Investigatory Powers Bill (Ninth sitting)

Joanna Cherry Excerpts

Committee Debate: 9th sitting: House of Commons
Thursday 21st April 2016 Public Bill Committees

[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.

--- Later in debate ---

Clause 91 sets out the grounds on which the Secretary of State may issue a targeted equipment interference or examination warrant to the agencies: to detect serious crime, in the interests of national security, or in the interest of economic wellbeing, about which we had quite a long discussion. I do not want to rehearse all of that debate, but I want to reiterate, because I feel so strongly about it, that that provision is not about partisan, party political pursuit of particular groups. I know that there has been concern among trade unions and others that Ministers should give that assurance, but also that it should be reinforced in the Bill. We will continue to discuss that, I suspect, but I have made it clear previously and repeat now that that is neither our intention nor the purpose of the powers, and we will do all that is necessary to make that clear.

[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.

--- Later in debate ---

[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.”

--- Later in debate ---

[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

--- Later in debate ---

On the first day—a Tuesday, I think—of our line-by-line consideration of the Bill, the Minister made the point that for the kind of warrants that we have hitherto been discussing, where there is a double lock, the special role of the Secretary of State as an elected Member of this House made it appropriate and right that she should consider the warrant; it should not go straight to a judicial commissioner. That is a very difficult argument to make when the double lock is being applied to a process that involves first a law enforcement officer and/or law enforcement chief and then the judicial commissioner. I do not think it is possible to mount an argument that the law enforcement chief has any of the characteristics attributed to the Secretary of State in support of the argument that the double lock should ensure that she takes the decision first, so there is a powerful argument for saying that in these cases the warrants ought to go straight to a judicial commissioner.

[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.

[The Chair]

To help the Minister, we have already dealt with amendment 435.

[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]

rose—

[Mr Hayes]

The hon. and learned Lady is no doubt about to lecture me on anomalies.

[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.

--- Later in debate ---

[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).

--- Later in debate ---

[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).

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[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.

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[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”.

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[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.

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[Mr Hayes]

Good. On that basis I will stop.

[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.”