Immigration Bill

Joanna Cherry Excerpts

Ping Pong: House of Commons
Monday 9th May 2016 Commons Chamber

[James Brokenshire]

I am grateful to the right hon. Gentleman for making the point about the messages that we send out and the potential for exploitation by people traffickers. They have become adept at using social media and other techniques to ensnare refugees and children, who then make such journeys and put their lives in traffickers’ hands, with all the horrific consequences that we have seen. He is right to underline that core message.

The conversations have already begun. I was in Athens on Friday for discussions with the Greek Government to explain the nature of the arrangements that we are contemplating. We will now urgently consult others prior to bringing forward more detailed proposals. A meeting with the Local Government Association is scheduled for later this week. Until further discussions have taken place, it is premature to speculate on the likely numbers that will count towards the new obligation set out in the amendment. I hope that my comments show that we are seeking to make progress and to get to a point at which we can report back to the House.

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

The right hon. Member for Leicester East (Keith Vaz) mentioned funding. Is the Minister prepared to commit to adequately resourcing any new scheme for the resettlement of unaccompanied child refugees, many of whom will be particularly vulnerable? Local authorities in Scotland have already resettled 700 refugees and are pressed for funds at present.

[James Brokenshire]

Obviously, existing funding is provided for unaccompanied asylum seeking children; the Home Office funds local authorities in that way. We are carefully considering this in the context of the existing arrangements and will be discussing it with colleagues across government, as well as with local authorities. I would like to reassure the House that we intend to be flexible in our interpretation and approach when implementing this amendment, to ensure that it is practical and supports the most vulnerable children, as intended. We believe the amendment, as currently drafted, enables us to do that. The use of the term “refugee” can be interpreted to include certain asylum seekers and avoid the requirement of a child having to go through a full refugee determination process before being admitted to the UK. Our Syrian resettlement scheme already operates in a not dissimilar way, and we do not believe any clarifications are necessary.

Dublin System: Asylum

Joanna Cherry Excerpts

Wednesday 4th May 2016 Commons Chamber

[James Brokenshire]

The three-month period is the time the UK has to consider whether to opt into measures at the outset. As my hon. Friend will know, that is one of our protections in our relationship with the EU with regard to justice and home affairs matters. The Commission has published its papers this morning and I am sure that they will be scrutinised in detail by the European Scrutiny Committee. The Government will provide information and support that process in order to ensure that the measure is properly scrutinised by the House. There is no delay on the Government’s part: the three-month period is our safeguard in deciding whether to opt in, and it certainly does not defer scrutiny.

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

The Dublin rules were not fit for purpose, even before the current crisis in Europe developed, and that crisis has pushed the system way beyond breaking point. Even a child would understand that front-line countries such as Greece and Italy cannot be expected to deal alone with all the asylum seekers who arrive there. The proposed system of financial penalties would be an improvement, but it is a distant second best to the proper sharing of responsibility throughout the European Union. If the United Kingdom is not prepared to sign up to the new EU asylum system, exactly what steps will the Government take in order for the UK to do its bit for those already in Europe, particularly the child refugees?

When I was in Calais with other Scottish National party MPs at Easter, we met many refugees with family in the UK, and we met men who had acted as interpreters for the UK armed forces, including men who had been at Camp Bastion at the same time as Prince Harry and when the Prime Minister visited. The Government keep assuring us that they are taking action to speed up the processing of take charge requests, once they receive them. Will the Minister now provide us with the figures on processing times that we have repeatedly asked for, so that we can have some evidence that those take charge requests are being dealt with more speedily?

More fundamentally, there is a real problem with the French side of things being handled slowly and the fact that many of the refugees in Calais and Dunkirk are afraid to claim asylum in France because of the very bad experiences they have had there already, including being tear-gassed by French authorities. Will the British Government consider providing a route to bypass the French system and allow direct claims to the UK based on family ties?

[James Brokenshire]

The relevant requests under the existing Dublin arrangements are being processed in a matter of weeks, as I have indicated to the hon. and learned Lady on previous occasions. Direct contact between officials on both sides means that they are able to make speedy decisions and ensure that those who have links to the UK can be reunited. The Government believe in that principle very strongly. We are also providing additional funding to and investment in other parts of Europe, and that work is absolutely intended to support that principle.

The hon. and learned Lady mentioned the French Government’s actions. They have engaged a specific non-governmental organisation, France Terre d’Asile, to identify people in the camps and ensure that they are protected speedily. We support that work and we will continue to support the French Government and play our part in ensuring that those who have a connection to the UK are established, identified and come to the UK quickly.

Investigatory Powers Bill (Sixteenth sitting)

Joanna Cherry Excerpts

Committee Debate: 16th sitting: House of Commons
Tuesday 3rd May 2016 Public Bill Committees

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

I beg to move amendment 869, in clause 223, page 172, line 41, leave out sub-paragraph (i) and insert—

‘(i) is about an entity to which a telecommunications service is provided by that telecommunications operator and relates to the provision of that service,”

This amendment clarifies the definition of communications data, limiting requirements on organisations to be providing data about the services that they supply.

It is a pleasure to welcome you back to the Chair, Mr Owen. This is an amendment to the interpretation clause dealing with telecommunications definitions, in particular subsection (5), which deals with the definition of communications data. The amendment would replace subsection (5)(a)(i) with the purpose of clarifying that the definition of communications data applies to the providers of the relevant telecommunications services, rather than allowing an organisation to be required to provide data about services it does not provide. Without the amendment, the definition of communications data is flawed because it does not tie the data to the provider of the telecommunications service and therefore seems set to encompass third-party data, which I know the Home Office denies is the intent.

The amendment would make two small changes. First, it specifies that the telecommunications service has to be provided by that telecommunications operator—in other words, it avoids pulling in third-party data. Secondly, it specifies that the data relate to the particular service provided and not to a different one. I will be interested to hear what the Solicitor General has to say about this amendment, which seeks to clarify and tighten up the clause.

[The Solicitor General (Robert Buckland)]

It is good to see you back in your place, Mr Owen. I look forward to a fruitful session.

I welcome the hon. and learned Lady’s remarks. We considered these issues in the context of part 4, in particular third-party data. I do not want to rehearse the arguments about why we consider the code of practice to be the appropriate place to enforce the commitment made by my right hon. Friend the Home Secretary on the Floor of the House on Second Reading. However, the Government note the strength of feeling on this issue, as evidenced by the outcome of the vote on an earlier amendment. We have heard that message loud and clear, so we are considering whether we could do more to make the commitment clear. I hope that that gives the hon. and learned Lady some reassurance that we are taking these matters seriously, and I am grateful to her for raising them.

The aim of the amendment appears to be to prevent a public authority from obtaining third-party data and to prevent a communications service provider from being required to retain those data. I am not sure that the amendment achieves that desired outcome. It would remove third-party data from one element but not from all elements of the definition of communications data. I do not think there is any debate about the need to get the definition of communications data right, but it must correctly and logically classify the data held by CSPs or what can be reasonably obtained by them. The principle of communications data is clear; changing the definition so that the classification of data changes depending on which provider holds it would cause a degree of confusion that I am sure the hon. and learned Lady does not intend.

My first argument is that the clause is not the right place to prevent public authorities from obtaining third-party data or to prevent a CSP from being required to retain them. Clause 53(5)(c) makes it clear that a communications data authorisation can provide for the obtaining of third-party data where that is reasonably practicable for the communications service provider. That maintains the existing provision under the Regulation of Investigatory Powers Act 2000. Where a CSP holds communications data, whether in relation to its services or those provided by a third party for its business purposes, or where it is able to obtain them, they should be available to the public authorities for the statutory purposes in the Bill. We should not put them out of the reach of law enforcement agencies, based solely upon which company holds the information.

I suspect that the hon. and learned Lady’s intent may be to stop a service provider being forced to comply with an unreasonable requirement relating to third-party data—[Interruption.] I am grateful to her for indicating her assent. I assure her and the Committee that, in my view, the Bill already does that. A provider is required to comply with a request for comms data, including third-party data, only where reasonably practicable for them to do so. There is no need to impose a further restriction on that basis.

I recognise the sensitivities of third-party data, but I am afraid that a blanket restriction on its acquisition is not the way forward. We consider that the Bill and the code of practice strike the right balance. On the basis of my earlier assurances to the hon. and learned Lady about getting the language clear, I invite her to withdraw the amendment.

[Joanna Cherry]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 223 ordered to stand part of the Bill.

Clause 224 ordered to stand part of the Bill.

Clause 225

General definitions

[Joanna Cherry]

I beg to move amendment 870, in clause 225, page 177, line 11, at end insert—

‘(a) an advocate,

(b) a barrister,

(c) a solicitor.’

This amendment provides a definition of a “professional legal adviser” relating to use of the term in clauses 25, 100, 135 and 171.

I am grateful to the Law Society of Scotland for drawing my attention to the necessity of this amendment. When we debated the clauses on legal professional privilege—we have done so on a number of occasions during this Committee’s proceedings—I drew attention at an early stage to the Law Society of Scotland’s evidence to the Joint Committee. It gave evidence alongside the Law Society of England and Wales and expressed its shared and serious concerns about the requirement to provide for the protection of legal professional privilege on the face of the Bill. It is pleased that the Government have taken steps to do that, although it is not happy with the extent of the protection provided. That is perhaps a debate for another day.

The purpose of the amendment is to deal with the definition of items subject to legal privilege at line 29, on page 175. The amendment deals with the definition in relation to Scotland and would define a “professional legal adviser” as a person who is an advocate—that is, of course, the correct professional designation for counsel in Scotland or a Scottish barrister—a barrister or a solicitor. The aim is to avoid leaving the definition of a “professional legal adviser” open to too wide or ambiguous an interpretation. It will limit the definition of those who are qualified to provide professional legal services to advocates, solicitors and, in certain circumstances, barristers. I will be interested to hear what the Solicitor General has to say about the proposed definition of a “professional legal adviser”.

[The Solicitor General]

When I saw the amendment, I was reminded of points I made earlier regarding the dangers of over-defining either legal professional privilege itself or those who are subject to it. Let us remind ourselves that legal professional privilege exists not to create a special category of person—in this case, a lawyer—who is exempt from requirements by which the rest of us have to abide, but to protect the client and the integrity of the advice that a lawyer may give to their client. My concern about the proposed definition is that it limits the definition of what items would be subject to legal privilege. For example, legal executives might well be in the position where they are giving advice and are covered by legal professional privilege. Even paralegals could be, should be and would be covered by legal professional privilege.

I absolutely accept the intention behind the amendment, but however well intentioned it might be, trying to define “professional legal adviser” in the Bill would actually damage and undermine the importance of legal professional privilege. We have had many debates about it, but I think the Bill serves to protect that privilege. We are continuing to discuss the precise extent to which that is reflected in all parts of the Bill, but there is no doubt about the Government’s clear intention. I am proud to be a Minister supporting this approach because I always felt that RIPA was deficient in that respect—I held those views long before I became a member of the Government. I am pleased that we are making such progress.

--- Later in debate ---

[Joanna Cherry]

I am interested in the Solicitor General’s point about legal executives or paralegals. Does he agree that, in so far as communications with such individuals would require protection, they would be protected by subsection (1)(b)(ii), which specifies

“communications made in connection with, or in contemplation of, legal proceedings and for the purposes of those proceedings”?

[The Solicitor General]

That is a good point, but there is a danger that we overcomplicate the situation and end up restricting what is commonly understood as the important legal professional privilege that exists between lawyer and client. Instead of overcomplicating it, it would be far better to keep maters straight and reflect the position provided for in the Police and Criminal Evidence Act 1984, which applies here in England and Wales, the Police and Criminal Evidence (Northern Ireland) Order 1989 and the definitions relating to Scotland. The other statutes for England, Wales and Northern Ireland do not define “professional legal adviser” and I do not see a compelling need to do so here. As I have explained, the Bill goes a long way towards protecting that important legal privilege and serving the interests that that privilege is all about. It is not about the lawyers but the client. Fundamentally, it is that communication that merits special protection.

[Joanna Cherry]

I wholly accept that it is not about lawyers but about the client, but is there not a need to define what is meant by “professional legal adviser”? That is all this is about really.

[The Solicitor General]

The hon. and learned Lady puts her case with her customary spirit and brio, if I may say so, but despite her attempts to persuade me, I am concerned that if we seek to narrow the definition in the way the amendment would, the sort of unintended consequences that I know the hon. and learned Lady would be very reluctant to see happen might flow. We should not, in the context of primary legislation, start to define what is better explained in other ways. For that reason, I urge her to withdraw the amendment.

[Joanna Cherry]

I hear what the Solicitor General has to say, and in the circumstances I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 225 ordered to stand part of the Bill.

Clauses 226 to 231 ordered to stand part of the Bill.

Schedule 9 agreed to.

Clause 232 ordered to stand part of the Bill.

Schedule 10

Minor and consequential provision

[The Minister for Security (Mr John Hayes)]

I beg to move amendment 634, in schedule 10, page 235, line 33, leave out paragraph 46.

This amendment omits the amendments of paragraph 19ZD of Schedule 3 to the Police Reform Act 2002. Paragraph 19ZD is to be repealed by the Policing and Crime Bill.

--- Later in debate ---

[The Chair]

With this it will be convenient to consider:

New clause 24—Duration of this Act—

“(1) This Act expires at the end of one year beginning with the day on which it is passed (but this is subject to subsection (2)).

(2) Her Majesty may by Order in Council provide that, instead of expiring at the time it would otherwise expire, this Act shall expire at the end of a period of not more than one year from that time.

(3) Such an Order may not provide for the continuation of this Act beyond the end of the year 2022.

(4) No recommendation may be made to Her Majesty in Council to make an Order under subsection (2) unless a draft of the Order has been laid before, and approved by a resolution of, each House of Parliament.”

[Joanna Cherry]

New clause 24 is a true sunset clause, modelled on clause 1 of the Armed Forces Bill currently before Parliament. We had a spirited debate before the break about potential replacements for clause 222, which is a clause of review. The new clause is another alternative—a sunset clause in the true meaning of the term, which would provide for the Act to expire at the end of a certain period, subject to certain provisos. I do not intend to push the new clause further at this point, given the position we took in relation to new clause 23.

[Mr Hayes]

Clearly, the sunset clause that the new clause proposes is being debated—briefly, I hope—as we approach the sunset of our consideration of this important Bill. A sunset provision is often a feature of emergency legislation and has indeed been appeared in legislation of the kind that we are now debating. It is usually because the legislation has been introduced to meet some particular short-term challenge and Parliament is given limited time in which to consider the legislation responding to that challenge. That is not the case in respect of this Bill, which has had extensive prelegislative scrutiny, both before its draft incarnation and since. It has now had considerable scrutiny by the Committee, and will no doubt continue to be scrutinised as it progresses through its further stages. I am therefore not sure a sunset clause is appropriate.

The hon. and learned Lady is well aware of the three independent reviews that preceded the publication of the Bill, and of the three Committees of this House that have considered the Bill in considerable detail since then. One of those—the Joint Committee—considered at length a sunset clause and a review of the legislation. We debated that a few minutes ago under an earlier group of amendments. As I said at that time, rather than proposing a sunset clause, the Joint Committee suggested a review of the legislation. I understand that suggestion, given the dynamism of the circumstances that the Bill is designed to address—the need to deal with changing technology and so on and so forth. Indeed, the Government, taking full account of the sagacity of the Joint Committee, have built that into the Bill in clause 222, which we have debated at some length.

The complexities of this legislation are acknowledged and understood. I can see why the hon. and learned Lady makes a case for this sort of consideration. In David Anderson’s report on these matters, which I will not quote at immense length unless the members of the Committee wish me to do so, he makes clear that although it is important to consider the effects of the Bill, it is not necessary to accelerate that process in the way that the new clause would. He also makes clear, as others have, that it is vital that the legislation stands the test of time and is fit for the future. I am therefore uncomfortable with introducing specific deadlines of the kind proposed in the new clause.

The hon. and learned Lady has repeatedly and rightly argued that many of the provisions of the Bill require considerable investment. The obligations such as those in respect to data retention require a lot of thought, a good deal of planning and an investment of time and effort from communications service providers and others. Putting that infrastructure into place is a testing business; it is the right thing to do, but it is testing none the less—a point made by the hon. Member for City of Chester and others during the course of the Committee’s consideration. Then to say that we are going to look at all of that again in 12 months’ time sends out a very unhelpful signal to those we are missioning to do that work. We have gone about this business thoroughly. We have discussed this at length with communications services providers throughout the process and time and again they have said that they want certainty; they want a reasonable degree of surety about what is expected of them. I think they would be reticent about investing in the way that they need to if they felt that this all might change in 12 months’ time.

The Home Secretary put the case as well as it can be put when she told the Joint Committee that “advances in technology” are not

“going to move according to sunset clauses established by Parliament.”

Although it is important that these matters are reviewed—as I said on clause 222, we have set into motion the means by which they will be reviewed—I do not think a sunset clause of the type proposed is the right way forward. On that basis, given the assurances that I have offered, I hope the hon. and learned Member for Edinburgh South West will see fit not to press the new clause.

[Joanna Cherry]

Yes, I confirm I will not press the new clause.

Question put and agreed to.

Clause 233 accordingly ordered to stand part of the Bill.

New Clause 12

Warrants: notification by Judicial Commissioner

“(1) Upon completion of conduct authorised by a warrant under this Part, or the cancellation of a warrant issued under this Part, a Judicial Commissioner must notify the affected party, in writing, of—

(a) the conduct that has taken place, and

(b) the provisions under which the conduct has taken place.

(2) The notification under subsection (1) must be sent within thirty days of the completion of the conduct or cancellation of the warrant.

(3) A Judicial Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (2) if the Judicial Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security investigation relating to the affected party.

(4) A Judicial Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (3).”.—(Joanna Cherry.)

This amendment would introduce a requirement that all equipment interference produces a verifiable audit trail. This will be particularly vital to the success and legitimacy of prosecutions. It is recommended that further provision for the independent verification of audit trails is included in Part 8 (Oversight Arrangements).

Brought up, and read the First time.

[Joanna Cherry]

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

New clause 13—Audit trail of equipment interference—

“Any conduct authorised under a warrant issued under this Part must be conducted in a verifiable manner, so as to produce a chronological record of documentary evidence detailing the sequence of activities (referred to hereafter as ‘the audit trail’).”.

New clause 18—Notification by Intelligence and Surveillance Commissioner—

“(1) The Intelligence and Surveillance Commissioner is to notify the subject or subjects of investigative or surveillance conduct relating to the statutory functions identified in section 196, subsections (1), (2) and (3), including—

(a) the interception or examination of communications,

(b) the retention, accessing or examination of communications data or secondary data,

(c) equipment interference,

(d) access or examination of data retrieved from a bulk personal dataset,

(e) covert human intelligence sources,

(f) entry or interference with property.

(2) The Intelligence and Surveillance Commissioner must only notify subjects of surveillance under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.

(3) The notification under subsection (1) must be sent by writing within 30 days of the completion of the relevant conduct or cancellation of the authorisation or warrant.

(4) The Intelligence and Surveillance Commissioner must issue the notification under subsection (1) in writing, including details of—

(a) the conduct that has taken place, and

(b) the provisions under which the conduct has taken place, and

(c) any known errors that took place within the course of the conduct.

(5) The Intelligence and Surveillance Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of an on-going serious crime or national security investigation relating to the subject of surveillance.

(6) The Intelligence and Surveillance Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”.

[Joanna Cherry]

The new clause relates to part 5 of the Bill, which deals with equipment interference—more colloquially known as “hacking”. The effect of the new clause would be to require that the targets of hacking, or the targets of equipment interference, are notified after the fact, as long as that does not compromise any ongoing investigation. The effect of the new clause would mean that the judicial commissioners were under a mandatory statutory duty to notify those subject to surveillance once a particular operation or investigation had ended. At present, unlawful surveillance only comes to light as the result of a chance leak, whistleblowing or public interest litigation of the sort brought by Liberty and other non-governmental organisations and concerned citizens. That is deeply unsatisfactory and is also potentially contrary to our obligations under the European convention on human rights. If a person’s article 8 and other Human Rights Act-protected rights have been infringed, in order to have access to an effective remedy, as required under human rights law, the person must first be made aware of a possible breach. This was stated by the Court in Strasbourg in Klass v. Federal Republic of Germany back in 1978 and reiterated more recently in Weber and Saravia v. Germany in 2006. In both cases, the European Court of Human Rights reiterated

“that the question of subsequent notification of surveillance measures is inextricably linked to the effectiveness of remedies before the courts and hence to the existence of effective safeguards against the abuse of monitoring powers, since there is in principle little scope for recourse to the courts by the individual concerned unless the latter is advised of the measures taken without his or her knowledge and thus able to challenge their legality retrospectively.”

More recently, in the case of Zakharov v. Russia in December 2015, the Grand Chamber of the European Court of Human Rights found that judicial remedies for those subjected to interception in Russia were generally ineffective, particularly in light of the total absence of any notification requirement with regard to the interception subject, which meant that there was no meaningful ability to mount retrospective challenges to surveillance measures, and therefore such provision as there was in Russia was ineffective. Do we want to be passing legislation that is as ineffective in the protection of our constituents’ rights as that in Russia?

