Investigatory Powers Bill

Joanna Cherry Excerpts

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

[Anne McLaughlin]

I will come on to that point shortly.

The fundamental point is this: why should we as Members of Parliament be expected to vote through legislation that is to be reviewed? That seems an unprofessional way—to say the least—to do business, and I would feel very uncomfortable crossing my fingers and hoping for the best. I also appeal to Labour colleagues to be a little more circumspect about trusting this Government with their votes today.

Let us take a look at one of the countries I mentioned earlier that has already reviewed bulk powers—the USA. The Snowden revelations revealed that the National Security Agency was running a bulk domestic telephone records programme. The NSA and others put up a strong case for maintaining it. The NSA produced a dossier of 54 counter-terrorism events in which, it said, bulk powers contributed to success in countering terrorism, but two entirely independent American bodies reviewed all 54 counter-terrorism cases and determined that only 12 had any relevance to the use of bulk powers under section 215 of the USA Patriot Act 2001.

One of those groups—the President’s Review Group on Intelligence and Communications Technologies, which is a very well respected, high-powered and independent body, set up under the auspices of President Obama—concluded:

“Our review suggests that the information contributed to terrorist investigations by the use of section 215…was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders.”

The other body—the Privacy and Civil Liberties Oversight Board—concluded similarly. It said that it had

“not identified a single instance involving a threat to the United States in which the program”—

meaning the use of bulk powers—

“made a concrete difference in the outcome of a counterterrorism investigation.”

It went further, saying that it was

“aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”

Whatever I think the outcome of the review will be—none of us knows, because it has not happened—it is none the less a recognition that the Government have failed to convince both the House and wider society of the necessity of the powers.

[Joanna Cherry (Edinburgh South West) (SNP)]

Does my hon. Friend agree that it is vital that the independent review looks at the American experience, given that America is one of our chief allies? Does she also agree that the Opposition should seek an assurance from the Government that the independent review will do so?

[Anne McLaughlin]

It would be very helpful if the Opposition secured that. We should not just follow suit—we support the review, but will not say, “Do as America does.” We must conduct our own review. Given the extent to which the Americans have looked at this, we need the same access.

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[Mr Grieve]

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

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

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

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

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

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

[Joanna Cherry]

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

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

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

[Mr Grieve]

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

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[Keir Starmer]

Obviously, I should be very interested to hear how that could be done at the outset, and I am sure that the Minister would as well.

Let me make two points to emphasise why there is such concern about bulk powers. It may well be possible, depending on the parameters that are set, to reduce the likelihood of obtaining through bulk powers material that is sensitive in one shape or form, but I do not think it is possible to eliminate it. It may well be that most of that is done at the filtering stage, rather than at the stage of the initial exercise of the bulk power. I am not seeking to explain why bulk powers inevitably capture such information, or to justify that; I am simply explaining why I think so many people are concerned about the bulk powers. That is why Labour has made it clear that, given the breadth of the powers, the operational case for them must be properly made and properly reviewed, and that is why the safeguards must be reviewed.

The issue of the safeguards may need to be revisited when the Bill is in the other place. As the right hon. Member for Haltemprice and Howden knows, the Tom Watson and David Davis case is currently midway between the Court of Justice of the European Union and the Court of Appeal. Although it touches on existing legislation and retention powers, it may have implications in relation to the Bill when it is given further consideration, and will certainly be important when it comes to consideration of safeguards. Let me also, in passing, echo the concern expressed by the right hon. and learned Member for Beaconsfield (Mr Grieve) in relation to operational purposes, an issue which also arose in Committee.

As for the review, the first stage is to ask whether the operational case has been made. I referred yesterday to an exchange of letters between the Minister and me. I hope that copies of the letters have been made available; I think that they have been made available to the House, and that every Member has them. However, I want to put on record what was being asked for, and what the response was. Let me say at the outset that this was a constructive exchange, which moved a significant issue significantly further forward.

I wrote to the Minister that the review to be carried out by David Anderson should be

“supported by a security cleared barrister, a technical expert and a person with experience of covert investigations”,

that it should

“Examine the operational case for the bulk powers in the Bill, not merely in respect of the utility of the powers, but also their necessity”,

that it should

“Have access to all necessary information as is needed to undertake the review effectively, including all information provided to the Intelligence and Security Committee”,

and that it should

“Take about three months to complete and…report to the Prime Minister in time for the findings to inform Lords Committee considerations of Parts 6 and 7 of the Bill.”

The Minister’s reply is important, as Members who have had an opportunity to read it will appreciate. He wrote:

“I can confirm that the basic framework for the review will be as set out in your letter…David Anderson has hand-picked this team and we are confident that together they have the range and depth of knowledge needed to undertake a comprehensive review.”

I was very anxious that David Anderson should pick as members of his team people whom he considered to have the necessary competences to help him with the review that he has been asked to carry out independently, and I am pleased that he has done so. I have been assured by him that he is very happy with his choices, and with the skills from which he will benefit as a result of that exercise.

The Minister’s letter continues:

“In relation to your second point”—

this is really important—

“it is absolutely the case that this review will be assessing the specific question of whether the bulk capabilities provided for in the Bill are necessary. The review team will critically appraise the need for bulk capabilities, which will include an assessment of whether the same result could have been achieved through alternative investigative methods.”

That goes to the heart of the issue. If that is the focus of the review, it will give comfort to the Labour team—and, no doubt, to members of the Scottish National party, notwithstanding their concerns—and to all our constituents as well.

