the purpose of solving specific crimes.
The Solicitor General
I take what the hon. and learned Lady says advisedly. It is not good enough to rely purely on third parties to provide the sources of evidential leads. Government must take a lead in this. We are not in the scenario of building our own database, which has rightly been rejected as unfeasible and an unacceptable increase in state power. This is about requiring third parties to retain for up to 12 months information that could provide the sort of evidential leads that up till now have conventionally been provided by observation evidence and via telephone and SMS evidence that is increasingly becoming obsolete. This is about the Government doing their duty to the people whom we serve and to the country that we are supposed to defend, and doing our duty to protect our citizens.
I shall deal as best I can with the amendments in turn. I am grateful to my hon. Friend the Member for Stevenage (Stephen McPartland), who spoke to the issue of the request filter. That is a filter that will be maintained by the Secretary of State. It does not hold data of itself; it is a safeguard. It is there to prevent collateral information being provided to the public authority. It is an innovation and it specifically limits the communications data retained to only that which is relevant.
I would argue that the measure is essential because it serves the interests of privacy that have formed such a part of the debates in this House, and it will help to reduce error. The filter will accept only communications data disclosed by communications service providers in response to specific requests from public authorities, each of which must be necessary and proportionate. Any irrelevant data that do not meet those criteria will be deleted and not made available to the public authority. My hon. Friend has tabled probing amendments, and I know that that is the spirit in which he has initiated debate.
On the question of review, I am entirely sympathetic with the desire for ongoing review of the Bill’s provisions, but that is already provided for. The operation of the Act is to be reviewed by the Secretary of State after five years, which is entirely appropriate. This Bill will need some time to bed in, and time will be needed to see what effect it has had. My concern is that a two-year review runs the risk that we will not be in a position to properly assess its impact. For those reasons, I urge hon. Members who have tabled amendments relating to the review to accept the argument that I submit and to withdraw the amendments.
We have had much debate about journalists. Quite rightly, we have sought to focus on journalistic material because there is a danger in this debate, as with MPs and as with lawyers, that we focus upon the individual and the role, as opposed to the interest to be served. Journalists serve a public interest—the vital importance of freedom of expression in our society, freedom of speech, freedom of thought, and that vital aspect of journalism, the non-disclosure of the source of journalists’ material.
The Government are very cautious and careful about the way in which we seek to deal with these matters, which is why we have tabled the amendments that have already been spoken to by other Members. The placing of the stringent test in amendment 51—the public interest in protecting a source of journalistic information—is further evidence of our continued commitment to protecting the freedom of the press and freedom of expression in our country. As my right hon. Friend the Minister for Security and I have already said, we have listened to the strength of feeling on the matter and will consider whether further protections, over and above the significant protections that already exist under PACE in relation to journalists themselves, are appropriate where the collateral effect of warranted intrusion discloses their sources.
Let me therefore deal with the question of ICRs and their definitions. My right hon. Friend the Minister for Security, in an intervention on the shadow Home Secretary, has set out clearly the Government’s position on how we would view the threshold. The right hon. Gentleman quite rightly accepts that this is not an easy task and that we must get it right. We do not want to exclude offences such as stalking and harassment, for example. We want to ensure that the threshold is robust but actually makes sense in the context of the new powers of ICRs. I look forward to that work being ongoing.
Let me deal with the question of definition. I can be clear today once again that the Bill does not require companies to retain content, but I am willing to consider any amendments that further improve definitions in the Bill, as another opportunity for meaningful dialogue to take place so that we get the definition absolutely right. I know that that is a concern not only of the shadow Home Secretary, but of other right hon. and hon. Members.
Let me move on to the SNP amendments. I am grateful to the hon. Member for Paisley and Renfrewshire North (Gavin Newlands), who has been consistent in his argument today, as he was in Committee. With respect, however, I have to say that that consistency is misplaced. There is an important issue here about access to communications data that I think would be jeopardised in a way that would be prejudicial to the public if judicial commissioners became involved. I do not think that there is any utility or public interest to be served by the introduction of judicial commissioner approval for communications data acquisitions, because we are talking about a great volume of material. Also, the highly regarded single point of contact regime has already provided expert advice and guidance to authorising officers, and that is placed as a mandatory requirement in the Bill.
