Border Force Budget 2016-17

Joanna Cherry Excerpts

1st reading: House of Commons
Wednesday 20th April 2016 Commons Chamber

[Mrs May]

My hon. Friend is absolutely right that it is important that we continually review our processes for screening people as they cross the border, and that we ensure that we are stopping people who want to come here as illegal immigrants. That is one reason why we have invested tens of millions of pounds in security at Calais and Coquelles to ensure that it is harder for people to get into lorries to come across the border and harder for them to access the channel tunnel. It is also why we continue to look at improvements in technology that may enable us to put in place equipment that is even better at detecting people when they try to stow away in such vehicles. However, we cannot do that once and expect it to cover everything; we have to keep going at it, which is exactly what we are doing.

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

This has been a sorry saga, and it is still not quite clear why the senior civil servant was so evasive before the Home Affairs Committee. What exactly was the hold-up? The Border Force budget requires careful scrutiny and attracts significant public interest. What will the Home Secretary do to make the process for deciding the budget more transparent in future?

What lies underneath the issue is that a fantasy net migration target and budget cuts are leading the Home Office down the path of targeting exactly the wrong people, using the wrong policy levers. Unable to enforce existing immigration rules properly, the Home Office introduces ever more draconian rules, clamping down on skilled workers, students, spouses and refugees. It is using landlords and landladies as border officials and giving immigration officers police powers. Meanwhile, other SNP MPs and I saw with our own eyes in Calais and Dunkirk at Easter how vulnerable children who have family here in the United Kingdom are left in the most disgraceful of conditions. It is immigration control on the cheap.

When will the Home Secretary fix her Border Force budget not to satisfy the ideological pursuit of austerity, but at the level necessary to command public confidence? When will she abandon the fantasy net migration target and set immigration policies in accordance with evidence instead of political expediency?

[Mrs May]

The hon. and learned Lady mixes up border security and checks with immigration. They are two different issues. She commented on the appearance of a senior civil servant before the Home Affairs Committee. When asked whether the director general of Border Force had been told what his budget was for this year, the individual replied:

“We know what funds the Border Force needs in order to deliver the plan for this year and Charles has them.”

On a related immigration issue, the hon. and learned Lady referred to the question she has raised previously, as have other Members, about the speed at which children in Calais who have family members here in the UK are being processed. We recognised that there was an issue, which is why we seconded somebody to the Ministry of the Interior in Paris to work on this and why we are now seeing people being processed in weeks, rather than months, and in some cases in days .

Investigatory Powers Bill (Eighth sitting)

Joanna Cherry Excerpts

Committee Debate: 8th sitting: House of Commons
Tuesday 19th April 2016 Public Bill Committees

[The Chair]

Thank you very much.

Clauses 70 and 71 ordered to stand part of the Bill.

Clause 72

Lawfulness of conduct authorised by this Part

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

I beg to move amendment 246, in clause 72, page 57, line 35, leave out from “subsection (1)” to end of line 40.

This amendment ensures that if conduct cannot be justified it must remain unlawful.

[The Chair]

With this it will be convenient to discuss amendment 148, in clause 72, page 57, line 36, leave out paragraph (b).

[Joanna Cherry]

I think I can take this in fairly short compass. The clause deals with the lawfulness of conduct authorised by this part of the Bill. The amendment would delete clause 72(2)(b), the effect of which would be that conduct would have to remain unlawful if it could not be justified. As it is currently worded, the clause allows an exception to that principle, and that is not an appropriate exception. Conduct is either lawful or unlawful. If it is unlawful, it should be characterised as such and should not be justified. Strictly, if the amendment were to be passed, subsection (3) would have to be left out as well, for tidying-up purposes.

[The Solicitor General (Robert Buckland)]

May I reassure the hon. and learned Lady that the provisions relating to lawfulness of conduct authorised by part 3 of the Bill replicate those that currently apply in the Regulation of Investigatory Powers Act 2000, and the Bill goes no further in providing indemnity from civil liability for conduct incidental to or reasonably undertaken in connection with a communications data authorisation? The clause is drafted to ensure that a person who engages in conduct only in connection with an authorisation cannot be subject to civil liability unless that activity could itself have been authorised separately under a relevant power. It must follow that the removal of that provision would mean that a person who was acting lawfully under an authorisation that had properly been granted under the Bill would be at risk of civil liability if some incidental or reasonably connected conduct were not expressly covered by the authorisation.

I can see the thrust of the hon. and learned Lady’s argument, but I hope that I have reassured her that the Bill does not go any further than the status quo. For that reason, I urge her to withdraw the amendment.

[Joanna Cherry]

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

Amendment, by leave, withdrawn.

Clause 72 ordered to stand part of the Bill.

Clause 73 ordered to stand part of the Bill.

Clause 74

Certain transfer and agency arrangements with public authorities

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

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

There are matters relating to this clause on which I would like to press the Minister. This is the clause that provides for what is effectively the transfer of certain functions between the Secretary of State and other public authorities. The functions to be transferred are the functions in clauses 58 to 60, at which we looked in some detail last week: the filtering arrangements for obtaining data. As set out in clause 58, it is for the Secretary of State to maintain and operate arrangements. It is then for the relevant public authority, acting through a designated senior officer, to effectively carry out the exercise, using authorisations as and where necessary and appropriate. We discussed that arrangement.

Clause 74 provides for a transfer of functions of the Secretary of State—which I take to include establishing, maintaining and operating arrangements—from the Secretary of State to another public authority. That seems to me to cut through the thrust and the purpose of clause 58, which has a clear hierarchy to it: the Secretary of State, then the designated senior officer. Subsection (1)(b) is freestanding and transfers any function exercisable by a public authority back the other way to the Secretary of State, so there is a complete provision for a swap of roles. Subsection (3) indicates that:

“Regulations under subsection (2) do not affect the Secretary of State’s responsibility for the exercise of the functions concerned”.

Then schedule 5, in the back of the Bill, is referred to, but that does not add a great deal.

The question for the Minister is: how is it anticipated that these powers are to be exercised? On the face of it, this is an odd structure for a Bill to set out. This structure goes from the Secretary of State down to the relevant public authority, with the Secretary of State having a much wider role of setting up the arrangements, only for us to find, several clauses later, that it is possible to flip the functions and have the public authority making the arrangements. That seems to remove some of the formality and the safeguards intended by clause 58.

--- Later in debate ---

[Keir Starmer]

I indicated would not press the amendments at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[Joanna Cherry]

I oppose the clause. I hear what the Minister has to say, but I am not reassured by the Government’s approach. Harking back to something I said last week, I do not think that the Government have got the balance right, because in seeking to gather to themselves an extraterritorial application through United Kingdom law, there are hidden dangers.

If international companies are required to arbitrate between conflicting legal systems, it is leaving the protection of human rights to the good will and judgment of those companies. Companies such as the ones the hon. and learned Member for Holborn and St Pancras mentioned have already expressed concerns to David Anderson, for his report “A Question of Trust”, that

“unqualified cooperation with the British government would lead to expectations of similar cooperation with authoritarian governments, which would not be in their customers’, their own corporate or democratic governments’ interests.”

In my view, the most appropriate way forward is to pursue the route, which I am pleased the Minister has assured us that the Government are well down, of mutual legal assistance agreements with other states. If we do not pursue that route in the way that both David Anderson and Sir Nigel Sheinwald recommended with appropriate alacrity, and instead rely simply on clauses such as this one, which are spread throughout the Bill, we will create real difficulty for corporate entities. We will also create difficulties for the international enforcement of human rights, which I consider a bit more important than difficulties for corporate entities, although we should not set the latter to one side, because they are significant. For that reason, notwithstanding the Minister’s assurances, the SNP opposes clause stand part.

[Mr Hayes]

I will not make a case again for the clause, but I shall say this, in the spirit of helpfulness and kindness. It is really important that the Committee sends out a combined message to overseas communications service providers—on which the obligations will have an important effect because their commercial endeavours have a significant relationship with the powers we are trying to cement in the Bill—so that they have a very clear impression that we as a Committee of this Parliament are clear that we expect them to do their bit to do what is right. We should not, out of a sense of good will, allow ourselves to be misled and encouraged not to have high expectations or make serious demands of those organisations.

I simply say to the hon. and learned Lady that clause 76 is about giving a clear signal, as does clause 57, with which it should be read in tandem, that telecommunications operators should comply with the notice given, whether or not they are in this country. I accept that that is difficult and challenging—I made that point at the outset—but my goodness, it is vital that we take these steps. I know that she is open-minded and a woman of great good will, but we should not allow that to dilute in any way that common message to those big companies. I do not want those companies to get away with anything that that should not get away with.

[Joanna Cherry]

I am not so much concerned about the message we send out to the companies; I am more concerned about the message we send out internationally and potentially to authoritarian regimes. The difficulty is that if the British Government demand from these companies unqualified co-operation with British laws, that might encourage authoritarian Governments to do likewise. We clearly would not want that, so we need to be very careful about the messages we send out and think carefully about their full implications. That is why such matters should be approached by way of mutual legal agreement internationally, rather than the unilateral imposition of one Parliament’s will outwith the area where its sovereignty operates.

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

--- Later in debate ---

[Keir Starmer]

The message to my and all of our constituents is that, even if they are not a target, a record of the websites they have visited can be retained under a data retention order, and if retained will be retained for 12 months—every website they have visited. But if somebody later wants to access it, there is then a tighter test for that. The chilling effect of clause 78 is that the websites visited will be retained if a retention order is issued. We need to be absolutely clear about that. The tighter definition does not kick in until a later stage of the exercise, and that is a cause of real concern to our constituents, certainly to the people who have engaged with me on the topic, and to our fellows across both sides of the House.

[Joanna Cherry]

I note what the hon. and learned Gentleman says about web addresses being revealed. Is it not also the case that we see from the data released by the Home Office, after being pressed about its factsheet accompanying ICRs, that what will be revealed is not only web addresses and IP addresses, but the names, addresses, email addresses, phone numbers and billing data of customers—our constituents?

[Keir Starmer]

I cannot double check on my feet, but that sounds like the further evidence that was put before the Joint Committee when it was in the middle of its deliberations. In fairness, the Home Office did go beyond websites to include some, maybe all, of the matters to which the hon. and learned Lady just referred.

The way this will operate in practice is a cause of real concern. The Secretary of State, without the double check of a judicial commissioner, and operating against a low-level threshold—clause 53(7)—can issue a retention order that will permit the retention of a record of all the websites that somebody has visited. That record will then be kept for 12 months, albeit with a different test if it is to be accessed later.

The amendments—I think you have called them the first set of amendments, Ms Dorries—are intended to construct in the first instance a different framework around this power, because it is so extensive, and put it in the hands of a judicial commissioner rather than the Secretary of State. That would provide a greater safeguard in relation to clause 78, with independent oversight through the function of the judicial commissioner. Alternatively, amendments 152, 153 and 222 would give the Investigatory Powers Commissioner some oversight. In other words, the intention behind these amendments is to put some rigour and independence into the exercise of what is a very wide power that, in fact, is the starting point for the exercise of all the other powers under the parts of the Bill that we are now concerned with.

Anxiety has been expressed on a number of occasions about cost. Huge amounts of data could be required for retention under clause 78. The Government have estimated the cost at £170 million. That is considered to be a gross underestimate by those who will no doubt be called upon to actually retain the data. For those reasons, these amendments are intended to tighten up a clause that is very wide and very loose. It permits a huge amount of data to be retained, including websites visited by you, by me, or by our constituents.

--- Later in debate ---

[Joanna Cherry]

The Minister talked about the duty to take into account the likely benefits of the notice, but does my hon. Friend agree that something may be beneficial without being necessary?

[Gavin Newlands]

I agree with my hon. and learned Friend. We are not opposed to every measure in the Bill. There are benefits, but unfortunately they are not covered by enough safeguards and are not drawn tightly enough. I would like to make progress but I will give way once more.

--- Later in debate ---

[Gavin Newlands]

I appreciate what the hon. Lady says but, as I am not a lawyer, I am struggling to distinguish the difference between Scottish and English law. Perhaps my colleague could address that.

[Joanna Cherry]

My hon. Friend will no doubt agree that, in Scotland at least, it is the police who investigate serious crime, under the direction of the Lord Advocate.

[Victoria Atkins]

Will the hon. Gentleman give way?

--- Later in debate ---

[Gavin Newlands]

I hear what the Solicitor General has said, but I do not wholly agree with him. I reserve the right to bring this back at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Joanna Cherry]

I beg to move amendment 306, in clause 78, page 61, line 18, at end insert—

‘(2A) A retention notice may not require a telecommunications operator to retain any data belonging to a third party data, unless that third party data is retained by the telecommunications operator for their own business purposes.”

[The Chair]

With this it will be convenient to discuss amendment (a) to amendment 306, leave out “notice” and insert “warrant”.

[Joanna Cherry]

Amendment 306 would insert at the end of clause 78(2) a provision in relation to third party data. Third party data are defined in the code of practice as data that a communications service provider is able to see

“in relation to applications or services running over their network…but does not process that communications data in any way to route the communication across the network”.

To its credit, the Home Office has been unequivocal that such third party data would not be covered in the Bill; the Home Secretary informed the House on 4 November 2015 that the Bill

“will not include powers to force UK companies to capture and retain third party internet traffic from companies based overseas”.—[Official Report, 4 November 2015; Vol. 601, c. 969.]

The draft code of practice for communications data states at paragraph 2.61:

“A data retention notice can never require a CSP to retain the content of communications or third party data”.

The overly broad definition of relevant communications data, which now extends to 16 different definitions and sub-definitions, could however be interpreted as giving the Secretary of State the power to require a communications service provider to retain third party data, since the definition does not expressly exclude third party data unless this amendment is agreed. There are currently no clauses in the Bill that explicitly state that communications service providers will not be required to retain third party data. That is the purpose of the amendment. Given that they have been so clear on the Floor of the House and in the code of practice that that is their intention, if the Government will not accept the amendment, the Minister must tell us why. Where we are dealing with such potentially intrusive powers, we must be as clear as possible.

[The Solicitor General]

Amendment 306 is tabled, quite properly, to tease out from the Government the more detailed reasoning behind the important statement made by the Home Secretary on Second Reading. The hon. and learned Lady is quite right to refer to that statement. I once again reiterate the Government’s position that we will not be requiring the retention of third party data through these provisions.

The question is how best to achieve that; therein lies the tension. Attractive though the approach advanced by the hon. and learned Lady might be, there are some drafting issues and problems about legal certainty, which mean that putting those provisions in the Bill with suitable detail is problematic.

One of the main functions of the Bill—and one of my desiderata—is to ensure that it is resilient and stands the test of time. My concern is that if we end up with a definition that is too technologically neutral, it will either fail the test of time in this place, or be subject to challenge. As a Law Officer, legal uncertainty is something I have to take very seriously when considering how legislation is presented. That is why I commend the detailed provisions within the draft code of practice on third party data—paragraphs 2.68 to 2.72—that the hon. and learned Lady referred to. That is not only an explicit reiteration of our commitment but the sort of detail needed for those operating the provisions, which could not be properly put in the Bill.

It is generally well understood what third party data are, but perhaps I should briefly explain the important areas of detail that could not be covered on Second Reading. Where one communications service provider is able to see the communications data in relation to applications or services that run over their network, but does not process that communications data in any way to route the communication across the network, then that is regarded as third party data. For example, an email provider, such as Yahoo or Gmail, knows that a certain internet access service, such as BT Internet, was used to send email, but that fact is not needed or used to send it. So it is in everybody’s interest, not least that of the service providers themselves, that there is sufficient clarity about the data that can be retained under the provisions. As I have said, I think the code of practice is the right vehicle for this. It is also the appropriate vehicle for ensuring that there can be a sufficiently detailed definition of third party data for the reasons I have outlined. In those circumstances, I respectfully ask the hon. Lady to consider withdrawing her amendment.

[Joanna Cherry]

I am not happy about withdrawing the amendment in the absence of elaboration of what the Solicitor General means by drafting issues and problems of legal certainty. I am not clear at the moment why we cannot have both the amendment and the further elaboration that will be provided in the codes of practice.

Amendment proposed to amendment 306: (a), leave out “notice” and insert “warrant”.—(Gavin Newlands.)

Question put, That the amendment be made.

--- Later in debate ---

[The Solicitor General]

The hon. Gentleman makes a proper point about security. This, in respect of the code of practice and in collaboration with the industry, will be at the forefront of everybody’s mind. What is important is that the Government do not have a pick-and-mix or help yourself avenue within which they can mine data for their own capricious purposes.

The framework of the Bill quite properly severely circumscribes the circumstances within which the Government can seek access to that material. Most importantly, when it comes to content, the warrantry system—the world-leading double lock system we are proposing—will apply. An internet connection record is not content; it is a record of an event that will be held by that telecommunications operator. It relates to the fact of whether or not a customer has connected to the internet in a particular way. If it goes further into content, the warrantry provisions will apply. It is important to remember that framework when determining, and describing and putting into context, what we are talking about. The Committee deserves better than indiscriminate shroud-waving about prospects and concerns that simply do not arise from the measures in the Bill.

The hon. Gentleman quite properly raised the Danish experience. The Danish Government and authorities are in regular conversation with the United Kingdom Government. That dialogue goes on because they are naturally very interested to see how our model develops, although there are important differences that should be set out briefly. The Danish legislation was not technology neutral, unlike these proposals, because it specified two options that proved unworkable. We work with operators case by case so that the best option for their network at the appropriate time will be determined. The Bill builds on existing data retention requirements, such as the retention of data necessary to resolve IP addresses, which regime already exists under the Counter-Terrorism and Security Act 2015. The full cost recovery underpinning by the Government means that there is no incentive for communications service providers to cut corners, as I am afraid happened in Denmark. There are important differences between the two.

The hon. Gentleman rightly talks about IPV6. Although it is a great aim and something that all of us who have an interest in this area will have considered carefully, it still is, with the best will in the world, a way away, I am afraid. It will take a long time for all service providers to implement in full, and until then, there will be both types of system. Even with IPV6, CSPs may choose to implement address sharing or network address translation, meaning that it is not the guaranteed solution that perhaps has been suggested. Servers who host illegal material are much less likely to move to that system, meaning that, in practice, IPV4 may well remain with us. We therefore have to act in the interim, because, as has been said, the drift away from what I have called conventional telecommunications to the internet carries on whether we like it or not. We have to face up to the world as it is, rather than the world as we would love it to be, and therefore take into account the fact that we are in danger of being unable to detect criminality and terrorism.

[Joanna Cherry]

The Solicitor General says we have to face up to the world as it is. Why is it, then, that no other democratic nation in the world is implementing legislation of this sort?

[The Solicitor General]

The hon. and learned Lady has asked that question before, and I have said to her before that somebody has to step up, try it and make that change. I am proud that the United Kingdom is prepared to do that, as we have done it in so many ways.

[Joanna Cherry]

Is the Solicitor General aware that it is not that other countries have not looked at the problem? They have looked at the problem and decided that this is not the way to solve it.

--- Later in debate ---

[Keir Starmer]

As members of the Committee will have observed, these tidying-up amendments are consistent with previous amendments that would have entrusted decision making to a judicial commissioner rather than the Secretary of State. We had the discussion in principle in relation to those earlier amendments, which I withdrew, and I will not repeat my arguments now, although I would like to return to them at a later stage.

[Joanna Cherry]

As the hon. and learned Gentleman says, the amendments would require that review under clause 80 be by a judicial commissioner rather than the Secretary of State. Will the Government tell us why the provision of such a route of review would not, in their opinion, give the telecommunications providers greater reassurance that notices are not only lawful, necessary and proportionate but stable and legally certain? It seems to me that a review by a judicial commissioner, or at the very least by the Investigatory Powers Commissioner, would provide that reassurance.

[The Solicitor General]

The hon. and learned Lady asks a perfectly proper question. I reiterate the position that we have taken in principle: the Secretary of State is the appropriate and accountable person to be responsible for reviewing retention notices. However, although the Secretary of State must be responsible for giving notices and must therefore be the person ultimately responsible for deciding on the outcome of the review, that does not mean that she or he can make the decision on the outcome of the review without consultation—far from it.

Clause 80(6) ensures that the Secretary of State must consult both the Investigatory Powers Commissioner and the technical advisory board. The commissioner must consider the proportionality of the notice; the board must consider the technical feasibility and financial consequences of it; and both must consult the operator concerned and report their conclusions to the operator and the Secretary of State. Only then can the Secretary of State can decide whether to vary, revoke or give effect to the notice. That system provides rigorous scrutiny of the notice and maintains the accountability of the final decision resting with the Secretary of State. We therefore believe it is the best mechanism for review. Accordingly, I commend the unamended clause to the Committee.

--- Later in debate ---

[Joanna Cherry]

The clause relates to extraterritorial effect and the SNP’s opposition is for the same reasons as outlined in relation to clause 76.

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

--- Later in debate ---

[Keir Starmer]

I am grateful to the Minister. If he could point to the provision that makes good the submission he has just made, then that will deal with this particular point. Just to be clear, subsection (6) is intended to ring-fence and exclude from one of these warrants communications the interception of which would

“constitute an offence under section 2(1)”,

but only in relation to communications in the course of their transmission in the real sense of the term, not including those that are “stored”. I put on the record—if this is capable of being answered, so be it—that “stored” in subsection (6) has the same meaning as in clause 3, which is intended to include stored communications within the prohibition. I will not take it any further; the Minister has my point, which is that one would expect subsection (6) to protect the same content that is expressly protected by clause 3(4), but it does not—unless he or somebody else can point to another provision that adds to subsection (6), though that would be an odd way of doing it.

I will move on. Subsection (9) defines targeted examination warrants. This is important because subsections (1) to (8) deal with targeted equipment interference warrants—warrants issued in a targeted way; the targeted examination warrant deals with examining material obtained by way of a bulk warrant. It therefore serves a different purpose. Subsection (9) is an extremely wide provision:

“A targeted examination warrant is a warrant which authorises the person to whom it is addressed to carry out the selection of protected material…in breach of the prohibition in section 170(4)”.

To understand that, we need to turn to section 170(4), which raises questions that relate to an argument I made earlier on another, not dissimilar, provision. It states:

“The prohibition…is that the protected material may not…be selected for examination if (a) any criteria used for the selection of the material for examination are referable to an individual known to be in the British Islands at that time, and (b) the purpose of using those criteria is to identify protected material consisting of communications sent by, or intended for, that individual or private information relating to that individual.”

That is intended to give protection to individuals known to be in the British islands, by placing limits on the examination of their material: in relation to their material or their communications one needs a targeted examination warrant to get around the prohibition in clause 170(4). The point I make here is similar to the point that I made before: this is temporal. Whether a person is in the British islands or not depends on where they are physically. I am protected so long as I am in the British islands, but I fall out of protection—as would everybody else—the moment I leave them, whether I am leaving for a day, a week, a month or a year. That is a real cause for concern, as is the wide definition of protected material that immediately follows in clause 88(9); amendment 382 would limit the extent of that definition by stopping the clause after the words “Part 6”, which are on page 67, line 40, of the draft Bill.

In conclusion, this is a very wide-ranging clause, and it contains insufficient safeguards—if there are safeguards, they should be in the Bill. There are questions on subsections (6) in (9), taken in conjunction with clause 170(4), that the Minister will have to deal with.

[Joanna Cherry]

I rise to support the hon. and learned Gentleman in his submissions on these two amendments. As we have just reached part 5, I want to take the opportunity to make some general comments on it. Powers to conduct equipment interference—or “hack”, which is the more generally used term—are new; they do not exist in any previous legislation. They therefore require significant scrutiny, by the Committee and by parliamentarians generally, before they are added to the statute book. By its very nature, hacking is an extremely intrusive power, because it grants the authority to see all past and future information and activity on a computer or other device. Beyond the implications for privacy, the potential ramifications for the whole country’s cyber-security and for fair trials mean that hacking should be used only as a tool of last resort. The SNP’s position is that stronger protections must be added to the Bill.

--- Later in debate ---

[Keir Starmer]

I beg to move amendment 384, in clause 89, page 68, line 13, leave out from “information” to end of line 15.

This amendment acknowledges that “data” relating to the fact of a communication or the existence of information has meaning and must not be exempt from privacy protections afforded to other categories of data.

This amendment deletes the words

“or from any data relating to that fact”.

It is important because an equipment interference warrant can permit interference with equipment data, as in clause 88(2)(b). As we have seen, clause 88(9) makes provision for protected material, the definition of which includes equipment data. Over the page, clause 89 deals with the meaning of “equipment data”:

“(a) systems data;

(b) data which falls within subsection (2).”

Subsection (2), broadly speaking, refers to systems data as identifying data that are included in, attached to or associated with a communication but that can be separated from it and that, if separated,

“would not reveal anything of what might reasonably be considered to be the meaning (if any) of the communication”.

That is a logical way of approaching it—data linked to a communication that can be separated from it, but if separated, they would not reveal the meaning of the communication. Thus, it does not undermine the special protection given to the communication.

Then the final part of clause 89(2), paragraph (c), says

“disregarding any meaning arising from the fact of the communication”.

As has been said today, the fact of the communication, in many respects, can be as revealing as the content. However, the provision goes on to say

“or from any data relating to that fact”,

which broadens even further the exclusion from protection intended for communications.

In that way, the clause undermines the very protection being given to communications, so this short amendment would omit the words that I have indicated, in order to limit the exclusion from protection for the communication.

[Joanna Cherry]

May I add my supportive comments? This is a joint amendment from the Labour party and the Scottish National party.

--- Later in debate ---

On resuming—

[Joanna Cherry]

I rise to add my support to amendment 384 on behalf of the Scottish National party. Historically, communications data were considered much less revealing than the content of the communication, and consequently the protections offered to communications data under RIPA were weaker than those existing in the interception regime. However, as communications have become increasingly digital, the data generated are much more revealing and copious than before, allowing the state to put together a complete and rich picture of what a person does and thinks, who they do it with, when they do it and where they do it.

As the Bill stands, clause 88(9) would allow for the examination of potentially vast amounts of data on people in Britain obtained under bulk equipment interference warrants, as vague categories of “data” in 88(9)(a) and (b) are asserted to have no meaning. Data relating to the fact of a communication or the existence of information do have meaning and must not be exempt from the privacy protections afforded to other categories of data.

I urge the Committee to ensure that the Bill does not treat data relating to the fact of a communication or the existence of information relating to that fact as unimportant. In fact, there is extraordinarily high value to such material, precisely because it is highly revealing. It therefore demands equal protection.

[Mr Hayes]

All these disruptions and delays are adding interest and variety to our affairs. There is a straightforward argument for why the amendment is unnecessary, which I will make. If that is insufficient to persuade the Committee, I will add further thoughts.

The straightforward reason why the amendment is unnecessary is that it would undermine the principle that the most robust privacy protections should apply to the most intrusive kinds of data. I simply do not agree with the hon. and learned Lady that, for example, systems data—the highly technical data that will be separated out as a result of the endeavours in this part of the Bill—are better excluded from those extra protections. The unintended consequence of the amendment—at least, I hope it is unintended—is that it would lead to disproportionate access requirements for less intrusive data. That would be unhelpful and could, through confusion, hamper the work of the services.

