Investigatory Powers Bill (Eighth sitting)

John Hayes Excerpts

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

[The Chair]

This will be a long session: five hours. If anyone is worried about comfort breaks, I do not have the constitution of Mr Speaker, so I will call one at around 4 o’clock or 4.15 pm. We are then expecting a vote on a programme motion at around 6 o’clock. That will, I hope, break it up nicely.

[The Minister for Security (Mr John Hayes)]

On a point of order, Madam Chairman. I mentioned at the outset this morning that I had written to you and intended to make copies of that correspondence available to Committee members. In the course of the proceedings, I heard the Solicitor General report that I had also written to journalists. Hard copies of all that correspondence are available at the front of the room for collection by members, and I understand that it has also been sent to members by email.

[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

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[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.

[Mr Hayes]

The hon. and learned Gentleman, with his typical diligence—which is at least matched, by the way, by those on the Treasury Bench—has identified, quite properly, both the reasons for this clause and the character of the transfer of arrangements that it details. He accurately identified subsection (3), which emphasises that:

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

The transfer of arrangements will change neither the Secretary of State’s responsibility nor the process for authorising requests for data. It is about the technical running of the filtering capability. It is there to require flexibility; it might be appropriate at some future point for another authority to exercise the filtering function, but without responsibility moving from the Secretary of State. The Secretary of State will retain responsibility, but the operational running of the filter might change over time. This is essentially about future proofing.

[Keir Starmer]

I am grateful to the Minister. I am not being pernickety; I just want to be clear. Subsection (3) appears to apply only to regulations under subsection (2), which I think is about changing the powers of public authorities lest they should not have the power to carry out functions on behalf of the Secretary of State. In other words, when the Secretary of State is modifying the powers available to a public authority, that comes within subsection (3). On reflection, I wonder whether sub-clause 3 should say “regulations under subsections (1) and (2) do not affect the Secretary of State’s responsibility”, because I think that is the thrust of what the Minister said.

[Mr Hayes]

That is not an unreasonable point, actually. Someone who read the Bill could certainly come to the same conclusion as the hon. and learned Gentleman. I will look at that from a drafting perspective, because it is important that we are clear. First, in all these matters, filtering arrangements take effect only as the result of a lawful process; the process for permission will not change. Secondly, that permission rests with the Secretary of State; I do not want there to be any ambiguity—as the hon. and learned Gentleman suggests there might be—about which parts of this clause that affects. On re-reading the clause, I can see what he means, so I am happy to take it away and check whether the drafting needs to be amended in the way that he describes. In that spirit, and with that immensely generous offer, I hope we can move on.

[Keir Starmer]

I am grateful.

Question put and agreed to.

Clause 74 accordingly ordered to stand part of the Bill.

Schedule 5 agreed to.

Clause 75 ordered to stand part of the Bill.

Clause 76

Extra-territorial application of Part 3

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[Keir Starmer]

I am grateful to the hon. and learned Lady for her intervention. I am not pressing amendments 150 and 151. They have been put forward to draw attention to concerns. The hon. and learned Lady made submissions last week about service in relation to civil proceedings under the White Book, which I noted and could see the sense of. I do not want to push amendment 150 and accept that “unfeasible” and “inappropriate” may not be the best way to articulate the point.

What underlies both amendments is a genuine concern on the part of those who, when the Bill receives Royal Assent, will be called on to assist in relation to warrants and who want clarity on how the procedure is to operate, what they are to do and what the safeguards are, in particular when they find themselves, as we mentioned last week, required under penalty of criminal proceedings in this country to do something that constitutes an offence in the country in which they are operating. That is a very real concern for them.

[Mr Hayes]

I shall deal as pithily as is possible with the points the hon. and learned Gentleman made. The first was his helpful contribution in the form of this schematic, to which I will not respond now. He would not expect me to as I have only just seen it. It might form part of my next letter to the Committee to explain why in different parts of the Bill these matters are handled in different ways. In doing so, I will implicitly consider his point about whether that is healthy eclecticism or unhappy inconsistency.