[Joanna Cherry]

Does the hon. and learned Gentleman agree that the timetable for this independent review is such that, whereas the House of Lords will have time to scrutinise and debate it, the House of Commons will not? Does he agree that that is not acceptable in a democracy?

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[Simon Hoare]

In a moment, because I want to give the hon. Lady the benefit of the words of Rudyard Kipling. I do not personalise this to her; rather I make it as a general point to her party. The SNP has demonstrated:

“Power without responsibility—the prerogative of the harlot throughout the ages.'”

The SNP is using a position of power to malign and undermine, as it has continually sought to do, the confidence of this House and of the country in the robustness and ethics of those in our security services, who, day in, day out, seek to use—I agree with the point made by the shadow Minister that they also require this—the public confidence that they have in order to make sure they have the right skills and tools to keep our constituents safe.

[Joanna Cherry]

I very much resent what the hon. Gentleman is saying. Is he aware that one of the founding members of the SNP, Sir Compton Mackenzie, was a member of the British security services? Is he aware that in Scotland we have one of the best records of crime prevention in the world? Is he aware that we have responsibility in Scotland—we run the Scottish Government and are now into a successful third term? Will he please reconsider his remarks, which SNP Members and most people in Scotland will find deeply offensive?

[Simon Hoare]

All I will say to the hon. and learned Lady, once she has calmed down from her faux anxiety, is that Compton Mackenzie must be turning in his grave, because there is a significant dereliction of duty here. One would think—this may be the case in Scotland, and if so, SNP Members must forgive my ignorance—that there is no organised crime, and that there are no paedophiles, people traffickers, terrorists and drug dealers. One would think there are no people who are trying to do us ill. Perhaps, to use the analogy of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), it is the view of the SNP that a quick rifle through a mail sack and the identification of a particular hand in a quill pen will be sufficient to interrupt some terrible deed. That may very well be, and SNP Members may be right that that will satisfy their constituents. I can tell them that it will not satisfy mine. My constituents look for the Government of the day, irrespective of the stripe, to carry out with seriousness and with democratic accountability the first duty of the state, which is to protect the realm and its citizens.

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[Simon Hoare]

I am inclined to agree with the latter point, but at every step and turn, every SNP amendment, on my reading and on my hearing and my understanding, has been designed to delay and frustrate. We have had the canard that has run through the debate that we have not had adequate time to debate and discuss these issues. I will not rehearse the times, Mr Deputy Speaker, because you know them. You know how many Committees of this House have looked at the matter. The Bill Committee stood for a long period of time. We had a long debate on Second Reading. The Government, and the Ministers in particular, have bent over backwards to ensure that they can land this Bill in a shape and form that is acceptable to the vast majority of Members of this House and, one would hope, of the other place.

[Joanna Cherry]

If the hon. Gentleman thinks that all the amendments laid by the SNP were designed to delay or frustrate the Bill, how does he explain why his own Government accepted new clause 6 on “Civil liability for certain unlawful interceptions”—I do not know whether he was in the Chamber yesterday—which was an amendment tabled by me on behalf of the Scottish National party? I say again, perhaps he would like to reconsider his comments carefully.

[Simon Hoare]

Heaven rejoices when a sinner repents. Of course, Mr Deputy Speaker, it is marvellous news that there has been one amendment out of about 127,000 amendments that the SNP has tabled throughout this process that has been acceptable to Her Majesty’s Government. [Interruption.] Oh, it was just 1,000. It felt like 127,000. Forgive me. This is the fundamental point. The hon. and learned Lady is right, and that is why I find it surprising. The SNP is clearly a grown-up and mature party. It is now in its third term of government in Edinburgh. It will be discharging some of these duties. It will be consulted on different things by Ministers and by those responsible for appointing commissioners and all the rest of it. There seems to be a rather peculiar disconnect between the seriousness with which the SNP takes the duties of governance north of the border and this impression of flippancy it gives when it comes to national security.

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[Mr Carmichael]

I am grateful to the Minister for that. We are now best served by allowing Mr Anderson to get on and do the job that we have given him. I merely say in passing that it would have been better if we had given him that job some time ago, so that this House might have had the benefit of his conclusions when debating this whole matter. None the less, I welcome the conversion of the Government, however late in the day it may have come, to the need and to the acceptance of what even the Labour party has said, which is that the operational case for the extent of the bulk powers that the Government have sought to introduce in this Bill has not yet been made. The operational case that they have published has been vague, to be kind to it, and it has certainly been lacking in any persuasiveness.

We will look very closely at David Anderson’s conclusion with regard to the necessity of these powers, because that should have been the first test that was set and that was required to be met. I take very little issue with the right hon. and learned Member for Beaconsfield (Mr Grieve), or indeed the hon. and learned Member for Holborn and St Pancras, when they talk about the protections that they think should be built into the Bill. Protections are necessary only if the powers are first judged to be necessary, which comes to the very heart of the points made by the hon. Member for North Dorset. The Bill has very much been a work in progress and I wonder whether we would have had the 104 Government amendments we had yesterday and the 20 that we have today, never mind those tabled by the Intelligence and Security Committee, by those on the Opposition Front Bench and by the Scottish National party, if the House had taken the approach to the Bill and its scrutiny that was being urged on us a few minutes ago.