--- Later in debate ---

[Keir Starmer]

I am grateful to the Minister, first for spelling out in detail the intended operation of the clause and, secondly, for indicating his willingness to write on the matter. This is something that ought to be in the Bill. My clear reading is that the amendment would not ring-fence anything from examination; it would simply require a warrant under clause 88 if equipment data, having satisfied all the other provisions under subsection (2)(a) to (c), included anything where there was a meaning arising from fact communication and so on. I will therefore press the amendment to a vote.

[Joanna Cherry]

I have nothing to add in support.

Question put, That the amendment be made.

--- Later in debate ---

[Joanna Cherry]

I want to add my voice in support of the hon. and learned Gentleman’s suspicions—sorry, submissions! We share suspicions about this clause. The clause unamended permits thematic, suspicion less warrants and these shade into general warrants. General warrants are anathema to the common law of England and Scotland and fall foul of international human rights law.

I am pleased that the hon. and learned Gentleman prayed in aid what David Anderson QC said about clause 90. If Members have read his supplementary written evidence to the Committee, they will have seen that at paragraph 5a he expressed grave concern about clause 90, describing it as “extremely broad” and continuing:

“The ISC noted this in relation to the EI power in February 2016…The Operational Case lodged with the Bill also acknowledged…that a targeted thematic EI”—

equipment interference—

“warrant may ‘cover a large geographical area or involve the collection of a large volume of data’. This matters, because as the Operational Case also acknowledged…the protections inherent in a thematic warrant are in some respects less than those inherent in a bulk warrant. The very broad clause 90 definition effectively imports an alternative means of performing bulk EI, with fewer safeguards. The Government’s explanation for this–that it will opt for a bulk warrant where extra safeguards are deemed necessary–may be argued to place excessive weight on the discretion of decision-makers.”

That concern—that it gives excessive discretion to decision makers—is one that the Scottish National party has as a thread running through the Bill. David Anderson goes on to say:

“If bulk EI warrants are judged necessary, then it should be possible to reduce the scope of clause 90 so as to permit only such warrants as could safely be issued without the extra safeguards associated with bulk.”

Even if the Minister does not consider the SNP’s and the Labour party’s concerns valid, what does he have to say about the lengthy passage that David Anderson has devoted to the matter in his supplementary written evidence?

[Mr Hayes]

I spoke earlier about velocity; now I will talk about breadth and speed. I emphasise that the powers in clause 90 are not new. They are existing powers used by law enforcement, for example, in a range of serious criminal investigations.

[Joanna Cherry]

Will the Minister tell us the legal basis of the existing powers?

[Mr Hayes]

I have done so already, but I will repeat it for the sake of the record. The powers are contained in the Intelligence Services Act 1994 and the Police Act 1997. I am more than happy to provide more information to the hon. and learned Lady on that detail, should she want me to do so.

[Joanna Cherry]

I am looking at the 1994 Act and it seems to me that it contains broad and vague enabling powers, which bear no resemblance to the powers in the Bill. Can the Minister contradict that?

[Mr Hayes]

One of the stated purposes of the Bill is to bring together those powers—to cement them and to put in place extra clarification and further safeguards. I have argued throughout that the essence of the Bill is delivering clarity and certainty. I would accept the hon. and learned Lady’s point if she was arguing that, at the moment, the agencies draw on a range of legal bases for what they do, for that is a simple statement of fact. We are all engaged in the business of perfecting the Bill, because we know it is right that these powers are contained in one place, creating greater transparency and greater navigability, and making legislation more comprehensible and more resistant to challenge. That is at the heart of our mission.

I said I would talk about breadth. The breadth of the circumstances in which equipment interference could be used reflects the fact that, at the time of making an application for a warrant, the information initially known about a subject of interest may vary considerably. Last week, we spoke about the kind of case in which there may be an unfolding series of events, such as a kidnapping, where a limited amount might be known at the outset when a warrant is applied for. The warrant’s purpose will be to gather sufficient information as to build up a picture of a network of people involved in a gang or an organised crime. That is very common and I intend to offer some worked examples in a number of areas.

Identifying members of such a gang can often come from interception arising from a thematic warrant. That might apply to interception, but frankly it might also apply to equipment interference where that is a more appropriate and more effective means of finding the information. Another example may be a group of people involved in child sexual exploitation. Frequently, partial information will allow for further exploration of a network of people who are communicating over a wide area, and who are careful about how they communicate, mindful of the activity that they are involved in. They will not be easy to discover or find, as they will very often disguise their identity. For that reason, it may be necessary to start by looking at sites commonly used to share indecent images of children and from there uncover information that leads, through the use of equipment interference, to those who are driving that unhappy practice. Those examples are not merely matters of theory; they are matters of fact. I know that in cases of kidnapping and in cases of child sexual exploitation, those techniques have been used and continue to be used.

Investigatory Powers Bill (Fourth sitting)

Joanna Cherry Excerpts

Committee Debate: 4th sitting: House of Commons
Tuesday 12th April 2016 Public Bill Committees

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

I remind the Minister that when I spoke before lunchtime, I highlighted the fact that the Intelligence and Security Committee has a concern about secondary data derived from content not being protected. What does the Minister make of the ISC’s concerns? Why have the Government dismissed them?

[Mr Hayes]

I wondered whether the ISC might be raised in this respect. Of course the hon. and learned Lady is right. With her typical diligence she has identified that the ISC does indeed make that point. The answer to the question is that we welcome scrutiny and we invite consideration of these proposals. All of the Committees that looked at these matters made a whole series of recommendations, some of which the Government accepted with alacrity, some of which the Government continue to consider, and some of which the Government do not agree with. It is true that that point has been made, and I said that this might reasonably be argued. However, I think that we have gone far enough in this area in balancing the proper desire for effective safeguards with the operational effectiveness of the agencies.

Bulk collection is really important. Without giving away too much sensitive information, I can happily let the Committee know that as Security Minister I have visited GCHQ, as the Committee would expect me to do. I have looked at the kind of work the staff there do in respect of bulk data collection, and I have seen the effect it has. Contrary to what might be described as a rather crude view of what bulk collection is all about, it is not searching for a needle in any haystack; it is being highly selective about which haystacks are looked at. It is about trying to establish connections, networks and relationships between organisations and individuals; places and people. I have no doubt that without these powers the work of our intelligence and security services would be inhibited. However, I accept that safeguards are needed: I do not for a moment suggest anything else.

I turn now to amendments 58, 59 and 60. These amendments seek to extend the circumstances in which a targeted examination warrant is required beyond the current situation in the Bill, such that they are not limited to persons in the UK. The intention of amendment 58 appears to be that an individual targeted examination warrant would be required from the Secretary of State and a judicial commissioner each time an analyst in an intelligence agency wished to examine the content of any communications acquired under a bulk data interception warrant. This would apply irrespective of where in the world the sender or recipient of the communication was located. As currently drafted, the Bill makes it clear that a targeted examination warrant must be sought if an analyst wished to examine the content of communications of individuals in the British islands which had been obtained under a bulk interception warrant.

Amending the scope of a targeted examination warrant as proposed would, in my view, fundamentally alter the operation of the bulk regime. I am advised to that effect by those who use these powers. There is plainly a rational justification for treating the communications of persons known to be in the British Isles differently to those of persons who are believed to be overseas. Within the UK, the interception of communications is a tool that is used to advance investigations into known threats, usually in conjunction with other capabilities and other tools. Of course, serious investigations of the kind we are talking about are complicated, and very often this will be only one of the means that are used to establish the patterns of activity of the networks I have described and the threats that I have outlined.

--- Later in debate ---

[Mr Hayes]

I do not want to delay the Committee unduly, but I will offer this response. First, I direct the hon. and learned Gentleman to the “Operational Case for Bulk Powers”, which specifies the ways in which bulk powers will be used. The operational case will be specific. I am grateful to him for not pressing the amendment. I am happy to write to the Committee to reinforce our arguments and I think that we might reach a Hegelian synthesis—I am very keen on Hegel, as he knows. I agree that it is often necessary to examine the secondary data to determine the sender—he knows that that is the case—but I disagree about the lack of specificity on the operational purposes. We cannot give too much detail on that, for the reasons of sensitivity that he will understand, but I am happy to write to him to draw his and the Committee’s attention to the “Operational Case for Bulk Powers”, which is targeted at overseas threats but might, as he properly said, draw in some data from those who are in the UK. I hope that when I write to him he might decide not to bring these matters back further. I am grateful for his consideration.

[Joanna Cherry]

I, too, welcome you to the Chair, Mr Owen. It is a pleasure to serve under your chairmanship.

Before lunch, I spoke to amendment 83, concerning secondary data. I did not speak to amendment 84, because it was tabled but not selected, but it is really a corollary: it proposes leaving out clause 14.

I have listened carefully to what the Minister has said and I am grateful to him for his detailed explanation, but he does not take on board the concerns that I attempted to articulate on secondary data, notwithstanding the fact that similar concerns were articulated by the Intelligence and Security Committee. We will have to agree to differ for the time being. I associate myself with the comments made by the hon. and learned Member for Holborn and St Pancras about the other issues relating to the these amendments, in particular his pertinent and typically incisive point about clause 125(3).

Having sought clarification this morning from the Chair on the voting procedures, I do not intend to push the amendment to a vote, because I think that I would end up with something of a pyrrhic victory. However, I emphasise that I stand by the necessity for the grouped amendments and wish to revisit them later during the passage of the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 13 ordered to stand part of the Bill.

Clause 14

Obtaining secondary data

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

[Joanna Cherry]

I tabled an amendment to delete clause 14. I do not think it has been selected, but I have made my position clear. I wish to revisit this issue at a later stage.

Question put and agreed to.

Clause 14 accordingly ordered to stand part of the Bill.

Clause 15

Subject-matter of warrants

[Joanna Cherry]

I beg to move amendment 4, in clause 15, page 12, line 3, leave out “or organisation”.

This amendment, and others to Clause 15, seek to preserve the capacity of a single warrant to permit the interception of multiple individuals while requiring an identifiable subject matter or premises to be provided.

[The Chair]

With this, it will be convenient to discuss the following: amendment 5, in clause 15, page 12, line 8, after “activity” insert

“where each person is named or otherwise identified”.

Amendment 6, in clause 15, page 12, line 9, leave out “or organisation”.

Amendment 7, in clause 15, page 12, line 11, after “operation”, insert

“where each person is named or otherwise identified”.

Amendment 8, in clause 15, page 12, line 12, leave out paragraph (2)(c).

Amendment 9, in clause 15, page 12, line 13, leave out subsection (3).

Amendment 52, in clause 27, page 21, line 7, leave out ‘or organisation’.

Amendment 53, in clause 27, page 21, line 8, leave out ‘or organisation’.

Amendment 54, in clause 27, page 21, line 13, leave out

‘or describe as many of those persons as is reasonably practicable to name or describe’ and insert ‘or otherwise identify all of those persons’.

Amendment 55, in clause 27, page 21, line 15, leave out ‘or organisation’.

Amendment 56, in clause 27, page 21, line 19, leave out

‘or describe as many of those persons or organisations or as many of those sets of premises, as it is reasonably practicable to name or describe’ and insert ‘all of those persons or sets of premises’.

[Joanna Cherry]

The effect of these amendments to clause 15 would be to retain the capacity of a single warrant to permit the interception of multiple individuals but require an identifiable subject matter or premises to be provided. Associated amendments to clause 27 would be required. This would narrow the current provisions, which, in my submission, effectively permit a limitless number of unidentified individuals to have their communications intercepted.

As drafted, clause 15 permits warrants to be issued in respect of people whose names are not known or knowable when the warrant is sought. That is confirmed by clause 27, which provides that a thematic warrant must describe the relevant purpose or activity, and

“name or describe as many of those persons…as…is reasonably practicable”.

The creation of thematic warrants in the Bill means that communications intercepted in their billions under part 6 could be trawled thematically for groups sharing a common purpose or carrying out a particular activity. The difficulty with that is that it provides for an open-ended warrant that could encompass many hundreds or thousands of people, and the expansive scope of these warrants, combined with the broad grounds with which they can be authorised, does not impose sufficient limits on the authorities’ interception powers.

The existence of thematic interception warrants was avowed by the Secretary of State in March 2015. The Intelligence and Security Committee has reported that the significant majority of section 8(1) warrants under RIPA relate to one specific individual but that some do not apply to named individuals or specific premises, and instead apply to groups of people. The current Home Secretary has apparently derived the authority to do so from a broad definition given to the word “person” that is found elsewhere in RIPA, despite the unequivocal reference to “one person” in section 8(1) of RIPA. I suggest that what has gone on in the past is a very unorthodox statutory construction.

Be that as it may, in considering the terms of this Bill the ISC has reported that the Interception of Communications Commissioner has

“made some strong recommendations about the management of thematic warrants”

and in some cases recommended that they be cancelled. The ISC has expressed further concerns about the extent to which this capability is used and the associated safeguards that go along with it. It has suggested that thematic warrants must be used sparingly and should be authorised for a shorter time than a standard section 8(1) warrant.

Reporting on the draft version of the Bill, the ISC noted that “unfortunately”—the Committee’s word—its previous recommendation about thematic warrants

“has not been reflected in the draft Bill”;

nor has it been reflected in the revised Bill, in which the scope for thematic warrants remains unchanged. It is not only the ISC that has concerns about this issue. The Joint Committee on the draft Bill also recommended that

“the language of the Bill be amended so that targeted interception and targeted equipment interference warrants cannot be used as a way to issue thematic warrants”.

Many lawyers believe that the scope of warrants permitted under clause 15 as drafted would fail to comply with both the common law and European Court of Human Rights standards, as expounded in a very recent decision in Zakharov v. Russia from 4 December 2015. In that case, the ECHR found that Russia’s interception scheme was in violation of article 8 of the European convention on human rights. Also, the Court cited the fact that Russian courts sometimes grant interception authorisations that do not mention a specific person or a specific telephone number to be tapped but authorise interception of all telephone communications in the area where a criminal offence has been committed. Although thematic warrants do not relate to geographical location, in my view and that of many far more distinguished lawyers, they are sufficiently broad to violate article 8 of the convention. Our amendments are required to make clauses 15 and 27 compatible with that article.

--- Later in debate ---

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

Is the purpose of the clause to address those circumstances where, for example, the security services or police know that someone has been kidnapped, but they do not know the names of the kidnap gang or even perhaps the number of gang members? The clause is designed to enable the security services to make the inquiries they need to make to save a life.

[Joanna Cherry]

I think I am correct in saying that this section is directed more towards security concerns than serious crime. I will no doubt be corrected, but I can only stand by what others who deal with surveillance issues have said in their evidence to the Committee. I would also like to point to what David Anderson QC said in his follow-up evidence to the Committee at paragraphs 4 and 5.

[Victoria Atkins]

Will the hon. and learned Lady give way?

[Joanna Cherry]

I am just going to continue with this.

[Victoria Atkins]

rose—

[The Chair]

Order, the hon. and learned Lady will continue.

[Joanna Cherry]

David Anderson, in his typically helpful, studious and hard-working way followed up his oral evidence to us with some additional thoughts in written evidence. He has a section headed “Thematic Targeted Powers” in which he says:

“I recommended that the practice of issuing thematic warrants be continued into the new legislative regime…I envisaged their utility as being ‘against a defined group or network whose characteristics are such that the extent of the interference can reasonably be foreseen, and assessed as necessary or proportionate, in advance’—for example, a specific organised crime group”.

Perhaps that answers the hon. Lady’s question. He went on to say:

“I also recommended that the addition of new persons or premises to the warrant should…require the approval of a judicial commissioner, so that the use of a thematic warrant did not dilute the strict authorisation procedure that would otherwise accompany the issue of a warrant targeted on a particular individual or premises”.

His following statement is very important. He says:

“On both counts, the Bill is considerably more permissive than I had envisaged. Thus: The wording of clause 15 (interception) and still more so clause 90 (EI) is extremely broad”.

This answers the hon. Lady’s point. Even David Anderson, who envisaged thematic warrants having some utility against a defined group or network such as an organised crime group, says that the wording of clause 15 is considerably more permissive than he had envisaged.

[Victoria Atkins]

The hon. and learned Lady states the opinion that clause 15 is really aimed at dealing with the security services point. It is but, may I refer her to clause 18, which deals with the grounds on which warrants may be issued by the Secretary of State? It is very clear that it can be done for national security reasons but also for the purposes of preventing or detecting serious crime.

--- Later in debate ---

[Joanna Cherry]

The hon. Lady is absolutely right. I stand corrected. Fortunately I have the assistance of David Anderson on this point. He has made the point that whereas he sees envisaged their utility in identifying a defined group or network—for example, a specific organised crime group—he remains of the view that the wording of clause 15 is “extremely broad”. It should concern all members of this Committee that the independent reviewer of terrorism legislation considers the wording of this clause to be extremely broad. If the Government will not take the Scottish National party’s word for it, then they can take the word of the independent reviewer of terrorism legislation. I seek the Government’s assurance that they will go away and look again at clause 15 and clause 27 very carefully, in the light not only of what I have said but, more importantly, what has been said by Sir Stanley Burnton, Lord Judge and David Anderson.

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

I thank the hon. and learned Lady for her very detailed points. Does she accept that even though David Anderson thinks that the wording is too broad, the amendments that she proposes would make the provision too narrow? If the words “or organisation” are taken out then only a person or a premises will be identified, which would not catch the circumstances that David Anderson is thinking about. In her submission, the hon. and learned Lady identified that while the current wording was too broad, some of the organisations that she mentioned did recognise that in some circumstances the thematic powers were useful.

[Joanna Cherry]

The hon. and learned Lady makes a point that I have to take on board to a certain extent. I suspect that my amendments to clause 15 go further than David Anderson would if he were drafting an amendment to this clause. We are at a very early stage in this procedure. I am really seeking an assurance from the Government that they will take on board, if not my concerns, then at the very least the concerns of Sir Stanley Burnton, Lord Judge and David Anderson, and that they will take away clause 15 and clause 27 and look at them again.

[Keir Starmer]

I will be brief because a lot of the detailed work has been done. I listened very carefully to the Minister, not only today but on other occasions, and he indicated that the Government want to improve the Bill and that they do not have a fixed view. I therefore make these submissions in the hope that the Minister and the Government will not circle the wagons around the existing formula in clause 15 simply because those are the words on the page. The warrants are supposed to be targeted, but when reading clause 15(2) it is clear that they are very wide. I will not repeat the concerns of Lord Judge, Sir Stanley Burnton and David Anderson, but they are three individuals with huge experience of the operation of these warrants.

I take the point about kidnap cases or examples of that type. They are exactly the cases that Lord Judge and Sir Stanley Burnton will have seen in real time and reviewed, and that David Anderson will have reviewed after the event. When those three distinguished individuals say that they have concerns about the breadth of the clauses, they do so against huge and probably unparalleled experience of what the warrants provide for. I doubt that anyone would suggest that they are not alive to concerns about the warrants being practical and effective in the sort of circumstances that have been described.

--- Later in debate ---

[Mr Hayes]

That is an example of what I meant. There could well be people, either here or travelling here, whose identity is known only in the broadest terms. They are part of a network, a wider group or organisation, but no detail is known about them. That does not apply only to terrorist investigations; it might apply to serious organised crime investigations, in which by their nature we are dealing with organisations that desire anonymity. That means that investigations are challenging and makes the powers in the Bill absolutely necessary.

It is perfectly possible that a terrorist or criminal organisation might be seeking to travel in or out of the United Kingdom. It might not be clear at the outset which individuals will be travelling, or that all those travelling share an identified common purpose and will be carrying on the same activity, as required by the definition of “group of persons”.

It is also important to note that the Bill imposes strict limits on the scope of the warrant in relation to organisations. We need to be clear that activity against an organisation must be for the purpose of a single investigation or operation, and the Secretary of State and judicial commissioner will both need to be satisfied that the warrant is sufficiently limited to be able to meet the necessity and proportionality case. It is not just that it needs to be necessary and proportionate; it must be sufficiently limited to legitimise that.

[Joanna Cherry]

I am thinking about the example of the man in the hat. Is that really apposite here? We are talking about targeted interception warrants and targeted examination warrants. We cannot intercept someone’s communications, or examine them, before we have identified who or where they are. Simply knowing that there is a man in a hat is of absolutely no use to us until we find some way to narrow it down and identify who the man in the hat is, even if just that he is a man living in a particular place.

[Mr Hayes]

The hon. and learned Lady may have misunderstood. Part 2 targeted warrants, even if they are thematic, cannot be used to trawl information collected en masse or in bulk. Targeted interception warrant applications must specify the scope of the activity to be intercepted. They cannot be open-ended; they are time-limited and must provide sufficient information for the Secretary of State to assess that the activity proposed is necessary. Indeed, all targeted interception warrants will be time-limited to six months.

Where the interception of calls between a particular handset and a group of individuals, for example, may help to identify a kidnapper—we have heard the example of kidnapping—or show where a kidnapper is, the details of what they are planning or where they might be holding the victim, it is of course possible to identify individuals to whom the warrant relates at the point when it is sought. Where that is the case, the warrant requesting agency will be expected to add the identities of the suspects to the warrant as they become known. That is a further assurance and an important new safeguard, as the hon. and learned Member for Holborn and St Pancras knows. It will allow the Secretary of State and the judicial commissioner to oversee the conduct taking place under the warrant. That obligation will be given statutory force through the code of practice, as he said. Even though it will be in the code of practice, it will have statutory force.

--- Later in debate ---

[Mr Hayes]

That is true, it is in the code. I think I indicated that earlier. None the less, it is an obligation. The reason we added to the codes, largely following the Joint Committee report, was that we wanted to provide additional assurances without the rigidity of placing too much on the face of the Bill.

There is always a tension—I spoke about it in our morning session—between how much is placed on the face of a Bill, which of course provides a degree of certainty but by its nature simultaneously provides rigidity, and how much is placed in supporting documentation. Codes of practice are important supplements to a Bill, and, in their final form, to an Act. It should be emphasised that they are not merely advisory documents—they are legally binding in their effect. As I also emphasised, these are draft codes of practice that we expect to publish in full, partly as a result of this Committee’s consideration and what we learn from it.

The warrant application process will allow the Secretary of State to understand the potential risk that communications will be intercepted incidentally to the purpose of testing or training, and to approve the measures to be taken to reduce the chance of communication being accidentally intercepted. Clear safeguards are in place to protect the privacy of the citizen, so I invite the hon. and learned Member for Edinburgh South West to withdraw the amendment.

[Joanna Cherry]

I am not minded to withdraw the amendment. For the same reasons that the hon. and learned Member for Holborn and St Pancras gave earlier, and the reasons that I gave in relation to amendments to clause 13, I will not insist on a vote just now—I suppose that means that I do withdraw the amendment, but I reserve the right to bring it back at a later stage.

[The Chair]

For clarification, when the hon. Lady says that she will bring it back at a later stage, it will be on Report.

[Joanna Cherry]

Indeed. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 15 ordered to stand part of the Bill.

Clause 16 ordered to stand part of the Bill.

Clause 17

Power of Secretary of State to issue warrants

[Keir Starmer]

I beg to move amendment 11, in clause 17, page 13, line 5, leave out “Secretary of State” and insert “Judicial Commissioners”.

This amendment, and others to Clause 17, seeks to remove the role of the Secretary of State in formally issuing interception warrants and instead requires Judicial Commissioners to issue such warrants.

--- Later in debate ---

[Keir Starmer]

No, it does not. With all due respect, thinking on accountability and safeguards in this field is on the move. The sort of regime that was perhaps thought appropriate five, 10 or 15 years ago is now accepted as not appropriate. One of the points of this legislation in many respects is to bring it up to date and make sure that scrutiny and safeguards are more powerful. The fact that an ex-Home Secretary thinks their role was very important and need not be interfered with did not surprise me, but neither did I find it persuasive.

I have probably exhausted my point. The amendments are intended to reflect the position set out by David Anderson for the very good reasons that he draws attention to in paragraph 14.56(a): the political accountability card is overplayed in resisting this argument.

[Joanna Cherry]

I just want to address the joint amendments briefly. I want to draw attention to amendment 101, which was tabled on behalf of the Scottish National party and reflects a later amendment to delete clause 19. Scottish Ministers issue warrants at present in relation to serious crime. If the amendments were taken on board, their role would be replaced by judicial commissioners, and they are comfortable with that. I simply draw attention to that consequential amendment.

I support everything that the hon. and learned Member for Holborn and St Pancras has said in support of the group of amendments to clause 17. I have just three points to make: three reasons why I support the amendments. First, I associate myself with the argument that arguments concerning Ministers’ democratic or political accountability for surveillance warrants are misconceived and misplaced. Secondly, one-stage judicial authorisation is the norm in many comparable jurisdictions. Thirdly, and picking up another point made by David Anderson, judicial authorisation would encourage co-operation from technical firms in the United States of America.

I am grateful to the hon. and learned Member for Holborn and St Pancras for exploding the myth, also exploded by David Anderson, that Ministers are democratically accountable for their role in issuing warrants, because of course it is a criminal offence to disclose the existence of a warrant, and that will remain the case under clauses 49 and 51.

What is often advanced and has been advanced by Government Members is that a corollary to this argument is that Ministers are politically accountable for the agencies and will be required to resign if things go wrong. That is incorrect. Although the Home Secretary is responsible for setting the strategic direction of the Government’s counter-terrorism policy and the Cabinet Minister is responsible for MI5, MI5 is like the police: operationally independent. MI5’s director general retains operational independence for day to day decision making. Historically, when terrorist attacks have tragically succeeded, they have not led to political resignations in this country. Despite inquests and inquiries following the terrible tragedies of the 7/7 attacks and the ghastly murder of Fusilier Lee Rigby, and despite the fact that those inquests and inquiries uncovered internal errors in the agency’s handling of information relating to those responsible for the attacks, this did not result in the political accountability that is now so strongly claimed.

The reality is that the oversight we have for such decisions and the accountability for the agency is provided by a patchwork of mechanisms, including the ISC—although I dissociate myself with the comments made by the hon. and learned Member for Holborn and St Pancras on the limitations of the ISC—and also by public inquiries and legal challenges brought against the Government. No doubt we could argue that such oversight and accountability as there is in relation to the operation of the security agencies could be enhanced, but it is simply not correct to argue that political accountability is provided by the ministerial sign-off on warrants, because it is not. I have been in the House for only nine months, but when questions around these issues are asked of Ministers, I have seen them repeatedly reply, probably quite properly, that they cannot answer for reasons of national security.

My second point is that one-stage judicial authorisation is the norm in comparable jurisdictions. It happens in America, where federal, investigative or law enforcement officers are generally required to obtain judicial authorisation for intercept. A court order must be issued by a judge of a US district court or a US court of appeals judge. In Australia, law enforcement interception warrants must be issued by an eligible judge or a nominated administrative appeals tribunal judge. In Canada, it is unlawful to intercept private communications unless the interception is in accordance with an authorisation issued by a judge. In New Zealand, police can only intercept a private communication in tightly prescribed circumstances, including requiring a warrant or emergency permit that can only be issued by a High Court judge. If the United Kingdom wants to be able to claim that it is in a world-class league for good practice in surveillance, in my submission, it should adopt one-stage judicial authorisation.