Secondly, it is important to point out that clause 76 essentially maintains provisions on extraterritoriality as they are now, replicating the arrangements under RIPA, clarified by the Data Retention and Investigatory Powers Act 2014. The hon. and learned Gentleman is right, but there is nothing new here.

Thirdly, there is a need to retain flexibility about where the notices are served. I take the hon. and learned Gentleman’s point that companies may take a view on these things, and sometimes those might be overlapping or conflicting views about different aspects of the Bill, but in those terms it is important to maintain a degree of flexibility about the communications data notice and where it can be delivered.

Fourthly, on the hon. and learned Gentleman’s point about coming more speedily to an agreement that is more satisfactory than either current arrangements or those that might be delivered through a mutual legal assistance treaty, I can offer the Committee the assurance, as I have previously, that that work is under way. We are hopeful—indeed, confident—that we can achieve the sort of outcome that he has described. He referred, as I did, to the comments of David Anderson, which were critical of the mutual legal assistance treaty process on the grounds that it is slow. It is not always the best way of achieving the objective set out in the Bill, because it is not designed for that purpose but an entirely different one.

Finally, I would say that this is really important. Although the hon. and learned Gentleman is right that this is a particular part of a particular part of the Bill and so could be overlooked, it is important to understand that, in terms of the objectives we seek to achieve—that is, those of us who want the Bill to work well, which I think applies to the whole Committee—these powers are significant. Much of what happens is now happening overseas and much of the process by which we deal with overseas organisations is vital to the work of our security services and others. Dealing with extraterritorial matters is significant, but not straightforward. It is dynamic, for the reasons that we have both offered to the Committee. In that respect, I believe we have got the Bill about where it wants to be. I do not say that these things will not evolve over time, but for the purposes we have set out, the clause works.

As with all these things, I start from the perspective of wanting to be both convivial and conciliatory; both helpful and positive. I never ignore arguments put in these Committees or on the Floor of the House, as people know who know how I operate. The House has an important function in making government as good as it can be, and that is partly about the interaction and tension between Government and Opposition. Of course I am always prepared to listen, but I think we have got this right. With the appropriate humility, I suggest that we move on.

[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.

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[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.

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[Keir Starmer]

It is a joke, Ms Dorries. We now come to a very important clause. In some respects, over the last part of Thursday and today we have been working backwards through the way in which the functions will be exercised, because clause 78 is the starting point in relation to communications data. It relates to the power to require retention of data in the first place, and everything we have discussed has been about how those data can be filtered and accessed after they have been retained. It is a very important clause.

I draw attention to the breadth of the clause, which states:

“The Secretary of State may by notice…require a telecommunications operator to retain relevant communications data if the Secretary of State considers that the requirement is necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (j) of section 53(7)”.

The first thing that crops up in relation to the clause is what the test for retention is. The test is, of course, necessity and proportionality but the real question is: what does that necessity and proportionality bite on? That pushes us straight back to clause 53(7), which is problematic because it sets such a low threshold for these extensive retention powers.

There should be no doubt that this provision gives the Secretary of State the power to require the retention of a huge amount of data. There may be circumstances in which that is necessary and proportionate, but the test for whether that power is exercised is pushed all the way back to clause 53(7). To take an example that we touched on last week, extensive data can be retained

“for the purpose of preventing or detecting crime”—

any crime. Any crime of any level can trigger a power to retain data. The importance of the issue of retention over that of access is that at this stage it is about retaining the data of those who are not necessarily suspects or targets but anybody whose data come within the types that are intended to be retained. It is a very wide provision.

Sign-off is by the Secretary of State, so there is no double lock and no reference to a judicial commissioner here. The Secretary of State operates the powers, which are very wide. Clause 78(2) states that

“a retention notice may…relate to a particular operator”;

it may

“require the retention of all data or any”;

it may

“identify…periods for which data is to be retained”;

it may “contain…restrictions” and

“make different provision for different purposes,”;

and it may “relate to data” that are not even in existence at the time. These are very wide-ranging powers triggered by the test set out in clause 53(7), and that is a cause of significant concern. The retention period is 12 months, so this is an extensive hoovering-up exercise.

It is clear that the clause applies to internet connection records, because that is stated in subsection (9). We touched on internet connection records last week in relation to when internet connection records are to be accessed. Now, I touch on it for a different purpose: to highlight how all our internet connection records can be swept up in a data retention notice issued under this provision.

