John Hayes
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Investigatory Powers Bill
John Hayes ExcerptsMonday 6th June 2016
(8 years, 6 months ago)
Commons ChamberRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Manuscript Amendments 6 June 2016 (PDF, 16KB) - (6 Jun 2016)
The Minister for Security (Mr John Hayes)
I beg to move, That the clause be read a Second time.
Mr Speaker
With this it will be convenient to discuss the following:
Government new clause 6—Civil liability for certain unlawful interceptions.
New clause 4—Offence of unlawful use of investigatory powers—
“(1) A relevant person is guilty of an offence if—
(a) by way of conduct described in this Act, he knowingly or recklessly obtains the communications, communications data, secondary data, equipment data or personal information of an individual, and
(b) the person does not have lawful authority to make use of the investigatory power concerned.
(2) Subsection (1) does not apply to a relevant person who shows that the person acted in the reasonable belief that the person had lawful authority to obtain the information referred to in subsection (1)(a).
(3) In this section “relevant person” means a person who holds an office, rank or position with a relevant public authority (within the meaning of Part 3).
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or
(ii) to a fine, or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum, or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum, or to both;
(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.
(5) The offence in this section shall have precedence over any other relevant offences in the Data Protection Act 1998, Wireless Telegraphy Act 2006, Computer Misuse Act 1990, and the common law offence of misfeasance in public office.”
On behalf of the Intelligence and Security Committee of Parliament, to provide for a unified offence for the misuse of intrusive investigatory powers at the beginning of the Bill, in Part 1, rather than having each offence scattered throughout the Bill or in other legislation.
New clause 21—General duties in relation to privacy—
“(1) Subsection (2) applies where a public authority is deciding whether—
(a) to issue, renew or cancel a warrant under Part 2, 5, 6 or 7,
(b) to modify such a warrant,
(c) to approve a decision to issue, renew or modify such a warrant,
(d) to grant, approve or cancel an authorisation under Part 3,
(e) to give a notice in pursuance of such an authorisation or under Part 4 or section 216, 217 or 220,
(f) to vary or revoke such a notice,
(g) to approve a decision to give a notice under section 216 or 217, or
(h) to apply for or otherwise seek any issue, grant, giving, modification, variation or renewal of a kind falling within paragraph (a), (b), (d), (e) or (f).
(2) The public authority must give effect to—
(a) the requirements of the Human Rights Act 1998, and
(b) other requirements of public law.
(3) The public authority must also have regard to—
(a) whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means,
(b) the public interest in the integrity and security of telecommunication systems and postal services, and
(c) any other aspects of the public interest in the protection of privacy.
(4) The duties under subsection (3)—
(a) apply so far as they are relevant in the particular context, and
(b) are subject to the need to have regard to other considerations that are also relevant in that context.
(5) The other considerations may, in particular, include—
(a) the interests of national security or of the economic well-being of the United Kingdom,
(b) the public interest in preventing or detecting serious crime,
(c) other considerations which are relevant to—
(i) whether the conduct authorised or required by the warrant, authorisation or notice is proportionate, or
(ii) whether it is necessary to act for a purpose provided for by this Act.
(6) In this section “public authority” includes the relevant judicial authority (within the meaning of section 66) where the relevant judicial authority is deciding whether to approve under that section an authorisation under Part 3.”
This new clause sets out general duties in relation to privacy.
Amendment 14, in clause 1, page 1, line 4, at end insert—
“( ) This Act sets out the extent to which certain investigatory powers may be used to interfere with an individual’s privacy.”
On behalf of the Intelligence and Security Committee of Parliament, to place privacy at the forefront of the legislation.
Government amendments 26 to 34.
New clause 1—Notification by the Investigatory Powers Commissioner—
“(1) The Investigatory Powers Commissioner is to notify the subject or subjects of investigatory powers relating to the statutory functions identified in section 196, subsections (1), (2) and (3), including—
(a) the interception or examination of communications,
(b) the retention, accessing or examination of communications data or secondary data,
(c) equipment interference,
(d) access or examination of data retrieved from a bulk personal dataset,
(e) covert human intelligence sources,
(f) entry or interference with property.
(2) The Investigatory Powers Commissioner must only notify subjects of investigatory powers under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.
(3) The notification under subsection (1) must be sent by writing within thirty days of the completion of the relevant conduct or cancellation of the authorisation or warrant.
(4) The Investigatory Powers Commissioner must issue the notification under subsection (1) in writing, including details of—
(a) the conduct that has taken place, and
(b) the provisions under which the conduct has taken place, and
(c) any known errors that took place within the course of the conduct.
(5) The Investigatory Powers Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of an on-going serious crime or national security operation or investigation.
(6) The Investigatory Powers Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”
New clause 2—Referrals by the Intelligence and Security Committee of Parliament—
“(1) Subsection (2) applies if the Intelligence and Security Committee of Parliament refers a matter to the Investigatory Powers Commissioner.