There are many other amendments that I could address, but time does not permit me, save to say that our commitment to protecting the public and ensuring that our legislation is up to pace with modern developments is clear, so I urge right hon. and hon. Members to support our amendments.
Joanna Cherry
I start by placing on record my thanks to all the organisations that have supported and advised the Scottish National party during the passage of the Bill. I said at the outset of the debate yesterday that I made no apology for tabling so many amendments and I stick by that. This is one of the most lengthy and complex Bills that the House has debated for many years. The powers it seeks to give to the state are immense and far-reaching. The Bill is of huge constitutional significance, yet we have had fewer than two full working days to debate it on Report. Accordingly, the number of amendments that could be put to a vote was just a very small proportion of the number tabled.
The SNP wants to give the security services necessary and proportionate powers to fight terrorism; we wanted to support those parts of the Bill that maintained and codified law enforcement’s existing powers; and we would have been happy to support an enhanced oversight regime. However, so long as the Bill allows such significantly unfettered collection of, and access to, communications data, including internet connection records, we cannot give it our support. Neither can we support a Bill that sets out such far-reaching powers to acquire the personal and private data of our constituents, while a proper case for the necessity of those powers has yet to be made out.
We have been happy to support some Government amendments, including new clause 5, which appears to recognise the importance of taking into account the right to privacy and other human rights, but such concessions as the Government have made have been vastly exaggerated by both the Government and, I am sorry to say, the main Opposition party. There has been a great deal too much mutual congratulation. Only the SNP and the Liberal Democrats have been concerned enough to put opposition amendments to votes. Were there really no issues that the Labour party considered worth putting to a vote?
We were pleased to offer our support to the Labour party on its amendment protecting trade unionists going about their lawful activities, but what about other activists and campaigners? What about non-governmental organisations and whistleblowers? The SNP’s amendments were also designed to protect them. Why were they not supported? The main Opposition party seems content to take Government assurances at face value and to leave matters to the Lords. The SNP believes that these issues should be debated in full and resolved on the Floor of this Chamber, which is democratically elected and accountable to the public, not in the unelected, unaccountable Lords. [Interruption.] I would appreciate it if those who have been absent for most of the debate would stop chuntering from the Front Bench. I am angry with people who treat these matters so lightly.
I want to take bulk powers as an example. All parties now accept that the case for bulk powers has not been made and that it needs an independent review. We sought to get the bulk powers taken out of the Bill until such time as a case had been made. It is possible that a case for the necessity of bulk powers will not be made. As we have heard in detail, America has recently retreated from the necessity to use bulk powers. What happens if the case for bulk powers is not made? Neither the Minister nor the official Opposition would answer that question. Because the SNP amendment to take bulk powers out of the Bill until such time as a case has been made was defeated, those powers are still in the Bill. When the independent operational case is published, it will be the House of Lords, not the Commons, that will scrutinise and debate it. I am proud to say I consider that a travesty of democracy.
There is huge public concern about the implications of the Bill. The public—our constituents—are concerned about their privacy and right to data security. It is disappointing, therefore, that the House has in effect abdicated its responsibility properly to scrutinise the Bill to an unelected Chamber. The interests of our constituents have not been well served by the system, and it simply reinforces me in my view that the interests of my constituents, the people of Scotland and the people of these islands are not always best served by the way we do things in this House.
For all those reasons, the SNP will take a principled stand and vote—[Interruption.] I know it is hard for Government Members to recognise the notion of a principled stand, but they will see one in action in about 10 minutes. For all the reasons I have outlined, the SNP will take a principled stand, reflecting the views of many people across these islands and their concerns about the Bill, and vote against it tonight.