The Bill, as it stands, provides a new power for the Investigatory Powers Commissioner to inform someone subjected to a surveillance error by a public authority, but not by a communications service provider, if the commissioner is made aware of it and considers it sufficiently serious, in the public interest, not prejudicial to national security, and so on. We debated that at some length last week. For an error to be serious, it must have caused significant prejudice or harm to the person concerned.

As we also discussed last week, the Bill states that a breach of the Human Rights Act is not, in itself, sufficient for an error to be considered serious, which is a serious shortcoming of the Bill. When notifying someone of an error, before making a decision the Investigatory Powers Commissioner must ask the public authority responsible for the error to make submissions to the commissioner about the matter concerned. That is a narrow, arbitrary and highly discretionary power that will relate only to the most serious errors that judicial commissioners discover during their very limited audit of the use of surveillance powers, which highlights the conflicted position in which judicial commissioners may find themselves, and it does not discharge the Government’s human rights obligations to provide post-notification by default unless they can justify continued secrecy. That is very significant because the security repercussions of hacking into a device or network create an even greater imperative for post-notification, as we discussed at length when we debated amendments and clauses under part 5.

When we debated part 5, it was noted by me and others that a hack, once it has been carried out, may compromise the security of the hacked device, leaving it open to further exploitation by criminals or even other Governments. It is the equivalent of the state breaking into a house, conducting a search and then leaving without locking the doors and without the resident realising that all that has happened. It is one thing for the state to hack into a device where it is strictly necessary and proportionate, but it is quite another for the state to leave the scene, leaving individuals vulnerable to criminal attacks with no way of protecting themselves. If the Government wish their security and law enforcement agencies to have this significant power, they must accept the concomitant responsibility. The purpose of new clause 12, put briefly, is to put the judicial commissioners under a mandatory statutory duty to notify persons after the fact, once an operation or investigation has ended, unless there are very good reasons not to do so.

--- Later in debate ---

[The Solicitor General]

I have listened with great care to the arguments of the hon. and learned Lady. I absolutely agree that, where a serious error has occurred in the use of investigatory powers, the commissioner should be able to inform those affected. We have clause 198(1) to deal with that. However, I do not agree with the principle that as a matter of course, everyone or anyone subject to the use of a lawful investigatory power should be notified of the use of those powers, even with the caveat “unless it would damage an ongoing serious crime or national security investigation”. Such a principle would mean that we could not exclude the possibility of having to notify suspected criminals and terrorists that powers had been used against them, just because a specific ongoing investigation had stalled or indeed ended with evidence of wrongdoing, but without sufficient evidence to meet the prosecution test.

As hon. Members will know, suspected criminals and terrorists will often appear on the radar of the police and security services at different times and in different contexts. Clearly, it would not be at all appropriate to inform them that investigatory powers had been used in one case, as that could prompt them to change how they behave or communicate and hamper subsequent investigation.

National security is particularly important in relation to this matter, because the amendment would require the commissioner to make the subject of interest aware of the conduct that had taken place. That would not only run contrary to the long-standing policy of successive Governments of neither confirming nor denying any specific activity by the security and intelligence agencies; it would essentially require the techniques that they use in specific cases to be made public. That cannot be in the public interest. It would assist terrorists and criminals in their operations, which I am sure cannot be the intention behind the amendment.

Furthermore, the commissioner can delay notification only on the basis of serious crime rather than of crime generally, meaning that the amendment would require the commissioner to inform suspects in active criminal investigations that their communications data had been acquired. One example is an investigation into stalking. It may well not meet the serious crime threshold, but as we have discussed in another context, communications data could be essential, because they could show contact between two parties. My worry about the amendment is that it would require the stalker to be informed that his communications data had been requested, which surely cannot be the intent.

[Joanna Cherry]

Does the Solicitor General agree that new clause 12(3) deals with the very problem that he has just identified? It says:

“A Judicial Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (2) if the Judicial Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security investigation relating to the affected party.”

[The Solicitor General]

I am afraid that it does not, because it uses the words “serious crime”. I have given an example that might not be seen as a serious crime, although as we all know, stalking is absolutely no joke to the victims and can lead to extremely serious consequences for them. I know that the hon. and learned Lady agrees with me about all that.

Beyond the principled objections to the amendment, there are numerous practical problems. It would not be practical, for example, for the commissioner to make everyone whose data were subject to a data retention notice aware of that fact. The commissioner would have to require the relevant telecommunications operator to provide them with a list of all relevant customers, and that operator would have to inform the commissioner every time a new customer joined the service. I worry that it would be pretty easy for criminals to use that process to identify services that they could use to avoid detection, and that unreasonable burdens would be put on all the public authorities covered by the Bill.

[Joanna Cherry]

By way of probing, if we were to delete the word “serious”, so that the subsection read, “notification may defeat the purposes of an ongoing criminal investigation or a national security investigation,” would that deal with the Solicitor General’s concerns?

[The Solicitor General]

I am grateful to the hon. and learned Lady for the way in which she is seeking a reasonable compromise, but I worry that her proposed approach is, on that basis, unnecessary. We already have checks and balances in the framework of the Bill that allow for serious error to be properly identified and dealt with, and for those affected to be notified. As I was saying, I worry that we would end up placing unreasonable burdens on public authorities by requiring them constantly to make a case to the commissioner about whether what they were doing would hamper national security or crime investigations if suspects were told that investigatory powers were being used against them. It would be far better for the police to spend their time and money on getting on with the work of investigating criminals than on determining whether individuals should be informed about what we should not forget is perfectly lawful investigative activity, with the caveat I mentioned about serious error.

Furthermore, in the context of bulk warrants under parts 6 and 7 of the Bill, the public authority or commissioner would need to examine all the data collected under the warrant to identify those individuals whose data had been collected. That would be impracticable and would actually lead to greater intrusions into privacy, because, as we know, bulk data are not examined to that degree unless there is a specific purpose and a properly framed approach. I am sure that cannot be the intention of the amendment. These proposed new clauses are at best unnecessary and at worst frankly unhelpful, and risk undermining the work of our law enforcement and security and intelligence agencies.

On new clause 13 and the audit trail point, the draft code of practice, at paragraph 8.5, requires that

“When information obtained from equipment interference is used evidentially, the equipment interference agency should be able to demonstrate how the evidence has been recovered, showing each process through which the evidence was obtained.”

There will, however, be circumstances when equipment interference is used on an intelligence-only basis—that is, a non-evidential basis. Given those points, and given that it is in the interests of law enforcement and the intelligence agencies to ensure that where equipment interference is used to support a criminal investigation, that is done accordance with evidential standards, new clause 13 is, with respect, not necessary.

If that new clause is in fact about the enhancement of oversight, we have made it clear that while the powers of the new commissioner are being significantly increased, their resources will be greatly increased, which means that they will be able to audit, inspect and review equipment interference agencies as they see fit. In addition, the draft code of practice for equipment interference will require the relevant agencies to keep extensive records to support and enable oversight. There has been no suggestion from the current oversight commissioners in respect of property interference warrantry that a statutory requirement for an audit trail is necessary.

The hon. and learned Lady properly made reference to recent ECHR authorities, most notably Zakharov, a case that I have looked at in the context of these debates. We have to be careful about Zakharov, because it deals with the targeted interception regime—a particular aspect of the debate, as she knows—rather than the bulk regime, in relation to which it is sometimes prayed in aid. I give that caveat in the spirit of fairness, because of course the Zakharov case contained reference to Kennedy v. United Kingdom, a 2010 case in which the UK was found to be in compliance with article 8. In particular, the role of the Investigatory Powers Tribunal was seen as an important part of the checks-and-balances mechanism that allowed the Court to come to the conclusion that the article 8 requirements were satisfied.

We know that the Zakharov case was in the context of a Russian domestic law scenario, which I think we all agree is somewhat different from the scenario in which we work. I do not seek to palm it off glibly on the basis that it relates to Russia and not to the UK, but looking at the ambit of Zakharov and the domestic context in which that case was brought, it is somewhat more difficult than appears at first sight to draw direct comparisons and conclusions from that authority that undermine the carefully calibrated approach the Government are taking to investigatory powers. For all those reasons, I respectfully ask the hon. and learned Lady not to press her new clause.

[Joanna Cherry]

I would like to put my new clauses to the vote.

Question put, That the clause be read a Second time.

--- Later in debate ---

Brought up, and read the First time.

[Joanna Cherry]

I beg to move, That the clause be read a Second time.

The new clause relates to part 4 of the Bill, in particular clause 78, and to the retention of communications data. It would exclude the providers of rural or community access communication services and small service providers from the obligation to collect and retain data, which I believe would be in accordance with policy statements made by the Home Office. I am indebted to William Waites, Duncan Campbell and Adrian Kennard for drawing our attention to the need for this new clause and for assisting in its drafting. I can do no better than remind hon. Members of the statement submitted by Mr Waites on behalf of his organisation, HUBS CIC—document 53 in the written evidence submitted to the Committee—in which he explains:

“I am a founder and director of HUBS CIC, a Scottish Community Interest Company whose purpose is to facilitate broadband provision in rural and remote parts of the country outwith the reach of the large, well-known carriers.”

Hon. Members will be aware of this issue, which has been debated elsewhere in the House in this Session. The statement continues:

“HUBS’ members are small Internet Service Providers typically with tens to hundreds of individual end-user subscribers each. Together they provide the only available Internet service in large swathes of the West Highlands and the South of Scotland…HUBS does not provide service to end-users but instead makes bulk Internet services available to its members that would not otherwise be obtainable due to their small size.”

The members’ concern about clause 78

“is about how the data retention requirements…in particular, and the new obligations and duties on Telecommunications providers in general relate to service providers operating in the environment of HUBS’ membership…A typical member’s entire network infrastructure will cost on the order of tens or hundreds of thousands of pounds. It is optimised for lightweight, energy efficient operation. There are no data centres or indeed cabinets that have adequate physical security for safely storing the most intimate records of individuals’ on-line activities…Indeed it is recognised in general that keeping sensitive data secure is so important, that the best way to meet this obligation is simply to not record it.”

Therefore,

“Constructing facilities in each of these service providers to extract, record, securely store and make available any ‘Internet Connection Records’…would cost at least as much as their entire infrastructure…HUBS, though it is designed to enable the micro ISPs to benefit from economies of scale, cannot help here because it does not know the individual end users…Due regard should also be given to the social dynamics. If an ISP has a couple of dozen subscribers, two or three of which are actively involved in operating the network, data retention has a very different flavour.”

That is very often the position in rural and far-flung communities. It is like asking neighbour to spy on neighbour. I am sure that is not what the Government intend, but the new clause would spell that out. It would give providers of rural or community-access communication services and small service providers the reassurance they require in the Bill.

To put it shortly, the provisions in clause 78 are clearly designed for a very different environment from that which I have described, so those who operate within that environment are keen to have the Government’s assurance that they will be excepted from the requirements of the clause.

[Mr Hayes]

I think I can deal with this very briefly, because there are only two points to make. First, the amendment is flawed. The Department for Culture, Media and Sport tells us that the suggested designation is no longer used, if ever it was. That is a fundamental problem, but that is not a good enough argument alone. A better argument—my second point—is that restricting a retention notice to only large operators could result in large geographic gaps in capabilities or indicate to criminals that they should use only small providers. It is understandable that the hon. and learned Lady wants to defend the interests of small providers, but the provision could have unintended consequences of the sort I do not think she means.

Finally, the Joint Committee said:

“We believe that the definition of telecommunications service providers cannot explicitly rule out smaller providers without significantly compromising the data retention proposals as a whole.”

I appreciate the hon. and learned Lady’s intent, but I am not sure the form of the amendment is adequate or the arguments sufficient to be persuasive.

[Joanna Cherry]

I am not sure what the Minister is saying. Is he saying he could look at the amendment and make it better, or that the principle underlying it is not acceptable?

[Mr Hayes]

I am saying that it is not wise to designate providers based on their size. There will be niche market providers who may provide a particular function exclusively and there may be others providing in a particular area. Taking them out of the system would contradict the purpose of the legislation. Let me see if I can compromise. We have said throughout, and when we were debating an earlier group of amendments, that we understand that some smaller providers will face a significant challenge. I have also said that it is important to recognise that while large providers will have mechanisms to implement readily the changes we expect of them—

[The Chair]

Order. The Minister is intervening on Ms Cherry.

[Joanna Cherry]

Sorry, Mr Owen, I have lost my train of thought. The concern behind the amendment is that although certain assurances have been given, I have tried to explain that, without a guarantee that requirements will be placed on such providers, they may simply grind to a halt. Is there any way round that? That is the purpose of the amendment.

[Mr Hayes]

Let me try to make a more pithy intervention. Of course we understand that we need to support providers in meeting their obligations and we will take the steps necessary to do that. What I do not want to do is to exclude them in the Bill from the requirement because that would have consequences that the hon. and learned Lady does not intend.

[Joanna Cherry]

I am sure the last thing the denizens of the west or the south of Scotland want is some mass influx of terrorists to start using their small internet service providers. On the other hand, they do not want their hard-won and hard-fought-for internet access to be completely compromised by unreasonable requirements being put on it. They are concerned that, although assurances have been given, there is nothing in clause 17 to prevent the Government from putting what would be practically and financially crippling requirements on them. That is the purpose of the amendment.

[The Chair]

Ms Cherry, are you moving the new clause or withdrawing it?

[Joanna Cherry]

The arithmetic is inevitable, Mr Owen. I would like to think carefully about what the Minister has said, and go back to the organisations concerned and discuss it with them so I will withdraw the new clause for now.

Clause, by leave, withdrawn.

New Clause 25

Discharge of the powers, duties and functions: obligations

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the following—

(a) the public interest in protecting national security,

(b) the public interest in the prevention and detection of serious crime,

(c) the public interest in the protection of the privacy and the integrity of personal data,

(d) the public interest in the security and integrity of communications systems and networks,

(e) the principle of necessity,

(f) the principle of proportionality; and that no interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means,

(g) the principle of due process, accountability and respect for the human rights of those affected by the exercise of powers under this Act, and

(h) the principle of notification and redress.”—(Keir Starmer.)

Brought up, and read the First time.

--- Later in debate ---

[Christian Matheson (City of Chester) (Lab)]

I can assure you, Mr Owen, that I will not detain you, the Minister or the Committee for long, save to endorse what my hon. and learned Friend the Member for Holborn and St Pancras has said.

If this is to be our final debate in Committee, I pay tribute to the forensic diligence exercised by my hon. and learned Friend throughout our proceedings and as exemplified by new clause 25 that he has tabled. The crux of so much of what we have discussed in Committee has been balance—where the right balance is between the protection of individual privacy and the ability of our security, intelligence and law enforcement agencies to protect us as a nation. We all have different beliefs about where the balance lies and it is the job of the Committee and the House to establish that balance.

As my hon. and learned Friend has made clear, adding this overarching new clause would give the public a level of comfort—a level of trust, indeed—that we have the balance correct. The new clause would remind us, right at the start of the Bill, of the principles that we think underpin the legislation. That would provide the public with the comfort that they require and also imbue a sense of trust in the final Act that we hand over to the judiciary, the Home Secretary and the agencies that are charged with protecting us. Given the structure of the Bill and the repeated application of certain measures to different areas of activity, an overarching clause would provide a solid foundation to the rest of the Bill’s structure.

I commend my hon. and learned Friend for his work, and in particular for the new clause, because it helps to achieve the balance between protection of privacy and the protection and defence of the realm. I hope that it goes a long way towards winning the support of more sceptical members of the public who might be looking for reasons why they should not support the Bill; now, we can give them a reason why they should.

[Joanna Cherry]

I add my support and that of the Scottish National party to the new clause. I will tell hon. Members about an example of such a clause in Scottish legislation, which they might wish to look at. In doing so, I pay generous tribute to honourable Labour and Liberal Democratic parties which passed it. In coalition in the first Session of the Scottish Parliament, they passed a wonderful piece of legislation, the Mental Health (Care and Treatment) (Scotland) Act 2003. It was based on a report produced by a committee chaired by the late right hon. Bruce Millan, a former Secretary of State for Scotland and a very distinguished gentleman.

The 2003 Act sought thoroughly to modernise and codify the law of Scotland on mental health and, in particular, to take into account the human rights of those who have mental health problems. To do that, it set out in section 1 of the Act general principles that everyone discharging functions under the legislation must stand by. It is a piece of legislation that has very much stood the test of time and it has greatly enhanced the protection of the human rights of those in Scotland with mental health problems. It has also balanced that against the protection of the public in certain situations. The new clause does not take a legislative approach that is without precedent. If Members want to see how it might be done, they can find a similar example to new clause 25 in section 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003.

--- Later in debate ---

[Keir Starmer]

I will. I hope that the hon. and learned Lady will mention the non-governmental organisations that have helped us. Thank you.

[Joanna Cherry]

I add my thanks to all those who have been mentioned so far. It has been a true pleasure to work so closely with the hon. and learned Member for Holborn and St Pancras. I pay tribute to the people behind the scenes who have greatly assisted Opposition Members in our preparation for this Committee.

A number of non-governmental organisations have been mentioned. I will not mention any one in particular; they know who they are, and they have been of great assistance to us. I also want to thank my hon. Friend the Member for Paisley and Renfrewshire North. This is my first time on a Bill Committee, and without his assistance, I would have been in even more of a guddle than I was on some occasions. I am very grateful to him for keeping me right.

[The Chair]

I add my thanks to all members of the Committee, the Clerks in particular, officials, the Official Report, the Doorkeepers and so on.

Question put and agreed to.

Bill, as amended, accordingly to be reported.

Investigatory Powers Bill (Thirteenth sitting)

Joanna Cherry Excerpts

Committee Debate: 13th sitting: House of Commons
Thursday 28th April 2016 Public Bill Committees

[Keir Starmer]

We come to part 8, “Oversight arrangements”. Clause 194 deals with the appointment of the Investigatory Powers Commissioner. The second set of amendments to the clause deal with appointments; I will deal with them when we come to that group.

There are numerous amendments in the first group, but they all relate to the structure of the oversight mechanism, because the structure set out in the clause is considerably different from that proposed by David Anderson in “A Question of Trust”. His recommendation 82 was that there should be a new independent surveillance and intelligence commission. In its scrutiny, the Joint Committee on the draft Bill asked why that had not been done, because, according to its recommendation 51,

“the work of the oversight body will be significantly enhanced by the creation of a Commission with a clear legal mandate.”

That was the clear view of David Anderson. The Joint Committee asked why that recommendation was not carried out. The Government response, as I understand it, was that it is too costly. At the moment, that is the only basis suggested for not acting on David Anderson’s recommendation, or that of the Joint Committee.

Our view is that such a commission, with a “clear legal mandate”, would be far better. Unless there is some significant difference in costs, there seems to be no good reason for not having it. Will the Minister tell us what calculations lie behind the suggestion that one model would be very costly and the other not so?

This issue was raised by the Interception of Communications Commissioner’s Office when it gave evidence on the structural divide that it thought there should be between the judicial function and the audit function. In its written and oral evidence, it said it would be more appropriate for those functions to be split, so that the same group of individuals did not look at both aspects. The amendment would create a commission with a clear legal mandate. It would split the functions in a way that those who exercise those functions at the moment think is appropriate. It also challenges the suggestion that the only reason not to implement the recommendation is that it is too costly.

I intend to press the matter to a vote. I will press amendment 741, and if I lose that vote, I will take a view on pressing the others, as there are so many of them, but for the record, I stand by all the amendments.

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

I support the amendments.

[The Solicitor General (Robert Buckland)]

I thank the hon. and learned Member for Holborn and St Pancras for setting out his case. He will be glad to know that there is more to this than mere cost. I say “mere”, but Ministers and parliamentarians have a duty to ensure we do not burden the Exchequer with unnecessary cost. My primary argument is focused on that. The amendments would only put us in the same position as we will be in under the Bill, but at greater cost.

The Home Office estimates that at least an extra £500,000 would be needed to staff and finance the proposed body. That is not an insignificant sum, which is why the Government are urging restraint when pursuing what might seem an entirely rational, reasonable and logical conclusion. I accept that a number of the bodies and individuals mentioned by the hon. and learned Gentleman would support the thrust of these amendments.

[The Solicitor General]

The impact assessment published alongside the Bill contains the figure. It is supported by that document, so there has been empirical research. I do not have the full figures, but I imagine that the research is based on estimates of staffing levels. The body would also have to deal with new corporate functions, such as human resources, IT, non-executive directors and procurement, as the hon. and learned Gentleman knows well from his experience as Director of Public Prosecutions. This would be a non-departmental public body similar to, say, the Crown Prosecution Service. As an independent body and a key part of our constitutional arrangements for the prosecution of crime, it would obviously need that structure to maintain its independent role.

The amount of money is not insignificant, and the question I must ask is: what would the measure achieve? I remain unconvinced that it would achieve anything more than the current proposal does, because the powers and duties of the proposed body would remain exactly the same as the commissioner’s responsibilities, and the number of inspectors, technical experts and judicial commissioners employed by the organisation would remain exactly the same.

[Joanna Cherry]

The Interception of Communications Commissioner’s Office said that a separate body would promote greater public confidence, because it would be independent, with an appropriate legal mandate, and would be public facing. Does the Solicitor General accept that the amendment would promote public confidence if the oversight function were separate from the judicial function?

[The Solicitor General]

I am grateful to the hon. and learned Lady for her intervention. I know the spirit in which she supports this amendment, because she genuinely and sincerely believes that more needs to be done to promote public confidence. My simple response to her is that the current proposals do promote public confidence in not only the organisation’s operational ability, but, importantly, its ability to deal with the role of inspection.