(2) The Investigatory Powers Commissioner must inform the Intelligence and Security Committee of Parliament of the outcome of any investigation, inspection or audit arising from such a referral.”
To allow the Intelligence and Security Committee to refer matters, on behalf of Parliament, to the Commissioner and to provide a mechanism for the Committee to be informed of the outcome.
New clause 16—Investigatory Powers Commissioner: obligation to notify—
“(1) The Investigatory Powers Commissioner is to notify the subject or subjects of investigatory powers relating to the statutory functions identified in section 196, subsections (1), (2) and (3), including—
(a) the interception or examination of communications,
(b) the retention, accessing or examination of communications data or secondary data,
(a) equipment interference,
(b) access or examination of data retrieved from a bulk personal dataset.
(2) The Investigatory Powers Commissioner must only notify subjects of investigatory powers under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.
(3) The notification under subsection (1) must be sent by writing within ninety days of the completion of the relevant conduct or cancellation of the authorisation or warrant.
(4) The Investigatory Powers Commissioner must issue the notification under subsection (1) in writing, including details of the provisions under which the conduct has taken place.
(5) The Investigatory Powers Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of the on-going serious crime or national security operation or investigation.
(6) The Investigatory Powers Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”
This new Clause would ensure that individuals are informed after the event that they have been a subject of investigatory powers.
Amendment 465, in clause 194, page 149, line 7, at end insert—
“( ) There shall be a body corporate known as the Investigatory Powers Commission.
( ) The Investigatory Powers Commission shall have such powers and duties as shall be specified in this Act.”
See amendment 469.
Amendment 466, page 149, line 12, at end insert—
“(1A) The Investigatory Powers Commissioner must appoint—
(a) the Chief Inspector, and
(b) such number of Inspectors as the Investigatory Powers Commissioner considers necessary for the carrying out of the functions of the Investigatory Powers Commission.
(1B) In appointing Investigators the Investigatory Powers Commissioner shall—
(a) appoint an individual only if the Investigatory Powers Commissioner thinks that the individual—
(i) has experience or knowledge relating to a relevant matter, and
(ii) is suitable for appointment,
(b) have regard to the desirability of the Investigators together having experience and knowledge relating to the relevant matters.
(1C) For the purposes of subsection (2)(a) the relevant matters are those matters in respect of which the Investigatory Powers Commission has functions including, in particular—
(a) national security;
(b) the prevention and detection of serious crime;
(c) the protection of privacy and the integrity of personal data;
(d) the security and integrity of computer systems and networks;
(e) the law, in particular, as it relates to the matters in subsections (-)(a) – (b);
(f) human rights as defined in Section 9(2) of the Equality Act 2006.”
See amendment 469.
Amendment 295, page 149, line 19, leave out paragraph (a).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 296, page 149, line 20, leave out paragraph (b).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 297, page 149, line 21, leave out paragraph (c).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 7, page 149, line 23, at end insert—
“(3A) The term of office of a person appointed under subsection (1)(a) as Investigatory Powers Commissioner must not begin before the Intelligence and Security Committee of Parliament has consented to the proposed appointee.”
This amendment would require the appointment of the Investigatory Powers Commissioner to be agreed by the Intelligence and Security Committee of Parliament.
Amendment 298, page 149, line 28, at end insert—
“(5A) When appointing any person under subsection (1), the Prime Minister must act on the recommendation of—
(a) the Lord Chief Justice of England and Wales, in relation to Judicial Commissioners appointed from England and Wales,
(b) the Lord President of the Court of Session, in relation to Judicial Commissioners appointed from Scotland, and
(c) the Lord Chief Justice of Northern Ireland, in relation to Judicial Commissioners appointed from Northern Ireland.”
An amendment to require the Prime Minister to act on the recommendation of the Lord Chief Justice of England and Wales, the Lord President of the court of Session, or the Lord Chief Justice of Northern Ireland, when appointing Judicial Commissioners.
Amendment 146, page 149, line 35, at end insert—
“(7A) The Investigatory Powers Commissioner shall ensure that all judicial authorisation functions under this Act are carried out by different Commissioners from those who carry out the audit and inspection functions set out in this Part.”
This amendment requires the Investigatory Powers Commissioner to ensure the separation of the judicial authorisation function from the ex post audit and inspection function..
Amendment 467, page 149, line 35, at end insert—
“(7A) The Prime Minister may make an appointment under subsection (1) only following a recommendation by—
(a) The Judicial Appointments Commission;
(b) The Judicial Appointments Board of Scotland; or
(c) The Northern Ireland Judicial Appointments Commission.”
See amendment 469.
Amendment 468, page 149, line 35, at end insert—
“(7A) The Chief Inspector is an Inspector and the Chief Inspector and the other Inspector are to be known, collectively, as the Inspectors.”
See amendment 469.