On the question of bulk personal datasets, I share the substantial concerns that have already been expressed. That brings me back to the objection that I have already spoken about—to the operational case. That is another aspect of the Bill that the Government have failed to explain. The operational case is perhaps even more opaque than anything else in the Bill. Although the abuses—let us use that term—outlined by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and acknowledged by the right hon. and learned Member for Beaconsfield might be at the lower end of the scale, I have a strong suspicion that it was because they were at the lower end of the scale that they came into the public domain in the first place. When we are dealing with something that strikes in such a fundamental way at the relationship between the citizen and the state, there is, frankly, no such thing as a trivial abuse. Any abuse is serious, any abuse is to be taken seriously, and that is why I thought that the hon. and learned Lady was right to bring them to the House’s attention.

[Joanna Cherry]

I thank the right hon. Gentleman for his generous and measured comments earlier about the SNP’s role in the Bill. To pick up on his point, is not the problem that once the warrants have allowed bulk data to be scooped up there is no legal regulation of how it is analysed, which is why these individuals within the security services were able to break the rules—there are no warrants; it is about internal regulation?

[Mr Carmichael]

The hon. and learned Lady is absolutely right, and I draw on my own experience when I say that in giving power to public authority in this way it is important that we should be as specific and prescribed as possible.

To draw on my experience, I recall the passage of the Criminal Procedure (Scotland) Act 1995. At that time, I was a procurator fiscal depute in Aberdeen and one of the innovations introduced in the Act was the ability of a prosecutor to comment on previous convictions before a jury in Scotland. I have no doubt that at that time all sorts of undertakings were given at the Dispatch Box, but when we as prosecutors—and, I like to think, fairly measured prosecutors in the public interest—saw that provision, the discussion did not centre around how the undertakings had been given at the Dispatch Box but how we could use it, its extent, where the boundaries would lie and what would constitute a step over the line and a step just inside it. There were always some in the office who were quite keen for the line to be a little bit elastic.

That is a much more trivial example, because of course it was a measure for which there would have been obvious and immediate judicial scrutiny. If any depute were to overstep the mark in court, it would be immediately obvious and they would be pulled up on it. There will not be the same scrutiny, there is not the same oversight and we ask a great deal of those who serve in our security services if we give them such a wide range of powers with so little definition. The lack of definition, the lack of proportionality and the lack of necessity underpin my concerns, which, I think, are shared in other parts of the House.

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[Seema Kennedy]

It is a great honour to follow the hon. Member for Belfast East (Gavin Robinson).

Many right hon. and hon. Members have spoken with great experience and expertise through the various stages of the Bill. Listening to the high quality of debate, especially yesterday, I was struck by the thought that if we conducted all our business in this Chamber in this manner, our stock and our currency as Members of Parliament might rise a little with our constituents and other members of the public.

I feel humbled to speak on this crucial piece of legislation and, specifically, against the amendments tabled by the SNP. This Bill is designed above all to keep our constituents safe from harm. Some hon. Members may know that I grew up in the Tehran of the 1970s. Though now fondly remembered for its nightclubs and miniskirts, it was a city pervaded by the fear of SAVAK, the brutal secret police whose agents infiltrated every factory, every school and every park, so I am compelled to say that I have witnessed, and my family has witnessed, mass surveillance, and this is not it.

The SNP amendment would effectively remove parts 6 and 7 of the Bill, which deal with bulk warrants and bulk data sets. These show our adversaries that we will use every technological tool to keep ourselves secure, but we will not compromise on our principles.

[Joanna Cherry]

I do not know whether the hon. Lady was present at the time, but on Second Reading I made it very clear that the SNP was not calling the Bill mass surveillance; we described it as suspicionless surveillance. Does she agree that parts 6 and 7 permit suspicionless surveillance?

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[Suella Fernandes (Fareham) (Con)]

It is a privilege to speak in this debate, and indeed to have participated in the Committees that have considered the Bill: I was a member of the Joint Committee that scrutinised the draft Bill in February, and I was also a member of the Bill Committee earlier this year. I want to put on the record my appreciation of the Labour party’s constructive and fruitful contributions. This vital legislation has come far since its first iteration. It is an example of cross-party collaboration, so I am glad that party politics has been put aside in the name of national security. I urge all Members of the House to act in such a manner when we go through the Lobbies later today. However, judging by the words of the hon. Member for Glasgow North East (Anne McLaughlin), I do not think that will be the case.

I rise to speak against amendment 309 and the others relating to bulk powers. The Scottish National party Members says that those powers are disproportionate, that they have no utility and that they are therefore unlawful. The amendments propose removing most of parts 6 and 7, from clause 119 onwards, and with them the three types of bulk power afforded to our security and intelligence services—bulk interception, bulk acquisition of communications data and bulk equipment interference. Those powers allow for the collection of large volumes of data and are set out in clause 119 onwards. Further warrants are required before those data can be examined. The purposes of such examination, which are set out in the Bill, may be to pursue more information about known suspects and their associates or to look for patterns of activity that may identify new suspects. Crucially, those powers are not afforded to law enforcement services.

I have a few points to make. First, these powers are founded on a clear and robust legal basis. They are all available to the agencies in existing legislation. Bulk interception is covered in section 20 of the Regulation of Investigatory Powers Act 2000. Bulk communications data are covered in section 94 of the Telecommunications Act 1984. Bulk equipment interference is covered in sections 5 and 7 of the Intelligence Services Act 1994. If amendment 390 and the others were passed today, we would remove the vital powers on which our agencies rely to do their jobs and we would prevent them from acting on those powers.

Secondly, these powers are not novel or a quirk of the modern age; they have been around for decades. Back in world war one, our intelligence services tracked the worldwide network of German cables under the sea by using secret sensors. They were able to intercept telegraph messages on a bulk basis, looking for patterns in communications and signals from the enemy.