I respect those who believe that there should be an absolute and complete separation. I suppose it flows from the philosophical view that the desideratum of our constitution should be separation of powers in its pure form. I am afraid that I do not subscribe to that view, and never have done. I think that the British system of checks and balances, which this Bill epitomises, is the better way to achieve the balance between the need for Executive involvement and responsibility for important decisions—on warrantry, for example—on the one hand, and judicial involvement and input into the process on the other. We are achieving that balance in this Bill.

While I respect the philosophical intention behind this other approach, my worry is that we are pursuing too much of a rationalist, purist approach to separation of powers, rather than keeping to the spirit of what the Bill is all about. I am supported—perhaps not quite to the fullest philosophical extent, but certainly practically—by the comments we have heard from people with a strong interest in and knowledge of this area.

There is a value in having a relationship, even a distant one, between the two functions that I have talked about. Indeed, Lord Judge made that point in his evidence to this Committee, when he described how the Office of Surveillance Commissioners works. He said that he “strongly recommended” a model in which the inspectors act as a check on how an authorisation was implemented and then feed back, if necessary, that information to the authoriser, so that there is a full awareness of how warrants are to be put into practice.

There is a strong argument that there is stronger oversight from having one indivisible body that can scrutinise the full lifespan of a warrant, from initial request for authorisation through to implementation. David Anderson himself believes that:

“I have considered whether it would be difficult to combine the judicial authorisation function and the inspectorate in a single organisation, and concluded that it would not…Whilst the judicial function is obviously a distinct one, there is considerable benefit in dialogue: the Judicial Commissioners could advise the inspectorate on matters to look out for on their inspections, and the inspectors could in turn suggest that a warrant be referred back to the Judicial Commissioners if they formed the impression that it was not being implemented as it should be, and that the Judicial Commissioners might wish to consider modifying or cancelling it.”

I accept that the Bill does not prescribe the precise approach in practical terms, but the point is that we want the Investigatory Powers Commissioner to decide what the working relationship should be between the two functions of his or her office. The fact that the Bill is silent on that emphasises the point that we want the degree of operational independence and robustness that I believe the current framework provides.

Of course, there is nothing new about this, because the current oversight bodies—the offices of the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner—are provided for in statute in exactly the same way that it is proposed that this body be provided for in this Bill. I am sure that if the current commissioners—we heard them give evidence—felt that their independence was in any way being constrained, we would have heard about it by now. What we get is oversight, and the bodies responsible for oversight focusing on the core tasks of carrying out inspections and investigations, and avoiding the sort of administration, human resources and IT functions that I have mentioned.

[Joanna Cherry]

I hear what the Solicitor General says about the essential philosophical difference between those who believe in separating powers properly and those who do not, but does he accept that if the one body has judicial audit and inspection responsibilities, the judicial commissioners will effectively be checking their own homework? Does he really think that that will promote public confidence?

--- Later in debate ---

[Keir Starmer]

I intend to deal with funding under clause 208. I appreciate that new clause 19 is in this group, but that is probably only because it contains the word “commission”, so I will deal with it at a later stage. However, I have listened to what the Solicitor General said.

The amendments are supported by the Interception of Communications Commissioner, who was most concerned about the structural division of the two functions. The Solicitor General says that there are advantages in being able to do an end-to-end review, and that it brings focus; I can see that. If it were an end-to-end review of someone else’s work, that would be a good thing. The structural problem is that, within that end-to-end process, the same team takes the steps and does the overseeing. That is more than just a philosophical issue. It is a practical issue with how oversight works. I am therefore unpersuaded.

[Joanna Cherry]

The hon. and learned Gentleman will recall that Jo Cavan, the head of the Interception of Communications Commissioner’s Office, not only covered that in her written evidence, but was asked about it by me in her oral evidence to the Committee. She reiterated the position that we set out very strongly.

[Keir Starmer]

I know that the Interception of Communications Commissioner feels very strongly on this point. I think that he raised it in evidence, and he has certainly raised it with me. For that reason, I will press amendment 741 to a vote. I will review my position on the remaining amendments, depending on how that vote goes.

--- Later in debate ---

[Keir Starmer]

The amendments are fundamental and important, because one of the main features of the Bill is the role of the judicial commissioners and the role, therefore, of judges in the double lock. The Home Secretary made a great deal of introducing that judicial element when the Bill was published in draft form, and again when it came back before the House in its current form. The Government have repeatedly and understandably emphasised that point throughout the scrutiny process. The amendments are focused on the appointment of the judicial commissioners. The way in which senior judges are appointed in this country has evolved over time, but we now have a clear and agreed way that has gone through numerous processes and consultations, with numerous recommendations on how it should properly be done.

We welcome the fact that, following the pre-legislative scrutiny, the provisions in clause 194 have been amended, but it remains the case that the Prime Minister will appoint the judicial commissioners, which is most unusual. The change from the draft Bill is that the Prime Minister must now consult the Lord Chief Justice. That is a step in the right direction, but it is fundamental, under our unwritten constitution, that judges are appointed independently of the Executive and those in political positions, and are not appointed by the Prime Minister.

The step of requiring the Lord Chief Justice to be consulted does not go as far as the Joint Committee on the draft Bill wanted. It recommended that the Lord Chief Justice be responsible for appointing the commissioners, to “ensure public confidence”. It was clear about how the separation of powers should operate in this important field. The Joint Committee also recommended:

“The Judicial Appointments Commission must also be consulted to ensure that the appointments procedure is fair and transparent.”

It wanted a move away from the Prime Minister making the appointments to the Lord Chief Justice doing so, drawing on the Judicial Appointments Commission, which was set up to ensure the transparency and independence of the appointments regime.

In short, the Prime Minister should not be involved. The Interception of Communications Commissioner’s Office agrees, stating in its evidence to the Joint Committee:

“It is inappropriate for the Judicial Commissioners to be appointed by the Prime Minister”.

It, too, said there should be a role for the Judicial Appointments Commission. As I said, the Judicial Appointments Commission has evolved over time. It was set up to ensure the independence of the judiciary, by requiring vacancies to be advertised and published, with the criteria for appointment and so on.

The changes proposed in the amendments are ones of principle that are rooted in the separation of powers and in line with the view of Lords Constitution Committee on judicial appointments. That Committee has affirmed that judicial independence is a basic constitutional principle, and it found wide agreement among those that gave evidence to it that the appointments process must be designed in such a way as to reinforce judicial independence and that judges should not be appointed through a political process.

The amendments are fundamental to the how the judicial commissioners are to be appointed. If there is to be public confidence in the double lock, judicial commissioners should be appointed independently, in accordance with the understanding and arrangements under our unwritten constitution.

[Joanna Cherry]

I support the amendments.

[The Minister for Security (Mr John Hayes)]

It is a pleasure to serve under your chairmanship as ever, Mr Owen. It is important, as we consider this part of the Bill, that we test some of its provisions in the way the hon. and learned Gentleman has.

The Government take this part of the Bill very seriously. Along with the safeguards added earlier in the Bill, oversight plays an important part in making sure that we have the checks and balances that we all seek. In that respect, there is space for an informed debate about the balance that we are seeking to achieve, as the hon. and learned Gentleman suggests. The roles of the Executive and of the judiciary, which we have already begun to explore in the brief debate to which my hon. and learned Friend the Solicitor General contributed, are central to those considerations.

--- Later in debate ---

[Mr Hayes]

That is helpful, because the hon. and learned Gentleman has qualified the point that I was going to come on to make. The amendments could take the Lord Chief Justice out of the process altogether, and I am sure that the hon. and learned Gentleman would not want that—indeed, he has confirmed as much. However, there is also a point to be made about the practicalities and effectiveness of the system, which Lord Judge commented on when I questioned him on 24 March. I asked,

“in terms of the appointment of the judicial commissioners, would the Judicial Appointments Commission be a better place to appoint them, or do you rather like the model we have come up with?”

He said that

“I much prefer the model you have come up with”,

and finished by saying:

“There is no point whatever in involving the Judicial Appointments Commission, ignoring the fact that it has got far too much to do anyway and not enough people to do the work.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 73, Q237.]

I will not comment on the arrangements or resources of that body, but on a different occasion, when speaking in particular about the Prime Minister’s role in the proposals, Lord Judge described that as a “perfectly sensible system.”

It is therefore clear that there is a view that the arrangements being put in place are a reasonable balance between the Executive and the judiciary, and that changing them would not necessarily lead to greater effectiveness or practicality. The people being appointed will already been through Judicial Appointments Commission process, as the hon. and learned Gentleman generously said. It is also important that we are clear about lines of accountability and the character of independence. To an extent, that reflects the broader debate that my hon. and learned Friend the Solicitor General stimulated. It is important that there is separation between the roles of the people involved to avoid any sense of patronage, and that the Prime Minister continues to play a role, to affirm the significance of the Executive’s engagement in everything that we are discussing in the Bill.

That is a much broader point. Although I do not want to go back into all of this, Committee members will be aware that the double lock that we have created is itself a compromise. On one hand, there is the position adopted by those who are sceptical about judicial involvement in the business of issuing warrants—the former Home Secretary Lord Reid, for example, and a number of Members of this House, including some from my own party. On the other, there are the recommendations of David Anderson, who is clear that in order to add more validation to the process and insulate it from challenge, it is important to create a role for the judiciary. Given that balance, which is a pretty finely tuned one, I am reluctant to take the Prime Minister out of the business of appointments.

[Joanna Cherry]

I hear what the Minister is saying about the Government’s keenness to retain the involvement of the Prime Minister. Could his concerns be met and a compromise reached via amendment 740, which the Scottish National party support? It would retain the Prime Minister’s involvement and provide that he or she would make an appointment only following a recommendation by either the Judicial Appointments Commission, the Judicial Appointments Board for Scotland or the Northern Ireland Judicial Appointments Commission. Of course, as the Minister has reminded us, those bodies would be appointing from an existing pool of appointed judges, so it would not take up too much of their time; they would be considering people with whom they were already familiar. Is that the way forward? It is important to ensure that the Judicial Appointments Board for Scotland is involved, if not the Scottish Ministers, given the Scottish Ministers’ current responsibility for appointments to the Office of Surveillance Commissioners.

[Mr Hayes]

The hon. and learned Lady is right to interpellate in that way. There is certainly a good argument to be made for what she has just described, and I am not insensitive to it. However, I challenge more fundamentally the suggestion that the Prime Minister’s engagement—and, further, the Prime Minister’s engagement in the way that we have set out, rather than in the way that she has just described—would in some way be injurious to the independence that is critical for those involved in the oversight process.

[Joanna Cherry]

It will not be, provided that he or she appoints on the recommendation of the independent bodies. That is what we do at the moment for judges, both north and south of the border. In Scotland, the First Minister appoints judges to the supreme courts of Scotland on the recommendation of the Judicial Appointments Board for Scotland. In England and Wales, as I understand it—I am willing to be corrected—the Prime Minister makes his appointments on the recommendation of the Judicial Appointments Commission and the Lord Chancellor, but presumably they have gone through an independent judicial scrutiny process. Amendment 740 would simply replicate those procedures for the judicial commissioners. I do not understand what possible objection there could be.

[Mr Hayes]

The hon. and learned Lady ascribes to me a lack of willingness to hear the argument, which I have made clear is not a feature of my approach to the provisions, and a certain stubbornness. Far be it from anyone to accuse me of that. I am not insensitive to that argument, as I have emphasised.

--- Later in debate ---

[Mr Hayes]

Again, that is an argument about fine tuning. I do not say that with any pejorative implication. It is reasonable to say that the Prime Minister’s engagement has to be of a kind that does not either mean, or arguably, perhaps, give the appearance of, a lack of independence—I think that is what the hon. Gentleman is suggesting. Thus we end with the idea of the hon. and learned Member for Edinburgh South West about changing the chronology, or perhaps rather more than that, actually altering the process by which the Prime Minister is involved.

On the factual point that the hon. Gentleman raised about the Prime Minister’s engagement, of course the current commissioners are appointed on that basis, and there is no suggestion that their independence has been compromised.

Then we come to the issue of deployment, and I want to talk about the difference between deployment, in the way that the hon. and learned Lady is no doubt about to prompt me to.

[Joanna Cherry]

Does the Minister agree that, although there may be no suggestion that the current commissioners’ independence has been compromised, the appearance of independence is important for public confidence?

--- Later in debate ---

[Keir Starmer]

I am grateful to the Minister. In the circumstances, I will not press the amendments. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 194 ordered to stand part of the Bill.

Clause 195

Terms and conditions of appointment

[Joanna Cherry]

I beg to move amendment 745, in clause 195, page 149, line 34, leave out “three” and insert “six”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 746, in clause 195, page 149, line 36, after “may”, insert “not”.

Amendment 860, in clause 195, page 150, line 18, at end insert—

“(e) the Commissioner is unfit to hold out office by reason of inability, neglect of duty or misbehaviour.”

Amendment 861, in clause 195, page 150, line 18, at end insert—

“(6) Before removing a Judicial Commissioner the Prime Minister must consult—

(a) the Lord Chief Justice of England and Wales,

(b) the Lord President of the Court of Session,

(c) the Lord Chief Justice of Northern Ireland,

(d) the Scottish Ministers, and

(e) the First Minister and Deputy First Minister in Northern Ireland.”

[Joanna Cherry]

It is a pleasure to serve under your chairmanship, Mr Owen. Clause 195 deals with the terms and conditions of appointment for judicial commissioners, and amendments 745 and 746 address the term of the appointment. The Bill provides for the judicial commissioners to be appointed for short terms of three years, subject to a potential rolling renewal. The amendments would extend the length of term served to six years and remove the prospect of renewal. The thinking behind that is that secure judicial tenure is designed and recognised as one of the key safeguards of judicial independence.

The provision for the judicial commissioners to be appointed by the Prime Minister and for their terms to be short and subject to renewal only at the discretion of the Prime Minister could pose a significant barrier to the commissioners’ functional or apparent independence. Three years is a very short term, and a judicial commissioner wishing to extend his or her term may be influenced in their behaviour by a desire to please the current Administration. In saying that, I take fully on board the fact that an extremely distinguished English judge, Lord Judge, has said that that is unlikely to happen, but he cannot speak for other judges or the future, just as this Government cannot speak for future Governments. That is why judicial independence is so important.

We may feel complacent about judicial independence at present. I do not mean to be pejorative about the English system, but I like to think we have proper judicial independence in Scotland—as I said earlier, judges are appointed by Her Majesty the Queen on the recommendation of the First Minister after they have consulted the Lord President and after the Judicial Appointments Board for Scotland has made a recommendation. We have judicial independence under the current system in Scotland, but those judges are of course appointed for an indefinite term, until such time as they have to retire. Under the Bill, the plan is to have judges appointed by the Prime Minister. I have heard what the Government say, but without the further safeguards we have just been discussing, judges will be appointed for very short periods of three years, at which time their renewal will come up. If the amendments are made, the term of appointment will be six years, which is probably quite long enough to be doing this sort of important and taxing work, and there will be no renewal thereafter.

The six-year terms would allow the commissioners to develop their expertise and avoid any concerns about stagnation. Importantly, six-year terms would ensure that the judicial commissioners’ tenure does not undermine their crucial independence from the Government, and the perception of their independence from the Government and from the officers, agencies and public bodies they are monitoring.

[Victoria Atkins (Louth and Horncastle) (Con)]

It is a pleasure to serve under your chairmanship, Mr Owen.

The point of the three-year term is surely that the Government are hoping to recruit High Court judges at the very top of their game—High Court judges who have a long career behind them and ahead of them. The idea of the three years is to give them the choice to pop out of the High Court or the Court of Appeal and do their three years, and then if they wish to return to service in the courts, they have been out for only three years. It is an attempt to encourage judges to apply, rather than to count against it.

[Joanna Cherry]

I hear what the hon. Lady is saying. Initially, I thought she was going to suggest that it would be for judges who were at the end of their judicial careers and would be coming up against retirement anyway. Her point gives me a difficulty with the six-year amendment, but not with the non-renewal amendment. If judicial commissioners are appointed only for three years with a renewal at the end, my fear pertains in so far as they would be there for a very short period of time. They would probably be anxious to stay on for longer, and could well tailor their decision making to guarantee a longer stay. That may not be a concern at present, as I have taken trouble to say, but that does not mean that it could not be a concern for the future.

The oversight of some of the most intrusive and far-reaching powers of the state is important work. Therefore, in tailoring the provisions for the appointment of the judges, we should look not so much to what might be convenient for judges, but to what is necessary to secure proper independence in the eyes of the public. That is about as much as I can say about amendments 745 and 746.

I am pleased to say that amendments 860 and 861 were suggested to the Scottish National party by the Law Society of Scotland, and we have decided to table them because we think they would improve the Bill. They deal with the circumstances in which a judicial commissioner may be removed from office. At present, clause 195 allows for the removal of a judicial commissioner who is bankrupt, disqualified as a company director or convicted of an offence. The clause does not permit the removal of the commissioner for being unfit by reason of inability, neglect of duty or misbehaviour. It is important, in the eyes of the Law Society of Scotland—I endorse its views—that the possibilities of unfitness for office by reason of inability, neglect of duty or misbehaviour are provided for in the Bill.

Very regrettably, it sometimes happens in Scotland—this has happened in my lifetime—that a judge, albeit of the lower courts, has to be removed for reasons of inability, neglect of duty or misbehaviour. I realise that we are dealing with judges at the very senior end of the spectrum, and I very much hope that such steps would never be necessary, but there is no harm in providing for such steps to be taken. Would it not be a very serious matter if a judicial commissioner dealing with the oversight of such far-reaching and intrusive laws were unfit for office by reason of his or her inability, neglect of duty or misbehaviour? We would want to be rid of them, in the best interests of everybody. I commend that aspect of the Law Society of Scotland’s amendments.

If amendment 861 were made, before removing a judicial commissioner the Prime Minister would be required to consult the Lord Chief Justice in England and Wales, the Lord President of the Court of Session in Scotland, the Lord Chief Justice of Northern Ireland, the Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland. That additional safeguard of consultation with the heads of the UK jurisdictional judiciaries and the devolved Administrations would provide a check on unjustified attempts to remove the judicial commissioner.

The purpose of the amendments is to prevent unjustified attempts to remove the judicial commissioners and to add grounds for their removal if they were unfit for office by reason of inability, neglect of duty or misbehaviour. I am interested to hear what the Solicitor General has to say about the amendments.

[The Solicitor General]

Once again, the hon and learned Lady puts her argument succinctly and clearly. I am sure she will forgive me for characterising her as a guardian of independence of the judiciary. Although that is an admirable position to take, I do not think it is necessary in this instance.

I will deal first with the length of appointment. My hon. Friend the Member for Louth and Horncastle put it very well and I do not need to improve upon the argument. We need a relatively significant term—three years—to attract serving High Court judges, but not a term of such length that it would be difficult for them to return to High Court work in the normal course of events. That is why we think three years is an appropriate period. For retired High Court judges, we have to remember the constraints that we are under. A three-year period, with that renewal term, strikes the correct balance. The renewal term is there because this will be technical role, and knowledge and expertise will be developed by the commissioners. Allowing a reappointment will retain that expertise in a balanced and fair way. A six-year period would just be too long, bearing in mind the quality that we want to attract to fill these important and sensitive posts.

I will deal with the question of unfitness. I am sympathetic to the intention behind the amendments, but it might be argued that the proposed wording gave too much discretion to the Prime Minister to remove a commissioner. The conditions listed in clause 195 for removal from office are precisely the same as those for which a High Court judge can be removed from post. Since having held the position of a High Court judge is the qualification for office as a judicial commissioner, the reasons for removal from the two posts should be precisely the same. If a commissioner is demonstrably unfit to perform the role, he or she can still be removed from post if the Prime Minister and, importantly, both Houses of Parliament agree to the removal. That is an admirable check and balance, which deals with the point of competence and fitness to which the hon. and learned Lady quite properly points us.

On the need to consult the judiciary and others concerned in the appointment of commissioners before removing them, I do not think that is necessary because there are only two ways in which a commissioner could be removed from office: first, because the individual had failed to meet the standards expected of a High Court judge; and secondly, via the mechanism of Prime Minister and Parliament agreeing that that person is no longer fit. Those are adequate safeguards that stop the mischief of a commissioner being removed from post on the whim of the Prime Minister alone. I strongly reassure the hon. and learned Lady that there is absolutely no power for the Government—any Government—to remove a judicial commissioner just because they disagree with that commissioner’s views. I can say a Government would not do that, but I am able to go further and say that, on the basis of this framework, the Government simply cannot do that. That is absolutely right and fulfils the objectives that the hon. and learned Lady wishes to achieve through her amendment. On that basis, I urge her to withdraw it.

[Joanna Cherry]

I have listed carefully to the Solicitor General and the hon. Member for Louth and Horncastle and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 195 ordered to stand part of the Bill.

Clause 196

Main oversight functions

[Joanna Cherry]

I beg to move amendment 752, in clause 196, page 150, line 43, at end insert

“and under section 217 (technical capability notices)”

[The Chair]

With this it will be convenient to discuss amendment 747, in clause 196, page 151, line 19, leave out subsection (4)(a)

[Joanna Cherry]

The clause provides for oversight functions. The purpose of the amendments—amendment 752 in particular—is to provide for consistent oversight functions.