Amendment 469, page 150, line 2, at end insert—
“(c) to the Investigatory Powers Commission are to be read as appropriate to refer to the body corporate, the Investigatory Powers Commission, and in so far as it will refer to the conduct of powers, duties and functions, those shall be conducted by either the Judicial Commissioners or the Inspectors as determined by this Act or by the Investigatory Powers Commissioner, consistent with the provisions of this Act.”
The purpose of these amendments is to replace the proposal to create an Investigatory Powers Commissioner with provisions to create a new Investigatory Powers Commission. They would provide that no appointment can be made except pursuant to a recommendation by the independent bodies in England and Wales, Scotland and Northern Ireland tasked with making judicial appointments in those jurisdictions.
Government amendment 35.
Amendment 8, in clause 196, page 152, line 9, at end insert—
“(4A) In keeping matters under review in accordance with this section, the Investigatory Powers Commissioner must, in particular, keep under review the operation of safeguards to protect privacy.”
On behalf of the Intelligence and Security Committee of Parliament, to make explicit that the Investigatory Powers Commissioner is required to scrutinise the underlying safeguards, procedures and processes relating to bulk powers, including the arrangements for the protection of, and control of access to, material obtained through their use.
Amendment 18, in clause 197, page 153, line 8, after “Commissioner”, insert
“or the Intelligence and Security Committee of Parliament.”
On behalf of the Intelligence and Security Committee of Parliament, to allow the Prime Minister to issue directions at the request of the ISC (in addition to the Commissioner).
Amendment 189, in clause 198, page 153, line 21, leave out
“if the Commissioner considers that—”.
See amendment 195.
Amendment 472, page 153, line 21, leave out from “aware” to end of line 24.
See amendment 477.
Amendment 190, page 153, leave out line 23.
See amendment 195.
Amendment 191, page 153, leave out line 24.
See amendment 195.
Amendment 473, page 153, line 25, leave out subsections (2) to (5) and insert—
“(2) The Investigatory Powers Commissioner may decide not to inform a person of an error in exceptional circumstances.
(1) Exceptional circumstances under subsection (1) will arise if the public interest in disclosure is outweighed by a significant prejudice to—
(a) national security, or
(b) the prevention and detection of serious crime.”
See amendment 477.
Amendment 192, page 153, line 25, leave out subsection (2).
See amendment 195.
Amendment 193, page 153, line 29, leave out subsection (3).
See amendment 195.
Amendment 194, page 153, line 32, leave out subsection (4).
See amendment 195.
Amendment 474, page 153, line 44, at end insert—
“(5A) Provide the person with such details of the submissions made by the public authority on the error and on the matters concerned pursuant to subsection (5) as are necessary to inform a complaint to the Investigatory Powers Tribunal.”
See amendment 477.
Amendment 195, page 154, line 6, leave out from “having” to end of line 9.
These amendments will remove excessive restrictions on the Investigatory Powers Commissioner to instruct and inform individuals who have been subject to surveillance and will ensure that they are always notified of that fact when unlawful errors occur.
Amendment 2, page 154, line 10, leave out subsection (7).
Amendment 476, page 154, line 16, leave out paragraph (b).
See amendment 477.
Amendment 477, page 154, line 23, leave out paragraph (b).
These amendments would amend the Bill to provide for the Commissioner to notify any relevant person of any error made pursuant to the activities in the Bill, in order to allow those individuals to consider whether a claim may lie to the Investigatory Powers Tribunal for redress. It makes provision for non-disclosure in circumstances where the public interest in disclosure would be outweighed by a significant risk of prejudice to national security or the prevention and detection of crime.
Amendment 479, in clause 199, page 154, line 28, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
See amendment 481.
Amendment 478, page 154, line 34, at end insert—
“(1A) A Judicial Commissioner may refer to the Investigatory Powers Tribunal any matter the Commissioner considers may have involved the unlawful use of investigatory powers.”
See amendment 481.
Amendment 480, page 154, line 35, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
See amendment 481.
Amendment 481, page 154, line 38, leave out subsections (3) and (4) and insert—
“(3) In any circumstances where the Commission has identified a relevant error pursuant to section 198, the Commission must give such documents, information or other material as may be relevant to the investigation of the error to the Tribunal.
(4) The duty in subsection (3) shall be exercised without request from the Tribunal.”
These amendments would remove the requirement to consult the Secretary of State and would make clear that in circumstances where a relevant error has been identified, material should be provided to the Tribunal by the Commission. It would make clear that any potentially unlawful use of the powers in this Act may be referred to the Tribunal by the Commissioners. These amendments would remove the requirement to consult the Secretary of State before giving assistance direct to other public authorities.
Amendment 482, in clause 203, page 159, line 2, at end insert—
“(1A) A disclosure pursuant to subsection (1) will not constitute a criminal offence for any purposes in this Act or in any other enactment.
(1B) In subsection (1), a disclosure for the purposes of any function of the Commissioner may be made at the initiative of the person making the disclosure and without need for request by the Investigatory Powers Commissioner.”