Joanna Cherry
Main Page: Joanna Cherry (Scottish National Party - Edinburgh South West)Department Debates - View all Joanna Cherry's debates with the Attorney General
Investigatory Powers Bill
Joanna Cherry ExcerptsTuesday 15th November 2016
(8 years, 1 month ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 70-I Motion to be moved on consideration of Commons reasons (PDF, 76KB) - (15 Nov 2016)
The Solicitor General
My hon. Friend is right to remind the House about one of the truly innovative parts of the Bill. The mechanism proposed by Government was refined in Committee by representatives from other parties, as well as the Government. It allows for not only a politician, a Secretary of State, to make a decision about authorisation, but for that decision to be then reviewed by a judge who will apply principles of judicial review—not just Wednesbury unreasonableness, but principles relating to proportionality and human rights matters that are properly engaged in considering what we accept are serious intrusions when it comes to this type of warrantry.
The Bill is unprecedented and world leading. The double lock represents the Government’s commitment to maintaining the balance between the need for the security and intelligence agencies and other investigative agencies to be fleet of foot when it comes to investigating serious crime. It will ensure that, with judicial input, the interests of privacy and human rights are kept very much to the forefront of these decisions.
On press misconduct, we must ensure that victims have appropriate means of redress. The situation, however, is complex and the overall solution is far from clear. We must do our utmost to avoid unintended consequences of what I accept are well-intentioned actions.
Joanna Cherry (Edinburgh South West) (SNP)
The hon. and learned Gentleman was referred earlier by the hon. Member for North Dorset (Simon Hoare) to the words of Lord Pannick. Does the Minister also agree with Lord Pannick that there can be no doubt that the amendments are within the scope of the Bill, which was one of the Government’s previous objections?
The Solicitor General
The hon. and learned Lady will know that the interpretation of scope taken in the other place is somewhat different from the one both she and I understand in this place, having both served on the Public Bill Committee. I pay tribute to her for the considerable number of amendments she tabled in this House. I think we have to accept that the Lords’ interpretation allowed for the introduction of these amendments. The Government rightly had issues with some of the technical deficiencies in them. I paid tribute to the efforts made by Baroness Hollins to amend the provisions to meet some of the Government’s concerns. However—this is why we seek to reject the amendments—they have no place in a Bill that relates to the regulation of investigative powers. This is all about national security and dealing with crime, whether that be child abuse, trafficking, drug dealing or any other criminality we want to deal with in society. That is why the amendments are not only out of place but pre-empt the outcome of the consultation launched by my right hon. Friend the Secretary of State.
Ms Abbott
It may be a criminal offence, but the entire House knows that time after time, tabloid editors and their staff engaged in phone hacking, betting that the people whose privacy was being infringed would not have the money or the knowledge or the social capital to take them to court.
This consultation is the Government’s most recent attempt to kick this issue into the long grass. The victims of phone hacking—many of whose lives have been ruined—are being forced to relive the traumatic experiences of Leveson. The understanding was that so many millions of pounds were spent and so many top-flight lawyers engaged in order to arrive at a conclusion on these issues—not so that the Government could continue to stall.
Joanna Cherry
Does the hon. Lady agree that the virtue of Leveson was that it was an inquiry held in public with an independent judge in the chair? The problem with the Government’s consultation is that it will effectively put politicians—and Government politicians—in the chair to re-run these issues in private?
Sir Edward Garnier (Harborough) (Con)
I rise to support my hon. and learned Friend the Solicitor General in his resistance to the Lords amendments, which was based on principle rather than over-excitement or hyperbole. It seems to me that the motion put forward in the other place—no doubt well intentioned—does not entirely cover the justice of the case. Before I move on to the main part of my argument, I would like to declare an interest, in that I have some 40 or 45 years’ experience as a member of the media and libel Bar.
The first Lords amendment proposes a new clause to be inserted after clause 8, and I am particularly disturbed by one or two aspects of it. I fully appreciate that as a matter of policy and politics, we in the House, the Government and Parliament generally frequently make use of what I would call the nudge system of trying to encourage people to be of better behaviour. We introduce laws that seek to persuade people not to behave in an antisocial or criminal manner. Broadly, it is the use of incentives to encourage better behaviour, and I have a suspicion that that is what is behind the Leveson report and their lordships’ proposed new clause.