Those of us who are lawyers in the Committee or have ever dealt with the law are familiar with the concept of a judge being got out of his or her bed in the middle of the night to grant an interdict in Scotland or an injunction in England, in civil matters of far less importance than the sorts of matter the Bill deals with. In the aftermath of—God forbid—another attack in the United Kingdom such as 7/7, judges would be as readily available to deal with warrants as Ministers of the Crown are at present.

Thirdly, judicial authorisation would encourage co-operation from US technical firms. That point was pressed home by David Anderson QC in his review, when he said that given the United States tradition of judicial warrants, Silicon Valley technical firms feel uncomfortable with the United Kingdom model of political authorisation. Those firms operate in a global marketplace, which underlines the need for us to adhere to procedures fit for a world-leading democracy. The United Kingdom is alone among our democratic allies with similar legal systems in permitting political-only authorisation. The SNP supports the amendments for those three reasons.

[Mr Hayes]

This is an important debate, as my hon. and learned Friend the Solicitor General said. The shadow Minister is wrong, as I described earlier, factually, philosophically and politically. I will try to deal with those in turn.

The factual case is this. Accountability is a much more sophisticated thing than the shadow Minister suggests. Accountability is about who makes decisions, as well as about the decisions they make. People who are elected, by their nature, are accountable to those who elect them. The judgments they make and the powers they exercise reflect that direct relationship with the electorate. It is almost undeniably true that those of us sitting in this room and others like us are bound to be more influenced and affected by the wider public because we do not do a job unless they continue to have faith and belief in us. We are elected by them; we are answerable to them.

The Home Secretaries, the Northern Ireland Secretaries and the Foreign Secretaries who make these decisions are elected constituency Members of Parliament who every day, every week and every month are communicating with constituents who have profoundly held views about the very matters over which those Secretaries exercise their judgment, in a way that people who are not elected simply do not. That line of accountability to the wider public should not be understated or underestimated.

--- Later in debate ---

[Joanna Cherry]

On a point of order, Mr Owen, the amendments are also in my name, so will I, too, have to state my position on them?

[The Chair]

Yes. You may object. Do you wish to object?

[Joanna Cherry]

I would like to respond to one or two of the points made by the Minister, if I may briefly.

[The Chair]

There is a bit of a job share going on among the Front Benchers and I am getting a little confused. The mover of an Opposition amendment is the person who finishes on behalf of the Opposition. Mr Starmer has had the opportunity to do that and you have had your opportunity to speak; we are now going to vote.

[Joanna Cherry]

I hear what you are saying, Mr Owen. My position is that the amendments are crucial to the Bill. I am not insisting or objecting—

[The Chair]

Order. The Question is that the Committee agrees to withdraw the lead amendment. If you do not wish that to happen, you may object and we will proceed to a vote.

[Joanna Cherry]

I will not object.

[The Chair]

Thank you.

Amendment, by leave, withdrawn.

--- Later in debate ---

[The Chair]

Joanna Cherry, do you wish to speak?

[Joanna Cherry]

I have not put my name to the amendment.

[The Chair]

If you wish to speak to any amendment, you may make your position clear at that time, even if you are not the mover of the amendment—

[Joanna Cherry]

My name is not on amendment 61, but is on amendment 93, but that is an amendment to clause 27.

[The Chair]

Amendment 93 is in this group, so you may wish to make a contribution.

[Joanna Cherry]

I am not going to at this stage, thank you, Mr Owen.

[The Solicitor General]

It is a pleasure to serve under your chairmanship, Mr Owen, for the first time in what I am sure will be a number of important sittings.

May I address the amendment moved by the hon. and learned Member for Holborn and St Pancras? I am grateful to him for rightly pointing our way to paragraph 4.7 of the draft code. Indeed, by reference, paragraph 4.8 gives a clear basis for the decision maker to assess the nature of the proportionality. Therein lies something of the problem with regard to the approach to be taken in the clause. It is tempting, on the face of it, to include the test in the primary legislation, but it might provoke more questions than answers.

Naturally, when one makes a bald statement about proportionality, people want to know more, so where does one end in terms of adding to the primary legislation the detail that is necessary for decision makers to reach a considered conclusion? My simple argument is that the amendments therefore are not necessary. What makes this the right balance is the combination of the primary legislation that sets out the framework and a living document—the code of practice—that will be more easily amendable and accessible in terms of any changes that need to be made in the light of experience and practice.

We do not want to end up with a situation where this type of warrantry can only be obtained when all other avenues have been exhausted, a bit like the position when one comes to an ombudsman. That would be an artificial scenario to end up with and would cause problems operationally. I can think of examples where the exhaustion of other avenues will just not be practicable. For example, in a kidnap situation where an individual’s life might be in danger, this type of warrantry would probably be the most appropriate step to take before any other type of intervention. Of course, there are occasions where other means of intelligence gathering, such as live human intelligence sources, might be high-risk or result in a higher degree of collateral inclusion.

I am concerned that we do not end up, despite the best intentions of the hon. and learned Gentleman, with an inflexible approach on the face of primary legislation. It is far better, in my submission, to keep the balance as it is, as clearly outlined in the code of practice and the framework within the clause.

--- Later in debate ---

[Keir Starmer]

I am grateful to the Solicitor General for the way he has approached this, but it misunderstands the amendment. Of course, whether information could be reasonably obtained by other means is relevant to the assessment of proportionality and necessity. The amendment proposes that, having taken all the factors into account, if it transpires at the end of that exercise that the information could have been reasonably obtained by other less intrusive means, it is not proportionate—that is the end of the exercise. That, in our submission, is the right test that should be on the face of the Bill. At this stage, I will withdraw the amendment with a view to raising it at a later stage if it is appropriate to do so. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 ordered to stand part of the Bill.

Clause 18

Grounds on which warrants may be issued by Secretary of State

[Joanna Cherry]

I beg to move amendment 30, in clause 18, page 14, line 20, after “security”, insert “or”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 85, in clause 18, page 14, line 20, after “security” insert—

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

This amendment, and others to Clause 18, seeks to require that the grounds for an interception or examination warrant are tied to a threshold of reasonable suspicion of criminal behaviour; and that reference to a separate ground of “economic well-being, etc.” is deleted from the face of the bill.

Amendment 86, in clause 18, page 14, line 21, after “crime” insert—

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

Amendment 31, in clause 18, page 14, line 21, leave out “or”.

Amendment 32, in clause 18, page 14, line 22, leave out paragraph (2)(c).

Amendment 35, in clause 18, page 14, line 33, leave out subsection (4).

[Joanna Cherry]

These amendments would delete the separate ground for interception of economic wellbeing from the face of the Bill and require that grounds for interception are tied to a threshold of reasonable suspicion of criminal behaviour.

The Bill re-legislates for RIPA’s three broad statutory grounds for issuing surveillance warrants. The Secretary of State may issue warrants for interception, hacking and so on

“in the interests of national security…for the purpose of preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.

That final ground can apply only where it relates to the acts or intentions of persons outside the British islands.

I support the amendments because all three main statutory grounds are, in my submission, unnecessarily vague and are left dangerously undefined. As the decision will continue to lie with the Secretary of State, the test will be met by whatever he or she subjectively decides is in the interests of the national security or economic wellbeing of the UK, having regard to popular sentiment rather than to what is necessary and proportionate, as we have now heard from the Minister’s own mouth. The tests mean that individuals are not able to foresee when surveillance powers might be used, and they grant the Secretary of State a discretion that is so broad as to be arbitrary. The Joint Committee on the draft Bill recommended that the Bill should include a definition of national security, and I call upon the Government to produce such an amendment. If the Government sprinkle the Bill so liberally with the phrase “national security”—indeed, it is the Government’s job to defend national security—they need to tell us what they mean by that phrase, so I call upon them to define it.

The Joint Committee also recommended that the phrase “economic wellbeing” should be defined, but the ISC went further and said that economic wellbeing should be subsumed within a national security definition, finding it unnecessarily confusing and complicated. I heartily endorse the ISC’s view in that regard. The third ground is an unnecessary repetition unless there is something sinister behind the definition of “economic wellbeing,” and many Members of the official Opposition, and indeed of my own party, have serious concerns about what that might be about.

Recently, the Prime Minister went so far as to say, ridiculously in my view, that the Labour party is now a “threat to national security”. I am not a member of the Labour party, although I once was when I was a student.

[Christian Matheson]

Join us again.

[Joanna Cherry]

I am very happy to join Labour in many aspects of this Bill, but I have taken a slightly more radical path in middle age as an SNP MP. It is a disgrace to suggest that the Labour party is a threat to national security, and such loose language shows us that the continued undefined use of the term “national security” in enabling legislation is not sustainable.

The ISC also queried both the agencies and the Home Office on the economic wellbeing ground, and it reported that neither the agencies nor the Home Office have “provided any sensible explanation.” I hope that we might get a sensible explanation from the Government today, and I wait to hear whether we get one. Regrettably, the recommendations of the ISC and the Joint Committee have been dismissed, and the core purposes for which the extraordinary powers can now be used remain undefined and dangerously flexible within the Bill.

That is the nub of my concerns about the definitions of “national security” and “economic wellbeing.” The SNP amendments go slightly further than the Labour party is prepared to go at this stage by requiring reasonable suspicion. At the moment, the three grounds contain no requirement for reasonable suspicion that an individual has committed or intends to commit a serious criminal offence, nor even suspicion or evidence that a serious crime has been or is going to be committed. In my submission, that gives licence for speculative surveillance.

Briefly, on the national security ground, the courts have in the past responded with considerable deference to Government claims of national security, viewing them not so much as a matter of law but as Executive-led policy judgments. As a legal test, national security is meaningless unless the Government attempt to tell us what they mean by it. The second ground is similarly broad and open-ended because the Government have not sought to clarify the circumstances in which national security, as opposed to the prevention and detection of serious crime, will be in play.

I invite the Government to table an amendment to tell us what they mean by national security, to explain why it is necessary to have a ground revolving purely around economic wellbeing, to explain why they have discounted the recommendations of the Joint Committee and the ISC, and to tell us why there is no requirement for reasonable suspicion in these grounds.

[Simon Hoare]

In opening, let me address what I detect is the elephant in the Committee Room, as amplified by the amendment as it was. As I made clear in the July 2015 debate on the Anderson report and on Second Reading, I am not a lawyer, so I view the proposal through the narrow prism of the man on the Clapham omnibus, for want of a better phrase: a practical proposal to try to keep my constituents and others as safe as the Government possibly can. I do not view it through the perfectly proper prism of trained legal eyes and I would not be able to do that.

Coming to the breadth point that the hon. and learned Lady who speaks for the SNP has been making, it is clear to me that, from a legal point of view or from a lawyer’s point of view, the narrower, tighter and more prescriptive the language in statute, the better. It narrows, eliminates, eradicates or whatever the opportunity for a wider debate about the interpretation of this or that word, almost like Coolidge, whose immediate response when told that a senator who had always opposed him had died, was: “I wonder what he meant by that.” I think we should be rather careful. I make no apology for viewing this as just an ordinary guy—a father, a husband, a constituent and a Member of Parliament—who believes it is my duty to support any Government of the day who are seeking to keep our country safe.

[Joanna Cherry]

Does the hon. Gentleman also accept that, as Members of Parliament, we have a duty to protect our constituents’ civil liberties and privacy? Lawyers look for narrow definitions and certainty not for their pleasure, but to protect their clients. The reason why Members of Parliament should look for narrow definitions and certainties is to protect their constituents.

[Simon Hoare]

Up to a point, Lord Copper. I find myself in broad agreement with the hon. Member for City of Chester. Likewise, I could not give a tinker’s cuss about most of these things as long as I can look a constituent in the eye were something horrible to happen on the streets of Shaftesbury, Blandford Forum, Gillingham or any of the villages in my constituency. They might look at me and say, “Mr Hoare, are you convinced that you supported everything you possibly could to avoid this atrocity?” I would prefer to say, “Yes, I did.” If it impinged upon or offended against the virgo intacta of civil liberties as a sort of purist academic—I use that word not in an abusive way—definition, I would side with the security argument at every step and turn.

I am not using that as the Luddite argument that someone who has done nothing wrong has nothing to be afraid of. It is absolutely right that to govern is to choose. It straddles that often imperceptible divide between the application of the rule of law and discharging the first duty of the state—to keep the realm safe—and preserving the sacred and long-cherished liberties and freedoms that we all enjoy.

I accept what the hon. and learned Lady says on that point, but it is not just Liberty and Amnesty and other organisations that have access to legal counsel. It is not that the statue, as it emerges through all our processes, would be available only to us and the good guys. It would be available to those who wish us well, but I am going to hazard a guess that one or two of those who wish this country ill—whether in terms of national security, serious crime or acting in an injurious way to our economic wellbeing—may just have recourse to a legally trained brain or two themselves. They, too, would be able to say, “Ah, we’ll do it that way”, because the Home Secretary, the Foreign Secretary, the Secretary of State for Northern Ireland or the Defence Secretary would be so hogtied by the narrow definitions contained in the statute of the Bill, because people sought to stand—this is a phrase I used on Second Reading—like vestal virgins, defending the flame of civil liberty, because that is the flame that must be defended above all others and national security must be secondary to it. That is a perfectly acceptable and reasonable position to take, but it is one with which I profoundly disagree. It offends everything that motivates me as a politician.

We need to be very careful about having, either in the proposed amendments or during the progress of the Bill in Committee and on Report, an obsessive regard to trying to narrow down our language. Providing that the double lock with the judicial oversight remains for all circumstances whereby these warrants and other facilities can be granted—as long as that judicial view is there—that would seem to be in order to secure the provision for the short, medium and longer term, so that we do not have to come back through the legislative process to continually update the narrow language in the Bill to reflect circumstances or address scenarios that, without sounding too much like Donald Rumsfeld, in 2016, we did not think existed or could exist.

It is not from some sort of bovine, recidivist, reactionary, “We are the law and order side of the Tory party” sentiment that I find this quest for the narrowing down of our language to be wrong. It would fetter and constrain the decisions of Ministers and those who, on a daily basis, put their lives at risk under the rule of law to keep us safe. I shall be opposing this set of amendments, just as I will any other amendment, not because my Front Bencher or my Whip advises me to, but merely because I think that there is nothing intrinsically wrong—this is the non-lawyer’s approach—in having broad definitions that provide accountable scope to those who take the decision, so that they are able to take those decisions in response to circumstances as they arise.

--- Later in debate ---

I will return to the hon. Gentleman’s specific points, as they seem very good. If he will permit me, I will be happy to write to him and the other members of the Committee. I think he said that—if he did not, I am sure that at some point he will—clause 225 sets out the general definitions of a serious crime and the Bill already makes clear that interception can only be used in the prevention and detection of serious crime and spells out what that means. Warrants in respect of serious crime would nearly always pass the reasonable suspicion test, but in some cases intelligence derived from interception is the only means by which reasonable suspicion can be established—for example, in the investigation into an organised criminal group. I do consider the safeguards in the Bill, including strict limits on the circumstances in which these powers can be used, to be effective. I do think that is a robust framework, but I am mindful of the specific points about political and trade union activity. I will look at that again and will take any steps that I think are reasonable to provide assurance to the hon. Gentleman, his hon. Friends, and others.

[Joanna Cherry]

I listened carefully to the Minister, and I noted that he said he wanted to provide a bridge on the issue of national security and can perhaps deal with issues and political fears related to that, but that he does not want to significantly change the language on economic wellbeing and is not happy with the SNP amendments in relation to reasonable suspicion. I do not want to get too bogged down on trade union rights and I certainly do not want to kick down the bridge that the Minister wants to build, but I have to say that, on trade union rights, actions speak louder than words. This Government have introduced some of the most draconian anti-trade union legislation that has been seen in this country for many years—worse than Mrs Thatcher’s. In that context, I do wonder whether we can be assured about the Government’s intentions in relation to trade unions. However, the Minister is an honourable man; I take him at his word and will listen to what he has to say in the future on this issue. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.

Clauses 19 and 20 ordered to stand part of the Bill.

Clause 21

Approval of warrants by Judicial Commissioners

[Keir Starmer]

I beg to move amendment 62, in clause 21, page 17, line 4, leave out from “must” to “the following matters” in line 5 and insert “determine”.

--- Later in debate ---

[Keir Starmer]

I am grateful for that intervention. There are several different positions here, and we are finding our way. The amendments would take out the review element and make it clear that it is a double lock. There would then be a separate decision by the Secretary of State and a decision by a judge on the same material. Of course, a judge would always give weight to the Secretary of State’s view, but they would still come to a decision of their own. That is position No. 1, and let me be clear that that is what the amendment is aimed at—a true and equal lock.

[Joanna Cherry]

Does the hon. and learned Gentleman agree that amendment 89, tabled by my hon. Friend the Member for Paisley and Renfrewshire North and I, would specifically take out subsection (2) and the reference to judicial review? That would make clear what he is saying: amendment 62, which I also support, would amend subsection (1) so that the judge would determine the review in regard to necessity and proportionality, and judicial review would come out completely.

[Keir Starmer]

I agree. I notice that my name is not on amendment 89. I think it should have been, because amendment 62 only works if subsection (2) comes out, but that is neither here nor there at this stage. I am not quite sure what happened, but given that both amendments have been tabled, it does not matter one way or another.

To be clear, the position is that it should be a substantive decision by the judge according to necessity and proportionality, and those terms obviously have their own special application. Through amendment 89, the review, whether by judicial review principles or otherwise, would come out, making it a true double and equal lock.

It is a new approach and a new provision, so it is for Parliament to decide on the appropriate way forward, but the amendments would give clarity and a real safeguard with an equal lock. That is the position. There probably is a fall-back position, which is that if it is to be a review of some sort, amendment 89 should stand on its own feet—that the review should not be on the principles of judicial review, and something more would need to be written into the Bill.

I do not know what response the Minister will give, but this matter goes to the heart of the issue, and it may be that further consideration needs to be given to the precise test. As it stands, the test is insufficiently precise and will lead to difficulties in its application. It is a matter of real concern to the judiciary. Lord Judge does not make such comments without a good deal of thought. If he is concerned about the provision, the Government should be, too. The simple way through is to have a simple but substantive double and equal lock.

--- Later in debate ---

[The Solicitor General]

I am grateful to the hon. and learned Gentleman. I remind myself that we will be able to debate those new clauses but I thought it important to look, in essence, at the full picture of David Anderson’s recommendations, bearing in mind that we had quite a lively debate about the role of the Executive. It would be a mischaracterisation of Mr Anderson’s view about the role of the Executive to say that somehow there was a wholesale move away from the Executive’s position with regard to warrantry and what Government Members certainly strongly feel is the important role of the Executive.

Coming back to where we are with regard to the judicial review test, we have already heard reference to the noble Lord Pannick. The intervention he has made is powerful and it is important that he thinks the test is robust. The criticism is, perhaps, not justified. Of course, that is not the only basis on which we have reached that conclusion. We all know—those of us who are lawyers and those who are not—the growing importance of judicial review in our public life. It is a concept that has evolved and that will continue to evolve. It is flexible, too.

[Joanna Cherry]

It is so general. I have advised people on the potential for judicial review. Does the Minister agree that it is difficult to advise a client on the potential for judicial review in the absence of a reasoned decision? In this Bill, there is no duty on the Secretary of State to give a reasoned decision, so judicial review scrutiny will be happening in a vacuum in the context of a decision for which no written reasons have been given because the Bill does not demand it.

[The Solicitor General]

Herein lies the problem. We have the judicial lock—the commissioners, of course, will be giving reasons—so that there is a check and balance upon the decision of the Executive. The hon. and learned Lady makes a proper point, because Executive decisions are administrative decisions that are judicable. I want to avoid further unnecessary and, frankly, unhelpful litigation that will get in the way of the important work of warrantry, which has to be undertaken, bearing in mind not only the interests of national security but, looking down the scale, the various scenarios that will confront commissioners, such as serious crime cases. The flexible scrutiny will allow differing approaches to be taken. Returning to the main point, I am worried that we might end up creating something that is too inflexible, which will create injustice rather than solve the problem.

[Joanna Cherry]

But how will the judicial commissioner scrutinise the Secretary of State’s decision, having regard to judicial review principles, when she is under no duty to give reasons for it? How will they do it practically?

[The Solicitor General]

They will have access to all the material that the primary decision maker has. The hon. and learned Lady is right to ask the question but, simply speaking, the judicial commissioner will have access to the material that the Secretary of State has. In fact, the judicial commissioner will be able to ask for more material, so there should not be any fear that the vacuum she mentioned will exist in relation to the judicial lock.

Returning to the obvious experience of judicial commissioners, I am keen to ensure that we end up in a position where commissioners feel that, on a case-by-case basis, they are not only free to agree with the Secretary of State, but are absolutely free to disagree. If there is not that element of flexibility, this double lock will be meaningless. Again, without casting any imputation upon the good intentions of those who have tabled amendments, my concern is that, first, this amendment is based on a difference of opinion on the nature of the judicial commissioner stage. Secondly, there is a danger that we might end up in a position where decisions are being second-guessed in a way with which the judiciary would feel uncomfortable, and where the balance between the actions of the Executive and proper scrutiny by the judiciary is not clearly delineated.

--- Later in debate ---

[The Solicitor General]

I am not going to point to that because, as I have said, it is important to have wide discretion. But equally, as Sir Stanley Burnton said, there will be other approaches and judges will be compelled to take a much closer look or hands-on approach—I think Sir Stanley said “stringent approach”—when looking at the case. But that will depend on the case before the commissioner. For example, a case of extreme importance with potentially draconian impacts deserves a very close look under the microscope. That is important. What I want to get across is that there should be not a sliding scale, but a gradation and wide discretion in the test that allows differing approaches to be taken.

In response to the hon. and learned Gentleman, I would be surprised to see bald decisions on Wednesbury unreasonableness. Bearing in mind that, most of the time, European convention on human rights points will have to be engaged, and, by dint of that, necessity and proportionality will have to come into play anyway. Perhaps the point is too axiomatic to be made, but it is important that we do not get too fixated by a worry that judges will take an old-fashioned clubbish approach to whether the Home Secretary is totally out or order. I do not believe that will be the case, bearing in mind the calibre and experience of the commissioners who have done the work up to now and who I expect will carry on doing it in the unified commission that we will create.

In a nutshell—the point does not improve on repetition—there is a danger that in going down the seductive line of seeking greater clarity, we may end up fettering the reviewer’s discretion, which I do not think is in anyone’s interest and does not support the thrust of what all hon. Members want: an effective lock mechanism that properly involves the judiciary in a way that is unprecedented but welcome in our mature democracy.

[Joanna Cherry]

I have heard nothing that answers what in my submission is a knockout point about lack of reasons. I am not tooting my own trumpet because it was not my idea. I got the point from my learned devilmaster, Laura Dunlop QC, a distinguished silk at the Scottish Bar and former law commissioner. I asked her to look at this and she said the first thing that occurred to her was how can there be scrutiny under judicial review principles when there is a vacuum of any reasoning. I have not heard any answer to that question in what the Solicitor General has said, with all due respect to him.

On that basis, I remain of the view that amendments 62 and 89 will be essential in due course, but following the course of action we have taken today, I will not insist on them at this stage. I reserve the right to bring them forward at a later stage, about which the Chairman has advised me.

[Keir Starmer]

I am grateful to the Solicitor General. I have listened carefully to what he has said. There is a difference between us, because I seek to ensure through the amendment that the judicial commissioner is a proper decision maker.

To make the argument that the judges might be fettered is really to misunderstand the amendment that I have tabled. The duty of the judge is to apply the test that Parliament sets out in statute. That is straightforward, and if Parliament is clear about the test, the judge is exercising his or her duties properly in applying the test. There is no question there, but there is this fundamental point between us as to whether it should be review or decision making. I think that is clear enough.

In light of the argument, at this stage I will not push this amendment to a vote, but I will reserve it for a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Joanna Cherry]

SNP amendment 102 is very similar to amendment 39, which the hon. and learned Member for Holborn and St Pancras spoke to, but there are two differences. First, on the areas in which a judicial commissioner must instruct the special advocate, I have deleted

“in the interests of the economic well-being”

in line with an earlier amendment. Secondly, in relation to the appropriate Law Officer who appoints special advocates, I have inserted, for the purposes of subsection (7)(b), the Lord Advocate as opposed to the Advocate General. The reason for that is that subsection (7)(b) deals with

“the consideration of items subject to legal professional privilege”,

which would relate to devolved rather than reserved matters in general terms. In my submission, it would be respectful for the Lord Advocate as well as the Advocate General to be consulted about special advocates.

I am wedded to the notion of special advocates. I do not have a huge amount to add to what the hon. and learned Gentleman said, other than to point out that David Anderson QC, in paragraph 18 of his written evidence to this Committee submitted following his oral evidence, states that he would

“like to confirm my view that the right of the Judicial Commissioners under the dual lock system should be clearly acknowledged”

and

“use standing counsel to act as amicus where appropriate in relation to applications for the approval of warrants”.

The special advocate scheme that I advocate goes a bit further than that. The purpose of the special advocate would be

“to represent the interests of any person or persons subject to the warrant or the wider public interest”

in the protection of privacy. The amendment would place a judicial commissioner under a duty to appoint a special advocate in a case involving a claim of national security or one that is subject to legal professional privilege. The appointment of the special advocate would ensure that the material produced to support an application is subject to adversarial testing as far as possible. That is the broad thrust of the amendment.

[The Solicitor General]

I am grateful to the hon. and learned Member for Edinburgh South West and the hon. and learned Member for Holborn and St Pancras. The hon. and learned Lady was very clear about the different basis of her amendment. My concern is that there are two schools of thought here. There is the amicus curiae school of thought, with which I have a great deal of sympathy. One of the roles of the Law Officers is, when we are approached by various jurisdictions, to consider whether the attorney himself should intervene or whether the court should have an amicus appointed. The hon. and learned Gentleman is right to talk about some of the confusion that can exist in regard to inherent jurisdiction. I am going to take that point away and consider it.

I am concerned about a full-blown replication of the important special advocate system that we have to assist, for example, the Special Immigration Appeals Commission, or of the genesis of the Justice and Security Act 2013 and the closed material procedure. There is an important difference between the public interest in having special advocates and this type of scenario. In such cases, there are affected parties—usually respondents to important applications—for whom huge issues are at stake and who need that sort of quality representation within what we accept are exceptional and unusual departures from the principle of open justice. That is why special advocates were created. They perform an invaluable and important role.

I do not see the read-across from that to this scenario. What we have here is an investigatory procedure. It takes place at the early stages—to take a case example—of the investigation of a crime or a threat to national security. There may not be at that stage an identifiable suspect; there is, therefore, a difference and a difficulty in identifying the prejudice that could be caused to the interest of an individual who is a party to the proceedings. It is a different scenario and, tempting though it might be to introduce that type of regime, it would serve only to introduce delay, bureaucracy and extra expense with no tangible benefit to the integrity of the system.

In a nutshell, I will consider carefully the amicus curiae point, but I have wholly to reject a wider approach and the creation of a special advocate system which, frankly, would go beyond even the American jurisdiction, with which comparison is often made—in the foreign intelligence surveillance court in the US they have amici curiae available to assist the court. On that basis, I urge the hon. and learned Member to withdraw the amendment.