This amendment would make it clear that voluntary, unsolicited disclosures are protected, and that any whistle-blower is also protected from criminal prosecution.
Amendment 483, in clause 208, page 160, line 29, after “determination” insert
“or ruling or decision, including relating to a procedural matter.”
See amendment 486.
Amendment 484, page 160, line 29, leave out from “Tribunal” to the end of line 30.
See amendment 486.
Amendment 485, page 161, line 8, leave out subsection (6).
See amendment 486.
Amendment 486, page 162, line 38, at end insert—
“(6) After section 68(1) of the Regulation of Investigatory Powers Act 2000, insert—
(1A) Any hearing conducted by the Tribunal must be conducted in public, except where a special proceeding is justified in the public interest.
(1B) Any determination by the Tribunal must be made public, except where a special proceeding may be justified in the public interest.
(1C) A special proceeding will be in the public interest only where there is no alternative means to protect sensitive material from disclosure.
(1D) Material will be sensitive material for the purposes of this Section if its disclosure would seriously prejudice (a) national security or (b) the prevention and detection of crime.
(1E) Publication for the purposes of this Section will be seriously prejudicial if it would lead to a significant threat to life or of a serious physical injury to a person.
(1F) The Tribunal shall appoint a person to represent the interests of a party in any special proceedings from which the party (and any legal representative of the party) is excluded.
(1G) Such a person will be known as a Special Advocate.”
These amendments make clear that all decisions, determinations and rulings can be appealed on a point of law.
Amendment 487, page 162, line 38, at end insert—
“(6) After Section 4(5)(f) of the Human Rights Act 1998 insert—
‘(g) the Investigatory Powers Tribunal.’”
This amendment makes clear that all decisions, determinations and rulings can be appealed on a point of law.
Government amendments 36 to 43 and 48.
Mr Hayes
As you know, Mr Speaker, practice makes perfect, and we have two days to perfect all we do and say.
We open the debate on the Bill with a group of provisions that address a matter which lies at its very heart. Throughout the lengthy consideration the Bill has enjoyed in its draft form and its final form, the issue of privacy, and the balance between security and private interest, has been frequently considered and debated. The balance that lies at the heart of our considerations and the proposed legislation is critical to the acceptance we need to engender for a Bill that is in the national interest.
The word “balance” was used by the hon. Member for City of Chester (Christian Matheson) during the Committee’s scrutiny of the Bill. He talked about the balance between national interest and personal interest— in my terms, the defence of personal privacy and the underpinning of the common good. For me, communal wellbeing and individual fulfilment are inseparable, and the national interest can only be defined as the people’s interest. It is right that we should consider how that balance is reflected in the words before us. The issues of privacy and oversight are central to our considerations, and the Government are determined to ensure that the Bill reflects the concentration on those two matters.
We are clear that, in considering and passing the Bill, we must do more—more in respect of checks and balances, more in respect of safeguards and more in respect of oversight, and that is indeed what we have tried to do in the provisions we are considering. It is important to understand that privacy is at the very core of the Bill—it runs through its very fabric. The protection of private interests and the protection of the public are at the heart of all we seek to do.
In Committee, the hon. and learned Member for Holborn and St Pancras (Keir Starmer) tabled a new clause to strike a balance on this issue in sympathy with my view that privacy is woven throughout the Bill’s provisions. I have concluded that he was right to emphasise the need to make that palpably clear on the face of the legislation; to seek to reinforce the determination that I have described to protect private interest. It seemed to me that he was also right to suggest that that should be an overarching aspect of the Bill—in other words, that we should, explicitly, at the outset of this legislation, make it clear that privacy matters in the way that I have described. He therefore suggested—indeed, he has tabled an amendment today, too—that we add to the Bill just such an overarching emphasis on the defence of private interests.
By underpinning the powers and the sensitive capabilities available to our law enforcement and security services, the Bill provides—as successive Governments have, by the way—an appropriate degree of oversight of those powers. Furthermore, through the change to authorisation, we have, for the first time, and in highly significant—one might even say groundbreaking—terms, struck an important balance between the role of the Executive and the role of the judiciary. That answers the call of those who, on the one hand, made the case in our earlier considerations that it is politicians who should decide these things because they are accountable to the people and those who, on the other hand, felt that that alone was not sufficient and that it was also important for lawyers to play their part in ensuring that decisions made in respect of warranting were reasonable, necessary and proportionate. The core principle—the necessity of proportionality—therefore applies to all such powers. It is underpinned by the changes that we seek to make in the Bill.
In essence, the provisions reflect the collective consideration of the three independent reviews I mentioned briefly in our short consideration of the programme motion. The Intelligence and Security Committee’s report on the draft Bill, which was published last year, called for the inclusion of an overarching clause dealing with privacy protections, and that call was echoed by the Opposition and the Scottish National party during the Committee stage.