For that purpose, one obviously starts with the definition of internet connection record in clause 54(6)(a) and (b), which we looked at last week. I will not read it out again but just give some examples of what is intended to be included. I will do so in chronological order. The operational case for the retention of internet connection records was published in August last year. Page 3 made it clear that internet connection records are:

“a record of the internet services that a specific device connects to—such as a website or instant messaging application—captured by the company providing access to the internet”.

So that is within the scope of an internet connection record, as set out in the operational case of August 2015. An annexe setting out terminology and definitions was put in evidence before the Joint Committee in January this year, which made it clear that not only web and IP addresses are included, but names and addresses, email addresses, phone numbers, billing data, customers, users, and so on. In the explanatory notes to the Bill, paragraph 2.30, on clause 78(9) makes it clear that,

“communications data that can be retained includes internet connection records. Internet connection records, which are defined in clause 54(6), are a record of the internet services that a specific device connects to—such as a website”

That is therefore consistent with the operational case.

What is swept up under clause 78 are internet connection records, which means connections to the internet and websites to which any device has connected. When anyone uses a device to connect to a website, that is recorded by the provider and comes within the definition. It therefore comes within the retention order. That is what the clause gives the Secretary of State power to retain.

It is fair to point out that clause 54(4), which deals with accessing the data that are retained, says that the access through an authorisation can be allowed only if the purpose is to identify: which person is using the internet, which internet service is being used, where the person or apparatus whose identity is already known is, and so on. It is true to say that on the point of access there is restriction of the way in which internet connection records are accessed, but we need to be absolutely clear that for the purpose of retention, it is a record of all websites visited or accessed by a device.

[Mr Hayes]

I do not doubt that my hon. and learned Friend the Solicitor General will deal with these points at some length, but is it not fair to say—the hon. and learned Gentleman is in the mood to be fair—that the two subsequent clauses both build a set of safeguards into the system and provide for a review of the system? There is further work in the Bill that caveats what might be taken to be the extremes of his argument.

[Keir Starmer]

I am grateful for that intervention, and I accept that there are safeguards in subsequent provisions. I will be corrected if I am wrong, but on the face of it at least—I am not saying they are incapable of a review—the safeguards do not restrict the definition of an internet connection record in a way that would prevent websites visited being swept up in the retention order.

[Mr Hayes]

Yes.

[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.

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[Gavin Newlands (Paisley and Renfrewshire North) (SNP)]

It is a great pleasure to rise as part of this ongoing scrutiny, and to offer my hon. and learned Friend the Member for Edinburgh South West brief respite in this Committee. It is also a great pleasure to serve under your chairmanship, Ms Dorries. It is great to follow the hon. and learned Member for Holborn and St Pancras, who in his customary fastidious and engaging manner has covered in a short space of time all the aspects of many amendments. Some of that bears repeating, and I will speak to new clause 10, which is tabled in my name and that of my hon. and learned Friend the Member for Edinburgh South West.

My hon. and learned Friend spoke at length about the important role that the judiciary, in the form of judicial commissioners, should bring to this process. We do not think it is good enough that the Bill only proposes to use judicial commissioners to review the process used by the Secretary of State in making a decision. The Government may claim that it is important that the Home Secretary retains the power to issue retention notices to internet service providers, as it will ensure that democratic accountability is a salient feature of the process, but I do not accept that to be the case. In fact, I would argue that because of the political arena that any Home Secretary operates in, it is right that this power is handed to and delegated to an independent official such as a judicial commissioner.

It is also worth noting that we know very little of the various notices that the Home Secretary issues, and as such there is no possible opportunity to hold her to account for them. Building the role of judicial commissioners into this part of the process will help to ensure that we have appropriate checks and balances when it comes to the retention of communications data. This is vitally important, because it is the proper constitutional function of the independent judiciary to act as a check on the use of intrusive and coercive powers by state bodies, and to oversee the application of law to individuals and organisations. Liberty rightly points out that judges are professionally best equipped to apply the legal tests of necessity and proportionality to ensure that any surveillance is conducted lawfully.