Under clause 218, obligations to remove electronic protections, which we will come to under part 9, or encryption can be issued either as a national security notice or, more likely, as a technical capability notice by the Secretary of State. As drafted, the Bill does not require judicial authorisation or a test of necessity or proportionality for either a national security notice or a technical capability notice. I argue that the powers are so far-ranging that they should be subject to oversight by the proposed new oversight body. Amendment 752 would make it clear that the commissioners have responsibility for oversight of national security notices and technical capability notices.

Amendment 747 would remove clause 196(4)(a). The Bill provides for the Secretary of State to modify the functions of the Investigatory Powers Commissioner and the judicial commissioners by secondary legislation subject to the affirmative procedure. The amendment would remove that power. I acknowledge that the Joint Committee had every confidence that such a power would only be exercised responsibly by the Secretary of State, but in the light of the commissioner’s important function holding Ministers and public agencies to account, I consider that granting Ministers a delegated power to alter the commissioner’s powers is inappropriate. One way of removing that power would be to leave out subsection (4)(a); another would be to take out clause 205 completely, but we will come to that later.

--- Later in debate ---

[Mr Hayes]

I can add little to the contribution of my hon. Friend, who has articulated these things better than I could. Nevertheless, I should emphasise two points. The hon. and learned Member for Edinburgh South West is right to say that the clause provides for IPC oversight of technical capability notices in subsection (1), and it lists the main oversight functions that should be undertaken. I accept that she is making quite a refined case, but my argument is that the clause already provides the oversight she seeks, because the notices are

“of statutory functions relating to”

the activities. That is a wide-ranging role for the commissioner, with absolutely proper capacity to probe, through oversight of public authorities, the necessary powers and an expansive remit to consider all such matters.

Amendment 747 would give the commissioner the function of keeping under review, including by way of audit, inspection and investigation, the exercise of the functions by Ministers. I am still less persuaded of that. It is a less refined and pretty basic argument about the relative functions of the Executive and the commissioner. I do not want to lecture the Committee on the importance of the separation of powers—we have already had an interesting discussion about that—but it is absolutely right that the process of scrutiny and review should be carried out by the legislature, as my hon. Friend the Member for Fareham implied. By the way, that includes the Scottish Parliament, which will of course have a role, alongside the Welsh and Northern Irish Assemblies. I consider that role to be of the utmost importance, and I would not want in any way to limit or inhibit the capacity for reflection and review with such an amendment.

As well as all that, we doubt that the amendment would provide for appropriate allocation of the skill and resources of the commissioner, whose key function is to provide oversight of the powers as defined in the Bill. I can see what the hon. and learned Lady is getting at—as I say, her amendments are at least in part an attempt to refine what is before us—but I do not feel that I am any more persuaded of their virtue than is my hon. Friend. On that basis, I invite her to withdraw the amendment.

[Joanna Cherry]

To clarify, we are currently dealing just with amendments 752 and 747; I have not yet made my submissions on the other amendments. I am not prepared to withdraw the amendments and would like to press them to a Division.

Question put, That the amendment be made.

--- Later in debate ---

[Joanna Cherry]

I beg to move amendment 748, in clause 196, page 151, line 42, leave out from “must” to end of line 44 and insert

“have due regard to the public interest in avoiding acts prejudicial to”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 750, in clause 196, page 151, line 47, leave out subsection (c) and insert—

“(c) privacy and the integrity of personal data; and

(d) the security and integrity of communications systems and networks.”

Amendment 751, in clause 196, page 151, line 48, leave out subsections (6) and (7).

[Joanna Cherry]

The hon. Member for Fareham and the Minister have already anticipated what I am going to say in support of the amendments, so I will try to be brief. The Bill requires the Investigatory Powers Commissioner and the other judicial commissioners to prioritise

“national security, the prevention or detection of serious crime…the economic well-being of the United Kingdom”

above all other considerations in the exercise of their functions. It also imposes a particular duty not to

“jeopardise the success of an intelligence or security operation or a law enforcement operation…or unduly impede the operational effectiveness of an intelligence service, a police force…or Her Majesty’s forces.”

The amendments would create a “due regard” duty for judicial commissioners to exercise their functions in a manner that considers the range of important public interests that their oversight function is designed to preserve, including the protection of individual privacy,

“the integrity of personal data; and the security and integrity of communications systems and networks.”

Amendment 750 is consistent with other amendments in that it would remove the reference to

“the economic well-being of the United Kingdom.”

Amendment 751 would remove the exceptionally broad particular duty to refrain from impeding the work of the agencies, the police or the armed forces.

We have already had lengthy submissions on the issue of the economic wellbeing of the United Kingdom. On the “due regard” issue, the response from the hon. Member for Fareham and the Minister was that clause 196 is adequate as it stands, because we have heard evidence from a number of people involved in the system that everything is done properly and above board.

In these Houses yesterday, as a result of the second inquest into the Hillsborough tragedy, we had a classic example of it coming to light that the establishment and the state had not performed their duties properly. Sometimes the state and the establishment do not perform their duties properly; sometimes things that are not specifically laid down are not done properly. To take the Hillsborough example, until we had article 2 of the European convention on human rights and the particular duty to involve the family and next of kin in inquests, we would not have had what the Home Secretary read out to us yesterday, the detailed questions for the jury and the detailed answers that the jury members had to give. They were the result of a specific requirement to involve and respect the wishes of the next of kin, and of duties under article 2.

--- Later in debate ---

[Mr Hayes]

That is exactly the point I was making. Again, I have no doubts about the hon. and learned Lady’s noble intentions, but I do not think that this is a good place to do what she seeks to do.

[Joanna Cherry]

I can reassure the Minister that the SNP and the Labour party are jointly working at present to produce an amendment later today with an overarching privacy clause for the Bill, which would be a new clause to be debated next week. However, I have to say that, given the Government’s attitude to date in relation to most of the amendments that we have tabled, I have no confidence that that new clause will be accepted, so I intend to push press this amendment to a Division.

[Mr Hayes]

I am a little hurt, frankly. I regard the caricature that the hon. and learned Lady has painted of my approach to all of these considerations as—I would not say insulting—hurtful. Far from the stony-faced zealot that I think she seeks to portray me as, I am the very model of this listening Government.

--- Later in debate ---

[Mr Hayes]

I was, by proxy, making that clear, and I will leave it at that.

[Joanna Cherry]

Will the Minister give way?

[Mr Hayes]

I know the hon. and learned Lady is anxious to get to lunch, and I do not want to delay her any further. She may have been about to say that.

[Joanna Cherry]

The hon. Member for Hove quoted exactly what the witness said. The Solicitor General is trying to say that the witness was mistaken, because the clause pertains only to oversight functions and not judicial functions, but does that not illustrate the very difficulty of having the judicial and oversight functions mixed up together? Subsection (5) states:

“In exercising functions under this Act”.

It does not say, “In exercising oversight functions”.

[Mr Hayes]

I am going to sit down and suggest that the hon. and learned Lady either withdraws the amendment or allows us to oppose it. It will allow her to have that slightly broader conversation with the Solicitor General over their exciting lunch.

[Joanna Cherry]

I wish to insist on the amendments.

Question put, That the amendment be made.

Investigatory Powers Bill (Fourteenth sitting)

Joanna Cherry Excerpts

Committee Debate: 14th sitting: House of Commons
Thursday 28th April 2016 Public Bill Committees

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

I beg to move amendment 760, in clause 197, page 152, line 27, leave out “directed” and insert “requested”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 761, in clause 197, page 152, line 28, leave out “must” and insert “may”.

Amendment 762, in clause 197, page 152, line 39, leave out

“in a manner which the Prime Minister considers appropriate”.

Amendment 763, in clause 197, page 152, line 42, leave out

“contrary to the public interest or”

and insert “seriously”.

Amendment 764, in clause 197, page 152, line 45, leave out subsections (4)(c) and (4)(d).

[Joanna Cherry]

The clause deals with additional directed oversight functions. It binds the Investigatory Powers Commissioner to conducting reviews of the work of the intelligence services or the armed forces, subject to the direction of the Prime Minister. While the commissioner may request that the Prime Minister gives such a direction, the Prime Minister will only issue a direction at his or her discretion. The amendments to subsection (1) would make it read as follows: “So far as requested to do so by the Prime Minister and subject to subsection (2), the Investigatory Powers Commissioner may keep under review the carrying out of any aspects of the functions of” the intelligence services and so on.

The amendments to subsection (4) would make it read: “The Prime Minister must publish any direction under this section except so far as it appears to the Prime Minister that such publication would be seriously prejudicial to national security, or the prevention or detection of serious crime”.

The amendments would remove the power to direct that such reviews take place, and replace it with the power to request that the Investigatory Powers Commissioner undertake such a review. At present, the Bill provides that any direction made may be published only in such a form as is deemed appropriate by the Prime Minister, and may be redacted for a number of very broad reasons, including that it may be prejudicial to

“the continued discharge of the functions of any public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner.”

That could include, for example, the Food Standards Agency.

The amendments to subsection (4) would limit the power to keep any request or direction secret. That would increase the effectiveness of the mechanisms for transparency and accountability in public decision making, including in respect of the conduct of the intelligence agencies and the armed forces. The provision in the Bill for the Prime Minister to direct the commissioner to undertake work that is outside the ordinary scope of its statutory duties would undermine the perception that the commissioner is independent, whereas a power to request, with discretion, keeps the perception—and reality—of the independence of the commissioner. The alternative would be to remove the clause from the Bill completely. I hope that the amendments will be acceptable to the Government, and that there will be no need to vote the clause down.

[The Minister for Security (Mr John Hayes)]

As the hon. and learned Lady says, the clause makes provision for the Prime Minister to direct the Investigatory Powers Commissioner to undertake additional oversight of the security and intelligence agencies. I say “additional” with emphasis, because clause 196 creates a range of oversight functions that are supplemented by clause 197. I think there may be a misapprehension here that the oversight is exclusively at the diktat of the Prime Minister. That is certainly not the case.

The principal oversight functions are given legislative life in clause 196. Clause 197 provides a further opportunity for oversight through investigations, as a result of the direction that the hon. and learned Lady referred to. That has many virtues. It adds alacrity, because of course it would not always be appropriate to wait for the annual report of the commissioner. It means that where matters of imminent concern are drawn to the attention of the Executive through the Prime Minister, or indeed to the attention of the Prime Minister, he can exercise this function with speed and diligence. To take out the whole clause, which would be the effect of the amendment, would take out the additional directed oversight functions that supplement clause 196 in a beneficial way.

Of course, the Prime Minister’s ability to make such directions is subject to the public interest and defined by need. It is important to add that anything the Prime Minister does in this regard cannot be prejudicial to national security, the prevention or detection of serious crime or the economic wellbeing of the UK. Indeed, the opposite is true. He acts in defence and promotion of those things. Once again, I understand that the hon. and learned Lady is probing, and it is right that she does so. However, on careful reflection, she will come to the conclusion that rather than adding to the Bill, this literal subtraction would be unhelpful.

The Joint Committee said nothing about this matter. Although it looked at these things with impressive diligence, it came across no evidence of which I am aware that suggested that such a measure was imperative. The amendment certainly would not enhance oversight. Part of my job here is to protect the hon. and learned Lady. The amendments we debated immediately before our brief lunch would have had the effect of minimising consideration of public interest. In this case, she would be minimising the ability to exercise additional oversight. On that basis, and in defence of the existing provisions, of what is right, and—might I say mildly—of the hon. and learned Lady’s own interests, I invite her to withdraw her amendment.

[Joanna Cherry]

Well, Mr Owen, I am not going to fall into that trap, just as I did not before lunchtime. I am not sure whether it is flattery or compliment, but whichever it is, I will not fall for it. There is good reason for the amendment, as I have explained, and I wish to press it to a vote.

Question put, That the amendment be made.

--- Later in debate ---

[The Chair]

Does the hon. and learned Lady wish to move each amendment?

[Joanna Cherry]

On reflection, Mr Owen, I do not think that there is much point in doing so; we all know which way this is going. I think that the marker has been laid down in relation to clause 197.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

[Mr Hayes]

I agree, and that is precisely why, when members of the Opposition probe, it is important that my hon. and learned Friend the Solicitor General and I explain where that probing leads. The interface between members of this Committee is designed for that exact purpose. It allows us to test the Government’s arguments, to examine the Bill with care and to identify where it can be strengthened, and as part of that to find out where the Opposition, having probed, will ultimately be satisfied that the Government got it right the first time round. I have been on both sides of this process over many years; I have been in the shoes of the hon. and learned Member for Holborn and St Pancras, so I know exactly what that is all about.

In this case, drawing on my experience as a Member of Parliament, I can imagine where the amendment might lead. I do not think it is the intention, but it could well be the result. Furthermore, although certainly not intended, it is possible that the obligation under the amendment to notify a person of minor errors that did not cause significant harm to any individual would not only be burdensome—the hon. and learned Gentleman acknowledged that fact, which has to be taken into consideration—but might discourage the agencies and others from going about their work in the way that they do. If they felt that even the most minor accidental error would be notified to the individual concerned, it could inhibit or change the way that they went about their work.

[Joanna Cherry]

rose—

[Mr Hayes]

I do not think that is anybody’s aim or intention, as the hon. and learned Lady is about to reassure me.

[Joanna Cherry]

I can reassure the Minister. If he looks at subsection (9), he will see that “relevant error” in subsection (1) is defined as

“an error…by a public authority in complying with any requirements which are imposed on it by virtue of this Act or any other enactment and which are subject to review by a Judicial Commissioner, and…of a description identified for this purpose in a code of practice under Schedule 7, and the Investigatory Powers Commissioner must keep under review the definition of ‘relevant error’.”

Is he reassured that it is not just any old minor or accidental error, but a relevant error within the description of his own draftsman?

[Mr Hayes]

The hon. and learned Lady must recognise that the amendments would reduce the discretion that is already in the Bill. To that end, she is right that there is provision in the Bill for the information to enter the public domain via the report that the commissioner is bound to make on both the number of relevant errors and their seriousness, but the discretion that the Bill provides, which I am defending with some confidence, is important in excluding those purely technical, accidental, petty errors whose notification to those who choose not only to tilt at windmills but to invent the windmills they tilt at would be highly undesirable.

[Joanna Cherry]

Throughout our line-by-line consideration, the Minister has been very keen on referring us to the terms of the codes of practice. Perhaps the definition of “relevant error” in the codes of practice could be addressed to remove the need to include any “minor” or “accidental” error, depending on what one means by accidental. I suggest that the Minister’s concerns may be ill-placed when we have the definition of a relevant error and should perhaps be looking at that.

[Mr Hayes]

I did not expect such a full debate on this matter, but it seems we are going to have one, Mr Owen. Imagine that a minor or technical error was notified to the individual concerned during the course of an active investigation. That has the potential to compromise the way the investigation proceeds. Relevant errors can be minor—I accept the hon. and learned Lady’s point—but the real issue is that the commissioner will have the expertise and independence to assess the relevance of the facts and decide what is in the public interest. If we are to have an oversight arrangement that affords the commissioner that kind of authority, to oblige publication as the amendment proposes would add little and might do much worse, which would be undesirable.

The intention behind amendment 776 is unclear to me. Removing subsection (8)(b) would mean that, contrary to what I just said, the commissioner would not be obliged to publish the number of relevant errors. I think that subsection is important, because we want to know the number. We are all interested in the reporting regime’s transparency and we are having a very informed debate about this part of the Bill. I am sure that that was not the intention, but it might be the effect.

--- Later in debate ---

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 198 ordered to stand part of the Bill.

Clause 199

Additional functions under this Part

[Joanna Cherry]

I beg to move amendment 792, in clause 199, page 154, line 17, at end insert—

“(1A) A Judicial Commissioner may refer to the Investigatory Powers Tribunal any matter the Commissioner considers may have involved the unlawful use of investigatory powers.”.

This amendment would give the Judicial Commissioners power to refer issues of concern to the IPT without having to rely on a complaint being made.

The amendment, which would insert a new subsection in clause 199, was proposed by the Equality and Human Rights Commission and is jointly tabled by the Scottish National party and the Labour party. It would give the judicial commissioners power to refer issues of concern—matters that came to their notice and about which they were concerned—to the Investigatory Powers Tribunal without having to rely on a complaint being made.

Under the Bill as drafted the unlawful use of investigatory powers may not receive sufficient scrutiny, because often the subjects of surveillance will be unaware of it and so not in a position to make a complaint. The amendment would improve the safeguards in the Bill by addressing that problem so that where judicial commissioners are aware of a concern, they can refer it to the Investigatory Powers Tribunal. The judicial commissioners decide whether to approve the issue of warrants and are well placed to identify issues of systemic concern and of law requiring resolution by the tribunal. They are, in fact, much better placed to do so than those subject to surveillance, because they have an overview of the whole picture. It is therefore sensible to permit them to refer matters of concern to the tribunal.

The amendment is in line with a number of recommendations made during prelegislative scrutiny. Recommendation 66 of the Joint Committee on the Draft Investigatory Powers Bill was that

“The Judicial Commissioners should be able to make a direct reference to the Investigatory Powers Tribunal where they have identified unlawful conduct following an inspection, audit, investigation or complaint.”

Recommendation 16 of the Royal United Service Institute’s report, “A Democratic Licence to Operate”, says:

“The judicial commissioners should have a statutory right to refer cases to the IPT where they find a material error or arguable illegality or disproportionate conduct.”

The Interception of Communications Commissioner’s Office, in written evidence to the Draft Bill Committee, made similar recommendations.

In their response to prelegislative scrutiny, the Government did not accept those recommendations, but they appear to have agreed that judicial commissioners should have this power, as it is referred to in the draft codes of practice. For example, the draft code of practice on interception of communications states:

“The Commissioner may, if they believe it to be unlawful, refer any issue relating to the use of investigatory powers to the Investigatory Powers Tribunal”.

However, there is no express power to do this in the Bill. We argue that the referral power needs to be set out clearly in the Bill for two reasons.

First, such an important power should be in primary legislation, rather than in a draft code of practice that may be subject to revision after the passage of the Bill through Parliament. If it is in the Bill, any change to the power in future would be subject to greater parliamentary scrutiny, requiring the amendment of primary legislation rather than the mere revision of codes of practice. Secondly, providing for the power in codes of practice but not in the Bill creates uncertainty, which the amendment would resolve. Without the amendment, there may be a lack of certainty about whether the judicial commissioners have what would be a crucial power, and it could be argued that the codes of practice cannot create such a power without it being in the Bill.

The confusion over those issues could be resolved in a straightforward manner by the Government accepting the amendment. Their general response to prelegislative scrutiny referred to the fact that courts and tribunals do not usually have the power to carry out investigations on their own initiative, but the amendment would not give the tribunal that power; rather, it would give the judicial commissioners the power to refer an issue to the tribunal, which the tribunal would then investigate on the initiative of the judicial commissioners. In support of that approach, I note that the Investigatory Powers Tribunal explains on its website:

“The Tribunal adopts an inquisitorial process to investigate complaints to get to the truth of what has happened in a particular case, unlike the adversarial approach followed in ordinary court proceedings.”

I suggest that that approach is appropriate in situations such as those envisaged in the Bill, where the victims of the measures will not have knowledge of them but the judicial commissioners will. They may therefore refer to the IPT, and because the IPT is an inquisitorial rather than an adversarial body, it is well placed to investigate a referral from the judicial commissioners. I ask the Government to take on board the amendment in the spirit in which it is intended and indicate that they will agree to it.

[The Solicitor General]

I am grateful to the hon. and learned Lady for the way in which she has sought to persuade the Committee of her case. She is quite right that the IPT has an inquisitorial procedure rather than an adversarial one, but it still needs a claimant. It would be wholly inappropriate if the commissioner ended up being the complainant and therefore a party to the proceedings. With respect to her and those who proposed the amendment, although I appreciate their intentions, they mischaracterise the process. There will indeed be a claimant, but that will be the individual or body that is the subject of the error. Where the error is serious, the judicial commissioner will inform that person or body of their right to apply to the IPT for a remedy. As all authorities are already required to provide the IPT with all the information it needs in the course of its investigations, it is difficult to see the benefit of the amendment.

--- Later in debate ---

[Joanna Cherry]

I hear what the Minister says. I wonder whether the amendment might benefit from tightening up, perhaps by making the referral body the Investigatory Powers Commissioner. I will give it further consideration, but for the time being I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 199 ordered to stand part of the Bill.

Clause 200 ordered to stand part of the Bill.

Clause 201

Annual and other reports

[Keir Starmer]

I beg to move amendment 808, in clause 201, page 156, line 37, leave out “the Prime Minister” and insert “Parliament”.

--- Later in debate ---

[The Chair]

The amendment is not moved.

Clause 201 ordered to stand part of the Bill.

Clause 202 ordered to stand part of the Bill.

Clause 203

Information gateway

[Joanna Cherry]

I beg to move amendment 824, in clause 203, page 158, line 33, at end insert—

‘(1A) A disclosure pursuant to subsection (1) will not constitute a criminal offence for any purposes in this Act or in any other enactment.

(1B) In subsection (1), a disclosure for the purposes of any function of the Commissioner may be made at the initiative of the person making the disclosure and without need for request by the Investigatory Powers Commissioner.”