The Government have been clear throughout the passage of the Bill that they would listen to recommendations that would improve this important proposed legislation, and that is just what we have done. We have tabled a number of amendments that demonstrate exactly that willingness to listen and that desire to strike the right balance.
Government amendment 34 relates to clause 10, an important safeguard in the Bill that prevents numerous powers in other legislation from being used to acquire communications data. There are a small number of exceptions to that restriction, and the purpose of the amendment is to ensure that they are clearly limited. The amendment therefore makes it absolutely clear that the use of regulatory powers to acquire communications data is limited to those that are exercisable in connection with telecommunications or postal regulation.
Government amendment 35 extends the oversight provided by the Investigatory Powers Commissioner to all efforts made by prison governors to prevent the use of illegal mobile phones in custodial institutions. That is something that the Interception of Communications Commissioner has previously called for, so I am pleased to be able to amend the Bill to take account of his advice. The amendment will also ensure that the Investigatory Powers Commissioner has oversight of any interference with electronic communications.
That issue was raised in Committee by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and I said that we would give it further consideration. We have done so and come to the conclusion that her argument is right. Although this tort would apply only to very limited circumstances—indeed, we believe that it has never been used—I accept that in such cases a person should have the power to seek appropriate redress through the civil courts.
Probably the most important amendment tabled by the Government is new clause 5—the privacy clause to which I referred at the outset. It puts privacy at the heart of the Bill in precisely the overarching way that those who scrutinised it prior to and during Committee recommended. It responds, therefore, both to the recommendations of the Intelligence and Security Committee and to the extensive debates held since then. As we have indicated, the protection of privacy is woven throughout the Bill, but we recognise the merit in setting it out at the very start.
I do not want to indulge in hyperbole, but consideration of the Bill has been characterised by an unusual degree of co-operation to get it right across the House. All legislation benefits from that kind of considered scrutiny and co-operation. Legislation that is in the national interest, as this Bill certainly is, is far better for that kind of approach, and that is exactly the approach that the Government have adopted.
Dr Andrew Murrison (South West Wiltshire) (Con)
My right hon. Friend is being ever so slightly modest in relation to new clause 5, which is aimed primarily at protecting personal privacy. Clearly he has been listening, since one of the concerns expressed by industry is that interference and hacking may cause a failure of business confidence in IT. Subsection (2)(b) will go some way to protect the interests of such companies and businesses, since it states explicitly that the public authority must have regard to the public interest in such matters, including the viability of those undertakings.
Mr Hayes
It is true that such concerns have been expressed. Indeed, as we debate the Bill in further detail, particularly with regard to internet communication records, we will see that the capability of organisations to meet the Bill’s requirements must be met in a way that is not excessively expensive or impossible to implement, and that does not have the sort of unintended consequences described by my hon. Friend. It is partly the response to those overtures that has stimulated the changes under discussion. So it was, as he said, partly about what the Opposition said in Committee, partly about what the three reports said in respect of privacy and the consequences he described, and partly about the extensive discussions we have had with the sector on how these things could best be implemented.
Mr Dominic Grieve (Beaconsfield) (Con)
I realise that the Bill is complex, but could I ask my right hon. Friend—not during today’s debate, but before our consideration of the matter is concluded—to write to me setting out each of the penalties for each of the misconducts identified in the Bill? The point that I will make to him in due course is that it remains extremely complex to follow, and, in some cases, the penalties appear to be little more than a rap over the knuckles under the Data Protection Act.
Mr Hayes
My right hon. and learned Friend has made the point about incomprehensibility previously. Indeed, when we debated the draft version of the Bill, one of the telling points he made was that new legislation was needed in part because it should be more comprehensible, easier to navigate and thus more understandable to more people. He is right that the fact that existing provisions are to be found in a number of places makes it hard to determine exactly what powers there are and how the abuse of those powers will be dealt with. I happily concede the point that he has made, because it is important that all Members of this House, particularly he and the Committee that he chairs, are fully aware of the kinds of penalties that might apply. I have described them as “severe”, and I have made the point that wrongdoing cannot be tolerated. Therefore, the least I can do is agree with him that it would be helpful to set out those penalties as he has described. We will do so before the Bill completes its passage through Parliament, because it is only right for us to do so.
The purpose of the amendments and new clauses that we have tabled is to reflect the consideration of the Committee chaired by my right hon. and learned Friend, and to reflect the character and content of the debate that took place when the Bill enjoyed scrutiny in Committee. As we considered privacy to an increasing degree, it became clear that as well as the implicit emphasis on private interest, which runs through the Bill, there was a compelling case for an explicit commitment to privacy in the form of a new clause. To that end, it is right to say that both the minor parties on the Committee—in this case, the Scottish National party—
Mr Hayes
The hon. Member for Perth and North Perthshire (Pete Wishart) shakes his head, but given that the SNP had only two Members on the Committee, I cannot describe it as the major contributor. Before he started shaking his head, I was about to say that the SNP made an incredibly helpful contribution, because it tested the Government, held us to account and made a number of useful and thought-through proposals. The Opposition—by the way, I say to the hon. Gentleman that they are Her Majesty’s Opposition—equally added immense value to our consideration by making the proposal for this new clause, among others. In my judgment, it was absolutely clear that the Opposition were determined to improve the legislation, rather than to weaken or dilute it. In that spirit, I am happy to propose the Government new clauses and amendments in this group.