I turn now to new clause 7. Schedule 4 provides a lengthy list of bodies that are able to access or retain data, including several Government Departments, such as the Department for Transport, and a range of regulatory bodies, such as the Food Standards Agency and the Gambling Commission. This suggests that access to communications data may be allowed for a range of purposes which may be disproportionate and inconsistent with the guidance offered by the European Court of Human Rights.

[Mr Hayes]

I draw the hon. Gentleman’s attention to clause 79, which we are not debating at the moment but which is directly relevant to the point he made about proportionality. Clause 79(1)(a) states:

“(1) Before giving a retention notice, the Secretary of State must, among other matters, take into account—

(a) the likely benefits of the notice”.

To me, that would be a pretty strong way of enforcing proportionality. Yet the hon. Gentleman is in his peroration claiming that that would not be taken into account, or not sufficiently so.

[Gavin Newlands]

I am grateful for the Minister’s intervention. I appreciate that that is a safeguard, but we must ask whether those Departments should be getting access in the first place.

[Mr Hayes]

I do not want to be unnecessarily brutal with the hon. Gentleman, but either he is making an argument about proportionality or he is not. If he is saying that nothing is proportional, then it should not happen at all, that is hardly an argument about proportionality. Those of us who take a more measured view of these things are considering whether such collection and access to data are proportionate. Proportions by their nature require an assessment of balance, do they not? Yet the hon. Gentleman is suggesting that the scales are weighted all on one side.

[Gavin Newlands]

The Minister did not actually address why these Departments need access to these data in the first place. I appreciate the point that he is making, but these Departments should not, in my view, require access to this information.

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[Keir Starmer]

I beg to move amendment 226, in clause 84, page 66, line 15, at end insert—

“(2B) No notice shall be served under subsection (1) where the relevant telecommunications operator outside the United Kingdom.

(a) is already subject to a comparable retention requirement in the country or territory where it is established, for the provision of services, or

(b) where there is no comparable retention requirement under its domestic law, any extraterritorial requirement is limited to the making of preservation requests to the telecommunications operator.”

Committee members will understand why this amendment has been tabled. It reflects the concerns of those who will be caught by these provisions in cases where a comparable retention requirement exists in the country in which they are working. The provisions in this part of the Bill are unnecessary in relation to them. That is the amendment’s intention and purpose.

[Mr Hayes]

I think we can deal with this briefly. I entirely agree with the hon. and learned Gentleman: where it was neither necessary nor proportionate to attempt to retain data in another place, we would not do so, so that is very straightforward. All data retention notices that are given to telecommunications companies, whether here or abroad, must pass the test of necessity and proportionality. Where they did not do so, it simply would not happen, because it would not be necessary, so for that purpose the amendment is unnecessary.

The second part of the amendment would remove the ability to serve data retention notices on telecommunications operators in countries that do not have a comparable data retention regime. Of course, the fact that they do not have a comparable data retention regime does not necessarily mean that there are no data to obtain, and I think that this part of the hon. and learned Gentleman’s proposal would add rigidity where flexibility is needed. I accept that there are not always comparable systems, but that does not mean that no system of any kind prevails. Again, with the caveat of proportionality and the proven need established, I think it would be unhelpful to limit our capacity to take action as necessary in the way that he suggests. The same could be said of the third element of his proposal, which is about the preservation of data. When there are no data to preserve, this does not really apply, but when there are, we need at least the capacity, born of the flexibilities provided by the Bill, to take action as is necessary and reasonable.

[Keir Starmer]

I am grateful to the Minister. I am sure that those who have the primary concern here will take some comfort from what is said about necessity and proportionality but, in practice, where there are comparable retention requirements in the country, it will rarely, if ever, be necessary or proportionate. Obviously, that will have to be determined case by case, or authorisation by authorisation, but I note what he has said on the record. I therefore beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 84 ordered to stand part of the Bill.

Clause 85 ordered to stand part of the Bill.