We had our old friend economic wellbeing a moment ago, and now we have our old friends whistleblowing and the public interest. Clause 203 is, rather intriguingly, titled “Information gateway” and provides that a disclosure to a commissioner will not violate any duties of confidence or any other restriction on the disclosure of information. This amendment would put it beyond doubt that voluntary, unsolicited disclosures are protected and that a whistleblower is protected from criminal prosecution.

The amendment reflects a concern, which we have already heard in the Committee, that provisions in the Bill may inadvertently risk discouraging or preventing individuals within public authorities or agencies, or in communication services providers, from approaching the Investigatory Powers Commissioner with concerns or communicating with the commission frankly.

[The Solicitor General]

I am sure the hon. and learned Lady is going to outline her arguments with brevity, but may I assist her? I recognise the sentiment behind the amendment and am of a mind to give them further consideration. On that basis, I invite her to withdraw the amendment.

[Joanna Cherry]

I am grateful for that. We have had a lot of debate about these issues already, and I am very grateful to the Solicitor General for indicating that he is going to look at them seriously. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 203 ordered to stand part of the Bill.

Clause 204

Funding, staff and facilities

[Keir Starmer]

I beg to move amendment 833, in clause 204, page 158, line 41, leave out

“The Secretary of State must”

and insert “The Treasury must”.

--- Later in debate ---

[Keir Starmer]

I have listened carefully to what the Minister has said, and it is now on the record, so on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 204 ordered to stand part of the Bill.

Clause 205

Power to modify functions

Question proposed, That the clause stand part of the Bill.

[Joanna Cherry]

I wish to oppose the clause, in relation to submissions I made earlier about clause 196.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

Codes of practice

[Joanna Cherry]

I beg to move amendment 839, in schedule 7, page 216, line 17, at end insert—

“(5A) A statutory instrument for the purposes of paragraph (4) must be accompanied by a report by the Investigatory Powers Commissioner on the content of the draft code and his consultation response.”

[The Chair]

With this it will be convenient to discuss amendment 840, in schedule 7, page 216, line 34, at end insert—

“(5A) A statutory instrument for the purposes of paragraph (4) must be accompanied by a report by the Investigatory Powers Commissioner on the content of the draft code and his consultation response.”

[Joanna Cherry]

The amendments are self-explanatory. They require any code of practice, or any proposed revision to a code, to be accompanied by a report by the Investigatory Powers Commissioner. The report would be on the merits of the proposed revision and be required before any revision was laid before Parliament. The report would allow the commissioner to draw to the attention of Parliament any relevant information about the scope of the code or its potential impact, which to my mind is a sensible and reasonable amendment.

[Mr Hayes]

Here we are again debating the creative tension between obligation and discretion—how much we oblige bodies to do in the Bill, and how much discretion we afford to those we empower through the Bill. The hon. and learned Lady does the Committee a service in drawing attention to how far we go in that respect. My view is plainly that discretion matters; I am sure she agrees. I emphasise yet again that the published codes of practice are draft codes. We would hope that our work in the coming days and weeks will allow those codes to reflect much of what we have said during our consideration of the Bill.

I am not implying that changes cannot be made to the Bill, but I would hope that they would be considered in concert with changes to the codes. If the Bill becomes an Act, we will soon bring the codes of practice into force, but before doing so, the Secretary of State is required to undertake a consultation process. The Bill specifies that the Secretary of State must consult the Investigatory Powers Commissioner as part of that. The amendment would require the commissioner’s response to consultation on any draft codes of practice, and any views on the content of those codes, to be published alongside the statutory instrument that seeks to bring the codes into force. I recognise the intent; I assume the aim is to increase transparency.

[Joanna Cherry]

The Minister will have looked at written evidence and have received briefings from various organisations, as all Committee members have, and so will be aware that many bodies have grave concerns about the fact that so much relevant information will be in codes of practice. This minor amendment seeks to address that concern. When the codes of practice are crystallised, proposed revisions will be accompanied by a report from the Investigatory Powers Commissioner that will inform parliamentarians about the utility, and the pros and cons, of proposed revisions. That is the only purpose behind the amendment.

[Mr Hayes]

I said that I understood the intent, and I meant it. I do understand that the hon. and learned Lady’s intent is both to inform and to provide transparency, but there is another tension at the heart of our discussion about this part of the Bill, and perhaps more generally: the tension between the independence of the commissioner, and what we oblige him to do. It is not just about obligation and discretion; it is about independence and proper parliamentary engagement, involvement, scrutiny and the power of the Executive.

I suppose the point I am making is that the commissioner may well want to publish information in the way the hon. and learned Lady describes, and there is nothing in the Bill that prevents him from so doing. Indeed, the commissioner may take the view that he wants to publish all kinds of things with both surprising and interesting regularity, but that is very much a matter for the commissioner. Indeed, as the hon. and learned Lady knows, some existing oversight commissioners take that approach; they publish without a statutory requirement to take such action.

If the commissioner is, as we wish him or her to be, an independent assessor of those things, the more discretion we give them over such decisions the better, because that allows them to exercise their judgment and, by so doing, affirm their independence.

[Joanna Cherry]

I hear what the Minister says, but the commissioner will have many demands on his or her time and, as we know, may have a limited budget. The amendment would require the commissioner to furnish parliamentarians with the benefit of his or her expertise and experience when changes are proposed. Does the Minister not accept that such a requirement would be a good thing?

[Mr Hayes]

I accept that this is a matter for debate, and the way I have approached it reflects that, I hope. These tensions, as I have described them, although creative, are the subject of different opinions. As we have navigated our way through this part of the Bill, it has been clear in our discourse that we are all in the business of trying to perfect the legislation, in the words of the hon. and learned Member for Holborn and St Pancras. I do not think there is an open-and-shut case on very much of this, actually, and you will not often hear a Minister say that, Mr Owen. I hope that we can get to a place where we all feel that the Bill is better for the scrutiny.

On this occasion, discretion is the right way forward. I want to empower the commissioners to exercise that discretion in a way that recognises their expertise, accounts for the dynamism of the circumstances in which they are working, and affirms their independence. In my view, the Bill as drafted does all that, and on that basis, I ask the hon. and learned Lady to withdraw her amendment.

[Joanna Cherry]

I would like to press it to a vote.

Question put, That the amendment be made.

Hillsborough

Joanna Cherry Excerpts

Wednesday 27th April 2016 Commons Chamber

[Mrs May]

I thank my right hon. and learned Friend for his remarks and for the role that he played in ensuring that fresh inquests could take place. He is right: it is a question not just of systems but of attitudes. I have seen that in other areas, for example, in the work that we are doing on deaths in custody and in hearing from families in those cases. As I said, often, the institutions that should be the ones that people can trust to get to the truth combine to protect themselves. They have a natural instinct to look inwards and protect themselves rather than doing what is right in the public interest. My right hon. and learned Friend is also right that we can change the systems all we like, but it is really about changing attitudes and saying that those institutions are there to serve the public and that they should always put the public interest first.

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

I thank the Home Secretary for her immensely dignified and thorough statement. I also welcome the jury’s determination and findings.

On behalf of the Scottish National party, I would like to acknowledge the heroic struggle for justice of the friends and relatives of the 96 dead. I also acknowledge the heroic struggle for justice of the shadow Home Secretary and others on the official Opposition Benches.

Today, we must also remember the 96 dead: decent people from all walks of life who were failed by the police and the emergency services—the very ones who should have been there to help them in their hour of need. Yesterday’s verdict follows 27 years of concealment of the truth and mudslinging at dead innocents. I agree with the right hon. and learned Member for Beaconsfield (Mr Grieve) that Hillsborough must rank alongside Bloody Sunday as one of the most disgraceful establishment cover-ups of our time.

The ruling confirms that some police officers behaved abominably and I note the shadow Home Secretary’s words about their being from the same force that so brutally repressed the miners’ strike. I was very pleased to hear what the Home Secretary said about that. Will she acknowledge the impact that the behaviour of some police officers has had on public confidence in the police and assure us that such actions can never happen again?

I am sure that elements of the media will also have learned a lesson, but, as the shadow Home Secretary said, will they ever be held to account? I think that the Conservative party has learned a lesson from this because, as has been said, the Home Secretary’s actions have been exemplary when compared with the attitude of the Cabinet at the time. Will she assure us that such a miscarriage of justice will never be allowed to happen again?

Justice delayed is justice denied. Now we have the truth, but accountability must follow, so what happens next is crucial. Does the Home Secretary agree that, where there are strongly founded allegations that police officers may have perverted the course of justice, or given misleading information to the media, MPs and this Parliament, or perjured themselves, appropriate action and prosecutions must be seen to follow swiftly?

I also echo the shadow Home Secretary’s comments about concerns that 30 police officers avoided disciplinary action by retiring to enjoy a full pension. Will the Home Secretary take steps to ensure that that cannot happen again?

I welcome the Home Secretary’s intention to reconstitute the Hillsborough article 2 reference group—article 2 of the European convention on human rights. Without the Human Rights Act and the procedural obligation on the state to investigate deaths properly under article 2 of the ECHR, the second inquest would never have happened, and the families might never have got justice. Will she and the Government please bear that in mind when they consider their attitude towards human rights and the ECHR in this Union of nations?

[Mrs May]

The hon and learned Lady mentioned public confidence in the police and it is correct to say that this shattered some people’s confidence in the police. The representative from the IPPC made the point to the media yesterday that for some people in Liverpool, their trust in the police was severely damaged, if not destroyed, as a result of what they had seen. However, in talking about the actions of police officers at Hillsborough that day, we should recognise that some officers actively tried to help the fans and do the right thing.

On police responsibilities and attitudes, the College of Policing has introduced a code of ethics for police. We need to ensure that that is embedded throughout police forces, but it is an important step forward.

The hon. and learned Lady asked about ensuring that prosecutions take place where there is evidence of criminal activity. Of course, that is entirely a decision for the CPS. We must leave it to make that decision independently, as we must leave the police investigation and the IPPC investigation to prepare their cases independently.

On the hon. and learned Lady’s final point, I simply observe that we have had the coronial process in the UK for a considerable time, and the right to request an inquest and to request fresh inquests long before the ECHR was put in place.

Investigatory Powers Bill (Eleventh sitting)

Joanna Cherry Excerpts

Committee Debate: 11th sitting: House of Commons
Tuesday 26th April 2016 Public Bill Committees

[Mr Hayes]

I beg to move amendment 614, in clause 138, page 110, line 8, leave out subsection (4).

This amendment leaves out provision that is not relevant in the context of bulk acquisition warrants.

This is a technical amendment and I do not intend to make a great fuss of it unless anyone wants to ask me for more detail.

Amendment 614 agreed to.

Question proposed, That the clause, as amended, stand part of the Bill.

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

I wonder whether I might address the Scottish National party’s “leave out” amendments at this stage, Ms Dorries. On Friday, because the SNP had tabled “leave out” amendments to the whole of chapter 1 of part 6, I made some general comments about the overarching clause at the beginning of that chapter. With your forbearance and if it is acceptable to you, as clause 138 is the overarching clause at the beginning of chapter 2, I propose to do the same now.

[The Chair]

indicated assent.

[Joanna Cherry]

I am grateful, Ms Dorries.

As I explained last week, the Scottish National party wish to have part 6 removed and set to one side until a convincing operational case has been made. I noted with some interest the Minister for Security’s comments this morning that he sees some force in the arguments that were made last week. I am pleased to hear that, because I rather had the impression from the way he responded to my arguments last week that he was not going to address any of my points. I look forward to hearing his response to my arguments regarding the United States of America’s experience in relation to bulk powers. If he is not prepared to address them, I very much hope that the Solicitor General will, as I know that he takes his duties very seriously and my points about bulk powers pertain to their legality as well as their efficacy.

The Minister commented last week that the different approach that I was advocating was perhaps indicative of the fact that my party was not and has never been in government. I would like to correct him on that: the Scottish National party has been in government in Scotland for nine years. Unfortunately at the moment we do not have responsibility for national security, but we always co-operate closely with the British Government on such matters—as when Glasgow airport was attacked by terrorists in 2007, for example. We also have a strong record in fighting crime, with the result that recorded crime is at a 41-year low in Scotland. We are not soft on crime or terrorism, and in the coming years we very much hope to devise a security policy for an independent Scotland. We have looked at the experience south of the border; we will also look to international experience. It was on that basis that I addressed in some detail the experience and the reversal of procedures and the approach in the United States of America in relation to bulk powers. It is important that we take cognisance of what happened in the United States of America as well as look at international legal norms in relation to these matters.

The concerns I articulated last week in relation to bulk powers are not felt only by the party for which I speak; they are widely shared by three parliamentary Committees that looked at the draft Bill, by MPs from all parties, including the party of government, NGOs, the technical sector, communication service providers and eminent legal commentators—I refer to the letter written to The Guardian at the time of Second Reading, now signed by more than 250 leading lawyers from across the United Kingdom. They took particular issue with the legality of the bulk powers against the background of a report by the UN special rapporteur on the right to privacy, Joseph Cannataci. He produced a report in March this year about privacy and digital rights generally. He did not mince his words, but said that many of the powers in the Bill are of questionable legality, having regard to recent judgments of the European Court of Justice and the European Court of Human Rights. He singled out the proposals for bulk powers as undermining the very spirit of the right to privacy and said that the benchmarks provided in European jurisprudence indicate that surveillance should be targeted, by means of warrants which are focused and specific and based on reasonable suspicion.

When the Minister had rather lost his patience with me last week, he quoted Ruskin. Let me quote Robert Burns on how the rest of the world looks at this Parliament and how the rest of the world will look at what decisions we take on the Bill:

“O wad some Power the giftie gie us

To see oursels as ithers see us!”

This country was in at the founding of the United Nations. When the United Nations special rapporteur says there is a serious issue with the legality of proposed legislation, no matter how we feel about Europe and the ECHR, we cannot just sweep that to one side.

Even David Anderson QC, the independent reviewer, has described the Bill as,

“a work in progress … laced with technical detail, some of which could usefully be clarified or improved”.

I take this opportunity, because it is very important and I know that he would want me to take this opportunity, to clarify exactly what David Anderson has and has not said about the legality of bulk powers. I shall do that using his own words. In the supplementary written evidence to this Committee, which all hon. Members will have read, dated 12 April of this year, he says at paragraph 9:

“As to the necessity of bulk powers and the extent to which I came or did not come to a conclusion on this issue, the position is as set out in my supplementary written evidence to the Joint Bill Committee of January 2016, paras 4-9”.

If we turn to that supplementary written evidence, his paragraphs 4 to 9 appear under the heading, “Need for bulk powers”:

“It was put to David Davis MP on 16 December (Q177) in relation to ‘bulk interception, bulk acquisition of the collection of communications data”—

Which we are concerned with in this chapter—

“and bulk equipment interference’”—

that is the next chapter—

“that I had looked at them and pronounced myself ‘satisfied that those powers were necessary’. While there is much truth in that comment, I should like to clarify what I did and did not conclude in relation to the need for bulk powers. The central point is that the appointed Commissioners and the IPT are best placed to judge whether each of these powers is necessary and proportionate. The Commissioners have the advantage of longer and more thorough exposure to the exercise of those powers than did I; and the IPT in a number of cases has had the additional advantage of detailed and formally presented argument from both sides”.

--- Later in debate ---

[Suella Fernandes (Fareham) (Con)]

Does the hon. and learned Lady agree that all three independent assessments concluded that the mass surveillance she suggests is complete fantasy? In his evidence to the Joint Committee, Professor Clarke from the Royal United Services Institute endorsed the approach. The idea that the state somehow has a huge control centre where it is watching what we do is complete fantasy. Not only is there a limit to capacity but there is no interest in carrying out such activities.

[Joanna Cherry]

The hon. Lady may recall that, when I spoke about this on Second Reading, I said that I was not going to use the phrase “snoopers charter” because it is counterproductive, and nor was I going to use the phrase “mass surveillance,” but that I was going to use the phrase “suspicionless surveillance.” What is happening under section 94 of the Telecommunications Act will continue to happen if we pass these powers without questioning them properly: bulk acquisition warrants will authorise the acquisition of huge amounts of communications data on everybody living in the United Kingdom, which will then be analysed by computers at GCHQ without any further need for authorisation. My argument is that that is a form of suspicionless surveillance. While it may have some utility, as David Anderson has said, I am not convinced that it is either necessary or proportionate. I made some fairly detailed arguments last Thursday about the inadequacy of the operational case and will not repeat them.

[Lucy Frazer (South East Cambridgeshire) (Con)]

I do not want to misquote the gentleman from BT as I do not have his exact words in front of me, but when we heard evidence from him on our first day in Committee, he said clearly that much of that information was already being collected. I would also like to point out, as I did in a speech on the Floor of the House, that it is clear that Google is already accessing this material and people seem to accept that—Google is analysing the content of our emails.

[Joanna Cherry]

I will deal with the hon. and learned Lady’s second point first. I accept her legitimate concerns about the extent to which private entities such as Google and others collect private data. Parliament should be looking at that, although it is not really the subject matter of this Bill. However, the crucial difference between Google’s collection of comms data and the UK Government’s, or its agencies’, is that Google does not have the coercive power of the state. It may have great corporate power—in fact, there is no “may” about it—but it does not have the state’s coercive power.

The hon. and learned Lady’s first point was that these powers already exist. We found out only very recently, when the Home Secretary announced it on 4 November last year, the day the draft Bill was published, that the data were already being collected in bulk under section 94 of the 1984 Act. That had never previously been admitted by the Executive—apparently it was known only by a handful of Cabinet Ministers. Parliamentarians had previously been led to believe that communications data retention and acquisition took place under the Regulation of Investigatory Powers Act 2000 and the Data Retention and Investigatory Powers Act 2014, because that legislation specifically permits the agencies to require comms data on national security and serious crime grounds.

As I said earlier, when section 94 of the 1984 Act was passed, no one envisaged that those powers would be used in that way. The mere fact that the powers are already being used does not necessarily mean that they are proportionate or that we should not carefully scrutinise their necessity and proportionality now that they are being put on a proper statutory footing. In an intervention on the hon. and learned Member for Holborn and St Pancras last week, I made the point that, if we follow the course of action the Scottish National party advocate, which is to remove parts 6 and 7 from the Bill until a proper operational case has been made, and if the agencies who are already using these powers say that they are legal under existing legislation, we will not be jeopardising national security, because the powers will continue to be used—although I stress that their underlying legality is open to question.

I do not want to take up much more time, but I want to make the point that, in the digital age we live in, communications data provide a detailed and revealing picture of somebody’s life. If we look at how comms data are defined under DRIPA and RIPA, we can see that they include the date, time, duration and type of communication, the type of communication equipment used, its location and the calling and receiving telephone numbers. That sort of information can reveal personal and sensitive information about an individual’s relationships, habits, preferences, political views, medical concerns and the very streets they walk on. That point was made in the Digital Rights case by the Court of Justice of the European Union:

“Those data, taken as a whole, may allow very precise conclusions to be drawn concerning the private lives of the persons whose data has been retained, such as the habits of everyday life, permanent or temporary places of residence, daily or other movements, the activities carried out, the social relationships of those persons and the social environments frequented by them.”

--- Later in debate ---

David Anderson cited the ISC as being best qualified to make these judgments, and the Chair of the ISC has delivered a judgment.

[Joanna Cherry]

I read last night very carefully what the Chair of the ISC, the right hon. and learned Member for Beaconsfield (Mr Grieve), said on Second Reading. He had three concerns, which were,

“the authorisation procedures for the examination of communications data… the agencies’ use of equipment interference”

and,

“the process for authorising the obtaining of bulk personal datasets”. —[Official Report, 15 March 2016; Vol. 607, c. 837-8.]

Does the Minister agree with me that a careful reading of the hon. and learned Gentleman’s remarks leads to the conclusion that he had outstanding concerns about the bulk powers?

[Mr Hayes]

In your absence, Ms Dorries, I have said that part of my mission was to take the hon. and learned Lady from the fog of doubt to the light of understanding, and earlier she herself described a chink of light. I am happy to consider what more we might do on the operational case. I do not want to go too far on that, because I have to look closely at walking the tightrope between what we can and cannot say publicly about the work of our intelligence and security services. Nonetheless, a powerful case was made on that subject and it is a matter of continuing interest to us.

The hon. and learned Lady quoted at length the evidence from America, but she will know that, in fact, the evidence from America is extremely mixed. A series of pieces of work has been done on these matters. In July 2014, the US Privacy and Civil Liberties Oversight Board said on bulk data collection that:

“Overall, the Board has found that the information the program collects has been valuable and effective in protecting the nation’s security and producing useful foreign intelligence…The program has proven valuable in the Government’s efforts to combat terrorism as well as in other areas of foreign intelligence…the program has led the Government to identify previously unknown individuals who are involved in international terrorism, and it has played a key role in discovering and disrupting specific terrorist plots”.

That builds on earlier work done in the United States to examine the powers. In 2012, the Senate looked at these matters and came to similar conclusions. It is not fair to say that international experience is at odds with what we are doing and with what we are cementing in the Bill. I know that the hon. and learned Lady, being scrupulously fair and reasonable, would want to put a balanced position on the American experience.

[Joanna Cherry]

I am grateful to the Minister for giving way so that I can put a balanced position. The Privacy and Civil Liberties Oversight Board’s report of January 2014 talks at page 11 specifically about the bulk telephone records programme, saying that:

“Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack”.

That is what the board concluded about the bulk telephone records programme in the United States of America, which is closest to what we are discussing at present in chapter 2.