To allow as many colleagues as possible to contribute to this important debate, I will now finish, except to say this: when Bills come before the House and are considered on Second Reading and debated in Committee and on Report, different circumstances apply and different shadow Ministers and Ministers approach the matter in their own style, but I take the view that although circumstances are beyond human control, our conduct, to quote Benjamin Disraeli, “is in our power”, and our conduct in consideration of this Bill, which is in our power, should continue to be as measured, reasonable and moderate as it can be.
Keir Starmer (Holborn and St Pancras) (Lab)
I thank all Members who have so far been involved in the scrutiny of the Bill, both in its early stages and in the Public Bill Committee. I particularly pay tribute to all members of the Committee from both sides of the House. That of course includes the SNP Members, who worked hard and constructively with us on the Bill. I pay tribute to the hon. and learned Member for Edinburgh South West (Joanna Cherry), who leads for the SNP on this matter.
This group of amendments deals with the general provisions and the overarching privacy clause, so it is important for me to set out Labour’s position before I move on to new clause 5. Safety and security matter. The current threat level for terrorism is severe, which, as we all know, means that an attack is highly likely. We all remember and are deeply conscious of the attacks in Paris and Brussels in the not too distant past, as well as other attacks. However, the Bill deals with not just terrorism, but other serious crimes, such as the threats from people traffickers, including those who traffic children, as well as those who indulge in sexual abuse and those who commit stalking and harassment. The starting position must therefore be that the security and intelligence services, GCHQ, the National Crime Agency and the police should have the powers to deal with these threats.
However, human rights matter, too. That includes the right to privacy, the right to be left alone, the right to have private data protected with security and integrity, and the right to redress when things go wrong, which are important rights. In relation to the issues covered by the Bill, I have seen things from at least two important perspectives. I was a defence human rights advocate for 20 years, taking many cases against some of the law enforcement agencies, and I then had the privilege to be the Director of Public Prosecutions for five years, working with the security and intelligence services and the other law enforcement agencies, so I have seen the threats and how they are dealt with, but also the importance of human rights considerations.
Safety and security and human rights are not mutually exclusive: they are not either/ors and we can have both. That is why Labour has supported the principle of the Bill, but also why we are focused intensely on the necessity of the safeguards for the powers in the Bill. We have supported the principle of the new legislation not only because investigatory powers need updating in a fast-changing world, but, equally importantly, because, after Snowden, it is important that the powers exercised are avowed, that they are placed in statute and that everybody understands the safeguards around them.
In that respect there are two very important reasons why we need new legislation. But some of the proposed powers are very wide—the bulk powers are very wide indeed. That is why Labour’s first and consistent demand of the Government has been for an independent review of the operational case for the bulk powers. The Government published a short operational case alongside the Bill, but we judged that inadequate and have been pressing for a full independent review since.
I am pleased to say that in a letter of 23 May the Home Secretary accepted the case for an independent review of the operational case for the powers. That is a significant and welcome step, and is the right step. I want to strike the right tone here. Labour made very significant demands when the Bill was in Committee. We sought to do so constructively, and there have been significant movement and concessions from the Government; again, that has been constructive. Important moves in the right direction, which will improve the Bill, have been achieved through that dialogue.
Having gone that far it is important now to focus on the task and terms of the review—having the review of bulk powers is one thing, but having the right terms is equally important.
Keir Starmer
I take that point, although obviously one of the letters is not mine—
Mr John Hayes
I am more than happy to make my letter to the hon. and learned Gentleman available to the House immediately, and I am sure he will do the same. One important point—I want to prevent the hon. and learned Gentleman from having to deal with this himself—is that the review must be conducted during the period in which the Bill is considered, because a review after the legislation has been passed would not be sufficient. I know that the hon. and learned Gentleman has asked for that, and other hon. Members will also take an interest in it, so I happily make that further commitment on the Floor of the House.
Keir Starmer
If the House is content, I will deal with that in detail later. I have tabled an alternative in new clause 21 precisely to tighten up the reference to human rights and public law. It might be easier if I deal with that point in a few minutes when I get to that provision.
Labour has asked for a revised test for judicial commissioners. Currently in the Bill, the test is reviewed by reference to judicial review principles. The concern is that the judicial review exercise is a flexible test that, at one end, has close scrutiny, when judges look at the substance as well as the process of the decision. At the other end, there is a light-touch review, when the judges look more at process. We have argued that the review should be towards the upper end of strict scrutiny. I am pleased that the Government this morning tabled a manuscript amendment setting out a test for the judicial commissioners that makes it clear that the review will be an upper-end, stricter one—the close scrutiny that we have argued for. That refers back to the privacy clause, and I will try to make good that link when I get to it.