Clause 86

Extra-territorial application of Part 4

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

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[Mr Hayes]

I intervene merely because I know that the hon. and learned Gentleman is as much a stickler for accuracy as I am and is perhaps even less prone to hyperbole than me. He will therefore want the Committee to consider the draft code of practice, particularly where it deals with exactly the matters to which he is referring. I will discuss this at greater length than an intervention will allow in a moment, but he will see in the draft code of practice a comprehensive list of qualifications to the breadth that he is outlining.

[Keir Starmer]

I am grateful for that intervention. I have been referring throughout to the code of practice and its role. Consistent with the in-principle argument I have been making, the Bill and the code serve different functions. I understand the argument that a code is one way not only to give more detail to the provisions in the Bill, but to future-proof it. In other words, a code allows an approach that can be changed without amending the legislation.

As a matter of principle, though, I argue that where limits are to be put on the exercise of the power, and thus important safeguards are in place, they should be in the Bill. What should be resisted is a wide and generalised power in the Bill that finds constraint and limitation only in the code of practice. The extent of these powers should be set out in the Bill. The code of practice is the place for more detailed provision—provision that may change over time—and other obvious future-proofing techniques; it is not the right place for the limitations themselves.

Moving on, consistent with the earlier clauses on warrants, subsection (5) allows conduct in addition to the interference itself in order to do what is expressly authorised or required and any conduct that facilitates or gives effect to the warrant. I now want to take a bit of time on subsection (6).

[Mr Hayes]

Given the hon. and learned Gentleman’s desire to move on, and so that he can do so with greater velocity, let me be absolutely clear that the clause would not allow warrants to be issued without the information being sought being specified.

[Keir Starmer]

I am grateful for that intervention. It is helpful to have such matters on the record so that others can follow how the clauses are intended to operate.

Returning to subsection (6), one of the welcome measures in the Bill is that clause 3(4) makes it clear that, when a communication is intercepted, interception includes the communication at

“any time when the communication is stored in or by the system”.

I know that sounds very technical, but it became a real issue in a number of cases in which the question was whether a voicemail that was accessed once it was on a voicemail machine was in the course of its transmission. If the answer to that was no, there was nothing unlawful about retrieving it, listening to it and publishing it. A lot of time and energy went into the interpretation of the relevant clause. One of the advantages of the Bill is that clause 3 spells out in no uncertain terms that communications are protected if they are intercepted in the course of transmission, including if stored either before or after transmission. That protects any communication, sent to us or anybody else, which is either listened to at the time or not, but is later stored either in a voicemail, on a computer or in any way. We all store communications all the time; it is very rare that they exist only in real time. That is a step in the right direction.

We then get to clause 88(6):

“A targeted equipment interference warrant may not, by virtue of subsection (3), authorise or require a person to engage in conduct, in relation to a communication other than a stored communication”.

It protects the communication and excludes its content from this part—I think that is the idea—but only half does the job and leaves quite a gap, in my view. We get back to the same problem. If there is equipment interference to obtain a communication, that communication would be protected from one of these warrants as long as it is in the course of its transmission. If it has arrived, it is not. If I am wrong about this I will stand corrected, but all of the good that was done by amending clause 3 will be undone by clause 88; the same ends could be achieved by using an equipment interference warrant, namely obtaining by interference a communication that is in the course of its transmission, either before or after it is sent.

[Mr Hayes]

I am grateful to the hon. and learned Gentleman for his humility in suggesting that he would stand corrected; I now stand to correct him. An equipment interference warrant would not allow interception of real-time information of the kind that he describes. He is right that to intercept that kind of information would require a different process, as we discussed earlier in our considerations. If further explanatory notes need to be made available to provide greater clarity about that I am more than happy to do so. I will talk more when I respond, before you rightly chide me for going on for too long, Ms Dorries.

[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.

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Any amendments that the SNP table to part 5 of the Bill are against the background of those concerns. It is because of them that I support the hon. and leaned Gentleman’s arguments in support of amendments 381 and 382.

[Mr Hayes]

As the shadow Minister said, part 5 of the Bill is very important. It deals with equipment interference. He is right to say that equipment interference is, by its nature, quite a radical technique—I will explain that in a few moments—but of course it is for a purpose. It fulfils a proper function and allows those missioned to keep us safe to do so by means of the exercise of that power.