When cables ended, radio surveillance was necessary to break codes during world war two. That involved bulk interception of data by hand. That work was famously based at room 40 of the Admiralty. Alan Turing and his team at Bletchley Park would never have cracked Enigma were it not for the bulk interception of cyphers. That advanced cryptanalysis changed the course of history by enabling the allies to pre-empt enemy planning, saving countless lives and shortening the war.

[Joanna Cherry]

Does the hon. Lady agree that the difference is that, in the days of Bletchley Park, we were at war? We are not at war now. What we are concerned to do here is not to assist this country’s enemies, but to protect the privacy of the people who live here, who include her constituents.

[Suella Fernandes]

I am astonished by the hon. and learned Lady’s suggestion that we are not at war. Paris, Brussels, Jakarta—I do not need to go on. We are engaged in a worldwide conflict against Daesh, and it is a threat to our security every day and every night.

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[Kevin Foster]

I thank the hon. Lady for that helpful and interesting intervention. First of all, I would not want to prejudge the review. In addition, if the review came back to us and said that these powers were absolutely right, and that they were vital for national security, I hope that we could look forward to the SNP’s immediate and wholehearted support. I have a funny feeling that we might not, however.

Let us not prejudge the review. As the Front-Bench spokesmen touched on in their exchange at the Dispatch Box, it is highly unlikely that if the review stated that something specific was not needed, such a measure would be proceeded with. How do we know what an independent review will come back with? If I knew, and I stood here and said so, the next accusation would be that the review was not independent because we already knew what it would come out with. That point does not support making the amendments, which remove these powers completely.

I have been satisfied by the changes that have been made throughout the process, as the Bill has come out of Committee into Report. Judicial safeguards have been strengthened, and there is now a stronger and more consistent judicial test for review of these warrants. Powers have been increased, as have the offences that apply if someone misuses data. The Government are striking the right balance between what we need in order to get hold of data that could keep our country safe, and the legitimate expectation of privacy. If data have been collected that are of no use, they can be removed and they will not be used for purposes beyond the original basis of the warrant.

Ultimately, in any unjustified use of a warrant, the Secretary of State remains answerable to this Parliament. If, for example, someone decided for some unknown reason that it would make sense to go into detail about political or trade union affiliation, they would be answerable to this House, and a Secretary of State would be most unlikely to survive that.

[Joanna Cherry]

Does the hon. Gentleman agree that the Secretary of State would be answerable to the House only if such activity came to light? It might not come to light.

[Kevin Foster]

I take on board the point that the hon. and learned Lady makes. However, as my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) mentioned, the Intelligence and Security Committee would almost certainly oversee what was happening. As was touched on with the Minister, although the Committee is not involved in live intelligence work, it carries out reviews and, as discussed in relation to one of the probing amendments tabled by my right hon. and learned Friend, there is an understanding of an exchange of information. I think it is highly likely that such activity would come to light eventually. Clearly, a Secretary of State who had sanctioned that would know that, bluntly, their job was over.

The powers in the Bill are proportionate to their aims. They have appropriate safeguards, and more work will be done following the review. It is wrong to prejudge an independent review by constantly asking, “What happens if they say no?” To put it the other way around, what happens if they say yes? I do not think that the amendments are right at this stage. It is appropriate to retain these parts of the Bill, and that is certainly what I will vote to do.

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[Tom Tugendhat]

It is a pleasure to serve under your chairmanship, Madam Deputy Speaker, particularly as you are appropriately attired in something that may indeed be collecting bulk data.

We are talking about amendments that would fundamentally undermine the very Bill that we have come to support, and would change the very tone of the debate. I speak very much in support of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who has gone through various aspects in quite significant detail, explaining to us time and again why the controls over the collection of bulk data are entirely appropriate. I also speak in support of the hon. and learned Member for Holborn and St Pancras (Keir Starmer), who has been through the Bill with the eye he has as a former Director of Public Prosecutions, seeing both the loopholes and the potential abuses, and covering them off.

I also speak in support of the Solicitor General, who has done exactly the same for us, and the Minister for Security, who has brought forward a Bill that answers the very questions that this state must always ask itself: how we guard our citizens and keep them safe while also keeping them free. This Bill does exactly that.

My first encounter with bulk data collection came in the constituency of my right hon. and learned Friend the Member for Beaconsfield, where the Defence School of Languages was sited. I was going through vast amounts of Arabic text. Although I was doing so in a most junior and rather ineffective manner, I learned how it was done properly. I was only a student; the masters have learned from that great Scots mathematician John Napier, who in the 17th century developed the logarithm, and whose lesson to us all, through mathematics, is how to build the pattern, understand the shape and break the code. That is why bulk data matter. We cannot build patterns without data and without volume, and we cannot make shapes without substance.

The bulk data are not themselves intelligence. As an intelligence officer in Her Majesty’s armed forces I was very proud to work on intelligence. It is not the raw product. It is what is analysed, what is useful and what decisions can be made from. That is not the bulk or the mass—the intelligence is the product. I am sorry to say that there appears to be a slight misunderstanding as to what is the intrusion. The intrusion is surely not the clay from which the form is made, but only the detail on the individual that could be used against them. The Bill does not allow that without the tightest of safeguards, both from former judges and from serving Ministers.