[Keir Starmer]

I have nothing to add. In the light of what the Solicitor General has said I will not press the amendment. I look forward to what he produces and to further discussing that. I beg to ask leave to withdraw the amendment.

[Joanna Cherry]

I have nothing to add either.

Amendment, by leave, withdrawn.

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

[The Chair]

With this, it will be convenient to discuss:

New clause 1—Power of Secretary of State to certify warrants—

“(1) The Secretary of State may certify a warrant in those cases where—

(a) The Secretary of State has reasonable grounds to believe that the conduct authorised by the warrant is necessary pursuant to section 18(2)(a) (national security) and relates to—

(i) the defence of the United Kingdom by Armed Forces; or

(ii) the foreign policy of the United Kingdom.

(b) The Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(2) A warrant certified by the Secretary of State under subsection (1) is subject to approval by a Judicial Commissioner.

(3) In deciding whether to approve a warrant certified by the Secretary of State under subsection (1), the Judicial Commissioner must determine whether—

(a) the warrant is capable of certification by the Secretary of State under subsection (1); and

(b) in the opinion of the Judicial Commissioner, approving the warrant is necessary on relevant grounds under section 18(2)(a) and subsection (1)(a) or (b) of this section.

(4) Where a Judicial Commissioner refuses to approve a warrant certified by the Secretary of State under this Section, the Judicial Commissioner must produce written reasons for that decision.

(5) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a warrant under subsection (3), the Secretary of State, or any special advocate appointed may ask the investigatory Powers Commissioner to decide whether to approve the warrant.”

This new clause is intended to replace existing Clause 21 and provides for the Secretary of State to certify warrants in cases concerning defence or foreign policy before they are considered by a judicial commissioner.

New clause 5—Power of Secretary of State to certify warrants—

“(1) The Secretary of State may certify an application for a warrant in those cases where the Secretary of State has reasonable grounds to believe that an application is necessary pursuant to section 18(2)(a) (national security) and involves—

(a) the defence of the United Kingdom by Armed Forces; or

(b) the foreign policy of the United Kingdom.

(2) A warrant may be certified by the Secretary of State if—

(a) the Secretary of State considers that the warrant is necessary on grounds falling within section 18; and

(b) the Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(3) Any warrant certified by the Secretary of State subject to subsection (1) is subject to approval by a Judicial Commissioner.

(4) In deciding to approve a warrant pursuant to this section, the Judicial Commissioner must determine whether—

(a) the warrant is capable of certification by the Secretary of State subject to subsection (1);

(b) the warrant is necessary on relevant grounds subject to section 18(2)(a) and subsection (1)(a) or (b); and

(c) the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(5) Where a Judicial Commissioner refuses to approve the person’s decision to approve a warrant under this section, the Judicial Commissioner must produce written reasons for the refusal.

(6) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, approves or refuses to approve a warrant under this Section, the person, or any Special Advocate appointed, may ask the Investigatory Powers Commissioner to decide whether to approve the decision to issue the warrant.”

[Keir Starmer]

I do not wish to speak to new clause 1. It stands or falls with the clause 17 amendments and is to that extent withdrawn along with them.

[Joanna Cherry]

My new clause 5 is in the same category as new clause 1, the ground of which I think we have covered. The new clauses are slightly different, in that they followed David Anderson’s initial recommendation, but we will obviously revisit the matter at a later stage so I will not take up time unnecessarily to labour the point.

Question put and agreed to.

Clause 21, as amended, accordingly ordered to stand part of the Bill.

Clause 22

Approval of warrants issued in urgent cases

[Joanna Cherry]

I beg to move amendment 91, in clause 22, page 17, line 29, at end insert—

“(1A) A warrant under this section can only be issued in an emergency situation posing immediate danger of death or serious physical injury to a person.”

This amendment, and others to Clause 22, seek to require urgent warrants can only be issued where it is necessary in an emergency situation posing immediate danger of death or serious physical injury; require that a Judicial Commissioner must immediately be informed that such a warrant has been issued; and reduce the period within which a Judicial Commissioner must decide whether to authorise the warrant to 24 hours after issue.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 40, in clause 22, page 17, line 30, after “must”, insert “immediately”.

Amendment 41, in clause 22, page 17, line 35, leave out from “ending” to the end of line 36 and insert

“24 hours after the warrant was issued.”

Amendment 42, in clause 22, page 17, line 35, leave out from “ending” to the end of line 36 and insert

“48 hours after the warrant was issued.”

[Joanna Cherry]

Bear with me a moment, Mr Owen, I have my notes in a bit of a schmozzle, as we say in Scotland—[Interruption.] Or as they say in Ireland, to be accurate. In Scotland they would say they were in a fankle. If you give me two minutes, I will sort myself out.

[The Chair]

We do not have two minutes, but I will give you a bit of time.

[Joanna Cherry]

Thank you, Mr Owen, and apologies to Committee members. The purpose of the amendments is to—sorry, I have lost my train of thought completely.

[The Solicitor General]

I think we were dealing with urgent cases. I hope that is of some assistance.

[Joanna Cherry]

Yes, I am very grateful to the Solicitor General. I skipped ahead to modifications, so I will skip back to urgent. The purpose of the amendments is to specify that urgent warrants can be issued only when they are necessary, in an emergency situation that poses an immediate danger of death or serious physical injury, and that a judicial commissioner should be informed immediately that an urgent warrant has been issued. They also seek to reduce the period within which a judicial commissioner must decide whether to approve the issue of a warrant to 24 hours after its issue.

There were differing recommendations from the Joint Committee and the Intelligence and Security Committee. I think I am correct in saying that the ISC recommended 24 hours and the Joint Committee 48. In terms of case law, recent decisions of the European Court of Human Rights suggest that 48 hours would be an absolute minimum, so I would insist on that as a fall-back position.

[Victoria Atkins]

I sat with my hon. Friend the Member for Fareham and my hon. Friend and neighbour, the Member for Boston and Skegness, on the Joint Committee, where we debated this in great detail. It is right to say that it was not a unanimous decision of the Committee to change the time limit for the urgency provisions. Indeed, I said to the Committee that if that point was ever raised, I would make clear that the decision was not based on any evidence we heard. I will not say that members of the Committee drew the figure out of the air, but—[Interruption.]

--- Later in debate ---

[Victoria Atkins]

Okay, out of the air. The Joint Committee arrived at that figure on the basis of no evidence. That may assist the hon. and learned Lady.

[Joanna Cherry]

I am grateful to the hon. Lady for being so precise and clear about that. Essentially, the concern about clause 22 is that the scope of the urgent mechanism is extremely broad and ill defined. In my view, it could fatally undermine any safeguard provided by a mechanism for judicial authorisation or indeed judicial review in the double lock.

The Bill provides that an urgent warrant can be issued by the Secretary of State in a case where she considers there is an “urgent need”, which is not defined. We then have the three-day period. As the hon. Lady said, no specific reason has been given for the selection of three days. The Joint Committee took the view that it should be shortened significantly to provide for approval within 24 hours. I think the ISC suggested 48 hours—I apologise if I have got that the wrong way round.

The purpose of the amendments is to remove the urgent provision in the Bill altogether or to restrict it to very limited circumstances, with the urgent authorisation having to take place during a 24-hour period. The concern underlying the amendments is that in their absence, the provisions for urgent warrants in the Bill will drive a coach and horses through even the double lock provision, because they will enable the judicial authorisation part of the procedure to be bypassed in very loosely defined circumstances. That is the case as precisely as I can put it.

[Keir Starmer]

I will be brief. There is a real concern about the provision for urgent cases being three days. Although we need such a provision, that period allows warrants to be operable before the double lock can apply, and therefore the period should be as short as possible.

The problem is not only that three days is too much but that three days can, I think, be five days, because it is three working days, and therefore there is the potential for three days to morph into more than three. If I am wrong about that, I will happily be corrected. I have put my name to the amendments suggesting 24 and 48-hour periods, to give the Government the option to reduce the threshold to either of those and put it in terms of hours, which removes any possible confusion about the use of the word “days”.

[The Solicitor General]

This is, of course, an important issue that has already seen a good deal of consideration for the Government and a move away from the original proposal to three working days; the hon. and learned Gentleman is right about that.

Although we are considering the matter carefully, at this stage the right balance is being struck between the interests of the security services and the other agencies in ensuring that crime is detected and prevented at the earliest possibly opportunity, and the interests of preserving the balance between the rights of the individual and the need to deal with crime and threats to national security. I am happy to consider amending the relevant draft codes to deal with the question about the notification to judicial commissioners, so that it is made clear on the face of the code that that should happen as soon as reasonably practicable. That wording is more appropriate than “immediately”, given that it may take a small period of time to draw together the materials that the commissioner will wish to review when considering whether to approve the warrant.

The hon. and learned Member for Edinburgh South West made a point about decision making in a vacuum. The commissioner will have the decision of the Secretary of State and all the materials upon which that Minister has made the decision, as well as access to further material. I think it is clear that the decision maker will have everything they need and more to come to an informed and reasoned decision based upon the principles of judicial review. On the basis of my undertaking to consider amending the draft code of practice, I hope that the hon. and learned Member for Holborn and St Pancras feels able to withdraw the amendment proposing the word “immediately”.

Let me deal with the central points about the decision and the length of time within which the warrant should be approved. The effect of the amendments would be to reduce that, and I recognise that the Joint Committee that undertook the pre-legislative scrutiny of the Bill made a similar recommendation. We have therefore responded in an appropriate way by shortening the window within which urgent action can be taken. That has been widely welcomed. It is an important consideration and an example of how, throughout this procedure, the Government have taken note of reports, listened and acted accordingly on those recommendations.

It is not in anybody’s interests to create so tight a statutory framework that decisions end up being rushed. I therefore consider that the three working days now provided for in the Bill should give sufficient time for the judicial commissioner to be presented with and to consider the grounds upon which the Secretary of State decided to issue the urgent warrant. My worry is that by reducing the time period even further, we would give the commissioner even less time, which would lead to the sort of decision making that would perhaps not be in anybody’s interests, let alone those of the state.

Amendment 91 seeks to define urgency on the face of the Bill and to replace the definition currently provided for in the draft statutory codes of practice with a narrower definition. As the Committee will appreciate, we must provide law enforcement and the security and intelligence agencies with an operationally workable framework. We will have failed with this Bill if we provide the agencies with the powers that they need, but with ones that cannot keep up with the pace and scale of the threats that we face. I know that it is always a challenge for legislators to try and—to use the modern phrase—“future-proof” legislation, but it is important that we create a framework that is not only clear and simple to understand, but sufficiently flexible to take into account the fact that, from month to month, the nature of the threat changes.

I am afraid that the effect of the amendment would be to curtail that ability because the definition would be too narrow. The draft statutory codes of practice, which we have all been considering, define urgency, which is determined by whether it would be reasonably practicable to seek the judicial commissioner’s approval to issue the warrant in the requisite time. That time period would reflect when the authorisation needs to be in place to meet an operational or investigative need.

The code sets out the three categories with which we are familiar: first, where there is the imminent threat to life or serious harm, and I gave the example of a kidnap case earlier. The second is where there is an valuable intelligence-gathering opportunity, where the opportunity to do so is rare or fleeting—that might involve, for example, a group of terrorists who are just about to make that trip overseas and are making the final preparations to do so. The third is where there is a time-limited significant investigative opportunity—here I speak with years of experience of dealing with drugs cases—such as the imminent arrival of a major consignment of drugs or firearms, when timing is of the essence.

I am afraid that narrowing the definition of urgency so that it only relates to an immediate danger of death or serious physical injury to a person would mean significant lost opportunities when it comes to investigation and gathering of intelligence. It would have an impact on the ability to act in a way that would allow interception at a time, for example, that would be apposite to capture a particular drugs seizure.

Another example would be the terrorist cases that I deal with week in, week out—in terms of the function of the Law Officers granting consent to prosecution. If, for example, a group was making final preparations to travel out to Syria to join Daesh, it would cause a problem for the security and intelligence agencies if they were not able to seek urgent authorisation to intercept telephones because there was no immediate danger of death or serious physical injuries.

In my considered opinion, I am afraid that the amendment would allow a significant gap in the security, intelligence and law enforcement agencies’ ability to keep us safe. I do not think that any hon. Member in this House wants that to happen. I know that it not their intention but it is my genuine concern. On that basis, I invite hon. Members to withdraw the amendment.

[Joanna Cherry]

I have listened carefully to the Solicitor General. The difficulty for him and the Government is this: according to recent case law from Strasbourg, a 48-hour timeframe for authorisation would be the maximum to harmonise the process with that recent case law. The case of Zakharov v. Russia included that a complaint for urgent interception could occur without judicial authorisation for up to 48 hours. There really is no reason why the UK should allow a longer period for approved surveillance than Russia. The difficulty with three working days is that if they fall over a weekend, it can mean five days or, indeed, if it is a bank holiday weekend, six days. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.

Clause 23

Failure to approve warrant issued in urgent case

[Joanna Cherry]

I beg to move amendment 43, in clause 23, page 18, line 7, leave out “may” and insert “must”.

This amendment, and others to Clause 23, would require a Judicial Commissioner to order that material collected under an emergency warrant which he does not subsequently authorise, be destroyed, except in exceptional circumstances.

[The Chair]

With this it will be convenient to discuss amendment

Amendment 44, in clause 23, page 18, line 9, leave out paragraphs (3)(b) and (c) and insert—

“(3A) If the Judicial Commissioner determines that there are exceptional circumstances, the Judicial Commissioner must instead impose conditions as to the use or retention of any of that material.”

[Joanna Cherry]

I will keep this fairly brief. The amendment would require a judicial commissioner to order that material collated under an urgent warrant that he does not authorise subsequently be destroyed, except in exceptional circumstances. As the Bill stands, should material be obtained under an urgent warrant that is later unapproved by the judicial commissioner, the judicial commissioner may, but is not required to, order destruction of material obtained. Once again, it is my argument that the provision, as it stands, creates a significant loophole that could be used to bypass the legal protections that purport to be provided by the judicial review mechanism.

An urgent warrant allows the relevant agency to access material that it may not be authorised to access in law. Permitting the retention of that material in anything other than exceptional circumstances creates a clear incentive to use the urgent process in inappropriate cases so, in order to ensure that the applying agencies—the agencies that apply for warrants—only use the urgent process where strictly necessary, the Bill needs to ensure that there are no advantages to be gained from seeking an urgent warrant where it is not strictly necessary. The amendment would ensure that where a judicial commissioner does not authorise the use of the warrant retrospectively, the position must be that the material collected is destroyed, except in exceptional circumstances.

[The Solicitor General]

I am once again grateful to the hon. and learned Lady for setting out her place clearly and with admirable succinctness. There is a problem with the amendment because it very much begs the question of what might constitute exceptional circumstances. The question of who will determine whether the threshold had been met in a given instance is also raised. Introducing that caveat to the Bill would unnecessarily complicate the commissioners’ decision-making process. The commissioners will be extremely well qualified to decide how material should be used when cancelling a warrant. They will take into account all the relevant circumstances on a case-by-case basis, and the clause, as drafted, allows them to do just that without the necessity of introducing subjective terms.

The amendments also suggest that the only two viable options following the failure to approve a warrant issued in an urgent case are to destroy the data or, in undefined exceptional cases, to impose restrictions on their use. That is unnecessarily limiting. There may be occasions when vital intelligence is acquired that could be used to save lives or to prevent serious crime, and where using that intelligence may not involve any further undue incursions into privacy. In that situation a judicial commissioner may wish to allow the intercepting agency to continue with its work without restriction in the interests of the great benefit it might have. Of course, that is a decision for the commissioner to determine, and clause 23, as drafted, allows just that. I am afraid that the amendments would mean that a judicial commissioner could not choose, after carefully considering the facts of the matter at hand, to allow such vital work to continue unrestricted. My worry is that the unintended consequences of such a proposal could seriously inhibit the work of the intercepting agencies.

Finally, the amendments would entirely remove the ability of a commissioner to decide what conditions may be imposed upon material selected for examination. By removing clause 23(3)(c), the remainder of the clause would relate only to material obtained under a warrant. Of course, a targeted examination warrant does not authorise the obtaining of any material, but rather the examination of material obtained under a bulk warrant, which is why clause 23(3)(c), as drafted, includes a specific provision that allows a judicial commissioner to direct how material that has been selected for examination under a rejected urgent warrant should be used.

In effect, the amendments attempt to change a carefully constructed safeguard that gives judicial commissioners absolute control over the actions of the intercepting agencies. I fear that the unintended result of these amendments would be an overall reduction of the judicial commissioners’ powers. For those reasons I invite the hon. and learned Lady to withdraw her amendment.

[Joanna Cherry]

I have nothing to add, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.

Clause 24

Members of Parliament etc.

[Keir Starmer]

I beg to move amendment 104, in clause 24, page 18, line 38, leave out subsections (1) and (2) and insert—

‘(1) This section applies where a warrant issued under this Part would seek to authorise any activity which may involve access to special procedure material.

(2) Special procedure material subject to subsection (1) will include—

(a) communications which are subject to legal professional privilege;

(b) journalistic material which a person holds in confidence; and

(c) communications sent by, or intended for, a member of the relevant legislature.

(3) The warrant subject to subsection (1) may only be granted on application to a Judicial Commissioner.

(4) The Judicial Commissioner must be satisfied that there are reasonable grounds for believing that—

(a) a criminal offence has been committed;

(b) the material is likely to be of substantial value to the investigation of that offence;

(c) other proportionate methods of obtaining the information have been tried without success or were not tried because they were bound to fail;

(d) it is in the public interest that the warrant is granted, having regard to the—

(i) benefit likely to accrue to the investigation and prosecution if the information is accessed,

(ii) importance of the prosecution, and

(iii) importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege, the integrity of journalists’ sources, and/or communications with members of relevant legislature.

(5) Material is subject to legal professional privilege means—

(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;

(b) communications between a professional legal adviser and his client or any person representing his client and any other person with or in contemplation of legal proceedings or for the purposes of such proceedings;

(c) items enclosed with or referred to in such communications and made in—

(i) connection with the giving of legal advice, or

(ii) connection with the contemplation of legal proceedings or for the purposes of such proceedings.

(d) communications made with the intention of furthering a criminal purpose are not subject to legal professional privilege.

(6) A person holds journalistic material in confidence for the purposes of this section if—

(a) it is held subject to such an undertaking, restriction or obligation;

(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.”.

This amendment establishes a consistent approach to the safeguards afforded to parliamentarians, legally privileged material and journalists seeking to protect their sources.

--- Later in debate ---

As I say, I will not press the amendment to a vote because, on reflection, it does not serve its intended purpose, but I invite the Solicitor General to reflect on its principle and engage with us in putting something into the Bill that properly recognises and protects journalists. If I may, Mr Owen, I shall deal with legal professional privilege in a moment.

[Joanna Cherry]

Picking up on what the hon. and learned Gentleman just said, the purpose of amendment 104 is to address a lack of consistency of approach in the Bill regarding the protection afforded to correspondence with Members of Parliament, journalists and lawyers. I stress that the purpose behind the amendment is not to seek a particular privilege for parliamentarians, lawyers or journalists, but to protect the correspondence of members of the public with lawyers, parliamentarians and journalists.

The Bill contains different approaches. Clause 24 affords protections to Members of Parliament subject to targeted interception warrants, but not to journalists seeking to protect their sources. Similarly, although the provisions later in the Bill on access to communications data to target journalistic sources provide for authorisations to be subject to judicial review, access to other comms data that might engage the privilege afforded to Members of Parliament or to legally privileged material is not so protected.

Amendment 104 would provide consistency of approach to all three categories of privileged information, modelling the approach broadly on the provisions in the Police and Criminal Evidence Act 1984—an English Act for which I must say I have much admiration. I am still trying to get to grips with it, but I think it is a good piece of legislation. It protects legally privileged material and journalistic material from interference during police searches.

The amendment would also provide a special procedure for access to MPs’ and journalists’ correspondence, which would be dependent on independent judicial authorisation, as opposed to authorisation by politicians. With all due respect to the Home Secretary, I did not find her triple lock on protection for parliamentarians terribly convincing. That is not a point about the present Government—it could apply to any Government of any persuasion—but it seems to me that having the Prime Minister as the triple lock does not give the appearance of political impartiality. Where parliamentarians’ communications are being interfered with, the authorisation should be judge-only.

Last night, I chaired an event with speakers from the Bar Council, the Law Society of England and Wales and the National Union of Journalists. They all consider that the protections in the Bill for journalists, for legal professional privilege and for parliamentarians are not sufficient. My own professional body, the Faculty of Advocates, which is the Scottish equivalent of England’s Bar Council, also considers that the protections in the Bill are not sufficient, as does the Law Society of Scotland.

I will quote what the Law Society of Scotland said in its evidence to the Joint Committee:

“On the 14 December we provided oral evidence to the Joint Committee, alongside the Law Society of England and Wales, expressing our shared and serious concerns in relation to professional legal privilege and the provisions of the Bill. Legal professional privilege”—

referred to in Scotland as the obligation of confidentiality—

“is key to the rule of law and is essential to the administration of justice as it permits information to be exchanged between a lawyer and client without fear of it becoming known to a third party without the clear permission of the client. Many UK statutes give express protection of LPP and it is vigorously protected by the courts. The ‘iniquity exception’ alleviates concerns that LPP may be used to protect communications between a lawyer and client which are being used for a criminal purpose. Such purpose removes the protection from the communications, allowing them to be targeted using existing powers and not breaching LPP.”

I do not wish to be seen to be making any special pleading, either as a lawyer and a politician or on behalf of the journalist profession. It is more about special pleading on behalf of the members of the public who contact journalists, parliamentarians and lawyers, and who wish to do so in confidence for a very good reason.

[The Solicitor General]

I am grateful to the hon. and learned Member for Holborn and St Pancras for seeking not to get ahead of himself with respect to the arguments on legal professional privilege. I feel a degree of sympathy, because the hon. and learned Member for Edinburgh South West was inevitably going to deal with these matters in the round. Although different considerations apply to each category—parliamentarians, journalists and legal professionals—both hon. and learned Members are absolutely right to lay emphasis not on individuals in those professions but on the client, the source and the constituent. That is why these roles have a special status: it is about the wider public interest. The Government absolutely understand that and we place it at the very heart of our consideration of how warrantry should operate in these areas.

As you will know, Mr Owen, there has already been significant movement by the Government as a result of the various reports that we know all too well. I am delighted that matters of legal professional privilege are now in the primary legislation in great measure. The debate will therefore be about the extent to which safeguards are placed in the primary legislation and about what form they take. I will heed the hon. and learned Gentleman’s exhortation and not stray too far into that area.

I will therefore deal with the amendment to clause 24 and the question of parliamentarians. We heard last year the Prime Minister’s statement about the issue and the important requirement that he or she is to be consulted before the Secretary of State can, with judicial commissioner approval, issue a warrant to acquire communications sent by or intended for a Member of a relevant legislature. The clause applies to all warrants for targeted interception, with the exclusion of warrants authorised by Scottish Ministers, and includes the all-important requirement for the Prime Minister to be consulted before a targeted examination warrant can be issued to authorise the examination of a parliamentarian’s communications collected under a bulk interception warrant.

Part 5 contains similar provisions for equipment interference carried out by the security and intelligence agencies. The important protection in clause 24 will apply to the communications of Members of Parliament, Members of the House of Lords, United Kingdom MEPs and Members of the devolved Parliaments and Assemblies. It is important to observe that for the first time, what was a doctrine for the best part of 50 years is now codified and enshrined in primary legislation.

It is important to remember in the spirit of the wider public interest that nobody, least of all parliamentarians, is above the law. The Wilson doctrine has perhaps been misunderstood for many years as a blanket exemption for parliamentarians, but that is exactly what it was not. It was actually an explanation that there will be times when the national or the public interest demands that the communications of Members of Parliament be intercepted because there might be criminal purpose behind them. We hope that that will never happen, but sadly human experience teaches us otherwise. It is therefore important to strike a balance between the proper exercise of the privileges of being a Member of this place or of the other Assemblies and Parliaments in the United Kingdom and the principle of equality before the law.

The amendments introduce the concept of special procedure material and try to combine the approach to the safeguards afforded to the three categories that I have discussed. To put it simply, I submit that what is on the face of the Bill and in the accompanying codes of practice already provide those safeguards and indeed go beyond what can be encompassed in primary legislation. At this stage, I will not say anything further, because I want to deal with points that I know hon. Members will raise about the other categories.

--- Later in debate ---

[Keir Starmer]

I have already indicated that I am not putting the amendment to the test. I beg to ask leave to withdraw the amendment.

[Joanna Cherry]

That is my position as well. I am happy to have addressed the principle at this stage and to look at an amendment at a later stage.

Amendment, by leave, withdrawn.

Clause 24 ordered to stand part of the Bill.

Clause 25

Items subject to legal privilege

[Keir Starmer]

I beg to move amendment 49, in clause 25, page 19, line 22, after “items”, insert “presumptively”.

Oral Answers to Questions

Joanna Cherry Excerpts

Monday 11th April 2016 Commons Chamber

[Richard Harrington]

I was at the Geneva conference on behalf of the Government, and I wish to place on the record that the British Government were congratulated by many other Governments on the work that they have done in relocating Syrian refugees. Our programme for resettling them has been significantly greater than those of all the other countries in the European Union put together.

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

At Easter, along with three other SNP Members, I spent several days visiting the camps at Calais and Dunkirk. During our visit, we met many refugees with strong ties to the United Kingdom. Why is the Government’s record on “take charge” requests under the Dublin convention for those with strong ties to the UK so poor, and what exactly will the Government do to ensure that there is greater awareness of, and a faster process for, such requests?

[Richard Harrington]

The hon. and learned Lady has rightly mentioned the Dublin convention and its effect. It is our Government’s policy to ensure that the convention works properly. With that in mind, we have seconded officials not just to France, including Calais, but to other parts of Europe—Athens, Rome and Germany—to ensure that what she has asked for happens and that the process is speeded up significantly.

[Joanna Cherry]

I am afraid that the Minister’s answer is not good enough. There was no evidence of any Home Office presence in any of those camps, and what is happening to children in the camps is utterly disgraceful. In the Grande-Synthe camp—

[Mr Andrew Turner (Isle of Wight) (Con)]

It is up to the French.

[Joanna Cherry]

If I am allowed to speak, I shall try to continue.

[Mr Speaker]

Order. The hon. Member for Isle of Wight (Mr Turner) is chuntering, from a sedentary position, “It is up to the French.” The hon. Gentleman is welcome to his opinion, but his opinion is not enhanced by his suddenly winking at me as though in self-justification. The hon. and learned Lady is a distinguished advocate, and she must be heard. Even if she were not a distinguished advocate, she would still be heard.

[Joanna Cherry]

This is not a laughing matter, and it is not “up to the French” when those children have connections with the United Kingdom. That is my point.

In the Grande-Synthe camp, I met a 16-year-old girl who was working hard for exams in a pop-up school in a tent. She had made the journey to northern France on her own. Her father is in the United Kingdom, but owing to the absence of guidance from the French authorities and the failure of our Government to act, she was stuck in limbo and uncertain about her future. Children like her are very vulnerable in the camps. It is time for the Home Secretary to show leadership. Will she give us a commitment that her Department will ensure that those with a legal right to join their families in the United Kingdom are granted that right as a matter of urgency?