Let me deal with the hon. and learned Lady first. I thought that her contribution—I say this kindly because, despite all of my instincts, I cannot help liking her—[Interruption.] Someone said “saintly instincts”. I would not go as far as to say “saintly”; I would say “wholesome instincts”. I thought that her speech exemplified the curious cocktail at the heart of Scottish nationalism: a mix of paranoia and assertiveness.

I have two things to say in response to her. First, these powers are not new; they already exist in the Intelligence Services Act 1994 and the Police Act 1997. Secondly, the exercise of those existing powers has been scrutinised. They are particularly used by GCHQ.

[The Chair]

Order. There is a Division in the House. We will suspend for 15 minutes, or 25 if there are two. Be back as quickly as you can if there are three.

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On resuming—

[Mr Hayes]

Having characterised the Scottish National party in a vivid and, in some people’s view, slightly too generous way, I will move on to the specifics of what the hon. and learned Lady said. She is right that there need to be important safeguards in respect of equipment interference. I do not think that there is any difference between us on that. She is right that GCHQ’s use of equipment interference powers—although they are more widely available, it is GCHQ that uses them particularly—are central to its purpose and of course must be lawful. She will be pleased to know that the Investigatory Powers Tribunal found them to be just that when it looked at the matter as recently as February of this year. Of course it is right, given the radical character of those powers, that we put in place all the right checks and balances. One might say that transparency and stronger safeguards are part of what the Bill is defined by.

It is important to emphasise in that context the draft codes of practice, which I drew attention to in a brief intervention on the hon. and learned Member for Holborn and St Pancras. They are clear in two respects. I draw attention first, in general terms, to part 8 of the draft code of practice on equipment interference, which deals with handling information, general safeguards and so on, and secondly to the specific areas covered in part 4.10, which lists an extensive series of requirements for the information that a targeted equipment interference warrant should contain. I will not go through them exhaustively, Ms Dorries, because that would please neither you nor other Committee members. Suffice it to say that such a warrant should contain details of the purpose and background of the application, be descriptive and clearly identify individuals where that can be done. Those requirements also necessitate an explanation of why equipment interference is regarded as essential and refer to conduct in respect of the exercise of such powers, collateral intrusion, and so on. They are pertinent to the consideration of the clause.

There is always, as I predicted there would be in this case, a debate in Committee about what is put in the Bill and what is put in the supporting material. As you will be familiar with, Ms Dorries, having been involved in all kinds of Committees over time, Oppositions usually want more in Bills and Governments usually want more flexibility. Perhaps that is the nature of the tension between government and opposition. I have no doubt that were the Labour party ever to return to Government, the roles would be reversed; we would be the ones saying, “More in the Bill,” and that Labour Government would probably be arguing for more flexibility. The truth lies somewhere between the two: of course it is important to ensure that there is sufficient in the Bill both to ensure straightforward legal interpretation and to cement the safeguards and protections for which the hon. and learned Gentleman rightly calls, but in achieving those ends one must always be careful that specificity does not metamorphose into rigidity. Where we are dealing with highly dynamic circumstances, changing technology and, therefore, changing needs on the part of the agencies and others, rigidity is a particular worry.

In the Bill as a whole, and in this part of the Bill, we have tried to provide sufficient detail to provide transparency, navigability and a degree of resilience to legal challenge while simultaneously providing the flexibility that is necessary in the changing landscape. That is why the codes of practice matter so much, particularly in respect of this clause and these amendments, and it is why the codes of practice have changed in the light of the consideration of the Joint Committee of both Houses, and others. It is also why I predict—I put it no less strongly than that—that the codes of practice will change again as a result of the commentary that we have already enjoyed in Committee and will continue to provide over the coming days.

The need for equipment interference could not be more significant, and I will explain what it comprises. Equipment interference is a set of techniques used to obtain a variety of data from equipment that includes traditional computers, computer-like devices—such as tablets, smartphones, cables, wires—and static storage devices. Interference can be carried out remotely or by physically interacting with the equipment. Although equipment interference is increasingly important for the security, intelligence and law enforcement agencies, it is not new. Law enforcement agencies have been conducting equipment interference for many years, and I described the legislative basis for that in response to the hon. and learned Member for Edinburgh South West. It is probably fair to say that equipment interference is likely to become still more important as a result of the effect that changes in technology are having on other capabilities. I do not want to overstate this, but encryption, for example, is likely to make equipment interference more significant over time.