The manuscript amendment is a constructive move by the Government to meet my concern that review must be real and meaningful, not a long-arm, Wednesbury-unreasonableness review. The manuscript amendment is a significant change.
Mr Hayes
The hon. and learned Gentleman draws attention to the manuscript amendment the Government tabled this morning. We did so, as he describes, precisely to deal with the point raised in Committee and by others that the judicial review process might be interpreted in different ways by different commissioners. The amendment is a tighter definition of their role, strengthens the double lock and is very much in response to the Opposition critique and that of Government Members that the new process needs to be as well defined as possible.
Keir Starmer
I am grateful to the Minister—that was what the Opposition pressed for.
There have been differences of approach to the test for judicial commissioners. On the one hand, colleagues on both sides of the House have made a powerful argument that the judicial commissioners should retake the decision. On the other hand, others have argued that the decision should be reviewed. The amendment strikes a third route, which is to apply a review test but to confine it to the stricter end of the judicial review principles.
As hon. Members know, I have been a lawyer for many years and have dealt with many public law cases, as other hon. Members have. The difference between strict scrutiny and long-arm judicial review is very real —it is a material difference. That is why the manuscript amendment is highly significant.
Keir Starmer
The hon. and learned Lady made that very important point in the Bill Committee. Normally when decisions are subject to judicial review, there are reasons for the decision. What is envisaged is that the decision itself, plus such material as has been looked at by the Secretary of State, will be put before the judicial commissioner. There will not be reasons, which makes the task more difficult, but what is important about the test set out in the manuscript amendment is that the judicial commissioner must ensure that the duties under the privacy clause are complied with, which means that he or she will have to look at that underlying material. It might well be a good point to say, “If there are reasons, it would be an easier task,” but I do not believe the task cannot be performed without reasons. In due course, the judicial commissioners may say, “We need further help on particular issues.”
Mr Hayes
The hon. and learned Gentleman made the point in passing, but it is salient: in reviewing what has happened, the commissioner will receive the same information as the Secretary of State. The review will not, as was feared at one point, merely be a review of process, in which the reviewer would say, “Yes, the Secretary of State has taken the right steps,” rather than looking at the arguments that the Secretary of State had considered. Those are the two points I make on what he and the hon. and learned Member for Edinburgh South West (Joanna Cherry) said.
Mr John Hayes
I note the hon. and learned Gentleman’s comments about the difference between the two new clauses, and the Government are not blind to his argument about ensuring that the connection to human rights is secure. The Bill will clearly continue to enjoy scrutiny over the coming weeks and months, and he needs to know that, as he described earlier, we are always happy to listen and learn. I hope that tonight we can establish that an overarching privacy clause is essential, and can continue to have a discussion about the fine details.
Keir Starmer
The answer to that is twofold, although I should say that if the decision was on the recommendation of the Lord Chief Justice and so on, it would not be open to the Prime Minister not to follow that recommendation. We need a slight reality check. At the moment under clause 194, if the Lord Chief Justice of England and Wales—or, I am sure, the equivalent in Scotland—was consulted and made his or her views clear, it would be highly unlikely that any Prime Minister would act in a way that was contrary to the advice they were receiving from the senior judge in those jurisdictions, but our amendment would bind the Prime Minister. The question is: what is the point of involving the Prime Minister? The answer to that—to some extent this is to the Minister—is that there is the question of accountability for making the appointment.
There is also the point, as the Lord Chief Justice has pointed out, that he—or she, as the case may be—is not in the business of making judicial appointments as such, and will therefore be reluctant to have that power. The Minister might want to confirm that, because he has been having those discussions, not me. I think the Lord Chief Justice and others are reasonably happy to help with the deployment exercise, but not with the business of appointing judges.
Mr John Hayes
I have no doubt that the Solicitor General will deal with this later, but the point is that the Prime Minister is ultimately responsible for the protection of national security. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer) said, when Lord Judge gave evidence to the Joint Committee, he made exactly the point that the hon. and learned Gentleman has made. Just to affirm the other argument that he advanced, the Prime Minister will of course seek advice on these matters in the way that the hon. and learned Gentleman has described, and I share his view that it is highly unlikely that the Prime Minister would then take a perverse decision.
Keir Starmer
I am grateful for that indication.
I have taken longer than I had anticipated. I think I have taken every intervention, because important points were being made—that is in mitigation rather than an excuse, I suppose—but the House will be pleased to know that I have finished, at least on these amendments.