[Joanna Cherry]

Is the hon. Gentleman aware that once the bulk data are collected by warrant there is an intermediate stage in which they are analysed in the way that he describes, but there is absolutely no legal regulation of how that analysis is carried out? That is our objection. How can I make it any clearer?

[Tom Tugendhat]

The hon. and learned Lady speaks with her usual eloquence, but I am afraid I am going to refer her to schedule 4, part 1, which is a table containing a list of authorities and officers. The people who analyse are listed there. They are inspectors and superintendents of the Prison Service; lieutenant commanders and commanders of the Royal Navy; majors and, as in my case, very junior lieutenant colonels of the Army; squadron leaders and wing commanders; general duties officers of grade 4 and above; and Secret Intelligence Service officers.

There is a list—a catalogue—in schedule 4 of people in our country, men and women across these islands, whom we have trusted with the intelligence procurement for our nation to keep us safe. It is they who will be doing the analysis, under supervision. It is only when they have got something that is worth taking that they will be allowed to use it. That is the provision we are talking about and the type of supervision. People will not be allowed simply to collect and analyse. They will be allowed to collect and analyse only under warrant. That is absolutely essential.

[Joanna Cherry]

I repeat again: does the hon. Gentleman accept that no warrant is required to carry out the initial computer analysis? Does he understand that that is what those of us who were on the Bill Committee and who have worked on the Bill for months uncovered? Unlike some of his colleagues, who shout from a sedentary position that we do not understand this, we do understand it—we have been analysing it for months. Does he understand that there is no regulation by warrant of the analysis carried out by the individuals that he describes? That is the nub of the matter.

[Tom Tugendhat]

The hon. and learned Lady is, I am afraid, picking on a hole in the Bill that is simply not there. [Interruption.] It is not there because the collection of bulk data is entirely categorised by the Bill. The Bill supervises entirely the ability to collect bulk data. The analysis is then done by trusted officers of the state. To accuse them of anything other than the highest forms of integrity would be an extraordinary statement to make in the House.

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[Mr John Hayes]

What an interesting and important debate we have had. This group of amendments addresses bulk powers. It is right that we should consider these matters in considerable detail because, as has been said by Members from across the Chamber, they are matters of profound importance and public concern. The public want to be assured that the safeguards we put in place for these vital powers are right, adequate, properly considered and properly reviewed. Many hon. Members have contributed to the debate. Tellingly, the hon. Member for Belfast East (Gavin Robinson), my hon. Friend the Member for South Ribble (Seema Kennedy) and the hon. Member for Fermanagh and South Tyrone (Tom Elliott) spoke with personal experience of terror.

We all know the scale and nature of the threat we face, but though we know it, that does not mean that it should not be explored again and again in this House. For to explore it is to realise what we need to counter it. That is precisely what was done in speeches by hon. Members from all sides of the House. The threat is real, imminent and unprecedented in character. Our opponents are increasingly adaptable and flexible. Although their aims may be barbarically archaic, their means are up to date. They are entirely modern. They are prepared to use every device and every kind of communications medium to go about their wicked work, which is precisely why the Bill does what it does, why bulk powers matter and why the amendments that stand in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry), which I will deal with in a moment, are not ones I can accept—that will not come as any surprise to her, by the way.

An argument has been made that the operational case for bulk powers needs to be fleshed out more fully. Hon. Members will know that the Government did just that when they published the operational case for bulk. That informed the Committee consideration, which has been referred to several times during our short debate today, and has been a helpful way of establishing why bulk powers really count.

We are dealing with powers that have played a significant part in every major counter-terrorism investigation over the past decade, including in each of the seven terror attacks disrupted since November 2014. These powers enabled over 90% of the UK’s targeted military operations during the campaign in south Afghanistan, and they have been essential to identifying 95% of the cyberattacks on people and businesses in the UK discovered by the security and intelligence agencies over the past six months. My hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) is right to say that this is about real life operational necessity. I congratulate my hon. Friend the Member for Fareham (Suella Fernandes) on the role she played both on the Joint Committee and the Bill Committee. The threat she described so vividly is, as she said, worldwide and of a kind that would allow us to do nothing other than take the necessary steps to counter it in the defence of our freedoms.

I was perhaps a little unkind to the hon. Member for Glasgow North East (Anne McLaughlin) who spoke for the Scottish National party, although I make no apology for reprising what I said. Frankly, her contribution missed the point. The point is not whether the powers are necessary; it is whether we can put in place sufficient safeguards to ensure that they are used only when, how and where they should be. That was the point made by the Chair of the ISC and by the ISC when it had the chance to consider these matters. As the Chair of the ISC said, it then also had a chance to reconsider them, having been given further information of a secure kind—that is its function after all—and its members were persuaded that the powers were indeed necessary. It is right to have an informed, thoughtful debate about safeguards, checks and balances, and constraints, but we cannot have a grown-up debate about whether the powers count, because they are not new; they are existing powers. The Bill simply introduces additional safeguards, which I would have thought any reasonable Member would welcome.

[Joanna Cherry]

I gently suggest to the Minister that, as we have seen already this afternoon, patronising those of us who have taken the trouble to scrutinise the Bill, speak on it in detail and try to understand it does not get us anywhere. If the Government’s operational case for investigatory powers is so convincing and overwhelming, why have they now conceded the need for an independent review?