I will amplify the clarity with which I delivered my advice to the hon. and learned Member for Holborn and St Pancras. Warrants cannot be issued without specifying what information is being sought, and on that basis it is hard to see why clause 88 should be amended. Chapter 4 of the code of practice states:

“An application for a targeted equipment interference warrant should contain… A general description of any communications, equipment data or other information that is to be (or may be) obtained”.

Together, the provisions provide the issuing authority with the information it needs to assess an application and with the power to constrain the authorised interference as it sees fit on a case-by-case basis. Amendment 382 would extend the requirement to obtain a targeted examination warrant to circumstances where the agencies need to select for examination the equipment data and non-private information of an individual who is known to be in the British islands. I tend to agree with the argument made by the hon. Member for City of Chester in an earlier sitting of the Committee that it is right that there are particular provisions for UK citizens in what we do in this Bill, rather than with the argument made by the hon. and learned Member for Edinburgh South West.

[Keir Starmer]

I just want to clarify my concern, because I think the Minister just said, “UK citizens”. I understand that the distinction is made between UK citizens and others. My concern about this provision is that, whether someone is a citizen or not, if they are physically outside of the British Isles they fall outside the protection. That has been my driving concern, or one of my driving concerns, here. There may be a good reason for this and there may be a longer explanation for it, but I was surprised to see in the Bill that the protection was not to British citizens or to some other description of people with the right of residence in this country, but in fact depends on whether someone is physically in the country or not. On my understanding, I lose the protection that is provided by this Bill in this and other provisions if I go to France for a short period of time.

[Mr Hayes]

To be fair to the hon. and learned Gentleman, the Bill refers to people within “the British Islands”, so he is right, and there are very good reasons why enhanced safeguards should apply for the content of people in the UK. As he implied, we explored these issues in an earlier part of the debate.

I will conclude, but I want to do so on the basis of clarifying this matter, too. The subsection that the hon. and learned Gentleman described earlier makes it clear that when a warrant for equipment interference is used to examine a phone, the police can look at all data on the phone, including text messages, but not in real time. I wonder whether there has been a misunderstanding or misapprehension about this issue—either a mis- understanding about the meaning or misapprehension about the purpose.

I repeat this solely for the sake of convincing the hon. and learned Gentleman and others that we are doing the right thing. These are important powers with stronger safeguards with absolute determination to be clear about legal purpose; they can only be used when necessary and can only be used lawfully. They are fundamentally not new but a confirmation of what is already vital to our national interest and to the common good.

[Keir Starmer]

I am grateful to the Minister for taking us through in some detail how the clause is intended to work with the code of practice. I reiterate my point that the essential safeguards should be in the Bill. Amendments 381 and 382 would not delete the provisions in clause 88; they would tighten the provisions in clause 88, and I intend to push both of them to a vote.

Question put, That the amendment be made.

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[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.

[Keir Starmer]

I want to be clear as to how clause 89 operates, because subsection (2) suggests it is an attempt to identify data associated with a communication that can be separated from the communication, but which, if separated, would not touch on the meaning of the communication, thereby protecting it. That is all good. That is a safeguard, which is supported and welcome, but after the comma, as I read it, disregarded from that protection is everything that follows on. At the moment, I do not follow how the amendment removes protection, because the last bit of clause 89(2)(c) after the comma disregards from the protection and thus leaves unprotected from the scheme of clause 89

“the fact of the communication or the existence of the item of information or from any data relating to that fact.”

If I am wrong about that, there is a problem with the amendment, but I understand that part of clause 89(2)(c) to detract from the protection that the subsection is otherwise intending to put in place.

[Mr Hayes]

Let me see if I can deal with that question specifically. Equipment data include identifying data. Most communications and items of information will contain information that identifies individuals, apparatus, systems and services, or events and sometimes the location of those individuals or events. Those data are operationally critical to the agencies, as the hon. and learned Gentleman understands. In most cases that information will form part of the systems data, but there will be cases where it does not.