[Mr Hayes]

Ms Dorries, I am sure that you will not permit me to stray too far into a detailed consideration of how the United States has viewed these matters, but I simply say to the hon. and learned Lady that the Senate Committee that I mentioned in 2012 described the,

“ability to collect information and act quickly against important foreign intelligence targets”,

as significant. The US National Academy of Sciences report, “Bulk Collection of Signals Intelligence: Technical Options”, said that:

“For investigations that have little or no prior targeting history, bulk collection may be the only source of useful information”.

I could go on and on, but to do so would tire the Committee and no doubt put me on the wrong side of the Chair, so I will not.

To conclude, we have had a long but important debate about this issue. The use of the powers under the Bill is subject to oversight by independent judges, the Interception of Communications Commissioner and the Intelligence and Security Committee, and none of them has raised concerns about the lawfulness of the powers. The hon. and learned Member for Holborn and St Pancras rightly said that, for the first time, we are considering these matters in a single piece of legislation and enjoying this debate. It is right that we should do so and that we should put safeguards into place, but it is just as right that we should maintain the capabilities necessary to deal with threats to our national security. I say without equivocation or hesitation that the powers are critical to that purpose and must continue to be used in our national interest.

Question put, That the clause, as amended, stand part of the Bill.

--- Later in debate ---

[The Solicitor General]

I take the hon. and learned Gentleman’s point; it is one that we understand. Again, however, I must make the point that at the point at which warrants are served in this context, it is not possible to know what part of the data that is being collected will be examined and for what purpose. Therefore, the question of detail is not a question of reluctance on the part of the authorities—it is just about practicability. It is not possible, of course, to anticipate that.

May I just deal with amendment 683? Under the Bill, a warrant will only include the operational purposes for which it may be necessary to examine the data. The Bill makes it clear that that may include all of the possible operational purposes for which data may be selected for examination. The effect of the amendment would be to require all possible operational purposes to be specified on a warrant, regardless of whether they were necessary. I am sure that that is not the intention of the hon. and learned Gentleman, but that was the point that I was making about the amendment perhaps not quite achieving the purpose for which it was tabled.

Having said that, I would argue that in clause 141, in combination with clause 151, we have an adequate and sufficient safeguard to ensure sufficient granularity when applications are made. It will not be good enough for the authorities simply blithely to quote “national security”; there will have to be greater granularity in applications. I would say that that is clear from the Bill, and combined with the code of practice I think there is enough here for hon. Members to be reassured that this process is not a mere rubber-stamp exercise and is a proper and effective safeguard.

The hon. and learned Member for Edinburgh South West made remarks in her interesting speech about the United States experience. It is important that I briefly put on record the important distinction between the United States regime of collecting domestic telephone records, which was pursuant to the Patriot Act—that has now been repealed by Congress—and the particular powers under section 702 of the Foreign Intelligence Surveillance Act 1978, as amended. Those powers are what the US Privacy and Civil Liberties Oversight Board addressed in its reports in July 2014 and more latterly this year.

Those powers to collect the content of electronic communications from targets outside the US are germane to the questions in this debate. As my right hon. Friend the Minister for Security said, the American board clearly found that there was value in and an important role for that particular programme. It is important that we take care to draw distinctions between different functions.

[Joanna Cherry]

I agree we must take care. The Solicitor General was careful to say that the conclusions he just mentioned were drawn in relation to the gathering of data outwith the United States of America. He would agree that the USA has strict constitutional rules about the gathering of its own citizens’ data, which is what we are concerned with here. It is not just about overseas, but our own citizens’ data.

[The Solicitor General]

I share that anxious concern, which is why I think we not only have avowal here, but an enhancement of safeguards. There is no doubt about it: the Bill represents a dramatic improvement on blithe reliance on the 1984 Act, to which the hon. and learned Lady correctly referred, and then nothing ever being said or debated in this House or the other place about the extent of those powers and the important judicial safeguards we have here.

Underpinning all that—this is within the code of practice—is the oversight of the commissioner, who will be able to inspect and review and ensure that the powers are not being abused in a way that the hon. and learned Lady and I would find abhorrent. It is always a pleasure to hear a Scot quote the great Unionist Robbie Burns—[Laughter.] As a great patriot, he would have shared the Government’s anxiety to ensure that the security of our citizens is protected in a proportionate and necessary way. I therefore think that the clause strikes the right balance.

--- Later in debate ---

[Joanna Cherry]

No.

[The Chair]

Ms Cherry, please try to be quicker.

[Joanna Cherry]

I am sorry, Ms Dorries. I was catching the shadow Minister’s eye to establish who is to speak first on this clause. That is why I did not stand up.

[The Chair]

I have had no indication that anybody is speaking to this clause.

[Keir Starmer]

I am sorry, Mr Dorries. It is my fault. We had a very late night last night on other matters. I should have notified you this morning about who is to be leading on each of these provisions, and I did not do that. If it helps the Committee, I can indicate that when we get to each of the bulk powers, the clause that introduces the bulk power will be subject to considerable debate for obvious reasons. I anticipate, although I cannot say with certainly, that the pattern will be pretty similar to the one we have just seen, and that as we go through the following clauses we will go at much greater speed.

I have been trying to divide the work between me and the hon. and learned Member for Edinburgh South West. We had agreed that she would lead on this clause, and she was just checking with me that that was my understanding. I apologise. We were tied up in another debate yesterday and I did not give you notice as I should have done, Ms Dorries.

[Joanna Cherry]

I can confirm that that is what the hon. and leaned Gentleman and I agreed. I apologise for any inconvenience caused by my momentary inadvertence, Ms Dorries.

The Scottish National party’s approach to chapter 3 of part 6, which deals with bulk equipment interference and is introduced by clause 154, is to oppose the inclusion of bulk equipment interference warrants in the Bill until such time as a proper and adequate operational case has been produced. I will speak at some length on this matter because it is of great importance.

I remind hon. Members that when I spoke earlier this morning I said that David Anderson had reached

“no independent conclusions on the necessity for or proportionality of…bulk equipment interference”.

In paragraph 8d of his supplementary written evidence to the Joint Committee in January—he reminded us in his supplementary written evidence to this Committee in April that he still holds this view—he said that he reached no independent view

“on the necessity for or proportionality of…bulk equipment interference…which in view of pending IPT litigation and the limited nature of my remit…I touched upon only briefly in my report…The remarkable potential for this capability is evident from the Snowden allegations relating to the hacking of and implantation of malware into systems operated by persons not themselves suspected of wrongdoing”.

Hon. Members will recall that last Thursday I addressed the issue of how bulk equipment hacking could cause severe problems for our security services. I gave examples of how in the past it has led to the outage of the internet in Syria. I also referred to modern defence systems and said that it could disrupt the radar and photonic systems of our fighter pilots in Syria, which could result in danger not only to them but, perhaps more importantly, to civilians on the ground. All of us, no matter which side of the debate on bombing Syria we were on, want to avoid that.

Similarly to chapter 2 powers, the use of targeted hacking by the agencies was only very recently acknowledged by the Government through the Home Office’s publication of an equipment interference code of practice, although it made no mention of bulk hacking capabilities, which are now to be put on a statutory footing by part 2 of the Bill. The scope of a bulk equipment interference warrant, as outlined in clause 154, is astonishingly broad and will pave the way for intrusions over and above those revealed by Edward Snowden, pinpointing hacking as the modus operandi of surveillance. As with bulk interception, clause 154—particularly subsection (1)(c)—and the clauses that follow provide that the main but not sole aim of the warrant must be to facilitate the obtaining of overseas data, but that does not prevent data on UK residents being collected as a subsidiary objective or in pursuit of the main aim. I addressed that issue at some length on Thursday last week, so I do not wish to take up the Committee’s time by unnecessarily addressing it again.

The bulk hacking warrants under clause 154 will authorise interference with any equipment whatever, because of the definition of equipment in clause 156. The provisions will afford interference with any equipment whatever for the purposes of obtaining communications equipment data or information. They will enable bulk warrants to be issued in the interests of national security or economic wellbeing, or for the prevention and detection of serious crime. The hon. and learned Member for Holborn and St Pancras and I have already spoken at some length about those grounds, so I will not reiterate those points. I shall simply repeat what I have said before: I am concerned about the economic wellbeing ground and that the prevention and detection of serious crime ground is not rooted in reasonable suspicion.

The Home Office has told us that, as bulk equipment interference has previously been practised under the Intelligence Services Act 1994, which it says allows for interference with property or wireless telegraphy, the powers in the Bill are not entirely new. The Home Office also says that the intelligence services can acquire a warrant under the 1994 Act to search a property or intercept a person’s phone calls. There is, though, no mention in that Act of bulk or mass equipment interference.

Chapter 3 of the Bill, which begins with clause 154, is therefore very much an innovation on the outdated Acts, such as the 1994 Act. There is a significant expansion of such powers as already exist. Indeed, the Snowden documents revealed that even British intelligence agencies expressed concern that such mass hacking practices as had taken place to date, purportedly under the 1994 Act, might be illegal. If the British intelligences agencies are themselves concerned about the legality of the powers under which they are currently operating, that is all the more reason for us to scrutinise carefully the legality of the powers set out in chapter 3.

Having looked at the clock, Ms Dorries, I am mindful of the fact that the Committee rises at 11.25 am. I have to be in the Chamber soon for Justice questions, so I wonder whether this might be an appropriate point at which to pause. I will perhaps have a little more to say when the Committee sits again this afternoon.

[The Chair]

It is for the Whip to move that the debate be adjourned. It is not for me to end the Committee early.

Ordered, That the debate be now adjourned.—(Simon Kirby.)

Investigatory Powers Bill (Twelfth sitting)

Joanna Cherry Excerpts

Committee Debate: 12th sitting: House of Commons
Tuesday 26th April 2016 Public Bill Committees

Question (this day) again proposed, That the clause stand part of the Bill.

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

It is a pleasure to welcome you back to the Chair, Mr Owen. Before the Committee adjourned for lunch, I was addressing clause 154, which is the opening clause of chapter 3 of part 6 of the Bill and deals with bulk equipment interference warrants. I explained that the Scottish National party wishes to see these provisions removed until such a time as the Government have produced what we consider to be an adequate operational case.

Bulk equipment interference is often described colloquially as hacking or bulk hacking. The guide to powers that accompanied the draft Bill made it clear that bulk hacking is a significant step beyond conventional surveillance powers, and remarked that bulk equipment interference is

“used increasingly to mitigate the inability to acquire intelligence through conventional bulk interception and to access data from computers which may never otherwise have been obtainable.”

Labelling mass interception powers as conventional is a bit odd when the Bill avows them for the very first time. The quote I just read out also underlines the fact that the Bill makes a considerable demand for unbridled access to all information. That is particularly worrying in the light of the very broad definition of “equipment” that is found in this part of the Bill. I am sure you will forgive me for skipping forward slightly, Mr Owen, but this does relate to clause 154. Clause 173 defines equipment as

“equipment producing electromagnetic, acoustic or other emissions or any device capable of being used in connection with such equipment”.

That is very open-ended and could even include cars and aircraft, which relates to the analogy with fighter aircraft that I made earlier. We are concerned that the power is open to potential abuse—not necessarily, as I have said before, by the current Government, but possibly by future UK Governments, as well as by other states that will follow our lead in legislation—because there is such loose language.

Following scrutiny of the draft Bill, the Intelligence and Security Committee reported that

“the Committee has not been provided with sufficiently compelling evidence as to why the Agencies require Bulk Equipment Interference warrants”

and

“therefore recommends that Bulk Equipment Interference warrants are removed from the new legislation.”

Before we adjourned this morning, I alluded to the fact that David Anderson QC had expressed concern about bulk equipment interference and said that he had not addressed the necessity and proportionality of such a power.

Despite what the ISC said, the power for bulk equipment interference warrants remains in the Bill. My argument is that that is rather concerning because bulk hacking, as I will call it, is by its very nature indiscriminate, as acknowledged in the draft Bill’s explanatory notes, which state that

“bulk equipment interference is not targeted against particular person(s), organisation(s) or location(s) or against equipment that is being used for particular activities”.

Instead, systems, services and software that have been carefully constructed to provide security are intentionally corrupted by bulk hacking to impose the eyes and ears of the intelligence agencies on every phone call, text message and web click.

To use an analogy from the offline world, granting this power would be equivalent to allowing the secret services to break into an innocent person’s house, bug it and leave broken windows for anyone else to get in, without the person knowing it has happened. The problem with the digital world is that the data can be rich and revealing, as I said this morning on communications data. Most of us put everything online nowadays, and our equipment will therefore be like a filing cabinet, with diaries, calendars, video archives, photo albums, bookshelves, address books and correspondence files.

Digital forced entry entails not only intrusion into highly personal spaces but control over those spaces. The individual who has hacked into a piece of equipment can not only access what is stored on it but add or delete files, send messages from it masquerading as the person to whom it belongs, turn it on or off and covertly activate cameras and microphones. It really is quite extraordinarily intrusive.

We heard about that in evidence on 24 March, when Eric King referred to GCHQ’s Optic Nerve programme, which involved hacking into webcams. Whatever one might think of it, many people use webcams for sex chat online. I am not talking about people who abuse children, which is obviously utterly reprehensible. Many consenting adults send indecent images to one another online using webcams. If they are doing that in the privacy of their own homes, and it is not illegal or hurting a child, I do not see any problem with it.

GCHQ’s Optic Nerve programme broke into individuals’ privacy. Such extraordinary power over the private lives of citizens fundamentally alters the relationship between citizen and state. If we allow this to go ahead without a proper operational case, it could breed distrust in law enforcement, which could have significant repercussions for the rule of law.

The equipment interference and bulk hacking envisaged in clause 154 have security repercussions. I alluded to those last week, so I will not go into detail. However, if we create a weakness in a piece of equipment in order to let the good guys—the security services—in, that weakness exists as a portal for the bad guys, as in criminals and terrorists, to get into the same equipment.

There are serious security concerns about bulk interference. This power is especially excessive, dangerous and potentially destructive. It is one of the most intrusive powers in the Bill, and it jeopardises the privacy of ordinary, innocent people who live in these islands. SNP Members urge fellow members of this Committee and parliamentarians to follow the Intelligence and Security Committee’s advice and remove these bulk equipment interference powers from the Bill until a convincing case has been made for not only their utility but their necessity and proportionality.

[Keir Starmer (Holborn and St Pancras) (Lab)]

I, too, welcome you back to the chair, Mr Owen. This bulk power is, like the others, very wide. Equipment interference includes what is commonly known as hacking, which can be done remotely or by attaching monitoring devices to computers or communications equipment. As has been mentioned, equipment is defined very broadly, covering anything that produces electromagnetic or other emissions. The power is therefore very wide.

It is unsurprising that the ISC was initially sceptical and that David Anderson has raised a number of concerns. I will not repeat the points made by the hon. and learned Member for Edinburgh South West, who spoke for the SNP, but I want to draw attention to the relationship between this bulk power and thematic warrants, which was one of the concerns raised by David Anderson.

If one looks at the structure of clause 154(1), skipping for the moment subsections (2) and (3), and lays it alongside clause 88, the similarities in the description of the warrant are apparent. Part 5 deals with equipment interference and targeted warrants; chapter 3 of part 6 deals with bulk equipment interference warrants. Clauses 154 and 88 are very similar in structure and scope—the difference is that clause 90 qualifies clause 88. The difference we are discussing is that we have, in essence, the same power for equipment interference, but we do not have the qualification of the subject matter that is clause 90. We have already discussed clause 90 at some length and, for a targeted power, it is itself extremely wide.

--- Later in debate ---

[Mr Hayes]

I acknowledge that it is certainly true that much rests on the operational case. In all our sermocinations, it has been clear to me that the hon. and learned Gentleman has identified that as crucial in advancing his argument that we need to provide still more transparency. He has done so in a reasonable way, because he acknowledges that there is a line to be drawn between the explanation of that case and revealing what cannot reasonably be said publicly because it would compromise the work of the agencies. I acknowledge that.

Of course, what the hon. and learned Gentleman did not say, although he knows it—perhaps he felt that there was no need to say it—is that the warrant must be deemed to be necessary for one of the core reasons: national security, serious crime or, where it is linked to national security, economic wellbeing. Access to the data must be deemed to be necessary on the grounds of the operational purposes. There is a test at each stage of the process and, in my judgment, that test is robust, but I again acknowledge that there may be a virtue in being clearer about the operational case. I was making a point about existing power—that power is currently available through the Intelligence Services Act 1994. Therefore, it is not new, but the safeguards are. Drawing those together in a single place, and therefore allowing the more straightforward exploration of both their purpose and their effect, is certainly new.

Above and beyond that, the oversight that is given additional strength in the later part of the Bill is there to ensure that all that is done meets the test that we have set, in terms of protecting private interests and so on. I acknowledge the argument about the operational case being a powerful one, but I think the structure of what we have put together stands scrutiny.

There is another argument that has not been used much in the Committee. In a sense, I hesitate to explore it now because in doing so I may be opening a hornets’ nest, but I am not a timid Minister, so why would I not want to face the stings that I might unleash? It is necessary to make the language future-proof, as far as one reasonably can. One of the criticisms of what we are doing—bringing the powers together in a single Bill, creating safeguards of the type we are building, trying to be as comprehensive as we can in this legislation—is that, because of the rapidly changing character of technology and the resultant effect that that has on both the threat and our ability to counter it, this legislation may be relatively short-lived.

If we look, albeit with the benefit of hindsight, at what has happened previously, we see that the legislation that the Bill replaces has, for the most part, been iterative—it has been a response to that dynamism. The language in the Bill is designed to be as carefully constructed as possible to allow the Bill to stand the test of time. Central to that is the advent of the double-lock mechanism, which should ensure that the powers are not misused by a future Government. That relates to something the hon. and learned Member for Edinburgh South West said in a previous sitting of the Committee. I think she argued that I cannot bind the future, and I said, with some reluctance, that that was true.

[Joanna Cherry]

Jo Cavan from IOCCO—the Interception of Communications Commissioner’s Office—told us on 24 March that the double lock and warrantry applies to only 2% of authorisations under the Bill. Does the Minister agree that he should be very cautious praying in aid the double lock as a safeguard when it applies only to such a small percentage of authorisations?

[Mr Hayes]

Yes, but the hon. and learned Lady knows well that the double lock applies to some of the most contentious parts of the process and, at the end of the day, is the involvement of the judiciary in a process that has been exercised at the sole discretion of the Executive up until now. The significance of that marriage between Executive authority and judicial involvement is considerable. All but the most mean-spirited of critics would want to warmly acknowledge that, and I see the warmth emanating from the hon. and learned Lady as she rises.

[Joanna Cherry]

I am not going to be mean-spirited. I acknowledge that the Government have made a significant step in the right direction by introducing judges into the warrantry process. I have my reservations about the degree of the introduction—I would like to see full-blown judicial warrantry—but my point is about how far that double-lock process can be seen as a safeguard when it applies to only 2% of the authorisations under the Bill. My point is not that it is not a safeguard but that it applies to only 2% of authorisations.

[Mr Hayes]

The double lock applies to all the most intrusive powers. We can have a debate about whether—I do not want to put words into the hon. and learned Lady’s mouth—she wanted to rob the Executive, rob the people’s representatives, of all their authority. She may have felt that it was unnecessary for those accountable to the people—the personification, as I hope I am, of the people’s will—to have any involvement in these matters, but I do not take that view. I believe in representative government and I think we have got absolutely right the marriage between Parliament and the judiciary—but we stray, I sense, from the precise detail of this part of the Bill.

My judgment is that we have reached the place that we need to get to in order to get the marriage between safeguard and effectiveness right, with the caveat that I have already introduced on the operational case, and in the knowledge that a bulk equipment interference warrant can be used to authorise the selection and examination of material obtained by the warrant and does not require a separate examination warrant and permits the disclosure of material acquired in the manner described in the warrant. I think that this is an important additional power and on that basis I hope that the Committee will agree to this part of the Bill.

Question put, That the clause stand part of the Bill.

--- Later in debate ---

Question proposed, That the clause stand part of the Bill.

[Joanna Cherry]

Part 7 of the Bill deals with bulk personal dataset warrants. In common with our position on other bulk powers in the Bill, the Scottish National party wishes the powers in part 7 to be removed from the Bill until such time as a convincing operational case has been made by the Government; that should be by way of an independent review of the necessity and proportionality of these powers.

The power to acquire bulk personal datasets does not currently exist. These are essentially databases held by either the private or the public sector. They are defined in the clause as,

“a set of information that includes personal data relating to a number of individuals”

where

“the nature of the set is such that the majority of the individuals are not, and are unlikely to become, of interest to the intelligence service”.

This is where our concern lies. The powers in this part of the Bill will afford the opportunity and the power to recover huge amounts of personal information, largely relating to private citizens who are innocent and not under any suspicion whatsoever. Bulk personal datasets will cover both manual and electronic records. So, for example, they will cover medical records. The definition given of personal data is a broad one. It,

“has the same meaning as in the Data Protection Act 1998 except that it also includes data relating to a deceased individual”.

The acquisition, retention and examination of these databases will be governed by a warrant system similar to the one we have just considered for bulk interception and bulk hacking. The warrants will be issued under the double-lock system. The Committee has had detailed submissions on the SNP’s position on double-lock systems so I will not take time discussing that unnecessarily.