[Richard Harrington]

I shall try to avoid repeating what the chunterers were saying earlier, because the hon. and learned Lady has made a serious point. However, I must reiterate that those children are in France and are predominantly the responsibility of the French Government, with whom we are working very closely by placing officials with them.

The children in question have a clear path. They should claim asylum under the Dublin convention, which they are perfectly allowed to do. It is then the responsibility of the Home Office—the British Government —to ensure that their asylum claims are processed speedily and effectively. If they do have the relationships with families in the United Kingdom that the hon. and learned Lady has been told that they have, I can assure her that the process is very much speedier and more efficient than it used to be.

Investigatory Powers Bill (First sitting)

Joanna Cherry Excerpts

Thursday 24th March 2016 Public Bill Committees

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

I was previously standing junior counsel to the Scottish Government, which has some tangential interest to the serious crime provisions.

[The Chair]

Okay; that is all the interests out of the way. We will now hear oral evidence from David Anderson QC, independent reviewer of terrorism legislation. Before calling the first Member to ask a question, I remind all Members that questions should be limited to matters within the scope of the Bill, as always, and that we must stick to the timings in the programme motion that the Committee has agreed. For this session, we have until 12 noon. Could the witness please introduce himself for the record?

David Anderson: I am the independent reviewer of terrorism legislation and the author of the report “A Question of Trust”.

--- Later in debate ---

[The Chair]

Yes, but as briefly as you could, please. If not, you can provide a written answer.

David Anderson: Internet connection records are a form of communications data. I said rather conservatively in my report that there were some forms of communications data that should be independently authorised, including novel and contentious ones. One of the respects in which the Bill did not really follow my report—I should add that in most respects it did—was in not providing for that outside the protected categories of journalists, lawyers and so on. I could well understand it if members of the Committee or others were to take the view that ICRs were of such a nature that to allow self-authorisation by the police might not be a sufficient safeguard.

[Joanna Cherry]

Q It is a privilege to serve under your chairpersonship, Ms Dorries.

Good morning, Mr Anderson. The first question that I want to ask you follows up on questions about the operational case for bulk powers. We heard on Second Reading of this Bill in the Chamber that in the United States of America, the bulk collection of citizens’ data has been heavily curbed, as it was considered to be

“not essential to preventing terrorist attacks”.

Most damningly, the American President’s privacy and civil liberties oversight board said that it was

“aware of no instance in which the”

National Security Agency’s bulk records programme had

“directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”

Bearing that in mind, do you agree that a proper independent assessment of the utility and effectiveness of bulk powers would need to look at the experience of their use in other jurisdictions?

David Anderson: What you are referring to is one type of bulk power that I myself looked at the necessity for in a great deal of detail. It is difficult, of course, to read across from section 215 in the US to what we have here, which is rather different. What we have here is service providers being required to keep phone logs, details of when emails were sent and so on.

If you look at my report, “A Question of Trust”, you will see that there are several annexes there and quite a bit of text in which I set out just how useful the police find that power to be. I also found when I was in Germany, where at the time they did not have the power because Germany’s constitutional court had removed it, that the police and the internal security service were crying out for something along those lines. So, that is one aspect.

I cannot speak for the US position—different power, different circumstances—but particularly in dealing with paedophile crime, I was satisfied that this, if you like, plain vanilla element of bulk collection communications data was something for which there was an operational need.

[Joanna Cherry]

Q So, in your investigations for your report, you looked at the experience of at least some other jurisdictions. Is that correct?

David Anderson: I did, yes.

[Joanna Cherry]

Q So would you agree that a proper independent operational case for the support of this Bill should look at the experience of other jurisdictions?

David Anderson: Well, we have had three detailed reports. We have had the pre-scrutiny reports, as well. Evidence was heard by some of those Committees from people from other jurisdictions. It is always nice to think one is fully informed about what goes on in the rest of the world. Incidentally, that is very difficult in this field, because very few countries have been as up front as this Bill is about exactly what powers are used and how they are used.

For example, you mentioned the US and section 215, but of course there are other bulk powers that have not been curbed in the way you suggest. There is section 702, which was given a clean bill of health by the privacy and civil liberties oversight board. There is also executive order 12333, about which very little is known, but which seems to give very intrusive and extensive powers outside the US. So I am hesitant about drawing these country comparisons, although I accept that evidence from other countries is always useful.

[Joanna Cherry]

Q Bearing in mind the pressures of time, may I move on to my next heading, which is the scope of bulk powers? On Second Reading, the Home Secretary said that

“certain bulk powers are predominantly those for foreign usage, rather than in relation to the United Kingdom.”—[Official Report, 15 March 2016; Vol. 607, c. 823.]

Would I be correct in understanding that most of the bulk powers proposed in the Bill could, in fact, apply to the data of UK citizens?

David Anderson: The way it works, as I understand it, is that the use of the bulk powers must be motivated by a desire to retrieve data relating to people outside the UK. Of course, there will be what fishermen call a “bycatch” of people in the UK whose data are unavoidably retrieved during that process. The safeguard for people inside the UK is that if anyone wants to look at the content of that stuff, they need an individual warrant relating to that person.

[Joanna Cherry]

Q But would we be correct in understanding that, for example, bulk personal datasets will comprise the personal data of United Kingdom citizens?

David Anderson: That is certainly true.

[Joanna Cherry]

Q Would we also be correct in understanding that bulk communications data will comprise data relating to British citizens?

David Anderson: Indeed, that is true and has been the position for, we now know, some 10 or 15 years.

[Joanna Cherry]

Q So if an impression were to get about that bulk powers are merely about obtaining information on people who live overseas, that would be incorrect.

David Anderson: That would be incorrect, but of course neither of the two examples you gave me was about the content of people’s communications. The first was about lists and registers, and the second was about communications data.

[Joanna Cherry]

Q My third heading is legalities. You will be aware that the United Nations special rapporteur on the right to privacy has expressed concern that some aspects of the Bill may not comply with either European Union law or the UK’s obligations under the European convention on human rights. He expressed particular disquiet about bulk surveillance and bulk hacking, and suggested that those powers prima facie failed the benchmark set by the European Court of Justice in the Schrems case and by the European Court of Human Rights in the Zakharov case. Have you had a chance to consider his report?

David Anderson: I have.

[Joanna Cherry]

Q Do you have any view on what he has said in that regard?

David Anderson: I think he is advancing one view of what European law or international law might require. I do not think that it is the only possible view, and I would apply the same comment to the letter signed by 250 very distinguished lawyers and sent to The Guardian.

May I give you an example of the latest case in Europe to deal with these issues? In Szabó and Vissy v. Hungary, which was decided in January, the European Court of Human Rights described

“the massive monitoring of communications susceptible to containing indications of impending incidents”

as “progress” and suggested only that these powers needed proper legal safeguards, with which I think any sensible person would agree.

I think that there are two views at the moment, even within the European Courts. Where I disagree with the rapporteur and the 250 lawyers is on the suggestion that the position is now clear. It may of course become clearer, perhaps as soon as this summer when the Davis and Watson case is determined in Luxembourg, but I do not think that the case law has yet solidified.

[Joanna Cherry]

Q So your view would be that there are potentially two competing arguments as to where the case law is heading, but we do not know ultimately what the situation is, although we may have a better indication when there is a judgment in the Davis and Watson case later this year.

David Anderson: There are also the Strasbourg cases of Big Brother Watch and Liberty. I do not know when those judgments will come, but there are two views, basically. One is that bulk access to content, even only by machines, is just wrong and that, however strong the operational case for it and however minimal the actual intrusion into people’s private lives, it cannot be justified. The other, more pragmatic view is that it is a question of proportionality and that one ought to look at the strength of the operational case, just as one ought to look at the degree of intrusion into privacy.

[Joanna Cherry]

Q I want to ask you briefly about bulk personal datasets. It is possible, is it not, that medical information pertaining to every single citizen of the United Kingdom could be scooped up in a bulk personal dataset?

David Anderson: I do not believe that there is any statutory exclusion. Whether there is a justification for doing such a thing would depend, first, on whether the Secretary of State signed off on it and, secondly, on whether the judge was prepared to approve it.

[Joanna Cherry]

Q It would also be possible for bulk personal data sets in relation to children to be scooped up under this legislation as currently drafted. Is that right?

David Anderson: Again, I do not believe that there is any statutory exclusion.

[Joanna Cherry]

Q Do you agree that in the investigation of threats to national security and terrorism there can really be no justification for scooping up personal data in relation to children?

David Anderson: I am going to duck that one because bulk personal datasets were outside my remit. The use of bulk personal datasets, we now know, has been subject to annual review by the Intelligence Services Commissioner for several years. Perhaps he is the appropriate person to ask about that.

[The Minister for Security (Mr John Hayes)]

Q Thank you for coming, David. On bulk personal datasets, I note that you say that the members of the intelligence community that you have met, and what you have seen and heard from them, have confirmed the view that was expressed by the ISC and others. Are you clear about their efficacy and utility?

David Anderson: I think what I said was that bulk personal datasets had been looked at by the Intelligence and Security Committee and by the Intelligence Services Commissioner. I have read what they have said about that, including in closed hearings, and I said that what I was shown by the agencies was consistent with that, but I was not trying to do the same exercise that they had done of deciding whether these things were necessary or proportionate.

--- Later in debate ---

[Keir Starmer]

I can see other hands going up, so I will end there.

[Joanna Cherry]

Q To be clear, Mr King, is your evidence in relation to bulk interception and collection of data that there is intrusion and analysis of them by computer programs prior to any warrant being applied for?

Eric King: No. There will be warrants at the collection stage but at the moment it is simply 10. Those 10 warrants that are authorised every six months permit the agencies to intercept at an extraordinarily large scale: 50 billion connections every single day, and growing. We know that, in the past five years, that has increased by 7,000%. I say that those 10 warrants do not appropriately assess the proportionality requirements, and I do not think they are necessary in the current climate.

[Joanna Cherry]

Q Once the intercept has been collected, there is a stage of the process at which it is analysed by a computer, and that stage is not currently the subject of any legal regulation.

Eric King: That is right. It is internal authorisation by the agencies. We have no visibility on that. There has been no published material about that. In various court cases, disclosure has been sought better to understand those points, but we have not got it. The best I can gather, the internal authorisations inside GCHQ are at a very low level, mostly analyst by analyst even rather than going up to senior directors inside the agency.

[Joanna Cherry]

Q Just so we can be clear, does anything in the Bill involve legal regulation of that stage of the process?

Eric King: No, not at all. Our model is the same as it was 15 years ago. It is a very simplistic model that applies interception at one stage and then, when a human looks at it, an additional safeguard. However, that does not match the reality and, as a result, our warrantry, in my view, does not allow you to assess proportionality and necessity to an adequate level.

[Joanna Cherry]

Q We know now, because it has been avowed, that previous Administrations had unacknowledged arrangements for bulk interception of the internet in the United Kingdom. Can you tell us whether those resulted in the collection and analysis of ordinary British citizens’ communications?

Eric King: In the Bill and previous practice, there was a lot of focus on the fact that this would be foreign-focused—that the goal is to collect material outside the United Kingdom. The practical reality is that you cannot do that any more. All our communications slush around through the exact same undersea fibre optic cables as foreigners’. In terms of GCHQ’s collection programme, we do not know the exact percentage. I would encourage the Committee to try and seek out how many British communications are collected into this, but there is no way for them to distinguish between them at this point. When there is a foreign-focused power, at least for interception, the reality is that it is a massive amount of British communications. Your communications are not exempt from that and neither are mine, no matter quite what we might try.

[Joanna Cherry]

I would like to ask Ms Ogilvie a couple of questions if I may, Madam Chairman.

[The Chair]

Order. Time is very short now, because we have seven more people waiting to speak.

[Joanna Cherry]

Q I will ask one question briefly then. Liberty looked at the investigation by the Intelligence and Security Committee into the brutal murder of Fusilier Lee Rigby in May 2013. Did those inquiries suggest that if the security services had had more resources to cover lower priority level targets, the outcome could or would have been different?

Sara Ogilvie: The Intelligence and Security Committee report found that there were a number of failings that may or may not have led to the murder, but basically, the two suspects had both been known to the security services at various points. It had been decided not to treat them as priorities. When that decision was later changed and a warrant was sought to place one of the individuals under surveillance, delays meant that that warrant was not granted in enough time for that individual to be under surveillance at the appropriate moment. Those are absolutely not the powers in this Bill, or the use of powers in this Bill, that we have any exception with at all. That seems to us to be absolutely the right way to use powers. It was not a lack of information or a lack of target in this case; it was the fact that there was perhaps too much information to be used.

[Simon Hoare (North Dorset) (Con)]

Q Mr King, I am not a lawyer, so forgive me. Are you a parent?

Eric King: Pardon?

--- Later in debate ---

[The Chair]

If there are no further questions for Members, I thank the witnesses for their evidence, and we will move on to the next panel.

[Joanna Cherry]

On a point of order, Ms Dorries. In any forum that I have appeared in where the witness is being asked a question about a document, particularly a lengthy document, it is customary to afford them the courtesy of having a copy of the document in front of them. Might I suggest that if we are going to ask further witnesses about documents, we afford them that dignity?

[Simon Hoare]

Further to that point of order, Ms Dorries. To put the contra view to that expressed by the hon. and learned Lady, should not the Committee expect witnesses who are giving evidence to be properly briefed and to have in front of them documents on which they are likely to be cross-examined?

[The Chair]

I shall answer the substantive point of order. The information that the witnesses bring with them is their responsibility. It is not the normal procedure for them to have documentation in front of them or for the panel to know what information they have with them. As we decided at the start, they can always follow up in writing if they feel they did not have the right information.

[Joanna Cherry]

I am very grateful to you, Ms Dorries, for clarifying that questions and answers can be followed up in writing.

Examination of witnesses

Nigel Inkster and Lord Evans gave evidence.

--- Later in debate ---

[Keir Starmer]

Q I have one final question for either or both of you. Am I right in thinking that, as far as internet connection records are concerned, although the security and intelligence services would not say, “There are no circumstances in which we’d really need them,” in reality, they are relied on much less by the security and intelligence agencies than by law enforcement, as a separate component?

Lord Evans: It is not impossible that they could be of value in an intelligence sense, but I think the principal driver for using them or for obtaining them is for evidential purposes, and that is made clear publicly. It is principally a law enforcement and evidential issue to inform cases coming before the courts more often than it is an intelligence issue. You could construct a scenario in which it might be of value, but the purpose of putting them in the Bill, as I understand it, is law enforcement and providing criminal evidence.

[Joanna Cherry]

Q Lord Evans, I want to ask you about the savage murder of Fusilier Lee Rigby and the Intelligence and Security Committee investigation into that. It reported to Parliament that his killers had previously come to the attention of the Security Service on multiple occasions and that, in its view, intelligence reports were mishandled. I think I am right in saying that its inquiry suggested that, if the Security Service had more resources to cover more and lower-priority level targets, the outcome could or would have been different. Would you like to comment on that?

Lord Evans: The Lee Rigby murder took place after my time as director general—not that there is any connection between those two—so I am not very close to the actual facts. In general, one of the critical decisions—certainly for MI5, but it applies by logic to other people on counter-terrorism—is what you do not do. We have more leads which might connect to possible terrorist attack or to violent extremism than we can thoroughly investigate at any one time, so the service has created a quite rigorous triage process that ranks the seriousness of the available information, which is updated on a regular basis, and that drives therefore the allocation of resources.

The difficulty here is self-evident: obviously, sometimes you are working on the basis of fragmentary intelligence or unclear intelligence, so you have to make the judgment as to whether you put resources in to pursuing that or whether you put the resources in to something else. The fact is that sometimes you make a judgment on the available best evidence and then find out later that, actually, the situation was more serious than was apparent. That appears to have been the case with Lee Rigby.

Exactly the same issue came out after the 7 July bombings in London. Mohammad Sidique Khan had appeared in the context of Security Service investigations and police investigations a couple of years before. At that stage, he was assessed to be not a very serious threat and therefore he was put aside so that we could come back to him later while we did other things that were more immediately pressing, but in the interim his activities developed.

It is a problem. The question of course is: how do you get around that problem? The first thing is to use the best quality information available. The second is that the more resources you have, the more yesses you can give as to whether we investigate any one individual, but then you get into a judgment about how many people we think it is proportionate and necessary to investigate. If you doubled the resources of the Security Service again, there would still be cases where you might say, “We don’t have the resources to pursue that.” You ultimately get into a political judgment as to how much resource you want put into this and how much intrusion you have into the activities of people who might not be quite as threatening as others. That is a judgment that has to be made.

[Joanna Cherry]

Q If the Government had given you more resources for more boots on the ground, would it have been possible for the security services perhaps to have had targeted surveillance on lower priority targets prior to this particular dreadful murder?

Lord Evans: There is no doubt that to some extent intelligence activity in counter-terrorism is scalable. What has happened since 9/11 is that the resources available to the Security Service and the other agencies have increased very considerably under both Governments—or all three Governments, if you want to put it in those terms. We have therefore probably got within the Security Service three or four times as much resource as we had previously.

There has been a very considerable uplift, but it is not just a question of people. Importantly, it is also a question of powers. Your capability to cover and monitor threats is not very often, although it sometimes is, a matter of boots on the ground; it is a matter of the overall toolbox available. One of the attractions of digital intelligence and the sort of powers that are outlined in the Bill is that it enables considerable coverage of threats without having to deploy lots and lots of people following people around and so on, which in some ways would be more intrusive.

[Victoria Atkins]

Q We talk about the security services and the other agencies as block organisations, but of course the quality and effectiveness of an organisation depend on the people who make up that organisation. Could you give us, as far as you are able, an assessment of the qualities and character of the people who work for the agencies that you have led?

Nigel Inkster: In the United Kingdom, we like to maintain the position that intelligence and security work is a high-status profession. We look for quality people who might otherwise go into areas such as the law, merchant banking and that sort of thing. That is the level that we are pitching for, and that is not always the case around the world. In that regard, the United Kingdom distinguishes itself in the right way, in my view. We have very well educated and well motivated people. In my service, for example, we had people joining us in the wake of 9/11 who had taken very significant salary cuts and left high-paid jobs in the City to come and do this work precisely because they were motivated by and committed for what we regarded as the right reasons.

During my time in SIS, I was responsible inter alia for compliance with all the different oversight mechanisms to which we were subject. I had extremely long conversations with the various commissioners responsible for overseeing those activities. In all cases, their judgment was that the people we employed were highly motivated, took their responsibilities seriously and understood the powers that they had, the need to act lawfully and the need to use those powers in a wise, measured and proportionate manner. I think we are very fortunate as a country.

Lord Evans: I would agree with that. I think we have employed people who are intellectually able, are motivated by public service and are ethically sensitive. It might be useful to the Committee to invite the Clerk to find comments made by Lord Brown of Eaton-under-Heywood, a former Supreme Court judge and former intelligence commissioner, when the 2015 Counter-Terrorism and Security Bill was being discussed in the House of Lords. He gave a very, very strong endorsement of his experience of the quality and integrity of the members of the intelligence services that he had seen. If you want an independent voice, rather than a voice from inside the agencies, that might be worth finding.

Investigatory Powers Bill (Second sitting)

Joanna Cherry Excerpts

Thursday 24th March 2016 Public Bill Committees

[The Solicitor General (Robert Buckland)]

Q Thank you, Mr Walker; it is a pleasure to serve under your chairmanship. Mr McClure, you have made some powerful points, so thank you very much indeed for giving your perspective on the IT, and as a bereaved relative. We all share your grief and anger about the atrocity.

Mr Wardle, I want to ask you about internet connection records, the new potential powers within the Bill and the purposes for which those records could be retained by an internet service provider. We know now that, as a result of the Joint Committee’s recommendations, there are four purposes for which those records could be retained for potential examination by the authorities. I think that they are very clearly set out: for the purposes of identifying who sent a communication; to establish what services either a suspect or a potential victim has been using; to establish whether or not a known suspect has been indulging in online criminality; and finally—the additional one—to identify services that a suspect has accessed, which could assist an investigation. If there was a narrowing of those purposes, what effect do you think that would have upon the authorities’ ability to investigate child abuse and related offences?

Alan Wardle: As I understand it, the previous draft Bill had a narrowing in the fourth one, and I appeared before the Joint Committee before Christmas to argue against that narrowing. I cannot remember the exact wording, but it was essentially where illegal activity was happening.

Again, I go back to the example of the grooming case I mentioned earlier. Grooming, by its very definition, takes place over a period of time. There are certain activities that you would want to investigate that are perfectly legal. Say a child has been trafficked across the country. Someone has hired a car, taken it from A to B and dropped it off, and they have gone on to the Travelodge website to book a hotel room. All of those are perfectly legitimate activities, but those activities—as part of a wider investigation—would be able to show the police that that person trafficked that child from A to B and that those activities took place. Clearly more would be needed, but the narrowing that was there before would, we believe, have unduly restricted the police’s ability to investigate those kind of crimes.

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

Q May I ask you some questions about internet connection records? Can you confirm that you have read the operational case for internet connection records referring to the case of Amy?

Alan Wardle: I do not think I have read that.

[Joanna Cherry]

It is about a missing child.

Alan Wardle: Oh yes, I know it.

[Joanna Cherry]

Q Would you agree with me that if a child goes missing, the first thing you want to do is to find out what social media or chat sites the child has been on?

Alan Wardle: Whether that is the first thing you want to do, it is certainly—

[Joanna Cherry]

It would be a priority.

Alan Wardle: That would be something that the police would want to investigate pretty quickly.

[Joanna Cherry]

Q Is not the easiest way to do that to ask their friends?

Alan Wardle: It could well be, depending on what has happened. In an ideal world, the child would keep all the evidence themselves and it would all be freely available in terms of the content, but things are deleted and friends are asked to keep quiet and so on, so it is not always necessarily available. If the child has been groomed, they may have been taken by someone they think is their boyfriend, away from their dreadful parents—they are running away.

[Joanna Cherry]

Q Sometimes the child will take their phone with them and it will be switched off and be no use to us, but other times they will leave their phone behind and we can get into the phone and see which social media sites they have been on. Is that right?

Alan Wardle: I am not a police officer, but yes, I presume so.

[Joanna Cherry]

Q Equally, if there is a computer at home, the police can access the computer with the parents’ permission and see what social media sites the child has been on?

Alan Wardle: Yes, but three quarters of 12 to 15-year-olds have a mobile phone or tablet, so it is rarely the computer on the dining room table any more.

[Joanna Cherry]

Q If we assume that the computer and the phone are not available, you could go to friends or siblings and find out what social media the child commonly uses. If, for example, the child commonly uses Facebook, the friend will be able to tell you what the child’s username is.

Alan Wardle: Well, the child’s username would be their real name because Facebook has a real name policy.

[Joanna Cherry]

Q Indeed, and they will know what their friends’ names are. I do not really know how Bebo works, because I am too old, but if it is not a known name on Bebo, you are still able to get the username from the child’s friends.

Alan Wardle: I would imagine so, yes.

[Joanna Cherry]

Q Does it not really boil down to this: wherever you get the information from—whether it is mum or dad or, more likely, mates at school—you have to go to Bebo or Facebook and ask for their help?

Alan Wardle: The social media companies clearly have a huge part to play in this as well. We challenge them regularly on all aspects of how they keep children safe online. What is important when the police are investigating such crimes is that they have every tool available to them that can legitimately be made available. Some will be traditional policing methods, such as asking their friends and knocking on doors, and some may be much more technical aspects, such as internet connection records.

[Joanna Cherry]

Q But would you agree with me that what is important is to have effective tools?

Alan Wardle: Absolutely. One of the things we have challenged the internet companies on is that if those tools are available, they should be widely available. A good example is what is called PhotoDNA, which basically means that illegal images of children are hashed and can be removed across the internet. That is a really positive development. That technology was developed by Microsoft, but shared across all the big companies, which is a really positive thing.

We know that there are other technologies—anti-grooming technologies, for instance—that have been created, but have not been shared in that way. I think that there is an obligation on the companies—your Apples, your Facebooks and your Microsofts—to ensure that these kind of tools, with no real commercial gain to be made from them, should be freely available across the industry.

[Joanna Cherry]

Q If we just go back to the example that I was pursuing, about the missing child, I think you agreed with me that it is important to have effective tools. Is it your understanding that all the internet connection record will tell you is what the missing child connected to? It will not tell you what the missing child did once they were connected.

Alan Wardle: No. That is the issue to do with content. Again, it could well be that that is part of a wider picture.

[Joanna Cherry]

Q An internet connection record will only tell you to which service the child was connected, not whom they spoke with, nor what the content of their speaking was—

Alan Wardle: Not necessarily.

[Joanna Cherry]

Q Whereas, if you go to the child’s friend and get the child’s username on the social media site, you will be able to get that information as to content.

Ray McClure: You would still need the child’s password to access the data.

Alan Wardle: That is not enough in and of itself. Yes, do you have the password? How would you get into it?

[Joanna Cherry]

Q You will not get passwords from an ICR?

Alan Wardle: No.

[Suella Fernandes (Fareham) (Con)]

Q There has been a description of Tor as a facility that allows digital abuse of anonymous online activism. It is linked to encrypted information. I want you to say a bit about what effect encryption has on some of the work that you are involved with?

Alan Wardle: A lot of the activity that we take for granted online—shopping, banking and all the rest of it—could not be done without encryption, but of course, as with all these tools, encryption can be used for bad purposes by bad people. Similarly, with services like Tor and Freenet—the dark web—in the cases that we are concerned with, you get your most highly committed and dangerous offenders, quite often, particularly sharing very explicit images or videos of children being abused. Those services enable them to hide there. The police do the best they can, but, again, for a lot of that they will be dependent on traditional undercover techniques.

I think there is a question that is—I say this respectfully —beyond this Committee’s remit and beyond many of our remits. The direction of travel generally is that we are seeing greater moves to encrypt data as a matter of course, with things like Google Chrome browsers and so on. With browsers such as that, internet service providers cannot put in place the kind of protections they have, so they do not know what is going on there. That is a direction of travel and something that is worrying. It is clearly a global issue, but the police not being able to track what is going on due to increasing levels of encryption is a worry.

--- Later in debate ---

[Keir Starmer]

Thank you.

[Joanna Cherry]

Q At the Joint Committee, Mr Hughes, you said that BT had never collected internet connection records before, that you would have to deploy new equipment to comply with the legislation and that that would come at a cost. That is correct, is it not?

Mark Hughes: That is correct, yes.

[Joanna Cherry]

Q I understand from your answers to Keir that you are still working with the Home Office to agree the precise specification of what an ICR is. Is that right?

Mark Hughes: That is right, yes.

[Joanna Cherry]

Q Are we to understand, then, that you have not as yet reached agreement with the Home Office about the specification of an ICR?

Mark Hughes: No. It is a work in progress. This is quite a truncated time frame, as you know. I characterise a lot of things that we are doing at the moment as “in parallel” as opposed to “in series”.

Where we are at the moment is that there has been extensive consultation with the Home Office around this. There are a number of different technical approaches to how you take those component parts that then constitute themselves as an internet connection record—for example, things like the rate of sampling that you use inside the networks. Of course, it depends on the type of service that we are talking about; there are technical differences between how those services and that information are then put together to create the internet connection record. That has a big difference in terms of the associated cost.