In some respects, the provision is in the wrong place. The Bill is about investigatory powers and although I accept and applaud the ingenuity of those who introduced the new clause in the other place, I believe that introducing it into this important Bill, though understandable, is not the best place for them to have done so. They risk imperilling the policy behind the Investigatory Powers Bill without advancing their own cause in respect of those grievously and adversely affected by phone hacking.
While the proposed new clause is, on the face of it, of course related to phone hacking, it seems to me that it is not limited to phone hacking. If we look at subsection (1)(b), we see that the defendant in question needs to be “a relevant publisher”—that is fair enough—but if we look at subsection (1)(c), we find that it deals with claims
“related to the publication of news-related material.”
It may be that the news-related material has come as a consequence of phone hacking, and as my hon. Friend the Member for South Dorset (Richard Drax) has correctly pointed out, phone hacking is already a crime and the criminal justice system is already able to get a grip on it. When it comes to the consequences of hacking someone’s phone, there could be a public interest defence to the criminal charge of phone hacking. The newspaper might publish material that a claimant says is in breach of his rights of privacy or a misuse of private information or a breach of confidence, or it could amount to a defamation. None of those additional civil claims is covered by this nudge or incentive proposal. I think that we need to be wary lest a legitimate exposure of misconduct on the part of, say, a public authority or a person in the public sphere might be inhibited by this no doubt well-intentioned new clause.
The first point that I would make to my hon. and learned Friend the Solicitor General is that subsection (1) of the new clause does not limit the nudging or the incentives to the misdemeanour of phone hacking. It goes beyond that, and in doing so, it seems to me, could put a defendant newspaper or publisher in danger of being penalised for doing what might turn out to have been the right thing. As I said a moment ago, it might well be that the initial phone hacking was on the face of it criminal, but there might be a defence for it, and, moreover, the product—the fruit—of that phone hacking, legitimised because it was in the public interest, might lead to a further claim in a cause of action under civil law.
The defendant publisher might win the case, because what had been written might be true, and it might not be against the public interest to publish the confidential information because it had exposed iniquity or something of that nature. The defendant newspaper—if it is a newspaper—should therefore be entitled to win the case and defeat the claim. Under the new clause, however, although the claim had been defeated and the publishing defendant had won the case, the defendant would be required to pay the undeserving claimant’s costs as well as its own because the defendant might not be a member of some approved regulator.
Joanna Cherry
I am listening with great care to what the right hon. and learned Gentleman is saying. May I suggest to him that the situation that he has just described is covered by the proviso in subsection (3)(b) of the new clause proposed in Lords amendment 15C, which states that the court may take account of whether
“it is just and equitable in all the circumstances of the case”
to make a different award of costs? May I suggest that in the circumstances that he has described, the “just and equitable” exception would kick in, and a newspaper that had a valid defence and had revealed iniquity as a result of hacking could pray it in aid?
Sir Edward Garnier
It might if both new clauses became law, but it might not if the new clause to which the hon. and learned Lady has referred did not become law, and we were left with only the one with which I am dealing.
My second point is this. Why should a well-intentioned and successful defendant publisher have to risk the expense of successfully defending a claim and then having to pay the costs of the unsuccessful claimant? That strikes me as unjust. The House is famous for passing laws that are laden—replete—with unintended consequences. It seems to me, however, that when an amendment paper contains a proposal that will clearly lead to a problem—although I am not suggesting that it would be an insoluble problem—we would be foolish not to warn the Government against it. I am delighted to see that the Government seem to have mustered their forces and thinking processes in such a way that an unjust law will not be passed.
When I spoke in the House following the publication of the Leveson report, I was sufficiently pompous and self-confident to rebuke Members who thought that the inquiry, and the report that followed it, meant that there would be state regulation of the press. There will be no such thing as a consequence of the Leveson inquiry. However, I feel that I am entitled to warn Members who, like me, thoroughly disapprove of illegal phone hacking not to assume that once the words “phone hacking” have been uttered, that permits the House, the Government and the courts to rain down on successful, innocent and well-intentioned defendant publishers the burden of the costs of successfully defending a claim.