The work that has been done to separate out and define data has been carefully designed to categorise logically the range of data generated by modern communications. Identifying data are operationally critical. It is important to be able to classify data correctly and coherently throughout the Bill. My assertion, therefore, drawing on the hon. and learned Gentleman’s question, is that the amendment would inhibit though not prevent that by making the distinction less clear.

We can talk at length if necessary, although I suspect that at this juncture it is not necessary, about inferred meaning and its importance and relevance here. Misunderstanding frequently arises on inference, but I do not think that that is critical to this particular part of our discussion. My case is that the work we have done in better categorising the difference between the kinds of data assists the application of this part of the Bill, and assists the agencies accordingly. As I said, the amendment, perversely, would afford to those bits of technical data, for example, the same protection that is deliberately granted to more sensitive data under the Bill.

I do not like to do this on every amendment, or we would drown in a sea of paper, but as I write to the Committee regularly, if it would be helpful to cement that point in my next letter, I will happily do so. I am, however, confident that what I have said to the Committee is an accurate reflection of the work that I have described and of the content of the Bill.

[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.

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[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.

[Keir Starmer]

I understand the point the Minister is making and the need for these powers to be practical and effective in real time. He says that they are not theoretical but real, and I absolutely accept that, but David Anderson is someone who will have appreciated that more than many others. He has been working in this field and dealing with those issues for many years. He is hardly likely to make the mistake of theorising about something that he knows about in great detail in the practical examination, so is he just plain wrong when he raises this concern? He has raised it not just once, but on a number of occasions, in detail, and he knows how these things work.

[Mr Hayes]

I will return to that point because it is important and fair, and I will return to the Anderson critique in a moment, but before I do so, I want to be clear about the second thing that I said I would speak about—speed.

The kind of cases that I have outlined can move rapidly. The information that becomes available from the kind of initial inquiries that I have described, when the character or names of individual actors may not be known but will become known through these techniques, may require law enforcement agencies to act very quickly to avert further serious crime. Owing to the need for speed, it is vital that those missioned to protect us are able to exercise all the powers when they need to, with confidence and lawfully. The Anderson critique is why the codes of practice limit specifically how thematic warrants can be used. I draw the Committee’s attention to page 25 of the draft code of practice, which deals with such warrants and defines again, in some detail, exactly how they should be as specific as possible, given the breadth and speed requirements that I have set out.

I hear what is said about the David Anderson criticism. I think that we have gone further in being specific in the code of practice than we might have been expected to by our critics, but, rather as I said in relation to our consideration of an earlier group of amendments on warranting, I do not want to inhibit what is currently done; I do not want the Bill to leave the agencies and law enforcement with fewer powers; I do not want to leave them emasculated as a result of our consideration. It is right that we should have safeguards, definition, constraints and, where necessary, specificity, but these powers are vital to protect us from those who want to exploit our children and do us harm. Criminals are increasingly adaptable and sophisticated, rather like terrorists. We must outmatch them at every turn and I believe that those powers are vital for us to be able to do so. So I am unapologetic about making the case for them to the Committee and to Parliament.

[Keir Starmer]

I am grateful to the Minister for setting out his case in that way. To be clear, particularly in relation to his last point, I do not think that anyone is suggesting that those powers should not be available. The discussion is about whether they are rightly described as thematic warrants or whether they are, in truth, bulk warrants, which operate in different ways and have different safeguards, procedures and processes to go through. I do not want our challenging and probing to be portrayed as somehow to undermine the work that has to be done by law enforcement and others in real time, often in difficult circumstances.

That said, this is an important issue. I have listened to what has been said and I want to preserve the position. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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[Keir Starmer]

Ms Dorries, you have been indulgent in allowing me to trespass on the territory of some of these amendments in my general remarks on the clause. That probably applies to the Minister in reply as well. In those circumstances, it is not necessary for me to say any more about this group.

[Mr Hayes]

I have little to add, except to reassure the hon. and learned Lady and the hon. and learned Gentleman that the Investigatory Powers Tribunal has looked at this issue and supported the use of targeted thematic warrants. The Bill strengthens the safeguards.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 90 ordered to stand part of the Bill.

Clause 91

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