[Joanna Cherry]

Q That is what I want to come on to. The Home Office has mentioned a figure of £170 million. Can you give us any indication of how much of that money British Telecom would need to build a system?

Mark Hughes: There is a spectrum. If the Home Office wanted us to collect everything and carry out a very high rate of sampling, meaning that a lot of information would potentially be available, BT—and EE; we recently bought EE, as you may know—would take the lion’s share of that figure alone, just in terms of our services.

However, we are in very frequent dialogue. Only in the last couple of days, we have been talking to the Home Office about the technical challenges associated with the trade-off between how much it will cost and how much data will be available. Clearly, if there is a different view in terms of the amount of data required, the cost may well be appropriate for the rest of the industry. It is difficult for me to comment on other operators.

[Joanna Cherry]

Q We have covered potential costs of building the system. Can you give us a timescale?

Mark Hughes: Again, that is down to the detailed, technical implementation and testing to ensure that it would work properly. Some of the data sets that make up the ingredients of an internet connection record are something that we do retain for business purposes already—not necessarily for the length of time they are talking about—so depending again on the final technical solution we came at, and at what services it is targeted, it could take a few months and up to a year-plus to get a solution in place.

[Joanna Cherry]

Q When you say a year-plus, how much on top of a year?

Mark Hughes: Again, depending on exactly what it is that we agree on with the Home Office that it wants, I think it is reasonable to suggest that we would have a service in place in a year.

[Joanna Cherry]

Q Are you aware of what has happened in Denmark regarding the collection of internet connection records?

Mark Hughes: I am, yes.

[Joanna Cherry]

Q On 17 March, the Danish Minister of Justice informed the Danish Parliament that the plans for a new internet connection records scheme had been put on hold. The reason given for the policy change was the substantial cost of ICR collection—the economic burden would be too high for the Danish telecoms industry. Were you aware of that?

Mark Hughes: I am aware of that. Under the proposals in the Bill—the Home Secretary has made reference to it—we would recover our costs from the Home Office, as we have done under existing legislation. We would like to see clearly articulated on the face of the Bill that 100% of our costs are to be recovered. That is very different from the Denmark situation. In Denmark, that is not the case; the burden is placed on the telecoms operators.

It is difficult for me to comment precisely on the Danish telecom operators because I am not one of them, but specifically here, as far as the UK is concerned, the proposed regime is more sensible as long as it is clear that we will recover 100% of our costs. We think it is important that that is on the face of the Bill—not just for the reason we said about Denmark, but also because more broadly in itself it provides a proportionality check, so you would not spend a huge amount of money to achieve little effect. If it is clear how much the public purse will have to bear of that, we think that in itself creates a proportionality check in terms of what activity is proposed.

[Joanna Cherry]

Q Do you agree that we cannot compare what is proposed in the Bill with what was proposed in Denmark until you have got an agreed specification with the Home Office?

Mark Hughes: A pamphlet has been issued and we have been in discussion with the Home Office as recently as the last couple of days about this. More clarity is required, but broadly speaking there is a definition in the Bill, there are purposes in the Bill and we understand that there are options technically around it. We have been working that through with them, but yes we would like clarity as soon as we can.

[The Minister for Security (Mr John Hayes)]

Q Thank you, Mr Hughes, for coming, and thank you also for acknowledging the extent of the consultation with which you have been engaged with the Home Office. As a result of that, you will know that the codes of practice published at the time of the Bill reflect some of the arguments you have advanced previously and clarify some requirements.

Today you emphasised that as we move forward there will be ongoing discussion. How important do you therefore think it is to avoid rigidity by putting more on the face of the Bill rather than including that in codes of practice and in the ongoing discussions you described?

Mark Hughes: It is very important that we have words and definitions on the face of the Bill to deal with the really substantive points as far as this type of legislation is concerned—namely the level of intrusiveness, which is clearly where definitions help. A definition is only really a way of helping to establish the level of intrusiveness of the power that is being put in place.

There are needs to have something. One need, which I have said, is about ensuring that there is clarity around 100% cost recovery, for example. There is definitely a need for that and with 268 pages there is quite a lot in there. However, we also recognise that as technology changes—our world is an ever-changing one as we know, and that is the case specifically in our industry—there is need for flexibility of a discussion point around how consultation happens and how that manifests itself in a legal instrument for us to retain and disclose either content or other types of communication data.

It is a difficult balance to be had. I think there is a lot at the moment in the Bill that is very useful. There are purpose limitations, for example, which are very useful for us, as are, as I said already, the definitions.

The other point is that there does need to be flexibility in future about understanding how the new codes of practice will be formulated based on what was required, and the Bill is clear that the correct oversight is in place. That is a difference from the extant legislation. The consultation process is different from others there have been in the past, and we welcome that.

--- Later in debate ---

[The Chair]

Thank you.

Joanna Cherry, if I give you six minutes—I gave Keir six minutes—you will know what you are working with.

[Joanna Cherry]

Q Thank you, Mr Walker.

Mr Farrimond, are you aware that just last week the Danish Minister of Justice informed the Danish Parliament that plans for a new internet connection record scheme have been shelved in Denmark?

Chris Farrimond: Yes, I am.

[Joanna Cherry]

Q Are you aware that the reason given for that was the substantial cost and the economic burden for the Danish telecom industry?

Chris Farrimond: Yes, I am aware of that too.

[Joanna Cherry]

Q I want to change tack slightly and ask you about the police online Crimestoppers website. I am sure everyone agrees that it is a useful service.

Chris Farrimond: Yes.

[Joanna Cherry]

Q I looked at it again this morning and it says that when you fill in their form and say you want to be anonymous, you are guaranteed anonymity. That is correct, isn’t it?

Chris Farrimond: Yes, it is.

[Joanna Cherry]

Q But if we pass this Bill, that assurance will no longer be accurate. Isn’t that right?

Richard Berry: That is a technical observation, but I think the point is that, in terms of the collection of data and, more importantly, police access to or acquisition of that data, we are looking for stuff that is relevant and useful. So a line of inquiry or a justification for accessing the Crimestoppers website from my perspective could not be justified in terms of the necessity and proportionality tests required for giving that authority.

[Joanna Cherry]

Q If we could reel back a little, if this Bill is passed, the purpose of internet connection records, we have been told, is to have a record of every device’s connection to every service. If anyone goes on to the Crimestoppers website and fills out the form, there will be a record of their connection to that service, so it is correct to say that their anonymity is no longer guaranteed. Is that not absolutely right?

Chris Farrimond: Where is that different from Crimestoppers? If someone phones in, they are guaranteed anonymity, but if we wanted to we could easily find out who made that call. We don’t because we guarantee anonymity. If we didn’t, no one would phone the number any more.

[Joanna Cherry]

Q I am focusing on internet connection records. There may be other questions about communications data, but I want to clarify, because it may be very important to Members’ consideration of the Bill, that I am correct in saying that, if this Bill is passed as presently drafted, the assurance of anonymity on websites such as Crimestoppers will no longer be accurate because the purpose of internet connection records is to identify that A has used a particular device to connect to the internet service concerned.

Richard Berry: That is no different from the present situation with internet communications data. The fact that there is a freephone call number for Crimestoppers doesn’t mean that in technical terms that communication cannot be traced, but we just don’t do that because we guarantee anonymity. It wouldn’t be necessary and it wouldn’t be proportionate.

[Joanna Cherry]

Q But when you use a phone to contact Crimestoppers, there is no tick box saying, “I want to be anonymous”, is there?

Richard Berry: There is an assumption. It is well advertised that Crimestoppers—

[Joanna Cherry]

Q There is no tick box on a phone.

Richard Berry: Not that I am aware of. No.

[Joanna Cherry]

Q But there is a tick box on the internet site saying, “I wish to remain anonymous.”

Richard Berry: That can remain.

[Joanna Cherry]

That is there because we have discovered in police and law enforcement services, where I used to work as a Crown prosecutor, that if you guarantee people anonymity, you sometimes get more people to come forward.

Richard Berry: Absolutely.

[Joanna Cherry]

So it is possible that, if this Bill is passed, we will actually dissuade people from reporting crime because we can no longer guarantee their anonymity.

Chris Farrimond: I am also responsible for covert human intelligence sources for informants. Of course, we know their identity, but we guarantee their anonymity. That is precisely what we do, although their identity is known within the agency. It is difficult to predict exactly how this could possibly impact, but if we are guaranteeing anonymity, that means we will not—

[Joanna Cherry]

Q But we are not talking about CHIS; we are talking about ordinary members of the public, the sort of person who watches “Crimewatch UK” when it is on once a month, recognises one of the mug shots and goes on the website but is scared for their own safety and so wishes to remain anonymous. We need to be clear that that anonymity can no longer be guaranteed because all internet connection records will be collected. Is not that right?

Richard Berry: It would be guaranteed by law enforcement, because that is our operational policy. We would not access it. We do not retain the data, and nor could we access it, as a matter of policy.

[Joanna Cherry]

But the fact is that the connection to a particular service from a particular computer will be recorded as an internet connection record and retained.

Richard Berry: In theory, that could be the case, but it would never be accessed. Lots of internet connection records would potentially be gathered, but we are very much about targeted inquiry, rather than bulk inquiry, so it would never pass the necessity and proportionality test.

[Joanna Cherry]

That is an internal guarantee that you are giving us. There is nothing in the Bill to say that it would not be accessed, is there?

Richard Berry: Not that I have seen, no.

[Mr Hayes]

Q I will be mercifully brief. Given your very wide case experience, and the fact that an overwhelming number of serious crimes are now connected with both the technology and methods of modern media, can you envisage circumstances in which loss of life or severe injury might be prevented through equipment interference?

Chris Farrimond: Absolutely, yes.

--- Later in debate ---

[The Chair]

Joanna Cherry, you have five seconds, and anyone who wants to answer has 10 seconds.

[Joanna Cherry]

Q I will try. Unilateral assertions of extraterritoriality will not help us much, will they? What we need is bilateral or multinational agreements with other countries, such as we have through Europol.

Chris Farrimond: I would say that they will help, in that they demonstrate what the UK would like to achieve. We have really good partnership relationships with a number of countries around the world. If it so happens that they are looking at a similar sort of provision in their legislation, we could quite easily find common ground. It may be that that is not possible and we need greater detail, but there is no harm at all in saying, “Look, this is what we’re asking for. It’s quite reasonable, isn’t it? These are our checks and balances around it.” That is the start point, as far as I can see, for further negotiation.

[The Chair]

Thank you. Well done colleagues—you were razor-like in your questioning.

Examination of Witnesses

Mark Astley gave evidence.

--- Later in debate ---

[Keir Starmer]

Q I see, so at the moment, your function is limited in this particular field to local authorities.

Mark Astley: Correct.

[Joanna Cherry]

Q Your organisation has identified a range of crimes that local authorities use communications data to tackle. Do you think the Bill ought to identify the crimes more precisely to prevent data from being used in relation to, for example, rubbish collection or school places?

Mark Astley: I believe that the process is in place for identifying necessity and proportionality. The three bar process that we currently have in place will deal with that. To actually identify particular legislation could become more constraining and difficult to administer and, as more legislation comes along, more changes may be required to the Bill.

[Joanna Cherry]

Q Do you agree that the issues of rubbish collection or potential abuse of school places are not really serious crimes?

Mark Astley: I do, and the fact that communications data is not used for those types of investigations in respect of that should enforce that.

[Joanna Cherry]

Q But there is nothing on the face of the Bill to prevent it from being used for that kind of investigation, is there?

Mark Astley: No, but we have the three locks in place. They call it the double lock at present, but what the National Anti-Fraud Network provides is what we call a triple lock. We have the NAFN single points of contact that it has to go through. They are fully accredited and professional, and they are fully trained to ensure that we weed out all those types of inquiries. The next lock is the designated person, and following that you have the judicial approval process, too. There is a triple lock in place to prevent any of that from happening.

[Joanna Cherry]

Q But there is nothing on the face of the Bill to prevent the individuals you have mentioned from ultimately reaching the view that it might be necessary or proportionate to access communications data to deal with issues around rubbish collection or school places. It has happened, has it not?

Mark Astley: Not for communications data. The process is in place—the triple lock—from a NAFN perspective. The NAFN SPOCs are totally independent and fully trained. They will ensure that any application is appropriate, necessary, proportionate and lawful for that to process.

[Joanna Cherry]

Q You mentioned judicial authorisation. Can you elaborate on what you meant by that?

Mark Astley: Currently, our members have to go to a local magistrate to have any access request approved judicially.

[Joanna Cherry]

Q It is possible to bypass the single point of contact in an emergency, is it not?

Mark Astley: No, not for a local authority.

[Joanna Cherry]

Q Your organisation told the Joint Committee that five hours of an officer’s time seeking judicial approval is “slow and inefficient” and “a deterrent to councils”. Do you feel that the individual’s right to privacy might justify five hours of an official’s time?

Mark Astley: The issue around resources is more about how we can better deliver the services. The judicial approval process is there, and it is supportive. Looking at the figures for the past two years, 2% of those requests have been rejected by our own SPOCs, 0.3% have been rejected by the designated persons and only 0.2% have been rejected by judicial approval. Our belief is that the processes in place work effectively.

[Joanna Cherry]

Q That was not really my question. My question was on whether you agree that the individual’s right to privacy justifies the time that is sometimes taken in inputting for a judicial approval.

Mark Astley: I understand the need for respect for privacy, but the necessity and proportionality aspect of every case will be considered, and if it is appropriate to do so, we would need to intrude on that privacy.

[Mr Hayes]

Q Obviously, your role is an additional safeguard. There are those who think that the Home Secretary and I are preoccupied with safeguards, checks and balances and the defence of privacy, but I think we have probably got this right. Can you tell me of the number—the frequency—of requests that you would consider to be an abuse of power in respect of applications for information? How often do you come across seedy requests that you would consider to be an abuse of the powers?

Mark Astley: In 2% of inquiries in the past two years, we have had applications rejected or cancelled through the input of our accredited SPOCs.

--- Later in debate ---

[Keir Starmer]

Q One final swift question on thematic warrants and the breadth of the powers proposed in the Bill. Do any of the witnesses have headline concerns that the Committee can take away to work on as we consider the Bill line by line?

Sir Stanley Burnton: First, the existing formulation in RIPA is very unsatisfactory and unclear, and it does not cover many cases in which it would be sensible to have a so-called thematic warrant. However, the wording of clause 15(2) is very wide. If you just have a warrant that gives a name to a group of persons, you have not identified—certainly not in the warrant—all those persons to whom it is going to apply. There could be substantial changes in the application of the warrant without any modification. At the moment, the code of conduct envisages a requirement that names will be given so far as practicable. Our view is that the warrant should name or otherwise identify all those persons to whom the warrant will apply, as known to the applicant at that date.

The other concern is that substantial modifications can be made to a warrant under the Bill with no judicial approval or even notification. That needs to be changed.

Lord Judge: I agree with Sir Stanley. I will not say anything more on the second point he made, but on the first, a part of the process that all of us involved in supervising surveillance attach a great deal of weight to is that we are looking at individuals. There has to be evidence that X requires this, that there is a situation in which it is necessary for this to happen, that it is proportionate in this particular individual’s case and that there is no collateral interference. For example—there are many different examples—why should a women who happens to be married to or living with a man who is suspected and so on have her life entirely opened up in this way? Not having specific identified individuals leaves a very delicate situation. I suspect that the commissioners would find it very difficult to just say, “Well, we’re satisfied. There’s this gang here and they’re all pretty dangerous.” They might not be, and we have to be very alert to that.

[Joanna Cherry]

Q I have questions for Jo Cavan. In your organisation’s written evidence, you have picked up on earlier concerns about the draft Bill and updated them in the light of the finalised Bill. In the first point, you say that you have concerns about the “aggressive timeline” for the Bill. Can you explain what you mean by that?

Jo Cavan: It is a really complicated and significant piece of legislation. Although I broadly support the Bill, because it is a good thing to put a number of the powers used by the intelligence agencies on a clearer statutory footing and to try to improve transparency, I do think that the scrutiny process has been very hurried. That is of concern because there are some significant privacy implications to the clauses in the Bill. There is still a long way to go towards strengthening some of the safeguards. Also, a lot of the operational detail is in the codes of practice. It is really important that those are scrutinised properly, line by line.

[Joanna Cherry]

Q When you express concerns about the aggressive timeline for the Bill, are you talking about the Bill before us as well as the draft Bill?

Jo Cavan: Yes.

[Joanna Cherry]

Q So you consider the time that has been afforded for the scrutiny of the Bill before us to be aggressive.

Jo Cavan: It has been challenging to say the least.

[Joanna Cherry]

Q Do you think it is adequate?

Jo Cavan: You could argue that because we are waiting for a number of key judgments from either the European Court of Human Rights or the European Court of Justice, it might seem a bit premature to be legislating in some of these areas, but then when do you draw the line?

[Joanna Cherry]

Q At point 5 in your written evidence, you pose the question:

“Is it desirable to have the same body responsible for authorising investigatory powers and undertaking the post facto oversight of the exercise of those powers?”

You say:

“If so, the judicial authorisation and oversight elements of that body must be operationally distinct.”

You have already explored point 2 of your written evidence with us, but will you elaborate on point 5?

Jo Cavan: It is clear to us that there needs to be some operational distinction between the approval—the judges who are going to be approving some of these techniques—and the audit and oversight after the event, because if the judges approving the requests are then responsible for the post facto oversight, essentially they could be accused of marking their own homework. Again, if the commission is created, you will be able to distinguish those key elements.

It is really important for the commissioners to work very closely with the inspectors and technical engineers and so on who will carry out the post facto audits. They are obviously going to need to support each other, but it is really important that there is a distinction. I think I have spoken to a number of our international oversight counterparts, and some of those are quite surprised that we are going down a route where we are putting both elements into one body.

[Joanna Cherry]

Q At point 6 of your written evidence you expressed concern that in the draft Bill there were

“a number of clauses which provide exceptions for national security or which exempt the intelligence agencies from key safeguards”.

What is your view of the finalised Bill in relation to that concern?

Jo Cavan: Essentially there has been progress on one of the national security exemptions, which is around the acquisition of communications data to determine journalistic sources. The Government have amended clause 68 to remove the national security intelligence agency exemption. That was because that was picked up by the Intelligence and Security Committee and the Joint Committee.

However, there are still two broad exceptions in the Bill: clauses 54 and 67. One of them is really important, because it is around the independence of designated persons. This area was strengthened as a result of the Digital Rights Ireland case, and that is an area where we still find significant compliance issues within public authorities. Communications data is approved by designated persons—it will become designated senior officers in the Bill—who are from the same public authority. In almost half of the police forces, intelligence agencies and other bodies that we inspected last year, we made recommendations around that area because we were not satisfied with the independence.

The clauses as drafted seem to drive a horse and cart through the independence requirements for designated persons by exempting very broadly national security. The same is the case in the single point of contact provision in clause 67: that appears to exempt in national security cases the SPOC being consulted, and we see the SPOC as a key safeguard in the process. So the fact that the Government have already said that the exemption relating to journalistic sources was broad, and removed it, suggests that the same needs to happen to clauses 54 and 67.

Sir Stanley Burnton: I would just like to add that it is far from obvious that the interests of national security, which is a ground for the grant of a warrant, is itself an exceptional circumstance. It is very difficult to see what the logic behind that formulation is.

[Mr Hayes]

Q Joanna, I guess you are pretty familiar with the legislative process and the way Parliament works.

Jo Cavan: I would hope so.

--- Later in debate ---

[Peter Kyle]

Q One of the innovations of the Bill is the double lock. When you were Home Secretaries, most warrants would have been signed just by the Home Secretary. Will the knowledge of having judicial oversight and a second authorisation before the warrant comes in change the behaviour of the Home Secretary when approaching the decision?

Charles Clarke: I tend to doubt it. Speaking for myself and, I am sure, for John—actually, for all Home Secretaries I have ever discussed this with—we have all been exceptionally aware of the severity and seriousness of what we were looking at. I do not think that the idea that there was going to be a judicial review of what we were doing would have changed our behaviour significantly. There is quite a serious, in-principle issue about the role of the judge as opposed to the role of the Executive.

I saw you taking evidence from Lord Judge just now. I bumped into him as I was coming in. The question of the relationship between the judiciary and the Executive is a key point. I gave evidence on it to the House of Lords Constitution Committee in 2007 because I think it has all been changed by the Human Rights Act 1998. I think there has been insufficient consideration of the changing nature of the relations. In response to your particular point, Mr Kyle, I do not believe that there would have been a significant change in behaviour.

Lord Reid: I do not think there will be a change in behaviour from the point of view of the person who is ultimately accountable to Parliament for the decisions, which is the elected Member and appointed Minister. Probably even before RIPA, which I think Charles took through the House of Commons, there was an awareness that there were degrees of oversight and you were working within certain constraints and certainly with oversight.

I confess that where I would worry—you would perhaps say, “Well, he would, wouldn’t he? He was the Home Secretary.”—is in case the judicial oversight became a co-decision. I think that is a recipe, in some cases, for obstacles to the efficient operation of aspects that I mentioned earlier, for instance in a hostage situation. I know that allowances are being made for that.

I guess that the additional oversight—judicial oversight—that is in the Bill is a result of a number of factors. One is the concern—I do not know whether it is public concern; I do not think it is, but it is certainly published concern—over the Snowden revelations, the general distrust of politicians and the fact that there was a Liberal-Conservative coalition. All of this is compromise, is it not?

I have no in-principle objections to it, provided that the first decision is made by the person accountable for it, through Parliament, to the public and the role of judicial oversight is the judicial element of it.

[Joanna Cherry]

Q On 4 November last year, when the Home Secretary introduced the draft Investigatory Powers Bill to the House of Commons, she informed us:

“the acquisition of bulk communications data, both relating to the UK and overseas…is not a new power. It will replace the power under Section 94 of the Telecommunications Act 1984”.—[Official Report, 4 November 2015; Vol. 601, c. 971.]

May I start with you, Mr Clarke? When you were Home Secretary, how many times do you recall authorising the use of

“the power under Section 94 of the Telecommunications Act 1984”

to collect the telephone records of everybody in the UK into a single national database?

Charles Clarke: I do not recall the answer to your question at all, I am afraid; I have not prepared for this meeting, or gone back to my files, so I cannot answer the question. I think what the Home Secretary will have been trying to communicate is that the purpose of this legislation is to update legislation in the light of massive technological change, even since 1999, when I took the RIPA Bill through Parliament. As you will recall, that was to make what was being done compliant with the Human Rights Act, which required us to have a basis on which all of this was understood. Previously, this had all been done without any basis, and I was very proud to take that legislation through.

I said at the time—if you go back to the records of those hearings—that it would be necessary to update that Bill as technology moved forward, and I think that is what the Home Secretary meant in what she said. However, I apologise that I cannot give you the precise answer that you are looking for.

[Joanna Cherry]

Q Perhaps you can help me with this question. When Parliament passed the Telecommunications Act 1984, there was no such thing as itemised phone bills. Do you remember back that far?

Charles Clarke: I was hardly born then. [Laughter.]

Lord Reid: That is before even we were in Parliament.

Charles Clarke: Sorry. Joking aside, I understand your point completely—

[Joanna Cherry]

Q On the hypothesis that that is correct—that there was no such thing as itemised telephone bills in 1984—then the use of itemised telephone bills to compile a national phone call database could not have been foreseen when that legislation was passed by Parliament, could it?

Lord Reid: I think these are interesting questions, but they miss the point of historical change since 1984; that is the important thing. To put it at its simplest, the principles behind interception or access have always been the same, whether it was in the days when you sent a letter to somebody, or the days when you made a telephone call to somebody. The principles, put very crudely, were that if you wanted to know whose name was on the envelope, then you had a level of authority that was necessary, and oversight. If you wanted to read the letter, you had a higher level of authority that was required, normally from a Minister. Similarly, with telephone calls, if you wanted to know who was phoning whom, then you needed a level of authority that was not necessarily the Home Secretary, because after 1984 there was such information available. If, as a result of that, you wished to go into the contents of the telephone conversation, like the contents of the letter, you required an even higher level of authority by warrant.

What has changed is that it has gone from people sending pigeons, writing letters and telephoning each other, to global communication, as you will be well aware. Instead of a phone call from Cambridge to London that can be intercepted, it goes around the world in packages. Indeed, as you probably know, that is why it was produced: the internet has its origins in the necessity of protecting the command and control structure for the launch of American nuclear weapons by the American President. It makes it much more difficult to intercept that.

To put it in grossly simple terms again, somebody used to say, “We all like rabbit pie but first you have to catch the rabbit.” We all want to get the needle in the haystack, but first you have to find the haystack. The problem we are all faced with now is that the haystack is global. It is global communication, which is why we get this tension between so-called bulk collection and targeted examination.

That is a long answer to your question, but I hope it goes to some of the central questions that your Committee will be asking about that relationship. Normally, a Secretary of State would authorise a targeted interception, but the explanation of why you are being asked to authorise that may relate to something much wider, as I hinted at earlier, because you have discovered the need to target this interception because of a bigger node and a bigger network.

[Joanna Cherry]

Q I was not asking about targeted interception, I was asking about the current Home Secretary’s specific avowal of that fact that for many years section 94 of the Telecommunications Act 1984 has been used to collect the phone records of everyone in Britain into a single national database. I am simply interested to know whether either of you gentlemen, as former Home Secretaries, could tell us whether you had authorised that.

Charles Clarke: No, I cannot, for the reasons I have stated.

Lord Reid: You would have to ask the Secretary of State that.

Charles Clarke: I do think that the related point is future-proofing. In an area where technological change is taking place so rapidly—where you have a state of affairs on the balance between security on the one hand and liberty on the other, and where we need to keep the capacity to surveille threats to society—how do we future-proof that? That was the issue I faced with RIPA in 1999-2000, and I think it is the issue that this Committee faces in thinking about this particular piece of legislation too.

[Mr Hayes]

It is good to have two of my favourite former Home Secretaries here.

Charles Clarke: Name names. [Laughter.]

Brussels Terrorist Attacks

Joanna Cherry Excerpts

Wednesday 23rd March 2016 Commons Chamber

[Mrs May]

I thank my right hon. and learned Friend for his comments, with which I agree. A number of mechanisms that we are part of within the European Union enhance our security. As I said in my statement, we need to co-operate on a global basis to defeat these terrorists. Co-operation with other countries, such as within the “Five Eyes” community, is important as well, but we can use mechanisms within the European Union that are of benefit to our security.

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

I welcome the tone of the Home Secretary’s statement, and I thank her for notice of it. I wish to associate myself and the Scottish National party with the comments of the Home Secretary and others in condemning outright these appalling and devastating attacks in Brussels. Our thoughts are with everyone affected in Brussels and across the globe. Like many other hon. Members of the House, I have spent time in the beautiful city of Brussels over the years, and I have friends and colleagues there. My heart goes out to its many diverse citizens. In addition, we must not forget those affected by the outrages in Turkey. I add the condolences of SNP Members to those of the rest of the House to all those across Europe who have lost loved ones in these terrible atrocities. Our thoughts and prayers are with all those affected, most particularly the family of the missing British national in Brussels. We sincerely hope that his partner and her sister will be successful in their efforts to locate him.