It should be borne in mind that defendants do not choose to be defendants. Of course they choose to publish the material that they have got hold of, but it is the claimant who feels obliged, or makes the choice, to sue the defendant. To be sued as a defendant is tedious enough, but to be sued as a defendant, to win, and then to be required to pay the costs of the unmeritorious claim must surely constitute even more of a punishment.
Joanna Cherry
I rise to support the shadow Home Secretary and her motion to accept these amendments. I will keep my comments brief. I will not go into the Scottish angle because I covered that in some detail last time.
The other place is clearly seeking to use these amendments to bring pressure on the UK Government to bring section 40 into force. The SNP is happy to lend its support to that effort, particularly as these amendments would afford protection and legal redress for those who suffer as a result of the most egregious sort of interception without legal authority when phone hacking is carried out by newspapers. Those who have not hacked, do not hack and do not intend to hack have nothing to fear from these provisions. Contrary to what has been said in the newspapers by many who advocate on behalf of wealthy newspaper proprietors and contrary to what has been said by some Government Members, there is a get-out clause in these provisions where a newspaper is sued unfairly and unjustly, and that is the just and equitable exception. We have to trust that the courts will implement that properly, as we trust them daily to implement justice and equity.
In the other place Baroness Hollins pointed out what this is really about. A widespread criminal conspiracy involving more than one newspaper group lasted, and was covered up, for many years. It was combined with unexplained failures in police and prosecution action and allegations of political involvement in a cover-up. As a result, there was a public inquiry, which came to conclusions that were supported cross-party in this House. The Government committed to implementing them; they are now failing to do so. As I said in an intervention, they are seeking to replace the public semi-judicial inquiry that was Leveson with a consultation in which the Government will consider proposals behind closed doors without the benefit of submissions and evidence being given in public, and that is not right.
Mr Alistair Carmichael (Orkney and Shetland) (LD)
Does the hon. and learned Lady recall that the reason we reached the agreement we did was a determination that politicians should have no role in this, so does she share my frustration that we are here again in November 2016 still discussing this?
Joanna Cherry
I agree. I was not here when these matters were previously discussed in this House but I followed that closely and it was all about taking politicians out of the mix. The Government’s consultation is putting politicians into the driving seat—and Government politicians at that. That is exactly what many of us did not want to happen, and it is what Leveson said should not happen.
I support these amendments because they now stand alone and do not impinge on the other provisions of the Bill. As Lord Pannick said in the House of Lords, these amendments are now in scope. They are supplementary to what is there already and they do not detract from the security issues in the Bill. I believe these two points meet many of the objections put forward by Ministers.
The amendments are on point and relate to the subject matter of the Bill because they deal with the consequences of unlawful interceptions of communications. At the risk of tooting the SNP’s trumpet too often, I simply remind the House again that new clause 8 came into the Bill as a result of a suggestion made by me and my colleague in the Bill Committee, my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands).
These amendments will apply to new and old phone hacking claims alike, but they are not objectionable, as being retrospective, because in considering how to deal with costs the court must look to the issue of whether the defendant was registered with an approved regulator at the time when the claim was commenced.
I believe the remaining objections to the amendments are misplaced. If the Government are concerned about these amendments causing delay to the passage of this important Bill, all they need to do is bite the bullet and implement section 40 and then we can forget about the amendments, and I invite them to do that.
Bill Wiggin
In all the years I have been here, I have never before found myself in agreement with the hon. Member for Hackney North and Stoke Newington (Ms Abbott), so I am deeply unhappy about this debate and the fact that I have been put in this position.
I also feel very uncomfortable with some of the things my hon. and learned Friend the Solicitor General has said, because I know that in his heart he, like me, would like to see low-cost arbitration. That is why I am so pleased with the Culture Secretary and the wonderful steps she has taken to keep people like me onside—people who passionately care about redress for ordinary people. This is the 21st century; it is the age of information and that is why the quality of information is so critical. We as a Government cannot police the media, and I believe my right hon. Friend the Member for West Dorset (Sir Oliver Letwin) understood that when he put forward his royal commission proposals, but we must do our bit to ensure that the quality of information is good enough, and at the moment it is not.