[Mr Hayes]

Let me repeat two things I said yesterday. First, the members of the Bill Committee all made a useful contribution, and the hon. and learned Lady is of course one of them. Secondly, the Government, in wanting to get the Bill right, are prepared to listen and learn, as Governments should be. I have been in the House for a number of years, and there has not been a single piece of legislation that has not been better for having received proper scrutiny, that has not altered during its passage and that has not been a better Act as a result of consideration by the House. We should be proud of that. I was simply saying that to focus on some of the detail around safeguards seems to be absolutely right, whereas the debate about the necessity of the powers has already been had. I think there is a general acceptance that the powers are necessary.

[Joanna Cherry]

No, it has not.

[Mr Hayes]

I do not know if the hon. and learned Lady was listening, but I read out three things: 90% of operations in Afghanistan, 95% of cyber-attacks, every single major counter-terrorism investigation over the last decade. I cannot be plainer about the necessity, but because the Government are so determined to ensure adequate safeguards, we have agreed to a further review. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer), generously said, the review is to be completed in exactly the form that emerged as a result of the discussions between the Opposition and the Government—an illustration of the House behaving at its best. The review, chaired by David Anderson, will be able to look not just at utility—the point I made to the Chair of the ISC—but at necessity, and it will be independent.

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[Andy Burnham]

I am grateful for what the Minister has said. It must be possible to find a definition that excludes casual or voluntary bloggers from individuals who make their living from writing or who work for organisations regulated by the Independent Press Standards Organisation or other regulators.

[Joanna Cherry]

I and my hon. Friend the Member for Paisley and Renfrewshire North (Gavin Newlands) have added our names to the amendments tabled to clause 68 by the right hon. and learned Member for Camberwell and Peckham (Ms Harman), and we will give them our support if they are pushed to a vote. However, does the right hon. Gentleman agree that it is regrettable that the opportunity has been lost at this stage to have uniform protection across the face of the Bill for communications with journalists, lawyers and parliamentarians?

[Andy Burnham]

I made a similar point yesterday, when I said that it would have been helpful had we made more progress on these issues, and perhaps I can push the Minister on this, because I know he is meeting the Law Society and the Bar Council later this week.

The truth is that this raises quite complex issues. With all three professions, a slightly different set of issues arises, and we should not rush to legislate. We should move on the basis that we know what we are trying to achieve, which is to protect the ability of the public to go to an MP without fearing that there is any compromise on a private discussion. We want legal privilege—the privilege that belongs to the client—to be protected. We also want journalists to be able to protect their sources, as they want to do. If we work with the Government on that basis in good faith, I believe that we will be able to come to the right position.

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[Mr Grieve]

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

[Joanna Cherry]

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

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

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

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

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

[Mr Grieve]

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

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[Gavin Newlands]

Thank you very much, Mr Speaker; I have almost forgotten what the intervention was—[Interruption.] I do not doubt that, but to answer it, we do not know what ICRs are at the moment. They are not clearly defined—the shadow Home Secretary made that point himself earlier; nor do we know how effective they will be. People in the industry tell me that current technology, such as Tor, virtual private networks and what have you, may render them useless. We do not know what ICRs are at the moment, so I have to be honest with the shadow Home Secretary: I do not have all the answers.

[Joanna Cherry]

My hon. Friend sat on the Bill Committee with me and will remember that we heard evidence that if, for example, he wanted to see whether a missing child had been on Facebook, all that the internet connection record would show was whether they had been on Facebook, not whom they had been in contact with. Does he therefore agree that the utility of internet connection records for tracing missing children, which we all recognise is of the utmost importance, is perhaps being rather overblown?

[Gavin Newlands]

I wholeheartedly agree with my hon. and learned Friend.

Before I was intervened on the first time, I was saying that the Joint Committee on the draft Communications Data Bill said that

“storing web log data, however securely, carries the possible risk that it may be hacked into or may fall accidentally into the wrong hands, and that, if this were to happen, potentially damaging inferences about people’s interests or activities could be drawn.”

It is clear that the intelligence services and the police need powers that befit the digital age in order to keep us safe and to catch perpetrators. However, when seeking to introduce powers as intrusive such as ICRs, it is incumbent on the Government to ensure that their case is watertight. As my hon. and learned Friend said in Committee, we very much hope to be an independent country writing our own security policy, so we do not take our opposition to such measures lightly.

In drafting such a proposition, with such a loose definition, the Government are asking us all to trust them and to sign a blank cheque to allow the wide use of such powers without knowing what their full impact, costs or consequences will be. The Home Office has said that companies will be reimbursed for the additional costs placed on them, but that commitment does not appear in the Bill. The Government have earmarked £175 million to reimburse companies for the costs of meeting their new responsibilities. However, most in the sector believe that is a vast underestimation of what the true costs will eventually amount to. Owing to uncertainty about the extent and definition of ICRs and the extension of communication service providers that will be affected by the proposed provision, the cost is difficult to estimate, but industry figures have told me that they expect it to be anywhere between £1 billion and £3 billion.

I appreciate that the Minister, in a letter to the Committee, reiterated the Government’s intention to bear the cost of implementation, but without clearer information we cannot expect Parliament to sign a blank cheque. Between £175 million and £3 billion is a rather large range, and at a time when disabled people are losing benefits and the WASPI women cannot get the pension they were promised, this seems a rather anomalous and large black hole in potential Government spending. I have said in the past that the Government know the cost of everything and the value of nothing, but in this case they do not even know the cost.