Part 7 talks about class warrants and specific bulk warrants. Class warrants concern applications for descriptions of personal data—for example, health data or travel data. Under the terms of the Bill that is the default type of bulk personal dataset warrant. Both the Joint Committee and the Intelligence and Security Committee recommended that class bulk personal datasets be removed from the Bill, yet they remain. The Intelligence and Security Committee reported that the acquisition, retention and examination of any bulk personal dataset is sufficiently intrusive that it should require a specific warrant, and I would say there is considerable force in that argument. It is instructive to look at what the Chair of the Intelligence and Security Committee said about part 7 and bulk personal datasets in his speech on Second Reading. It is sometimes represented as a full retreat from the position of the Intelligence and Security Committee, but that would be a misunderstanding. The right hon. and learned Member for Beaconsfield (Mr Grieve) said:

“The third issue is that the Committee expressed concern about the process for authorising the obtaining of bulk personal datasets. It is undoubtedly necessary and proportionate that agencies should have the power to obtain them”—

That is his view, not mine—

“because they can be vital to their work in helping to identify subjects of interest, but they largely contain private information on large numbers of people of no relevant or legitimate interest to the agencies at all”.

There was an intervention at that stage, but he went on to say:

“Intrusiveness needs to be fully considered as part of the authorisation process, which was why the Committee recommended that that could be done far better if class-based authorisations were removed from the Bill and a requirement made that Ministers should authorise the obtaining and periodic retention of each dataset”.—[Official Report, 15 March 2016; Vol. 607, c. 838-9.]

I have no doubt that the shadow Minister will have more to say about this aspect, but I draw attention to it at this stage because while my party’s opposition is based on the fact that we would like to see this part of the Bill removed completely until a convincing operational case has been made, there are others who, although content with aspects of it, have expressed severe reservations about the class warrants.

--- Later in debate ---

[Keir Starmer]

I am grateful for that intervention. There is a particular sensitivity about health and mental health records. The very fact of their being retained, examined and filtered—because that is what will happen—is of huge concern to many people. That is why the amendments suggest that they be either excluded or subject to a higher test to prove that it is really necessary. Although it was not formal evidence, the Committee had a briefing session with the security and intelligence services where the question arose whether they do in fact access health records. In those exchanges, the answer was, “No we don’t, at the moment.” When I asked why, in those circumstances, it was necessary to have this power, the answer was: “Because we can’t rule out that at some future date it might be necessary to get these records, in circumstances that we cannot foresee at the moment—so we would not want to restrict the ability to get them.”

That was an honest answer about the way that these records are dealt with. In formal evidence, the answer was that the internal guidance does subject accessing mental health records to a higher threshold. In a sense, the agencies have thought this through for themselves. They have recognised the extra sensitivity of such records and have their own internal processes to make sure that they are applying a higher test. That is a good approach.

[Joanna Cherry]

I remember the evidence that the shadow Minister alluded to. Does he agree with me that, notwithstanding the fact that agencies are telling us that they take steps to be more sensitive in relation to mental health data, the very fact that mental health data are going to be scooped up and available to others may act as a disincentive to certain members of the public to seek assistance with their mental health problems?

[Keir Starmer]

I am grateful for that intervention. I am concerned about that issue; that is why we need to give particular care and attention to the operation of these bulk powers in relation to sensitive personal data—and mental health data are among the most sensitive. In a sense, the second set of modifications that we will come to later is aimed at putting in the Bill what is in fact current practice. Therefore it would not inhibit what the security and intelligence services are doing, but would make it clear to citizens that a safeguard is in place and reduce their anxiety about the extent of the use of these bulk powers.

I will say more about that when I get to the amendments, but they are issues that go to the breadth of the bulk personal datasets that we are now dealing with.

--- Later in debate ---

[Mr Hayes]

The amendments relate to the question of whether warrants under this part of the Bill should ever allow the retention or examination of bulk personal datasets relating to various forms of medical information. The hon. and learned Gentleman qualified that to some degree by saying that he could see how there might be occasions on which health data were relevant to an investigation, but he rightly asked whether the safeguards were adequate and whether constraints on storage and use of that kind of information were in place.

Let us look first at the safeguards that are already contained in the Bill. These safeguards already ensure that no bulk personal datasets would be retained or examined unless it was appropriate to do so. Specifically, under the Bill, the security and intelligence agencies may retain and examine a bulk personal dataset only for the statutory purposes outlined in the Bill. Each warrant is subject to the double lock, and so must be approved by both a Secretary of State and a judicial commissioner. Each retention of a bulk personal dataset by the intelligence agencies is considered individually based on a strict consideration of necessity and proportionality. The Investigatory Powers Commissioner will also oversee the acquisition, retention, use or disclosure of bulk personal datasets by the agencies. The draft code of practice, as the hon. and learned Gentleman has said, makes clear that, when considering whether to retain and examine bulk personal datasets, the agencies will assess the degree or extent of the intrusiveness which retaining and examining the datasets would involve—that is to say, the degree or extent of interference with individuals’ right to privacy.

The draft code says more than that, though. It also makes clear that when considering whether to apply for a warrant in this class, agencies must consider factors such as whether the nature or the provenance of the dataset raises particularly novel or contentious issues, or whether it contains a significant component of intrusive data—I mentioned this in an earlier discussion. An agency would need to apply for a specific bulk personal dataset warrant if it sought to retain such a dataset comprised of medical records. None the less, notwithstanding those safeguards, which I felt it was important to outline, I can see why this matter warrants careful consideration. Before I go into that consideration, however, I want to say the following. I am prepared in this specific instance to confirm that the security and intelligence agencies do not hold a bulk personal dataset of medical records. Furthermore, I cannot currently conceive of a situation where, for example, obtaining all NHS records would be either necessary or proportionate.

That is where my note so far prepared ends, but I want to go further. Before I do, in order to build anticipation and excitement, I give way to the hon. and learned Lady.

[Joanna Cherry]

The Minister may be about to answer this question, but I am very interested, as I am sure all hon. members of the Committee and people outwith this room will be very interested, in what he has just said—that the security agencies do not currently hold a bulk personal dataset in relation to medical information. As the Bill stands, unamended, does he not agree that there is nothing in it to prevent them acquiring such a bulk personal dataset in future, if they were able to make a case for it?

[Mr Hayes]

I may fall foul of my officials, which I would never choose or seek to do, except where I felt that it was right in the national interest, with the benefit of the wisdom of the Committee—enhanced, as I have said it is, with the addition of my right hon. Friend the Member for Chelmsford—and where I feel that the public expect us to go further. The hon. and learned Lady is right that we need to go further. Let me rehearse some of the ways in which we might do that—I will commit to none today, but I offer them to the Committee for further thought.

--- Later in debate ---

[Keir Starmer]

That may well be. I listened carefully to the answer that was given—

[Joanna Cherry]

On the example that the Solicitor General has just given, does the hon. and learned Gentleman agree that such information could be obtained with a far more targeted warrant?

[Keir Starmer]

It may well be that it could be dealt with in a more targeted way. As a general proposition, where targeted powers can be used they should be used. That is a theme that goes through the Bill and the code.

Immigration Bill

Joanna Cherry Excerpts

Monday 25th April 2016 Commons Chamber

[James Brokenshire]

I am afraid that I disagree with the hon. Lady.

I will now move on to the support we are providing in Europe, which I think it is important the House recognises. Although our judgment is that the UK can make the biggest difference in the region, and that children in Europe should benefit from support from countries with legal obligations similar to our own, it is right that we should provide assistance in Europe where there are vulnerable children in need of support, and the Government are taking action. The UK is the largest bilateral contributor to the humanitarian response to the crisis in Europe and the Balkans, with a total contribution of £65 million. That includes nearly £46 million to provide life-saving aid to migrants and refugees, including food, water, hygiene kits, infant packs and protection for the most vulnerable, as well as support to organisations helping Governments to build their capacity to manage arrivals in Greece and the Balkans.

On top of our significant support to front-line member states, the Department for International Development has created a £10 million refugee children fund specifically to support the needs of vulnerable refugee and migrant children in Europe. The fund will be used to support the UNHCR, Save the Children and the International Rescue Committee to work with host authorities to care for and assist unaccompanied or separated children in Europe. That includes identifying vulnerable children, providing for their immediate support, referring to specialist care and helping to find solutions, such as family reunification. On that last point, I am clear that it is important to help children reunite with family wherever possible.

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

The Minister has said that one reason why the British Government will not take children from the continent of Europe is that it might encourage people smuggling from the middle east to Europe and unsafe journeys. However, when I was in Calais at Easter, I was told by aid workers that, as a result of the British Government’s refusal to take children from northern France, children are being trafficked into the United Kingdom and are attempting unsafe journeys by jumping on to or under lorries bound for the United Kingdom. Indeed, I have learned that one girl I met in one of the camps, alone and unaccompanied, has since entered the UK by trafficking methods. Will the Minister not take on board the fact that, by failing to take children from Europe, he is actually encouraging trafficking and unsafe methods of travel from France to Britain?

[James Brokenshire]

I am very happy to address that point head-on, because I think that there are a number of important ways in which we can take, and are taking, action. That is why I made the point about reuniting children with their families. The hon. and learned Lady will know that we have seconded additional resources to the European Asylum Support Office for Italy and Greece to implement and streamline the processes under the Dublin regulations, including to identify quickly children who qualify for family reunion.

On the specific point about Calais and northern France, I take these issues extremely seriously. I am personally committed to improving and speeding up our family reunification processes so that young people there who have families with refugee claims here can be reunited. That is why we had the recent secondment of a senior asylum expert to the French Interior Ministry to improve the process for family reunion, which I think has had an impact on the number of children being reunited with family in the UK. In the past six weeks over 50 cases have been identified, 24 of which have been accepted for transfer to the UK from France under the Dublin family unity provisions, and more than half of them have already arrived in the UK. I think that we have demonstrated that once an asylum claim has been lodged, transfers can take place within a matter of weeks.

Those who want us to do more on this can help us to do so by encouraging and supporting children to use the processes that are in place to help them be reunited with their family. I know that one of the biggest barriers at the moment is persuading these children to claim asylum so that they can be considered for transfer to the UK under the family unity conventions in the Dublin regulations.

Investigatory Powers Bill (Ninth sitting)

Joanna Cherry Excerpts

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

[Hon. Members]

Hear, hear!

Clause 91

Power to issue warrants to intelligence services: the Secretary of State

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

I beg to move amendment 405, in clause 91, page 70, line 8, after “crime”, insert

“where there is reasonable suspicion that a serious criminal offence has been or is likely to be committed”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 406, in clause 91, page 70, line 9, leave out paragraph (c).

Amendment 436, in clause 96, page 74, line 16, leave out subsections (12) and (13).

Amendment 464, in clause 91, page 70, line 25, at end insert—

‘(10) A warrant may only authorise targeted equipment interference or targeted examination as far as the conduct authorised relates—

(a) to the offence as specified under subsection (5)(b), or

(b) to some other indictable offence which is connected with or similar to the offence as specified under subsection (5)(b)”.

[Joanna Cherry]

The amendments, which were tabled by the Scottish National party and the Labour party, are part of the broad objective of altering clause 91 so that authorisation of warrants is carried out by judicial commissioners rather than the Secretary of State. There has already been quite lengthy argument about the general principle so I will not go into that in great detail. The amendments also deal with the grounds and circumstances in which warrants may be issued and attempt to tighten the safeguards in the clause.

Amendment 405 would amend the grounds on which warrants may be issued, adding at the end of subsection (5)(b) a reference to reasonable suspicion of serious crime taking place. That pertains to an argument I made in relation to part 2 of the Bill, which is that the grounds for issuance of a warrant should require reasonable suspicion. It will also be recalled that I argued that the economic wellbeing grounds should be removed from the Bill in relation to part 2, and I renew that argument in relation to this clause for the same reasons. There seems to be some tautology. As either the Joint Committee on the draft Bill or the Intelligence and Security Committee commented, it is difficult to see how

“the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”

can really mean anything above and beyond the interests of national security. Amendment 406 would therefore remove subsection (5)(c).

Amendment 463 would remove subsection (6), while amendment 465 would include a requirement of proportionality and a technical assessment in the consideration that is given to the issuance of a warrant. Amendment 465 would require that less intrusive methods have been used or considered and a technical assessment of proportionality accounting for the risks of the conduct proposed. Those requirements would apply when applications from the intelligence service, the Chief of Defence Intelligence and law enforcement are considered. In order to consider whether a warrant is necessary and proportionate, not only the intrusion but the methods will need to be assessed. The amendment would require the judicial commissioner, supported by independent technical expertise, to assess the proportionality of the conduct proposed in targeted equipment interference applications.

There is good reason behind the amendment. Again, I hark back to some of the more general concerns that were expressed by myself and the hon. and learned Member for Holborn and St Pancras. When malware is deployed there is often a risk of contagion, at home as well as overseas. We have had a recent and dramatic demonstration of that: the Stuxnet virus was believed to be an American-Israeli cyber-weapon intended to hack a single Iranian uranium enrichment facility. What happened instead was that it infected Chevron, the energy giant, and many other companies, as well as Microsoft PCs around the world.

That is a good illustration of how hacks intended for what we might call “good purposes”—to protect the public—can have unintended consequences. I believe that the phrase used by those in the know is the risk of hacks spreading into the wild. Technical experts have explained to me that the risk of hacks spreading into the wild cannot be overstated. In fact, a professor of security engineering at Cambridge University, Ross Anderson, wrote to the Science and Technology Committee about this very issue, saying—he did not mince his words— that

“It is only a matter of time before interference with a safety-critical system kills someone”.

The amendment would address these serious issues by making sure that we do not take the potentially dangerous and counterproductive step of hacking where other less intrusive and safer methods have been used, and that a technical assessment of proportionality accounting for the risks of the hack being proposed is carried out in advance.

The practice of equipment interference leads to the stockpiling of software vulnerabilities, which in turn puts millions of users of software at risk, and those millions of users of software are our constituents, the citizens of the United Kingdom, people who use these sorts of devices day in and day out for all sorts of aspects of their personal and professional lives. These hacks, if not used only where strictly necessary, and if there is not a proper technical assessment in advance, risk opening up the equipment of ordinary members of the public to criminals and fraudsters rather than just the intelligence agencies. Underlying the amendment is the idea that it is vital that when deciding whether to grant a warrant, the judicial commissioner should understand and account for the proportionality of the proposed interference methods before authorising them.

There is also the risk that hacks can malfunction, with severe consequences for critical infrastructures and even international relations. Whatever one thinks of Edward Snowden’s revelations and the propriety of them, the fact is that he put a lot of material into the public domain and we would be remiss if we did not consider that. He has revealed that malfunctions of hacking by the National Security Agency in America were responsible for the outage of the entire internet in Syria in 2012, which may have caused simultaneous flight-tracking issues and led Government and opposition forces erroneously to blame each other for the incident. That sort of thing could be a danger to our forces.

I went to a fascinating briefing yesterday morning about photonics. Before I went into the briefing, I did not really know what photonics was, because I am not a scientist by background, but I went along because there is a lot of research into photonics development going on in Scotland, particularly at Heriot-Watt University, which is in my constituency. One of the fascinating things that I learned at this briefing on photonics from a speaker from BAE Systems was how photonics—in layperson’s terms, laser technology—can now “zap” on to the visor of fighter pilots the information they need vis-à-vis radar and the like, so that they do not have to look down at a screen when they are looking for a target. If hacking goes wrong, those sophisticated technologies, which are needed for the defence of this country, may themselves go wrong and that may lead to the deaths of innocent civilians, which we all, regardless of which side we took in the vote last December, want to avoid in any bombing in Syria.

There is a high degree of public interest in the proportionality of hacking methods, and the security of data and the safety of citizens both at home and abroad are very real issues. The debate surrounding the Apple against the FBI case in America centred on whether the methods required to hack one particular device were proportionate, given the security consequences for all owners of iPhones. In the United States, the decision in that case was rightly entrusted to an independent judge.

Amendment 465 is crucial because of the potential damage to computer security and the corresponding vulnerability to criminal elements that results from hacking, as well as the potential dangers for our forces fighting abroad and for civilians. The use of various hacking technologies poses clear risks to those they are used against and to the wider public, which requires the addition of a technical proportionality test. I hope the Government are prepared to consider the amendment seriously.

[Keir Starmer (Holborn and St Pancras) (Lab)]

It is a pleasure to continue to serve under your chairmanship, Mr Owen. I echo your sentiments in relation to Her Majesty the Queen. [Hon. Members: “Hear, hear!”]

I have little to add to the hon. and learned Lady’s comments in support of the amendments, other then to outline why they were tabled. Clause 91(1) sets out the power to issue warrants, and paragraphs (a) and (b) outline the familiar necessity and proportionality tests, which bite on the very wide provisions of subsection (5). The Secretary of State therefore has to consider whether issuing a warrant is necessary for one of those broad purposes—

“national security…preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom”.

That is obviously a broad necessity test, and proportionality is assessed by reference to the same grounds. The provision is over-broad, which matters because the double lock works only if a judicial commissioner has scrutiny of the Secretary of State’s decision. If the Secretary of State’s decision is so wide, the judicial commissioner’s scrutiny will be correspondingly wide. That matters particularly in relation to the targeted examination warrants, which will be used where a wider bulk power has been exercised in the first place. The amendments would tighten the necessity and proportionality tests, giving them real practicality and effect.

[The Minister for Security (Mr John Hayes)]

It is a pleasure to serve under your chairmanship once again, Mr Owen, particularly on the auspicious occasion of Her Majesty’s birthday. The Solicitor General and I are members of a diminishing group who still hold to the spirit, and perhaps even the actuality, of the divine right of kings.

Chivalry forbids me from paying but scant attention to the fact that the hon. and learned Member for Edinburgh South West spoke to amendments not in this group. I will not spend too much time responding to what she said, but I might be able to respond to her a little when we come to the next group.

[Joanna Cherry]

I realised that I had done that inadvertently, for which I apologise. I will not add insult to injury by repeating my submission when we get to the next group. I look forward to hearing what the Minister has to say.

[The Chair]

There will be a lot of that today, because we have addressed many of these issues in greater detail previously and we will be moving on. Hopefully that will help, rather than hinder, proceedings.

--- Later in debate ---

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

[Joanna Cherry]

The Minister is generous in giving way. I fully accept his good faith in saying that that is not the intention or purpose, but he cannot bind future Governments. In saying that it is not the intention or purpose, he clearly recognises that there is a weakness and that the provision could be interpreted in the way that has been suggested. That is our concern: we are putting on the statute book a measure that might be exploited by a less scrupulous Government.

[Mr Hayes]

I am happy to draw to the attention of any future Investigatory Powers Commissioner the fact that that is not the case and will not be under the Bill. Of course the hon. and learned Lady is right: whether this is a good or a bad thing I leave it to others to judge, but I cannot bind future Governments. However, we can certainly consider and reconsider ways in which the message can be reinforced during the passage of the Bill. I do not want to go too much further, but I think that the signal I am sending will have been seen by people on this Committee and elsewhere.

--- Later in debate ---

[Mr Hayes]

Yes. It would absolutely not be permitted under the Bill. I do not want to go over it exhaustively, but that reinforces a series of pieces of legislation that deal with the question, many of which have been passed since the talisman case of the Shrewsbury 24, which has been raised in the House a number of times in different ways. However, I take the hon. and learned Gentleman’s point that there is a compelling case to be made for further consideration and assure him that we are engaged in that. I will not say more at this stage, but a signal has been broadcast to this Committee and elsewhere. My prejudices on these matters as a trade unionist are well known, although it is not my prejudices that shape legislation—heaven forbid.

To return to the amendment, it would restrict equipment interference warrants under clause 91 in circumstances

“where there is reasonable suspicion that a serious criminal offence has been or is likely to be committed”.

Again, I do not want to go over this exhaustively, but the problem with that is the character of investigations, which are by their nature dynamic; it is not always possible to anticipate the direction they might take or the material they might uncover. Not every individual involved in an investigation would themselves be suspected of committing a serious criminal offence, but their relationship with wider associates and potential facilitators of a crime might be crucial to identifying the extent of the organised crime gang and its international links and bringing the ringleaders to justice.

Restricting equipment interference warrants to where there is a serious criminal offence would be a significant reduction in the security and intelligence agencies’ current powers. I repeat: current powers. They are not new. We know how they are used and the effect of their use, but the amendment would restrict their ability to protect the national interest. Do not forget—not that you would, Mr Owen—the necessity and proportionality tests in the Bill that limit the circumstances in which the powers can be used, alongside the double lock.

My straightforward case is this: the powers are vital, to curtail them would damage our interests, and they are not here for any of the unintended consequences that people are understandably concerned about. I am prepared to look at how we can reinforce that. I invite the hon. and learned Lady to withdraw the amendment.

[Joanna Cherry]

Before I make my position on the amendments clear, it was remiss of me not to add the sincere good wishes of the Scottish National party to Her Majesty the Queen on the auspicious occasion of her 90th birthday.

When we looked at similar issues under part 2, we did not push the matter to a vote, and that is the course of action I wish to follow at this stage. I will withdraw the amendment now, but no doubt the whole issue of judicial warrantry will be revisited on the Floor of the House. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

I beg to move amendment 465, in clause 91, page 70, line 18, leave out from “include” to end of line 19 and insert—

“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and

(b) the requirement that a risk assessment has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—

(i) the risk of collateral interference and intrusion, and

(ii) the risk to the integrity of communications systems and computer networks, and

(iii) the risk to public cybersecurity.”

