Investigatory Powers Bill (Tenth sitting)

Joanna Cherry Excerpts

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

[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?

[The Chair]

Go ahead. We are dealing with clause 119.

[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’.”

--- Later in debate ---

[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—

[Byron Davies]

rose—

[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”.

--- Later in debate ---

There is a clear difference on this subject in the Committee, and I suspect—I do not want to assume too much—that it is the difference between those parties that are in government, have been in government or aspire to be in government in this House, and those that are not, have not been or do not aspire to be. If that is a little unkind, I hope you will forgive the unkindness, Mr Owen—

[Joanna Cherry]

Will the Minister give way?

[Mr Hayes]

I am about to sit down, so I will not give way. Perhaps the hon. Lady will forgive me. My endurance has been tested to its limit.

[The Chair]

Will respect, I think you have to give way, given what you have said.

[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?

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[Simon Hoare]

Will my right hon. Friend give way?

[Joanna Cherry]

Will the Minister give way?

[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.

--- Later in debate ---

[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.

--- Later in debate ---

[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).