I wish to associate myself with the comments of the shadow Home Secretary and others about the gratitude we across the House feel to all those, whether the police or the intelligence services, who strive to keep us safe in the United Kingdom. I wish to reiterate the comments of Scotland’s First Minister that these terrorists must not succeed and that we must “unite as a community” to defeat such threats across the United Kingdom and across Europe.

The Scottish National party is committed to protecting the people of Scotland and to keeping our communities safe. While we are aware of the challenges we face from increasingly sophisticated criminals and terrorists, the Government in Scotland have committed to work with the UK Government to defeat these threats against the freedoms we value so dearly. I note that although the UK threat level has not been changed, and we are reassured that there is no specific threat in Scotland, the Scottish Government have taken swift action to place police patrols at airports and rail stations to increase reassurance.

The frightening statement from Daesh promising further attacks and saying that

“what is coming is worse and more bitter”

is the point at which I turn to the Home Secretary for reassurance. People right across the UK will be sitting at home worried for their families and their communities. What reassurances can the Home Secretary give the House about how safe we are in the United Kingdom? What action is her Department taking to ensure that we are protected from and capable of dealing with a future attempted attack? I note that the Home Secretary referred during her statement to the fact that all seven plots that have been disrupted in the UK were either linked to, or inspired by, Daesh propaganda. Does she accept the importance of undermining Daesh’s propaganda capabilities, particularly online, and what is she doing to address that?

Finally, as I have said many times in the House—I think others have acknowledged this—what is of the utmost importance when faced with such serious criminal and terrorist attacks is to ensure that our response is proportionate, targeted and effective. The terrorists aim to instil fear, to divide us and to destroy our freedoms and civil liberties, but we must not give into that narrative. We must ensure that, whatever additional measures are taken to keep our communities safe, they remain united. I am very reassured by what the Home Secretary said about remaining united with our Muslim brothers and sisters in Britain. I associate myself with what the shadow Home Secretary said, and I invite the Home Secretary to condemn Donald Trump’s comments on British media today. Will she assure me that she will keep the importance of our having a united community across the UK at the core of her efforts in fighting terrorism?

[Mrs May]

The hon. and learned Lady refers specifically to the issue of threat and to safety and security across the whole of the United Kingdom. As I have said and as she will know, the threat level from international terrorism is not set by Ministers; it is set independently by the joint terrorism analysis centre. It has maintained the threat level at severe, which means that an attack is highly likely. Against that background, as I also said in my statement, the police have increased their presence at certain key locations, notably at certain transport hubs, and we have increased the action taken by Border Force at various ports, and that is right. We will obviously keep those levels of activity under observation and monitor them according to the nature of the threat that we see.

It is for us all to be vigilant. I think the public should be alert, not alarmed. We do everything that we can to keep the public safe and secure. Underlying that, however, is of course the need for us to ensure that in particular our intelligence services—our security and intelligence agencies—are able to access the intelligence that enables plots to be disrupted. That means having the powers that we believe are right for them to have to be able to do that role.

The hon. and learned Lady talked about the counter-narrative. It is absolutely right that, as part of the work we do, we should deal with the poisonous ideology that is leading people to violence. That work is being done. We do such work through the counter-terrorism internet referral unit to ensure that pieces are taken down from the internet. The speed at which that happens—the number of items taken down—is now something like 1,000 pieces a week. That has increased significantly in the past year or so. We led on the establishment of an internet referral unit at Europol, which is now enabling that capability to be available not just in the United Kingdom, but across the European Union.

Investigatory Powers Bill

Joanna Cherry Excerpts

Tuesday 15th March 2016 Commons Chamber

[Stella Creasy]

Will the Home Secretary give way?

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

Will the Home Secretary give way?

[Mrs May]

I give way to the Scottish National party spokesman.

[Joanna Cherry]

On a point of clarification relating to the intervention by the right hon. and learned Member for Beaconsfield (Mr Grieve) about the letter to The Guardian signed by over 200 senior lawyers, is the right hon. Lady aware that the letter takes issue with bulk interception warrants and bulk equipment interference warrants, which even the Intelligence and Security Committee says should be removed from the Bill?

[Mrs May]

I will come on to talk about the bulk warrants, but it was clear from the Committee reports that the powers in the Bill are necessary. The ISC raised a question about the bulk equipment interception warrants, but, following that, the Government have produced further information on all bulk cases. We published some case studies and examples of how the powers would be used alongside the redrafted Bill.

--- Later in debate ---

[Mrs May]

I reiterate the point that I made previously and again just now: 100% of the compliance costs will be met by the Government. My hon. Friend asks me to provide a long-term commitment for that, and we are clear about that in the Bill. As she will be aware, it is not possible for one Government to bind the hands of any future Government in such areas, but we have been clear about that issue in the Bill and I have been clear in my remarks today.

Alongside the draft code of practice, I have published—at the Joint Committee’s request—a comparison of the differences between the proposals in the Bill and those set out by Denmark in recent years. I have also held further discussions with UK and US communications service providers on the proposals in the Bill, and we will continue to work closely with them as we implement this new power. As a guarantee of that, we have included a commitment that the Home Secretary will report to Parliament on how the Bill is operating within six years of Royal Assent. If Parliament agrees, it is our intention that a Joint Committee of both Houses will be formed five years after the Bill receives Royal Assent, specifically to undertake a review of the new legislation and to inform the Home Secretary’s report.

Part 5 of the Bill deals with equipment interference—for example, the acquisition of communications or information directly from devices such as computers or smartphones. By bringing existing powers into the Bill, we have responded to recommendations made by David Anderson, QC, and by the Intelligence and Security Committee. The Bill places those powers on a clear statutory footing, and makes their use subject to the issue of warrants that must be approved by a judicial commissioner.

Hon. Members will be aware that not only are those powers already available to law enforcement bodies, but they are vital to so much of their work to prosecute serious criminals. In exceptional circumstances, that capability is also used to deal with threat-to-life situations that fall short of serious crime, most typically to identify missing persons. For example, we would all expect that when a child goes missing and the parents know the password to their social media account, that the police should be able to use that password to search for vital clues. The Bill preserves capabilities that are already available to law enforcement, and makes it clear that they can be used to save lives. Nevertheless, these are intrusive powers and their use must be strictly limited. In future, all equipment interference warrants will require the approval of a judicial commissioner.

The draft code of practice, which I published alongside the Bill, constrains the use by law enforcement of more novel or advanced techniques that hon. Members might reasonably expect to be the preserve of the National Crime Agency and similar bodies. Equipment interference warrants may only be served on communications service providers with the personal agreement of the Secretary of State.

Alongside the draft codes of practice, and in response to recommendations of the Intelligence and Security Committee, we published a comprehensive public case setting out how bulk powers—for interception, communications data and equipment interference—are used, and why they are more necessary than ever before. There are, of course, limits to how much can be said about those most sensitive bulk capabilities without handing an advantage to criminals and those who mean us harm. For that reason, the security and intelligence agencies have provided further, classified detail about the use of those powers to the Intelligence and Security Committee.

As the publicly published case for bulk powers makes clear, such powers are vital to the effective working of the agencies. They have played a significant part in every major counter-terrorism investigation over the past decade, including in each of the seven terrorist plots disrupted since November 2014. They have been essential to detecting more than 95% of cyber-attacks against people and businesses in the UK identified by GCHQ over the past six months, and they enabled more than 90% of the UK’s targeted military operations during the campaign in the south of Afghanistan.

Part 6 of the Bill places these powers on a clearer statutory footing and makes them subject to robust and consistent safeguards. In future, bulk warrants will need to be authorised under the double lock regime that I have described. Furthermore, the examination of any data obtained under a bulk warrant will need to be for an operational purpose that has been approved by a Secretary of State and an independent judge.

[Joanna Cherry]

Other hon. Members have mentioned protection for the communications of parliamentarians. Does the Home Secretary agree that the provision in the Bill does not protect parliamentarians from having their communications to and from constituents scooped up by bulk collection provisions, or with communications data or internet connection records, which could lead to whistleblowers being identified?

[Mrs May]

I could give a variety of responses to those points. The hon. and learned Lady must be aware that certain bulk powers are predominantly those for foreign usage, rather than in relation to the United Kingdom. With bulk powers, where there is any interaction with individuals in the UK, the double lock authorisation is still necessary to ensure that the examination of the information is subject to the same sort of tests regarding necessity and proportionality.

Part 7 applies those safeguards to the retention and use of bulk personal datasets. Such information is already used by the security and intelligence agencies to keep us safe, and may be acquired under existing powers. However, the Bill introduces powerful new privacy protections so that the personal data of innocent people are always subject to strong robust safeguards, irrespective of how they were acquired.

I said that privacy safeguards are at the heart of this Bill, and the guarantor that those safeguards will be effective and adhered to—both in substance and in spirit—will be the new Investigatory Powers Commissioner, or IPC. Created under part 8 of the Bill, the commissioner, who will hold or have held high judicial office, will oversee a world-leading new oversight body, bringing together the existing responsibilities of the Interception of Communications Commissioner, the Intelligence Services Commissioner and the Chief Surveillance Commissioner. The new Investigatory Powers Commissioner will be provided with an enhanced budget and a dedicated staff of commissioners and inspectors, as well as technical experts and independent legal advisers. They will have access to the staff and systems of the agencies, and will have a remit to provide Parliament and the public with meaningful assurance about how the powers in the Bill are being used. When a person has suffered as a result of a serious error in how the powers in the Bill are used, the IPC will have a new power to inform the victim without the need to consult the Investigatory Powers Tribunal, which will itself stand ready to hear any claim and will have the power to quash warrants, award compensation or take any other remedial action it feels appropriate.

I turn now to part 9 of the Bill and clause 217, which provides for requests to be made to communications service providers to maintain permanent technical capabilities to give effect to warrants, and, in connection with that, to maintain the ability to provide copies of communications in an intelligible form. Let me be clear: this provision only maintains the status quo. It allows law enforcement and the security and intelligence agencies to ask companies to remove encryption that they have applied or that has been applied on their behalf. It would not—and under the Bill could not—be used to ask companies to do anything it is not reasonably practicable for them to do.

Finally, alongside the Bill, we have taken forward the recommendation made by Sir Nigel Sheinwald to develop an international framework to ensure that companies can disclose data, a point I made in response to my hon. Friend the Member for The Wrekin (Mark Pritchard). We are in formal negotiations with the United States Government and are making good progress. The provisions in the Bill are drafted to accommodate any such agreement. Any company co-operating with its obligations through an international agreement will not be subject to enforcement action through the courts.

The Bill provides unparalleled transparency on our most intrusive investigatory powers, robust safeguards and an unprecedented oversight regime, but it will also provide our law enforcement and intelligence agencies with the powers they need to keep us safe. Because of its importance, our proposals have been subject to unprecedented levels of scrutiny, which has resulted in a Bill that really does protect both privacy and security—it is truly world-leading. I look forward to the revised Bill now receiving full and careful consideration by both Houses. I commend it to the House.

--- Later in debate ---

[Andy Burnham]

I disagree. I am making a legitimate point about which we feel strongly. I am saying that the most intrusive powers in the Bill should be strictly limited to national security. The hon. Gentleman has a different view, but I believe that serious crime and national security should be the strictly limited grounds on which the most intrusive warrants are applied for. I hope that he will approach the issue in a spirit similar to the one in which I have approached it: I hope that he will look into the concern that I have raised in more detail and try to understand why Labour Members feel so strongly about it.

[Joanna Cherry]

The hon. and learned Member for South East Cambridgeshire (Lucy Frazer) talked about barristers presenting cases to judges. Does the right hon. Gentleman agree that, given the double-lock model in the Bill, there will be no barristers arguing the case before the judicial commissioner? That is exactly the point. There will be no gainsayer and no proposer; there will simply be a judicial review, an exercise carried out by the judicial commissioner on his or her own.

[Andy Burnham]

That is an important point, which I shall come to in a moment.

I was talking about bulk powers. Important concerns were raised by the Intelligence and Security Committee about scope, oversight and the more generic class warrants, and I do not believe that they have been adequately answered. One of the Joint Committee’s recommendations was that the Government should establish an independent review of all the bulk powers in the Bill. Given the complexity and sensitivity of the issue, I think that the House would benefit from that, so my specific ask is for the Home Secretary to commission such a review, to be concluded in time for Report and Third Reading.

Our fifth concern is about judicial oversight, and relates to one of our earliest demands in respect of the Bill. The Government have given significant ground in this area, and, as the Home Secretary said, the Bill is stronger as a result. However, we believe that it could be stronger still. It currently says that, when deciding whether to approve a decision to issue a warrant, a judicial commissioner must apply

“the same principles as would be applied by a court on an application for judicial review.”

The point has just been made by the hon. and learned Member for Edinburgh South West (Joanna Cherry).

I have previously shared with the Home Secretary my fear that that could mean a narrower test, taking account of only the process and reasonableness of the Home Secretary’s decision rather than the actual merits and substance of an application. I was listening carefully to what she said at the Dispatch Box earlier, and I thought I heard her provide reassurance that a much broader consideration could be provided by a judicial commissioner. I hope that that is the case, and if it is, why not delete the judicial review clause from the Bill? That would make it absolutely clear this is not just a double lock but an equal lock, in which the judicial commissioner has the same ability look at the entire merits of the case.

Our sixth and final concern relates to the misuse of the powers. I accept the concerns of the Police Federation that there need to be safeguards for the collection of data in a lawful manner, but I also agree with its view that the Bill needs to make it clearer that an overarching criminal offence is created for the deliberate misuse of any of the powers. That should relate to the obtaining of data and to any use to which those data are subsequently put. Both should be a criminal offence. That would provide an extra safeguard for the public.

I have set out six substantive issues that must be addressed. Given the seriousness of these concerns, people have questioned why we are not voting with the Government tonight—[Interruption.] We are voting neither with them nor against them. The simple answer is that we need new legislation but the Bill is not yet good enough. That is why we have set these tests. Simply to block this legislation would in my view be irresponsible. It would leave the police and security services in limbo and, as communications migrate online, that would make their job harder. We must give them the tools they need to do the job. If we did not put new legislation on the statute book, we would leave the public exposed to greater risk because they would not have the safeguards that are in the Bill.

However, let me be clear that there is no blank cheque here for the Government. We will not be voting for the Bill tonight because it is some way from being good enough, and if the Government fail to respond adequately to the concerns I have raised, I give notice to them that we will withdraw our support for the timetabling of the Bill. It is as simple as that. The public interest lies in getting this right and in not sacrificing quality to meet the deadline. The time has come for the House to lay politics aside and to find a point of balance between privacy and security in the digital age that can command broad public support.

We on these Benches have worked hard to uncover the truth about some of the dark chapters in our country’s past precisely so that we can learn from them and make this country fairer for those coming after us. I want a Bill that helps the authorities to do their job but protects ordinary people from intrusion and abuse by those in positions of power. I also want Britain to be a country that gives its people individual privacy and collective security. Our shared goal should be a Bill that enhances our privacy, security and democracy and—with goodwill and give and take on both sides—I believe that that is within our grasp.

--- Later in debate ---

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

Before I begin my speech, on behalf of the Scottish National party I want to associate myself with the comments of the Home Secretary and shadow Home Secretary regarding the death of the prison officer in Northern Ireland and extend my party’s heartfelt condolences and sympathies to his family, colleagues and friends.

The SNP joins the MPs from all parties in the House who have grave concerns about many aspects of the Bill. We do not doubt that that the law needs a thorough overhaul and welcome attempts to consolidate a number of statutes in order to have a modern, comprehensive law. We also recognise that the security services and police require adequate powers to fight terrorism and serious crime. However, such powers must always be shown to be necessary, proportionate and in accordance with the law. In particular, powers must not impinge unduly on the right to privacy or the security of private data. We feel that many of the Bill’s powers do not currently pass those tests. For that reason, the SNP cannot give its full support to the Bill in its current form. We intend to join others in the House to ensure that the Bill is as extensively amended as possible. We shall be abstaining today, but if the Bill is not amended to our satisfaction, we reserve the right to vote against it at a later stage.

The Bill is a rushed job that comes on the back of a draft Bill that lacked clarity and did not go far enough to protect civil liberties. In recent weeks, three parliamentary Committees have expressed significant misgivings about many aspects of the draft Bill and made extensive recommendations for its revisal. The Bill was published barely two weeks after the ink was dry on the last of those three reports, leaving insufficient time for the Government to go back to the drawing board to deal adequately with the concerns expressed by the three Committees. Like others in the House, SNP Members were concerned to read last week that the United Nations special rapporteur on the right to privacy concluded that some of the Bill’s proposals fail the benchmarks set in recent judgments of the European Court of Justice and the European Court of Human Rights. [Interruption.] Government Members may scoff, but I invite them to read his report as it contains a careful exploration of recent case law and should not be dismissed lightly.

The benchmarks suggest that surveillance should be targeted by means of warrants that are focused, specific and based on reasonable suspicion. Under the Bill, however, targeted interception warrants may apply to groups of persons or more than one organisation or premises. Bulk interception warrants lack specificity and lack any requirement for reasonable suspicion, giving licence for speculative surveillance. The shadow Home Secretary questioned whether we should be using the term “mass surveillance” in relation to this Bill, and I wonder whether it would be more accurate to say that aspects of the Bill permit “suspicionless surveillance”, which leads to civil liberties concerns. Another aspect of the Bill that concerns us is that an actual threat to national security is not required.

The powers to retain internet connection records and the bulk powers go beyond what is currently authorised in other western democracies and thus could set a dangerous precedent and a bad example internationally. The only other western democracy to authorise the retention of material similar to internet connection records was Denmark, which subsequently abandoned its experiment having found that it did not yield significant benefits for law enforcement. I see the Home Secretary looking at me and I am sure that she will argue that her proposed scheme differs from Denmark’s, but the devil is in the detail, which we will need to consider closely in Committee. The USA is rolling back from bulk data collection having found it to be unconstitutional in some cases and of questionable value in fighting terrorism. It is for this Government to justify why they alone are required to go so much further than other Governments in western democracies. Such operational cases as have been produced are anecdotal and hypothetical and do not constitute independent evaluation of the utility of bulk powers.

[Lucy Frazer]

If the hon. and learned Lady thinks that international comparisons are important, does she agree that the judicial authorisation procedure proposed by the Home Secretary goes further than in other European examples, such as Germany, the Netherlands and France?

[Joanna Cherry]

We need to compare apples with apples and oranges with oranges. A more correct comparison is with jurisdictions such as Canada and America, the systems of which are more similar to ours than the continental European jurisdictions that the hon. and learned Lady describes, but I will come back to that when I get to authorisation.

I am sure everyone in this House wants to get the balance right between protecting civil liberties, and giving the security services and the police the necessary and proportionate powers to fight serious crime and terrorism. However, we in the Scottish National party believe that the Government’s attempt has not got that important balance right and we are looking forward to working with other parliamentarians to try to get it right. We are worried that the Government are not giving sufficient time for the consideration of this enormous Bill. The 14 Home Office documents relating to the Bill that were released to Parliament on 1 March, including the Bill itself, extend to 1,182 pages, which is almost treble the amount of material released with the draft Bill last November. There is a suspicion that the amount of material being released in large tranches, coupled with relatively short timescales within which to consider and amend proposals, is an indication that the Government do not really want proper parliamentary scrutiny of this. We are determined to do our best to make sure that sufficient parliamentary scrutiny is provided.

[Mrs May]

Let me be absolutely clear about this. I have been in this House long enough to see Bills go through the House where parliamentarians have complained when the Government have failed to bring codes of practice that should sit alongside the Bill to the House at the very first stage of the debate. This Government have brought those codes of practice to the House more than several days before Second Reading, precisely so that Members of this House have an opportunity to see them and consider them alongside the Bill.

[Joanna Cherry]

The Home Secretary misunderstands my complaint—it is not about the fact that the material has been produced. My complaint is that the material has been produced with a timescale following thereon that is not sufficient for us to scrutinise it properly. I must make something crystal clear before I go any further: the SNP will not be morally blackmailed or bullied by Conservative Members into blind support for a Bill of dubious legality in some respects, which seeks powers that go beyond those of other western democracies. We are not going to tolerate any suggestion that by seeking proper scrutiny of the Bill and full justification for the far-reaching powers sought, we are being soft on terrorism and serious crime. I would associate myself with the other main Opposition party in that respect.

Let me give hon. Members an example of why they can be assured that the SNP is not soft on terrorism or serious crime. We have been in government in Scotland for nine years and we have shown ourselves to be a responsible Government. Although issues of national security are reserved, we have always co-operated closely with the UK Government, for example, when Glasgow airport was attacked by terrorists in 2007. Our record in fighting crime in Scotland is second to none. The Scottish Government have got recorded crime down to a 41-year low and we are committed to a progressive justice policy. We will not, therefore, stand accused of being “soft” on serious crime or terrorism, because that is simply not a fair statement to make.

In the coming years, we confidently expect to be devising the security policy of an independent Scotland, and it will be a responsible security policy that will not only seek to work closely with near neighbours on these islands, but will look to international models from other democracies and strive to take proper cognisance of international human rights norms and the rule of law. That is all we are about in our opposition and in our scrutiny of this Bill.

Our concerns about the Bill are not just our concerns. They are shared by: the parties sitting around me; many Conservative Members sitting opposite me; many of the members of three parliamentary Committees; non-governmental organisations; the technical sector; eminent legal commentators—more than 200 senior lawyers signed that letter in The Guardian today; communications service providers; and the UN special rapporteur on the right to privacy. [Interruption.] I hear somebody shout confidently from the Government Benches that the 200 lawyers who signed that letter are wrong. I suggest that he or she—I think it was probably a he—looks at the list of those who signed it and perhaps accords them a bit more respect; there is room for a difference of opinion here.

[Sammy Wilson (East Antrim) (DUP)]

For clarification, so that the hon. and learned Lady is not seen to be speaking for my party, may I ask whether she accepts that the balances in the Bill that the Secretary of State has outlined are, by and large, supported by people in Northern Ireland, simply because we have gone through the experience of terrorism and know how important such safeguards are for the general public?

[Joanna Cherry]

I always listen carefully to what the hon. Gentleman and his colleagues have to say because, as he says, they have experienced terrorism—indeed, they are, sadly, still experiencing it as a result of the tragic news we heard today. I apologise if I in any way included him in a sweeping statement, but I do not agree with him that the Government have got the balance right, and that is the whole purpose of my speech today.

The point I am seeking to make is that it is the job of a responsible Opposition not only to oppose responsibly and to scrutinise, but to articulate and inform public concerns. The public are concerned about this, and there is greater public knowledge about this Bill than perhaps there was last time around. A survey commissioned by Open-Xchange found that only 12% of the public believe that the Home Secretary has adequately explained the impact of the Bill to the UK public and presented a balanced argument for its introduction. I suspect that it is possibly a little unfair, pinning it all on the Home Secretary, because it is the responsibility of all of us in this House to inform our constituents about this Bill and where it is going.

[Simon Hoare]

Will the hon. and learned Lady give way?

[Joanna Cherry]

I hope the hon. Gentleman will not mind if I make some progress for the time being and possibly give way later. I mentioned the letter to The Guardian. I am conscious that the right hon. and learned Member for Beaconsfield (Mr Grieve), the former Attorney General, has expressed his view on the matter. I would always accord that the respect it deserves, but I respectfully disagree with him. The letter to The Guardian from the lawyers today was focused initially on the problem of bulk intercept. Even the Interception of Communications Commissioner’s Office, the independent watchdog, has said that bulk intercept provides “generalised initial interception”, and that is the issue here—it is the generality, and the lack of focus and specificity, that the lawyers are worried about.

[Mr Grieve]

I should emphasise that I take the letter seriously, because I regard it as a serious matter. If what was happening was what was set out in the first objection by those writing it, it would be a very serious matter indeed: the House would be sanctioning a system by which there was generalised access to electronic communications, in bulk. The point at issue is that that is not what actually goes on at all. Not only that, but if one looks at the Bill, one sees that it is clear that that should not be able to go on and that we will prevent it from happening if there is any possible risk of it. We have been round this issue on many occasions, and this is why there is a difficulty of communication and understanding on something that is fundamental to the way in which the agencies go about this work.

[Joanna Cherry]

I can only reiterate that I and many others, including more than 200 lawyers who signed this letter, disagree with the right hon. and learned Gentleman on this occasion and about this point. One thing that this issue illustrates is the importance of having very focused language in Bills dealing with such major matters of constitutional importance, rather than having vague language, which is not properly understood and which can on a later day be twisted by those it suits, to expand to cover powers that were not envisaged at the time. We are all well aware that that has happened in the past.

We should not dismiss too lightly the importance of the notion of the rule of law overarching this Bill. If the Government really want this legislation to be world-leading, they cannot have legislation that potentially violates international standards. As things stand, the UK is still bound by the jurisdiction of the European Court of Justice; there were no proposals to withdraw from the charter of fundamental rights in the agreement negotiated by the Prime Minister over Europe last month. We are still awaiting proposals for the repeal of the Human Rights Act, but the Government have recently been moving to reassure us that we will not be withdrawing as a signatory from the Council of Europe. We are therefore still going to be bound by the Court in Luxembourg and the Court in Strasbourg. Many distinguished lawyers believe that if this Bill is not significantly amended, the law of the UK will be on a collision course with those European Courts. I remind the Government that an unamended Bill could result in unnecessary and expensive litigation. It could require Parliament to revise the law all over again at some point in the future. That should not happen, provided that we ensure that the law meets international standards. [Interruption.] I hear Government Members shouting at me, “Which parts?” I will come to that when I get into the meat of my speech. [Interruption.] I suggest that they read the report that has come from the UN rapporteur on the right to privacy, and consider the law here. They may prefer to follow in the footsteps of Russia, which last December passed a law allowing its constitutional court to decide whether to comply with international human rights courts, but I would suggest that, on these matters at the very least, Russia is perhaps not the best role model for the United Kingdom.

I want to challenge the premise that the more privacy we sacrifice, the more security we gain, because that is not backed up by the evidence. Indeed, some of this House’s Committees have heard evidence that swamping analysts with data can impede investigation, because they are unable to find the crucial needles in the haystack of information before them. We should be looking at how to achieve security in a really intelligent way, not blanket data retention and suspicionless surveillance.

The Home Office responded to the Intelligence and Security Committee’s recommendations by simply adding one word to the start of the Bill so that the first part now refers to “privacy”. It has not, however, added any detail relating to any overarching principles of privacy. Its response to the ISC seems somewhat cynical.

I have indicated that the SNP is concerned about a number of aspects of the Bill. Time does not permit me to tackle all of them, but I am concerned about four in particular. I will endeavour to keep my comments to a minimum, bearing in mind that I speak on behalf of the third party in the House.

Our first issue with the Bill is the legal thresholds for surveillance; the second is the authorisation process, which the shadow Home Secretary has already talked about; the third is the provision for the collection of internet connection records; and the fourth is bulk powers, which I have already mentioned.

On the legal thresholds for surveillance, the Government essentially want to re-legislate on RIPA’s three broad statutory grounds. The SNP is not alone in its concern that those grounds are unnecessarily broad and vague and dangerously undefined. The Joint Committee on the draft Bill recommended that it should include definitions of national security and economic wellbeing, but that has not been done. The ISC recommended that economic wellbeing should be subsumed within a national security definition, finding it “unnecessarily confusing and complicated”. Those recommendations have been dismissed and the core purposes for which extraordinary powers can be used remain undefined and dangerously flexible.