--- Later in debate ---

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Joanna Cherry]

I beg to move amendment 408, in clause 91, page 70, line 25, at end insert—

‘(10) Targeted equipment interference is only lawful if authorised under this Act.”

The amendment would require that targeted equipment interference cease to be conducted under the Intelligence Services Act 1994, the Police Act 1997 or indeed any other prior legislation, and instead be conducted under the provisions of the Bill. The Bill is a consolidated piece of legislation, and we tabled this amendment in the spirit of the Government’s laudable attempt to consolidate the legislation in this area. The amendment would ensure that equipment interference always benefits from the safeguards and oversight in the Bill. As we just set out, the Opposition parties want the safeguards to go further, but even if they remain as they are we would like them to apply to all targeted equipment interference. That would improve public accountability and clarify the state’s powers.

The Intelligence and Security Committee’s report on the draft Bill expressed concern about the fact that agencies conduct several forms of equipment interference that are not provided for in the Bill, so it is not just Opposition Members who are concerned. The ISC said that

“certain IT operations will require a different standard of authorisation…than Computer Network Exploitation and that similar activities undertaken by the Agencies will be authorised under different pieces of legislation.”

It concluded that, if that remains the case, the Bill will have failed to achieve transparency; operations will remain secret and thus not be subject to clear safeguards. It recommended that

“all IT operations are brought under the provisions of the new legislation…with the same authorisation process and the same safeguards.”

The amendment reflects the Intelligence and Security Committee’s recommendation that all types of equipment interference should be governed under one clear piece of legislation. I will be grateful if the Government take it on board in the spirit in which it is intended.

[Mr Hayes]

I will deal with this very briefly. The hon. and learned Lady is right that the amendment is neither invidious nor unhelpful; however, it is unnecessary because there is already a broad prohibition of unlawful interference with equipment in the Computer Misuse Act 1990. That means that any activity that fits within the definition of equipment interference provided in the Bill may constitute an offence unless it is lawfully authorised under part 6 of the Bill, where that authorisation is detailed, or under other relevant legislation.

On the hon. and learned Lady’s point about activities outside the United Kingdom—a prevailing theme of her concerns, understandably—the Bill sets out the circumstances in which it is mandatory for the agencies to obtain a warrant. That does not include cases in which the conduct takes place wholly overseas. The reality of operating outside our jurisdiction, as she knows, is quite different from operations conducted within or from the British islands. It is not our intention to introduce clauses that inhibit the agencies’ ability to act with agility or flexibility. I think that the amendment certainly does not assist in that regard, and is unnecessary. I hope she will withdraw it on that basis.

[Joanna Cherry]

Like the ISC, I am not wholly convinced by the Minister’s argument, but I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to take the following:

New clause 8—Equipment interference: risk assessment—

“A person making an application for a warrant involving equipment interference must make a detailed assessment of—

(a) the risk to the security or integrity of systems or networks that the proposed activity may involve;

(b) the risk to the privacy of those not being specifically targeted;

(c) the steps they propose to take to minimise the risks in subsection (a) and (b).

New clause 9—Critical national infrastructure: risk assessment—

“The person making an application for a warrant under this part must make a detailed assessment of the risks of the proposed activity to any critical national infrastructure.”

[Joanna Cherry]

The new clauses were tabled by the Scottish National party and reflect the arguments I made in support of amendment 465 on the necessity of carrying out risk assessments in advance of issuing a warrant. They are very much a corollary of that, and as that amendment has been withdrawn, I will not press the new clauses for the time being.

Question put and agreed to.

Clause 91 accordingly ordered to stand part of the Bill.

Clause 92 ordered to stand part of the Bill.

Clause 93

Power to issue warrants to the Chief of Defence Intelligence

--- Later in debate ---

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

[Joanna Cherry]

The bulk of the amendments in this group are SNP-only amendments. I think I am right in saying that the Labour party probably supports them, but I will leave it to the Labour party to confirm that.

Put simply, the set of amendments proposed by the Scottish National party would remove the power to issue equipment interference warrants from law enforcement chiefs, immigration officers, officers of Revenue and Customs, customs officials, the chair of the Competition and Markets Authority and the Police Investigations and Review Commissioner, and instead judicial commissioners would be responsible for issuing warrants on application from law enforcement chiefs. It is a disturbing anomaly that the Bill proposes that authorisation for the most intrusive form of surveillance—hacking—should be self-issued by a range of public bodies. Could the Government clarify the reason for that anomaly?

This process would put a range of actors, from chief constables to immigration officers, in charge of issuing hacking warrants. The proposal would give these individuals greater powers of intrusion than the security services have under later parts of the legislation—they are at least required to seek the authorisation of the Secretary of State for hacking activities. It is in my argument self-evident that the process should be for law enforcement officials to make an application for a judicial commissioner to decide the application.

I mentioned immigration officers. The Immigration Law Practitioners’ Association has produced a briefing for members of the Committee, and it has drawn to our attention the fact that under clause 96 persons appointed as immigration officers under paragraph 1 of schedule 2 to the Immigration Act 1971 are among those who can apply for these warrants for a serious crime that is

“an immigration or nationality offence”

as defined, or where the warrant is considered

“necessary for the purpose of preventing death or any injury or damage to a person’s physical or mental health or of mitigating any injury or damage to a person’s physical or mental health”.

The Immigration Law Practitioners’ Association has a long history of briefing, with some distinction, hon. Members on immigration matters. The issue that it identifies is that the wording of the clause does not identify which immigration offences are considered to be serious crimes or, indeed, whether they are all considered to be serious crimes, so there is a lack of transparency in the legislation.

I should address one other amendment, which is on a slightly different point. SNP amendment 435 is an attempt to import into clause 96 the proportionality and technical assessment requirements that I addressed in some detail in my argument in support of amendment 465 to clause 91. I will not rehearse that again.

[The Chair]

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

[Mr Hayes]

Thank you, Mr Owen. A number of points have been raised. Clearly, law enforcement agencies use equipment interference to stop serious crime, but it is important to add that they also use it to help people at risk of serious harm. That might include locating missing people or helping vulnerable children; there is a whole range of preventive measures that anticipate harm. The Bill brings into a single place the powers that are already used in those ways; there are no additional powers here.

It is also important to point out that these matters were looked at, as were all matters, during the extensive scrutiny that the Bill enjoyed before it came to the Committee. None of the reports of the three Committees of the House, for example, recommended changing the current arrangements for the way in which these kinds of warrants are authorised and used. We have modelled the arrangements in the Bill on the current system under the Police Act 1997, which authorises property interference. That is how this activity is currently dealt with.

[Joanna Cherry]

I hear what the Minister is saying, but does he not accept the force of the argument that it is anomalous that the security services at least have to go to the Secretary of State, whereas law enforcement chiefs will be able to issue such warrants themselves?

[Mr Hayes]

I was coming to that argument, which was also made by the hon. and learned Member for Holborn and St Pancras. I simply say that the character of the warrants we are speaking about, which law enforcement chiefs apply for, is central to much of what happens now in the investigatory process. It is based on those chiefs’ special understanding of such investigations. They are clearly answerable for the effective policing of their area, and they certainly have the experience and expertise to make the right decisions on what equipment interference is necessary in an investigation of a serious crime. The status quo suggests that the system works and the powers that we are describing have real value in dealing with crime and in anticipating the other kinds of harm that I have described.

In drawing up a Bill, as I have argued previously, one looks to cement existing powers, but of course one also scrutinises what is not working. If we had thought that the current system was not working, we would certainly have looked to change it. The Bill is consistent with other powers in the 1997 Act, as I have described, such as property interference. It would arguably be anomalous to separate what the police do in respect of property from what they do in respect of technology. It might well, in the hon. and learned Lady’s eyes, deal with one anomaly only to create another.

[Joanna Cherry]

rose—

[Mr Hayes]

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

[Joanna Cherry]

Does the Minister agree that there is another anomaly? To search someone’s house, north and south of the border, one has to have a warrant issued by a judge. The clause will allow people to hack into equipment, with all the information that it contains in this modern world, without a judge-issued warrant.

[Mr Hayes]

The hon. and learned Lady is right that these things need to be consistent, as I said in the previous discussion, but we have been arguing in favour of the double-lock throughout this consideration. I am not sure it would be sensible for us to use the Bill to change existing legislation that is doing its job. That was not the view of law enforcement itself; of David Anderson, when he looked at these matters; or of the Joint Committee when it considered them. It would be curious—I put it no more strongly than that—if we were suddenly to focus on this and make a considerable change to existing practice.

The use of covert human intelligence sources under the Regulation of Investigatory Powers Act 2000 is also well established. The current practice is subject to the chief surveillance commissioner, who has publicly affirmed that law enforcement chiefs apply themselves with due care and attention to ensure they are compliant with the law and acting in good faith. Not only has the scrutiny of the Committees I have described not made the point that the hon. and learned Lady makes, but it seems that my defence of the status quo is supported by the evidence of the commissioner.

Equipment interference warrants must be approved by the judicial commissioner, so the hon. and learned Lady’s argument that a judge deals with the search of a property, and my argument that a judicial commissioner will approve the kinds of warrant we are debating now, seem to be equivalent. Perhaps she thinks a judicial commissioner is not the best person to do that.

[Joanna Cherry]

The position that has consistently been put forward by the Scottish National party is that the judicial commissioner should not be in a double-lock system. He or she should be looking from the outset at the merits of necessity and proportionality. That has been our consistent position in relation to all provisions related to warrantry in the Bill.

[Mr Hayes]

The hon. and learned Lady, with due respect, is shifting the ground. On the one hand, she says that she compares the arrangements for searching a house, the warrant for which is approved by a judge, with this system, on the grounds that there should be judicial involvement in both. On the other, when I said that there will be judicial involvement in both, she returned to the argument that the Secretary of State should be involved. I think she needs to know what she wants.

[Joanna Cherry]

With all due respect, I have been crystal clear about this from the beginning. “Judicial involvement” is a very loose term. Judicial involvement, in which the judge is bound by the rules of judicial review, is a considerably lesser involvement than if he or she is able to look at matters purely on their merits, as in a system of pure judicial warrantry, advocated by the Scottish National party.

[Mr Hayes]

There were many other opportunities to consider the judicial review point that the hon. and learned Lady makes. In fairness, she has been consistent in having doubts about whether those are the appropriate terms on which a judicial commissioner should consider these matters. There has been much discussion about that, including in some of the Committees that I referred to earlier. Regardless of the terms—you will not allow us to explore those in any great detail, Mr Owen, because they are not strictly pertinent to the clause or the amendment—the process whereby a law enforcement chief, supported by a judicial commissioner, obtains a warrant is, in my judgment, sufficient to guarantee proper practice. It is certainly in line with what we know currently works. I would have to be pretty convinced at this juncture to make such a radical change to the Bill, and frankly, I am not.

--- Later in debate ---

[Mr Hayes]

The hon. and learned Gentleman has offered an interesting observation. My counter-observation—perhaps it is a little more than that; it is more of a considered assertion—is that the kind of investigation I have described needs to happen with speed, and certainly with expertise. I think we agree that that is supported by the evidence I have provided and the evidence that has been made available to the commissioner. There needs to be flexibility in the system, and I think that is provided for. He is right that there should also be a legal test and a legal check on that test, which we have also provided for in the Bill. My assertion is that the amendments would provide a single lock, but we are providing a double lock. What’s not to like? On that basis, I ask the hon. and learned Member for Edinburgh South West not to press her amendment.

[Joanna Cherry]

As the Minister will no doubt have gathered from the last few days in Committee, it is my opinion that there is a lot not to like in this Bill, but I am prepared to withdraw my amendment at this stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 96 ordered to stand part of the Bill.

Schedule 6 agreed to.

Clause 97

Approval of warrants by Judicial Commissioners

[Mr Hayes]

I beg to move amendment 258, in clause 97, page 75, line 4, leave out from “a” to “under” and insert

“decision to issue a warrant”.

This amendment, and amendments 259 to 262, each make a minor drafting change to take account of the fact that clause 97 may also apply in a case where a warrant has already been issued (see Clause 98).

--- Later in debate ---

[The Solicitor General (Robert Buckland)]

I am grateful to the hon. and learned Gentleman. We need not rehearse the arguments that we looked at in some detail a few days ago, but I will say what I said then: although the Bill covers those points, there is merit in considering the matter carefully, and I shall continue to give it anxious consideration.

The sliding scale approach, to coin a phrase, is clearly relevant. We must remember that the absence of the Secretary of State in the case of the other agencies is not a problem, because we want them to have integrity and operational independence. We must always remember that underlying principle. I am not criticising anyone, but that sometimes gets a bit lost in the debate.

Having said that, the hon. and learned Gentleman’s point is well made about the different considerations that would present themselves to the mind of a commissioner, bearing in mind that the Secretary of State and national security and all those factors are not involved. I need not, perhaps, add more to the debate on that; I simply commend yet another clause that covers the double-lock authorisation process and applies it for the first time to the area of warrantry in question.

[Joanna Cherry]

I have very little to say, other than that I support the thrust of the argument made by the hon. and learned Member for Holborn and St Pancras; but I also note what the Solicitor General said about giving the matter anxious consideration. I am grateful to him for that, because it is a central concern.

[The Solicitor General]

I have nothing further to add.

Question put and agreed to.

Clause 97, as amended, accordingly ordered to stand part of the Bill.

Clause 98

Approval of warrants issued in urgent cases

[Joanna Cherry]

I beg to move amendment 439, in clause 98, page 75, line 25, leave out “considered” and insert

“had reasonable grounds for believing there was an emergency situation posing immediate danger of death or serious physical injury or that the physical security or integrity of the nation was endangered”.

[The Chair]

With this it will be convenient to discuss amendment 440, in clause 98, page 75, line 27, after “must”, insert “immediately”

[Joanna Cherry]

Amendment 439 pertains to the approval of warrants issued in urgent cases. Simply, the amendment would provide that an urgent warrant can be issued only where there is a reasonable belief that it is necessary to do so for the purpose of protecting life or preventing serious injury. That is a recurrent theme, which I have addressed previously, and I will not repeat the arguments.

[Keir Starmer]

Our amendment 440 is modest and would insert the word “immediately”. I need say no more than that.

[The Solicitor General]

May I deal with the amendments in reverse order? On amendment 440, I am happy to consider amending the relevant draft codes to make it clear that the notification of judicial commissioners should happen as soon as is reasonably practical. That wording is more appropriate than “immediately”, given that it may take some small period of time to draw together the materials that the commissioner would want to review when considering whether to approve the issue of a warrant. On the basis that we might return to this issue at a future date, I invite the hon. and learned Gentleman not to press his amendment.

The amendment tabled by the hon. and learned Member for Edinburgh South West, to which she spoke with admirable brevity, is well understood by the Government, and the arguments remain as they did in our debate on clause 22. We want to create a workable framework, and if we limit the grounds, my concern is that the scenarios and case studies I set out in that debate—the drugs case and the Daesh case—would not be caught. We have a clear definition of “urgency” in paragraphs 41 to 44 of the draft code. The draft code also has a helpful flowchart that clearly sets out the parameters within which those seeking such warrants should operate. For those reasons, I respectfully urge her to withdraw her amendment.

[Joanna Cherry]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 98 ordered to stand part of the Bill.

Clause 99

Failure to approve warrant issued in urgent case

[Keir Starmer]

I beg to move amendment 441, in clause 99, page 76, line 10, leave out paragraph (b).

--- Later in debate ---

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 100 ordered to stand part of the Bill.

Clause 101

Requirements which must be met by warrants

[Joanna Cherry]

I beg to move amendment 275, in clause 101, page 79, line 19, leave out “describe” and insert “specify”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 452, in clause 101, page 79, line 21, leave out paragraph (b) and insert—

“(b) precisely and explicitly the method and extent of the proposed intrusion and the measures taken to minimise access to irrelevant and immaterial information”.

Amendment 453, in clause 101, page 79, line 22, at end insert—

“(c) the basis for the suspicion that the target is connected to a serious crime or a specific threat to national security;

(d) in a declaration with supporting evidence—

(i) the high probability that evidence of the serious crime or specific threat to national security will be obtained by the operation authorised, and

(ii) how all less intrusive methods of obtaining the information sought have been exhausted or would be futile, and

(e) in a separate “Cyber-Security Impact Assessment” all potential risks and damage to the security of the device targeted and communications systems more generally and how those risks and/or damage will be eliminated or corrected.”.

[Joanna Cherry]

Amendment 275 is a simple amendment to subsection (4), which sets out the matters that a targeted equipment interference warrant must “describe”. The amendment would change that word and require more specificity.

[The Solicitor General]

I am not sure whether that will make any practical difference, but I am happy to consider the hon. and learned Lady’s amendment.

[Joanna Cherry]

I am very grateful to the Solicitor General. I leave the other two amendments to the hon. and learned Member for Holborn and St Pancras.

[Keir Starmer]

Amendments 452 and 453 speak for themselves. Concern has already been expressed about the general nature of the requirements that must be met by warrants; this is a further example under the head of equipment interference warrants. Clause 101(3) sets out in some detail what is required, and the amendments would tighten that up by requiring more precision and more matters to be explicitly stated. They are a version of other amendments tabled to corresponding provisions for other warrants.

--- Later in debate ---

[The Solicitor General]

I am grateful to my hon. Friend, who speaks with many years of operational experience in the Metropolitan police. When he was a senior officer in that force, he had responsibility for investigations and took his responsibilities extremely seriously. I am grateful to him for his contribution. We have to balance any concerns about a jump to these powers with real-world responsibilities. I want clarity, but also an element of flexibility for those who investigate crime, so that they can get on with the job in an effective way and catch criminals. That is what we all want. I am worried that the amendment, well intentioned though it is, would complicate the process. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras not to press the amendment to a vote.

[Joanna Cherry]

I beg to ask leave to withdraw the amendment for the time being.

Amendment, by leave, withdrawn.

Clause 101 ordered to stand part of the Bill.

Clause 102

Duration of warrants

[Keir Starmer]

I beg to move amendment 635, in clause 102, page 80, line 21, leave out

“ending with the fifth working day after the day on which”

and insert “of 48 hours after”.

--- Later in debate ---

[Mr Hayes]

Let me make a general point about something that has punctuated our discussions; it may to some degree satisfy the hon. and learned Gentleman. The codes of practice are, of course, vitally important. They have metamorphosed over time and continue to do so, partly as a result of the scrutiny the Bill went through before it came to the House. The codes of practice are extremely detailed in respect of interference, as he will know, and on page 21 they deal with the relationship between equipment interference and privacy:

“Equipment interference agencies must not intrude into privacy any more than is necessary to carry out their functions or enable others to do so.”

The process by which an equipment interference warrant is authorised, and the subsequent use of that warrant, are properly constrained by those necessary requirements around intrusion and privacy. Notwithstanding that general point, the purpose of the amendments is twofold. As the hon. and learned Gentleman said, the first deals with the time before the judicial commissioner examines an urgent warrant. The second deals with the length of a warrant per se. Let me, for the sake of excitement, deal with them in reverse order.

The length of time that the initial warrant pertains was not challenged by any of the Committees that looked at the Bill, and there has been no great clamour or call about it, not least because of an understanding that these investigations or cases, as I said in an earlier debate, are often complex and dynamic; as they change rapidly, they require powers to pertain and continue over time. I will deal fairly dismissively—I do not mean that with undue contumely—with the second part of this short discussion.

[Joanna Cherry]

The Joint Committee and the Intelligence and Security Committee did deal with interception warrants and recommended 24 hours and 48 hours respectively. Given that hacking is potentially more significant and intrusive, would it not be logical to have a similar reduction in relation to hacking?

[Mr Hayes]

I think the hon. and learned Lady is probably considering a different matter from the one I am talking about. I may have been insufficiently clear, so let me briefly make my case again. I am speaking about the second aspect of the amendments, which is to change the length of time for which a warrant lasts. She will know that, on that issue of duration, David Anderson argued that a serious crime warrant should be extended to last for six months rather than three months, bringing it into line with national security warrants. He explained that, when a warrant lasts only three months, it is often necessary to start preparing a renewal application without a full understanding of the impact of the original warrant. It is important to point out in that respect that equipment interference is not necessarily more intrusive than other techniques. The amendment is out of line with David Anderson’s view in that it seeks to curtail duration of a warrant.

That brings me to the first part. I think I may have confused the hon. and learned Lady by dealing with the points in reverse order, but I come now to the first part of what the amendments will do, which is the matter to which she refers—the five days or three. She will know that there was considerable discussion about that in the earlier stages of scrutiny in the Joint Committee.

--- Later in debate ---

[Mr Hayes]

Good. On that basis I will stop.

[Joanna Cherry]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 102 ordered to stand part of the Bill.

Clause 103 ordered to stand part of the Bill.

Clause 104

Modification of warrants issued by the Secretary of State or Scottish Ministers

[Keir Starmer]

I beg to move amendment 638, in clause 104, page 83, line 17, at end insert—

“(8A) Section 97 (approval of warrants by Judicial Commissioners) applies in relation to a decision to make a modification of a warrant issued under section 96 as it applies in relation to a decision to issue such a warrant, but as if—

(a) the references in subsection (1)(a) and (b) of that section to the warrant were references to the warrant as modified, and

(b) any reference to the person who decided to issue the warrant were a reference to the person who decided to make the modification.”