This is a global problem and as such requires a global solution, and it is important that we reflect on what other countries have done to address the issue and that we learn any lessons from their experiences. It is unfortunate, therefore, that a similar scheme of logging data in Denmark has recently been abandoned. That scheme operated for seven years, and although I accept that there were differences in that scheme, there were many similarities. Upon its abandonment, the Danish security services expressed their view about the difficulty of being able to make proper and effective use of the large amount of data that had been gathered. It seems that, instead of spending their valuable time locating criminals, the security services will spend most of it working on spreadsheets and filtering out the useless from the useful. It should be noted that the Danish ICR model was proving too expensive and the cost spiralled out of control, that Australia considered the proposal but decided not to pursue it, and that, as we have heard, the United States is rescinding many of its intrusive powers and moving in the opposite direction.

It is for those reasons that we believe the case for ICRs has simply not been made. The Government have failed to convince us, and those working in the industry, that ICRs are necessary, proportionate and in accordance with the law. We tabled an amendment to remove them from the Bill, but it was not accepted, which leaves us no option but to vote against the Bill in its entirety. That is not a step that we take lightly, but, ultimately, it is a necessary step.

In the event that we are unsuccessful in bringing down the Bill, we will still attempt to ameliorate aspects of it in order to protect smaller companies, especially those that supply lifeline and low-profit services to rural communities. New clause 26, which I tabled along with SNP colleagues, would exclude the providers of rural or community access communication services and small service providers from the obligation to collect and retain data. I have mentioned the deep concern in the sector about the expense that the Bill will impose on industry. I am sure that the Government will not want to put any businesses in a perilous situation, particularly those that operate with smaller cash flows and tighter margins in rural Scotland in order to provide a vital service for their local communities.

The Committee was provided with written evidence stating that smaller internet service providers were still subject to the same demands as the much larger organisations that operate on the world stage. Organisations such as HUBS are supplying vital internet connections to some of the most remote communities. If the Government railroad these clauses through the House without proper regard for the impact they will have, they will seriously endanger those small businesses and restrict internet use for some of our rural communities.

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[The Solicitor General]

It is a pleasure to speak at the end of a wide-ranging but important debate about the new power on internet connection records. It is right to remind ourselves of the context of the debate. Only last week, two individuals received significant prison sentences in Britain’s biggest known gun smuggling operation. It was analysis of communications data that provided vital evidence in that case. It allowed the investigative team to attribute telephone numbers and SIM cards to the defendants and to identify key locations.

However, communications data are changing. The world in which the hon. and learned Member for Holborn and St Pancras (Keir Starmer) and I started out practising is no longer the world as it is today. Telephone calls are very often not the means by which criminals and terrorists conduct their activity. Much of that has moved on to the internet via WhatsApp, via internet chatrooms and via the electronic internet communications that have become the mainstay of many criminal enterprises. It is vital that the legislation that we pass in this House not only attempts to keep pace with this breathtaking change, but tries to get ahead of it as far as possible.

[Joanna Cherry]

The Solicitor General will be aware of an exchange that I had earlier with the right hon. and learned Member for Beaconsfield (Mr Grieve) about the fact that there are other ways in which law enforcement agencies can obtain internet connection records. Does the Solicitor General agree that that includes getting the data retrospectively for specific targets from operators who already temporarily store such data for their own business purposes? It would therefore be misleading to imply that the provisions in the Bill are the only way of getting at internet connection records for the purpose of solving specific crimes.

[The Solicitor General]

I take what the hon. and learned Lady says advisedly. It is not good enough to rely purely on third parties to provide the sources of evidential leads. Government must take a lead in this. We are not in the scenario of building our own database, which has rightly been rejected as unfeasible and an unacceptable increase in state power. This is about requiring third parties to retain for up to 12 months information that could provide the sort of evidential leads that up till now have conventionally been provided by observation evidence and via telephone and SMS evidence that is increasingly becoming obsolete. This is about the Government doing their duty to the people whom we serve and to the country that we are supposed to defend, and doing our duty to protect our citizens.

I shall deal as best I can with the amendments in turn. I am grateful to my hon. Friend the Member for Stevenage (Stephen McPartland), who spoke to the issue of the request filter. That is a filter that will be maintained by the Secretary of State. It does not hold data of itself; it is a safeguard. It is there to prevent collateral information being provided to the public authority. It is an innovation and it specifically limits the communications data retained to only that which is relevant.

I would argue that the measure is essential because it serves the interests of privacy that have formed such a part of the debates in this House, and it will help to reduce error. The filter will accept only communications data disclosed by communications service providers in response to specific requests from public authorities, each of which must be necessary and proportionate. Any irrelevant data that do not meet those criteria will be deleted and not made available to the public authority. My hon. Friend has tabled probing amendments, and I know that that is the spirit in which he has initiated debate.

On the question of review, I am entirely sympathetic with the desire for ongoing review of the Bill’s provisions, but that is already provided for. The operation of the Act is to be reviewed by the Secretary of State after five years, which is entirely appropriate. This Bill will need some time to bed in, and time will be needed to see what effect it has had. My concern is that a two-year review runs the risk that we will not be in a position to properly assess its impact. For those reasons, I urge hon. Members who have tabled amendments relating to the review to accept the argument that I submit and to withdraw the amendments.

We have had much debate about journalists. Quite rightly, we have sought to focus on journalistic material because there is a danger in this debate, as with MPs and as with lawyers, that we focus upon the individual and the role, as opposed to the interest to be served. Journalists serve a public interest—the vital importance of freedom of expression in our society, freedom of speech, freedom of thought, and that vital aspect of journalism, the non-disclosure of the source of journalists’ material.