On the authorisation of warrants, we welcome the move towards greater judicial involvement, and we acknowledge the fact that the Government have moved considerably towards the double lock. However, I agree with the shadow Home Secretary, because we also want an equal lock. Judicial review is not the same as judicial authorisation. Judicial review creates the illusion of judicial control over surveillance, and it does not achieve enough movement away from the status quo.

I want to give some concrete examples of that. The case law of the United Kingdom Supreme Court shows that, in civil proceedings that do not relate to deprivation of liberty, a less intensive standard of judicial review is applied—more Wednesbury reasonableness than strict necessity and proportionality—and that is why many fear that that is what will happen if the Bill is passed unamended. There will be little or no scope for review on the merits.

[Suella Fernandes]

Will the hon. and learned Lady accept that she is simply wrong? In their evidence to the Joint Committee, of which I was a member, Sir Stanley Burnton, senior judicial commissioner, and Lord Judge, senior surveillance commissioner, were clear that the Wednesbury unreasonableness standards had no place in this context. The wording of the Bill is clear, importing a clear judicial review standard involving necessity and proportionality.

[Joanna Cherry]

The hon. Lady will no doubt be unsurprised to hear that I do not accept that I am wrong. She is cherry-picking her way through the evidence that was heard. There was evidence contrary to the position that she has stated. I accept that there is a debate about this point, but I take the side that the review of judicial review principles does not go far enough. Why not go as far as other countries? Why not have one stage of judicial authorisation? That is the norm in comparable jurisdictions, by which I mean the United States, Australia and Canada. Judicial authorisation would help us, because it would encourage co-operation from US technology firms.

On a practical note, a two-stage process—whereby the issue goes to a Minister first and then to a judicial commissioner—risks delay. There is a huge volume of surveillance warrants, and it looks like there will be an awful lot more as a result of this Bill. It is unsuitable for a small number of Cabinet Ministers to deal with them.

I want to deal with another false premise that is often used to justify ministerial involvement in the issuance of warrants. Some people seek to argue that Ministers are democratically or politically accountable to this House on the issue of surveillance warrants, but that is a misconceived argument. Ministers are not really democratically accountable for their role in issuing warrants, because, first, the disclosure of the existence of a warrant has been criminalised and it will remain as such under the Bill. Secondly, all of us know—even those such as me who have been in this House for only nine months—that requests for information concerning such matters in this House are routinely parried with claims about national security. I do not accept that Ministers are practically, politically or democratically accountable to this House on the issuance of warrants. To return to the jurisprudence of the Strasbourg Courts, they have made it very clear that it is important to have effective supervision by an independent judiciary. We query whether the double lock mechanism meets that test.

We agree with many others that the case for collecting internet connection records, including the claimed benefit for law enforcement, is flawed. That is not just my say-so: there are many concerns across the industry. People who understand the technicalities far better than I do have explained the problem to me. I again associate myself with what the shadow Home Secretary said: the internet is not like the telephone system. An internet connection record cannot be compared to a telephone bill. The phone system consists of a set of records relating to when A calls B. If we collect phone system records, we will see at what time A called B and the duration of the call. As I understand it, the internet is more like a mailbox that collects packets of information and then takes them from A to B.

To take a rather middle-aged example, if somebody uses the Facebook messenger service, all the internet connection record will show is that he or she has connected to Facebook messenger. It will not show with whom he or she then communicated, because that occurs at a higher or lower level or in another unreachable packet. The internet connection record will not show the when, where and who that the Government say they want, and which they already get from phone records.

What the internet connection records will show is a detailed record of all of the internet connections of every person in the United Kingdom. There would be a 12-month log of websites visited, communication software used, system updates downloaded, desktop widgets, every mobile app used and logs of any other devices connected to the internet. I am advised that that includes baby monitors, games consoles, digital cameras and e-book readers. That is fantastically intrusive. As has been said, many public authorities will have access to these internet connection records, including Her Majesty’s Revenue and Customs, and the Department for Work and Pensions, and it will be access without a warrant. Do we really want to go that far? There is no other “Five Eyes” country that has gone as far. David Anderson QC said:

“Such obligations were not considered politically conceivable by my interlocutors in Germany, Canada or the US”

and therefore, he said, “a high degree of caution” should be in order.

Finally, let me turn to bulk powers. I have already made the point that even the Interception of Communications Commissioner’s Office says that bulk provides at the outset generalised initial intercept. We became aware of these bulk interception programmes only when they were disclosed by Edward Snowden in June 2013—whatever Members think about those disclosures and whether they were appropriate, that is how we became aware of the matter. This House has never before debated or voted on bulk powers, so we are being asked to do something very novel and very challenging, and we must do it properly.

The power to conduct mass interception has been inferred from the vaguely worded power in section 8(4) of RIPA, which illustrates the danger of vaguely worded legislation. Targeting bulk warrants at a telecommunications system or at entire populations rather than at specific individuals is a radical departure from both the common law and human rights law, yet that is the approach that will be maintained in this Bill. In many respects, that is the most worrying part of the Bill. Indeed, it is the part of the Bill about which the UN special rapporteur on privacy is most concerned. Let me read what he said, because it is very respectful of the tradition of the United Kingdom and it makes some very good points. He said:

“It would appear that the serious and possibly unintended consequences of legitimising bulk interception and bulk hacking are not being fully appreciated by the UK Government. Bearing in mind the huge influence that UK legislation still has in over 25% of the UN’s member states that still form part of the Commonwealth, as well as its proud tradition as a democracy which was one of the founders of leading regional human rights bodies such as the Council of Europe, the SRP encourages the UK Government to take this golden opportunity to set a good example and step back from taking disproportionate measures which may have negative ramifications far beyond the shores of the UK. More specifically, the SRP invites the UK Government to show greater commitment to protecting the fundamental right to privacy of its own citizens and those of others and also to desist from setting a bad example to other states by continuing to propose measures, especially bulk interception and bulk hacking, which prima facie fail the standards of several UK parliamentary Committees, run counter to the most recent judgements of the European Court of Justice and the European Court of Human Rights, and undermine the spirit of the very right to privacy.”

The rapporteur is appealing to the better tradition in this country, and saying that we should look at this Bill very carefully. He is suggesting not that we should throw it out, but that we scrutinise it very carefully, bearing in mind how far it intends to go in comparison with other countries and with existing international case law.

[Andy Burnham]

The hon. and learned Lady has made a very good speech this afternoon. Government Members should be working a little harder to reach out and build consensus. Before she finishes, may I invite her to say whether she will be supporting our call in Committee and on Report to make internet connection records accessible only through a warrant based on serious crime, not any crime, to give protection, and also for a clear definition of national security?

[Joanna Cherry]

Those are both issues on which we will work with the Labour party. I have already indicated that we intend to attempt to amend the Bill extensively in Committee. We are very concerned about internet connection records. We query whether their retention is necessary or appropriate at all, but we will look seriously at proposals put forward by other parties and will work with them.

The SNP is in favour of targeted surveillance. We welcome the double lock on judicial authorisation as an improvement, but it does not go far enough. Our concern is, quite clearly, that many of the powers sought in this Bill are of dubious legality and go further than other western democracies without sufficient justification. It is for that reason that we cannot give this Bill, in its current form, our full support. We will work with others to attempt to amend it extensively. Today, we shall abstain, but if the Bill is not amended to our satisfaction, we reserve the right to vote it down at a later stage.

--- Later in debate ---

[Rebecca Harris (Castle Point) (Con)]

I am delighted that we are finally bringing forward this long-overdue Bill. Cases such as Apple’s dispute with the FBI underline how modern criminals can hide behind modern technology. Criminals and terrorists are international and depend on international networks and systems. I could recite a list of the hideous terrorist atrocities that have happened throughout the world over the past year, but only today we heard of the tragic death of Adrian Ismay, the prison officer who was attacked in Belfast 10 days ago. Since the debate began, the news has been reporting armed raids in Brussels relating to last year’s Paris attacks, so we are doing current and vital work today. Such criminal acts do not simply happen and are rarely the work of individuals; they are highly organised events planned by groups, and we need to be able to uncover those networks.

The Bill is about not only terrorist activity, but all kinds of crime, such as serious and organised crime, child abduction, people smuggling and, most horrible of all, child pornography, which, horrendously, is the fastest-growing form of online business. One can now even arrange child abuse to order online. I have seen at first hand the work of the police who are trying to tackle online child pornography and it is tough, horrible, but necessary work. We must not allow their hands to be tied as a result of some wrong-headed, neurotic anxiety about data retention.

The UK is lucky to be protected by the finest, most-principled security services in the world. Their job is to conduct themselves in private to protect all the freedoms that we take for granted most of the time, yet enormous public damage was done when a previous attempt to update investigatory powers legislation was dubbed the snoopers charter. It was a gross distortion of the legislation’s aims to imply that the British Government were somehow trying to spy on their own citizens. It was just straightforward political scaremongering.

[Joanna Cherry]

Will the hon. Lady acknowledge that Opposition Members have been careful today not to use “snoopers charter” and have tried to be measured in their important criticisms?

[Rebecca Harris]

I absolutely appreciate that. I was not pointing my finger at any political party in particular, but some campaign groups outside the House may have used the term.

Many constituents, perfectly ordinary, good, law-abiding people, have written to me in the genuine, albeit absurd, belief that there is—or will be—some vast room full of security personnel trawling through their Facebook profiles and the pictures of their grandchildren and their cats. As legislators, we cannot just reassure people that we would need a security service the size of the population of China to do that and simply cannot afford it, even if we had the inclination, so I am glad that the Bill clearly sets out the four key purposes that data retention and investigatory powers cover. I hope that that will reassure those who have been worried and frightened. I also appreciate the benefits of the double lock, the extra judicial oversight of which will also reassure the public, although I would like to be reassured myself that that oversight will not hamper the investigative abilities of our security services and police. There are many wonderful hon. and learned Members here today but, as I sometimes hear, lawyers can often have very different views on tiny subjects when the straightforward common sense of my constituents would know exactly when we needed to regulate on something. I wish to be reassured that we are confident that we will not over-burden the process of warrantry, to the extent that security services personnel may feel that perhaps it is a little too much effort to go down that route, given that time may be of the essence and they will need to act with speed.

We all know that we are targets for international terrorists, and that the things they hate and target us for are our freedoms, democracy and liberty. We must therefore make it clear that this Bill ensures we protect those freedoms and is in no way any form of attack on them.

[Alex Chalk (Cheltenham) (Con)]

Striking the right balance between liberty and security is one of the most difficult judgments we have to make as a society. Anyone who has prosecuted and defended in our criminal courts—I see several here—well understands the tension that exists between the need to protect the public from harm and preserving our precious individual freedoms. This is therefore an immensely difficult issue, and if we get it wrong, the consequences are indeed serious. But the fact that we are able to approach this Bill in a calm atmosphere, and not against a backdrop of the panic and emotion of a recent outrage, is in no small part due to the constituents of mine working at GCHQ. Their quiet, brilliant work saves lives. They avoid the limelight and do not seek our thanks, but we owe them a profound debt of gratitude.

It would be a great mistake for calmness to give way to complacency, as serious plots are thwarted with alarming regularity. Before I came to this place, I was part of the team that prosecuted five young British jihadis who had travelled from Birmingham to Dewsbury intending to detonate an improvised explosive device filled with nails at a public rally. Had the plot succeeded, the potential for carnage would have been horrifying, and I have no doubt that we would be experiencing the repercussions today.

In my experience, the people in the intelligence agencies I have met, both as a barrister prosecuting terrorism offences and since my election, are scrupulous about remaining within the law. That means we have a covenant with them. We must provide them with a piece of legislation that gives them the tools to keep us safe, but we also owe it to them to create a framework containing the safeguards needed to command public confidence—nothing less than that will do. I believe that this Bill gets that balance broadly right and it deserves a Second Reading. That judgment has been possible because the Government have listened carefully and responded in appropriate detail to the legitimate concerns raised by the Joint Committee on the Draft Investigatory Powers Bill, the Intelligence and Security Committee and the Science and Technology Committee. However, valid points have been raised today, for example on whether we ought further to limit the pool of agencies to which ICRs can be available, and on the threshold for the type and seriousness of criminality that ought to trigger their use. Those legitimate points have been properly raised, but they can be raised in Committee.

I do not have the time to examine more than a fraction of what this Bill contains, but I wish to say a few words about bulk powers. The bulk data powers in the Bill are not new. The law today has long allowed the security and intelligence agencies to acquire bulk data under RIPA and so on. Those powers underpin a significant proportion of what our security services already do.

[Joanna Cherry]

Does the hon. Gentleman accept that at the time the Act he has just mentioned was passed, bulk powers were not in people’s contemplation? Therefore, although that Act may have been retrospectively interpreted to cover bulk powers, they have never before been debated or voted on by this House.

[Alex Chalk]

The hon. and learned Lady is absolutely right about that, but what is important about this Bill is that it shines a light on precisely those powers: it clarifies and consolidates them; it unifies them into a single document; and, crucially, it strengthens the safeguards that govern the security and intelligence agencies’ use of them. That is precisely why this legislation is so important. Crucially, in future, warrants for bulk powers will need to be authorised by a Secretary of State and approved by a judicial commissioner, which means we can be satisfied that those powers will be issued only where it is both necessary and proportionate to do so. Each warrant must be clearly justified and balance intrusions into privacy against the expected intelligence benefits.

There is so much to say, but time is limited. The upshot is that this Bill is not the finished article, but it forms the basis of a strong piece of law. I believe it can have as positive an impact as the Police and Criminal Evidence Act 1984, by updating and clarifying the law for those having to apply the relevant powers, while strengthening safeguards for those who are subject to them. If we get the detail right, I believe this Bill has the potential to become world-leading legislation. We should give this Bill a Second Reading.

Oral Answers to Questions

Joanna Cherry Excerpts

Monday 22nd February 2016 Commons Chamber

[James Brokenshire]

No, I do not accept that, and these issues of the welfare of the child are absolutely part of our consideration. This matter was considered by the Court of Appeal and our approach was firmly upheld. When the threshold was set in November 2011, the MAC gave the lower threshold of £18,600 but also advised that the threshold could have been set as high as £25,700. The Government reflected and set the current level, which has been upheld by the courts.

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

The Minister mentions the Court of Appeal, but of course the matter is not entirely settled because this week the Supreme Court will hear the cases of two British nationals who cannot meet the tough financial rules that would allow their non-European Union spouses to come to live with them. The hon. Member for Hampstead and Kilburn (Tulip Siddiq) mentioned Skype. According to the Children’s Commissioner for England, 15,000 British children are growing up in Skype families, where the only contact they have with one parent is via Skype. How can the Minister justify the stress and anxiety caused to these children by the inflexible and unjust rules?

[James Brokenshire]

I do not accept the characterisation that the hon. and learned Lady presents—indeed, I do not recognise the number she proffers. This is about ensuring good integration, which is part of the overall requirement in relation to language. This is about not only not imposing a burden on the taxpayer but about promoting integration, and we believe the policy is effective in doing that.

[Joanna Cherry]

Last year, the Conservative think-tank, Bright Blue, called on the Government to change these rules, noting

“the significant contribution millions of low paid Britons make to our economy and society, as well as the value of having families living together in the same country.”

If the Minister will not listen to the Opposition, will he at least listen to a think-tank from his own party and get rid of these rules, which discriminate against hard-working families?

[James Brokenshire]

I say again that we do not believe the rules are discriminatory in the way the hon. and learned Lady suggests. The system is in place to ensure good integration. It ensures that people are not a burden on the taxpayer, and I would have thought she recognised that as being a positive aspect of the policy. If people come here, contribute and settle, we welcome that, but the rules have been set in the way they have, this has been upheld by the courts and we will continue to underline those key themes.

Migration into the EU

Joanna Cherry Excerpts

Wednesday 10th February 2016 Westminster Hall

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

It is a pleasure to serve under your chairpersonship, Mr Rosindell.

Contrary to what the hon. Member for Gravesham (Mr Holloway) has just said, we are facing a refugee crisis in Europe, not a crisis involving economic migrants. I will particularly address the plight of women and child refugees. The First Minister of Scotland has said that we should be in no doubt that what we are witnessing is a humanitarian crisis on a scale not seen in Europe since the second world war. Most of the people travelling through Turkey, Greece and the Balkans to try to get to western Europe are doing so because they are desperate. The images of their suffering will continue to haunt our consciences and the reputation of this union of nations for many generations to come if we do not do more collectively to help them.

The hon. Gentleman spoke about public opinion. In so far as I can judge public opinion in my constituency of Edinburgh South West, the vast majority of emails that I have received—many hundreds have come in batches and waves since September—have been asking this Parliament to encourage the Government to do more for the refugees in Europe, as opposed to doing nothing or less.

I recognise that the UK Government are making a substantial contribution to humanitarian initiatives on the ground in some of the countries that refugees are coming from, and I recognise the significant financial contributions that have been made to aid. I also recognise the United Kingdom’s commitment to take 20,000 vulnerable refugees over the next five years, but I regret to say that I do not believe those initiatives are enough. We, as a union of nations, are required to do more, and we are required to encourage the European Union to have a better co-ordinated response. We also need greater international effort through the United Nations.

I often hear what the hon. Gentleman said about the moral argument—that if we encourage people to come, we are simply throwing them into the arms of people smugglers and encouraging them to take their life in their hands. If one looks at the situation in the round, these refugees have not been met with a particularly welcoming attitude in Europe—certainly our union of nations has not been welcoming to them—yet they are continuing to come, so I feel that that moral argument falls down somewhat.

The majority of these people are refugees, not economic migrants. They are, of course, seeking a better life, but their main reason for doing that and leaving their countries is that those countries have been destroyed or deeply compromised by conflict. It is particularly inappropriate for the United Kingdom to wash its hands of taking any of the people who are now in Europe given that we have joined in with those conflicts. Whatever the rights and wrongs of that, and there were respectable arguments on both sides, as a Parliament we took the view that we would join those conflicts and interfere in other countries’ civil wars by dropping bombs, which is all the more reason for not washing our hands of responsibility for some of the refugees who are coming to Europe.

I strongly believe that the United Kingdom should take a fair and proportionate share of the refugees who are now in Europe. How we go about doing that, and how we address the situation, is complex, but it is fundamentally morally wrong—I use the word “morally” advisedly on Ash Wednesday—for us to say that we will do nothing for these people who are so desperate. I recognise that we are helping them in their own countries and on the ground, but people are coming to Europe in droves. We see their suffering on the news every night, and it is wrong for a relatively wealthy union of nations such as ours to do nothing about it.

[Mr Holloway]

I see where the hon. and learned Lady is coming from, and I appreciate the great good will that she shows to all these people, but in law they are not refugees. Someone is a refugee until they find refuge in a safe country, and at that point, although apparently they can later be designated as a refugee, they are an economic migrant.

My other point is that just because someone comes from, say, Afghanistan, it does not necessarily mean that they are fleeing violence. I met a guy from Afghanistan the other day in the “jungle” camp in Calais who comes from a part of the country where there is no fighting. We need to wise up.

[Joanna Cherry]

As the hon. Gentleman probably knows, I am a lawyer, but in this situation the niceties of whether these people are refugees in law matters not. We did not bother ourselves unduly in the United Kingdom about the legal position of the Jewish children when we took them in on the Kindertransport, or about the legal position of the Ugandan refugees. Even the former Prime Minister, Margaret Thatcher, was persuaded to take some of the Vietnamese boat people. So this is not a debate about legalities; it is a debate about the correct humanitarian response, the responsibility of the world’s relatively wealthy nations to take responsibility for people who are suffering greatly and our particular responsibility to do that when we have chosen to become involved in the conflicts that are creating refugees. I hasten to add that I make no comment about the rights or wrongs of that, but we are involved now, so we have to recognise the implications of our involvement.

[Mr Holloway]

I am sure that the hon. and learned Lady’s constituents would like to know what percentage of the populations of Syria, Afghanistan, Iraq and Libya she thinks should come to live in this country if they want to do so.

[Joanna Cherry]

The position of the Scottish Government has been clear. We will take a fair share of a proportionate number coming to the United Kingdom. Indeed, some Syrian asylum seekers and vulnerable refugees have already been resettled in my constituency of Edinburgh South West.

[Mr Holloway]

How many?

[Joanna Cherry]

I am not at liberty to reveal the precise figure. It is not a large number, because the United Kingdom Government do not permit us to take a large number, and it is a reserved matter, so our hands are tied. Our First Minister has made it clear that we are willing to take a fair and proportionate share. How that is done has to be decided at a higher level even than the UK, which is why European Union co-operation is so important.

I want to say something about the plight of women and child refugees, because earlier this month, about a week or so ago, UNICEF reported that for the first time since the refugee and migrant crisis in Europe started, there are more women and children on the move than adult males, and that children and women now make up nearly 60% of the refugees and migrants crossing the border from Greece to the former Yugoslav Republic of Macedonia. Children now account for 36%—that is more than a third—of those risking the treacherous sea crossing between Turkey and Greece. The figure of 330 having drowned in the past five months has often been mentioned on the Floor of the House. UNICEF has emphasised that children should be prioritised at every stop of the way. Particularly when they get to Europe, they need to be informed of their right to claim asylum and their right to family reunification.

It is important not to forget the terrible conditions from which many women and children are fleeing. It has been well documented that women in Iraq and Syria are the targets of brutal oppression and sexual attacks perpetrated by Daesh. Rape is considered useful by Daesh as it traumatises individuals and undermines their sense of autonomy, control and safety. Rape is always an issue in war, but it is a particular issue in these wars. The former UN assistant commissioner for the protection of refugees said last year that

“Syria is increasingly marked by rape and sexual violence employed as a weapon of war…destroying identity, dignity and the social fabrics of families and communities”.

Female and child survivors of such sexual crimes are often shunned by their own communities, which is all the more reason why they come to Europe seeking refuge. When those people come, it is essential that they are treated with dignity and respect and that their particular vulnerabilities are recognised.

Save the Children has called on the UK to take 3,000 of the unaccompanied child refugees in Europe, and there is a moral imperative for us to consider that carefully—I am aware that the Government are considering it at present. I appeal for recognition of the reality of the desperateness of the situation and of the vulnerability of so many of these refugees, particularly female and child refugees. There should be recognition of the reality of sexual violence perpetrated as a weapon of war, which many women and children are fleeing, and of our moral obligation as a wealthy first-world nation to take our fair share of the burden.

[Jonathan Lord]

I am grateful to the hon. and learned Lady for giving way. She is making an eloquent speech, but there is something that I do not quite understand. The thesis of my hon. Friend the Member for Gravesham (Mr Holloway) is that while hundreds of thousands have already come to Europe, if we offer a home to millions there will be an almost inexhaustible supply of further people who will then want to come, and that is surely unsustainable. I do not understand how she is really addressing my hon. Friend’s main thesis.

[Joanna Cherry]

I do not accept the main thesis of the hon. Member for Gravesham, which is why—

[Jonathan Lord]

In what way?

[Joanna Cherry]

I am coming at this from a different angle. These are not straightforward matters, but my point is that we cannot wash our hands of these people. It is not right for the United Kingdom to say that we will take nobody from Europe. We need to get together with our European partners and talk about how to address the complex issues that arise as a result of this massive refugee crisis—or massive migration, depending on the language that people wish to use. It is really tragic that the United Kingdom is abdicating its responsibility to lead at such talks and discussions when we look back at the United Kingdom’s proud history of taking in refugees at other times when countries washed their hands of them—I am thinking of the Kindertransport in particular.

I would be foolish to deny that there is a potential issue in considering how many people may come and the sustainability of that process, but at the moment there is space for the people who are here. There are some estimates that there are 20,000 unaccompanied children in Europe at the moment. Is it really this country’s position that we will not take any of them? We seem to be moving in the right direction on that issue, but it should not stop at unaccompanied children. Sure, there are strong young men who manage to make it as far as Calais, but there are also very vulnerable people. The point of my speech today is an appeal for a humanitarian response to the crisis rather than a purely utilitarian response.

[Mrs Anne Main (St Albans) (Con)]

Thank you, Mr Rosindell, for calling me to speak. It is a pleasure to serve under your chairmanship today.

This debate should focus on immigration and not necessarily on refugee status, because we are talking about people who wish to make a home in our country and not necessarily those who are fleeing persecution. I will therefore confine my remarks more to immigration than to refugees. I say to the hon. and learned Member for Edinburgh South West (Joanna Cherry) that I would not base my views simply on what turns up in my postbag. Many surveys carried out regularly by reputable companies have shown that migration and population control is an important concern of the British public.

[Joanna Cherry]

Will the hon. Lady give way?

[Mrs Main]

No, I will not. The hon. and learned Lady had 10 minutes, and there are many people wishing to speak.

We should be talking about immigration, which includes some people with refugee status but also a large number of people who come to this country either because of our membership of the EU or because they are coming here as economic migrants. My hon. Friend the Member for Gravesham (Mr Holloway) made a powerful and well informed set of comments, based on having been in the camps, not just on people writing to him in his postbag.

If this issue was not such a concern to the British public, I do not believe that even now our Prime Minister would be trying to thrash out some deal that allays the fears of the British public about our loss of control over immigration into this country as a result of our membership of the EU.

It is telling that Mr Manuel Barroso said last night in an interview that what we are trying to achieve is a form of control on immigration through benefits packages, and that his view is that that will make no difference whatsoever. I share that view, because I do not believe that people necessarily come here because they have been lured by benefits. I believe that many people come here because they wish to work. They wish to take advantage of the opportunities that this country offers and of a better economic future for themselves and their family, and there is better healthcare here, and indeed better package as a whole. Whether we can afford for a large number of people to come into this country—a number that the British public would like to see reduced—is a different debate, but I do not believe that the benefits package that my right hon. Friend the Prime Minister might achieve by 18 February, however well secured, will make a jot of difference to immigration. Indeed, when my right hon. Friend the Minister for Immigration responds to this debate, I would like to hear whether he thinks such a package will make a jot of difference.

It is interesting that England—not the UK—is the second most crowded country in the European Union, if we exclude the island state of Malta, and the ninth most crowded country in the world when the city and island states are excluded. That contributes to the British public’s perception of whether, and how much, immigration into the UK is a good or bad thing.

I speak as someone with a highly desirable constituency that is surrounded by green-belt land, although it does have areas of multiple deprivation. I can assure the hon. and learned Member for Edinburgh South West that how many houses are built to accommodate newly formed households is a source of concern, and we should look it straight in the face. These are not separate issues, they are all interlinked.

Government household projections show that in England—not Scotland, obviously—we will need to build enough housing to accommodate the additional 273,000 households a year between 2012 and 2037, which is a total of five million homes. That is a vast number of houses and it means sacrifices of things such as the green belt, which many of us have to consider as constituency MPs. It also means that there are huge pressures on jobs in certain areas, and it is no good whingeing about jobs not being available to British workers. I seem to remember Her Majesty’s Opposition saying, “British jobs for British workers”, and the reason they say such things is that they know the British public are concerned about these things.

Currently, there are 2.1—