The Government are very cautious and careful about the way in which we seek to deal with these matters, which is why we have tabled the amendments that have already been spoken to by other Members. The placing of the stringent test in amendment 51—the public interest in protecting a source of journalistic information—is further evidence of our continued commitment to protecting the freedom of the press and freedom of expression in our country. As my right hon. Friend the Minister for Security and I have already said, we have listened to the strength of feeling on the matter and will consider whether further protections, over and above the significant protections that already exist under PACE in relation to journalists themselves, are appropriate where the collateral effect of warranted intrusion discloses their sources.

Let me therefore deal with the question of ICRs and their definitions. My right hon. Friend the Minister for Security, in an intervention on the shadow Home Secretary, has set out clearly the Government’s position on how we would view the threshold. The right hon. Gentleman quite rightly accepts that this is not an easy task and that we must get it right. We do not want to exclude offences such as stalking and harassment, for example. We want to ensure that the threshold is robust but actually makes sense in the context of the new powers of ICRs. I look forward to that work being ongoing.

Let me deal with the question of definition. I can be clear today once again that the Bill does not require companies to retain content, but I am willing to consider any amendments that further improve definitions in the Bill, as another opportunity for meaningful dialogue to take place so that we get the definition absolutely right. I know that that is a concern not only of the shadow Home Secretary, but of other right hon. and hon. Members.

Let me move on to the SNP amendments. I am grateful to the hon. Member for Paisley and Renfrewshire North (Gavin Newlands), who has been consistent in his argument today, as he was in Committee. With respect, however, I have to say that that consistency is misplaced. There is an important issue here about access to communications data that I think would be jeopardised in a way that would be prejudicial to the public if judicial commissioners became involved. I do not think that there is any utility or public interest to be served by the introduction of judicial commissioner approval for communications data acquisitions, because we are talking about a great volume of material. Also, the highly regarded single point of contact regime has already provided expert advice and guidance to authorising officers, and that is placed as a mandatory requirement in the Bill.

There are many other amendments that I could address, but time does not permit me, save to say that our commitment to protecting the public and ensuring that our legislation is up to pace with modern developments is clear, so I urge right hon. and hon. Members to support our amendments.

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[Joanna Cherry]

I start by placing on record my thanks to all the organisations that have supported and advised the Scottish National party during the passage of the Bill. I said at the outset of the debate yesterday that I made no apology for tabling so many amendments and I stick by that. This is one of the most lengthy and complex Bills that the House has debated for many years. The powers it seeks to give to the state are immense and far-reaching. The Bill is of huge constitutional significance, yet we have had fewer than two full working days to debate it on Report. Accordingly, the number of amendments that could be put to a vote was just a very small proportion of the number tabled.

The SNP wants to give the security services necessary and proportionate powers to fight terrorism; we wanted to support those parts of the Bill that maintained and codified law enforcement’s existing powers; and we would have been happy to support an enhanced oversight regime. However, so long as the Bill allows such significantly unfettered collection of, and access to, communications data, including internet connection records, we cannot give it our support. Neither can we support a Bill that sets out such far-reaching powers to acquire the personal and private data of our constituents, while a proper case for the necessity of those powers has yet to be made out.

We have been happy to support some Government amendments, including new clause 5, which appears to recognise the importance of taking into account the right to privacy and other human rights, but such concessions as the Government have made have been vastly exaggerated by both the Government and, I am sorry to say, the main Opposition party. There has been a great deal too much mutual congratulation. Only the SNP and the Liberal Democrats have been concerned enough to put opposition amendments to votes. Were there really no issues that the Labour party considered worth putting to a vote?

We were pleased to offer our support to the Labour party on its amendment protecting trade unionists going about their lawful activities, but what about other activists and campaigners? What about non-governmental organisations and whistleblowers? The SNP’s amendments were also designed to protect them. Why were they not supported? The main Opposition party seems content to take Government assurances at face value and to leave matters to the Lords. The SNP believes that these issues should be debated in full and resolved on the Floor of this Chamber, which is democratically elected and accountable to the public, not in the unelected, unaccountable Lords. [Interruption.] I would appreciate it if those who have been absent for most of the debate would stop chuntering from the Front Bench. I am angry with people who treat these matters so lightly.

I want to take bulk powers as an example. All parties now accept that the case for bulk powers has not been made and that it needs an independent review. We sought to get the bulk powers taken out of the Bill until such time as a case had been made. It is possible that a case for the necessity of bulk powers will not be made. As we have heard in detail, America has recently retreated from the necessity to use bulk powers. What happens if the case for bulk powers is not made? Neither the Minister nor the official Opposition would answer that question. Because the SNP amendment to take bulk powers out of the Bill until such time as a case has been made was defeated, those powers are still in the Bill. When the independent operational case is published, it will be the House of Lords, not the Commons, that will scrutinise and debate it. I am proud to say I consider that a travesty of democracy.

There is huge public concern about the implications of the Bill. The public—our constituents—are concerned about their privacy and right to data security. It is disappointing, therefore, that the House has in effect abdicated its responsibility properly to scrutinise the Bill to an unelected Chamber. The interests of our constituents have not been well served by the system, and it simply reinforces me in my view that the interests of my constituents, the people of Scotland and the people of these islands are not always best served by the way we do things in this House.

For all those reasons, the SNP will take a principled stand and vote—[Interruption.] I know it is hard for Government Members to recognise the notion of a principled stand, but they will see one in action in about 10 minutes. For all the reasons I have outlined, the SNP will take a principled stand, reflecting the views of many people across these islands and their concerns about the Bill, and vote against it tonight.