Mr John Hayes
My right hon. and learned Friend makes a good additional point. He first, perfectly properly and sensibly, asked for clarity about the character of the penalties, and now makes a telling second point about how this Bill relates to other existing legislation that deals with these or related matters. A further note to the House, during the passage of this legislation, dealing with that second point is necessary, and I commit to providing it. Let me draw Members’ attention, as my right hon. and learned Friend will do, to the first part of the Bill, which deals with offences. I accept that that does not wholly answer the question—
Mr Deputy Speaker (Mr Lindsay Hoyle)
Order. Let me help the Minister a little. He has asked for more time at the end in which to deal with various points, but what we are bothered about is eating into that time when so many Members wish to speak. Being quicker in responses would help.
Mr John Hayes
I hear what my right hon. and learned Friend has said. He will be aware that, because of the arguments put forward by him and others—including Opposition Members—on bulk powers, we have agreed to a further independent review. The point of clarity here is that the review will look at the range of bulk powers and apply its assessment of necessity across that range. I just wanted to give him that additional assurance.
Mr Grieve
I am grateful to the Minister. Clearly, the more targeted a power can be, the better. Indeed, that was one of the reasons that the Committee expressed concern about whether the bulk power was required in the case of equipment interference. However, in classified evidence to us, the Government made the compelling case that simply relying on thematic powers or targeted powers would be likely to be insufficient and unsatisfactory. In changing our position, we have acknowledged that. However, that makes it all the more important that the safeguards should be properly in place. Those are the key amendments in this group that I wanted to bring before the House. I simply reiterate my earlier comment that the Government have really co-operated and moved a great deal in relation to this legislation. They have responded positively, as I shall be able to illustrate as we come to the further amendments.
Joanna Cherry
I knew that that was a pointless exercise that would have eaten into the time that we have, so not opposing it was a practical decision.
Mr John Hayes
More pointedly, the Committee stage finished a day early, so why did she not debate the Bill for another day in Committee?
Joanna Cherry
If anyone reads the records of that Committee, they will see that I made more than my fair share of contributions. I do not have any problem with that. My issue is that other Members—the people sitting behind me, the Labour Members and Government Members—will not get a chance to speak and that we will not get a chance to vote on more than a handful of amendments. Given the degree of concern expressed about the Bill, it is frankly ridiculous that we will get to vote only on maybe eight or nine amendments over the next couple of days out of the hundreds of amendments that have been tabled. I am not ashamed to say that that is no way to legislate. We need to look at the way we go about things.
I am going to have to cut my cloth according to how much time is left, and I want to try to address some of the key SNP amendments to part 8 of the Bill, dealing first with amendment 465 and 466 to clause 194. Part 8 deals with oversight. At an earlier stage in the process, the Government said that they wanted to create a world-leading oversight body, but they have failed to do that. Our amendments seek to say that in addition to the investigatory powers and judicial commissioners there should be a separate body, known as the investigatory powers commission. It is not just some little notion of mine or of the SNP; it is what was recommended by the Royal United Services Institute’s independent surveillance review, the Joint Committee on the Draft investigatory powers bill, and by David Anderson QC’s investigatory powers review. David Anderson said that there should be a new independent surveillance and intelligence commission. It is a matter not only of what it is called; it is matter of what it actually does. Other hon. Members have tabled amendments relating to separating out the judicial and audit functions, and in the unlikely event that we get a chance to vote on them, the SNP will support them.
In written and oral evidence to the Bill Committee, we heard from Joanna Cavan, the head of the Interception of Communications Commissioner’s office. She reminded us that the judicial commissioners will deal only with some 2% of the applications falling within the remit of the oversight body. The remaining 98% will be subject to post-facto oversight only, so it is vital that that oversight is independent and robust. Creating a separate commission, as recommended by the three bodies I mentioned, would help to form a distinction between the approval and post-facto audit elements of the oversight body and would avoid the idea that judicial commissioners might be marking their own homework. That is what Labour’s amendment 146 seeks to address and the SNP will support it if we get a chance to do so. Joanna Cavan also told us that she had spoken to a number of the UK’s international oversight counterparts and that some had expressed surprised that the UK was going down the route of putting both the approval and the post-facto audit elements into the same body. Those amendments are crucial and I will be pressing them to a vote if I possibly can.
I turn now to the SNP’s amendments 467 and 469 and the question of the appointment of the judicial commissioners. I listened to what the hon. and learned Member for Holborn and St Pancras said in his speech, but the SNP does not think that Labour’s amendment goes far enough. The Government have made much of the main safeguard in the Bill being the role of judicial commissioners and the double lock, so it is vital that we get the judicial commissioner appointment process right. I suggest that, like the Justices of the United Kingdom Supreme Court, the commissioners should come from the jurisdictions and the judicial pool across the United Kingdom, not just the English Bench, and that the public must be confident that they are selected on merit, rather than because they can be trusted by government to be conservative or pro the state in their decision making. The SNP amendments therefore propose that, as well as having consultation with the Lord Chief Justice of England and Wales, the Lord Chief Justice of Northern Ireland and the Lord President in Scotland, these appointments should be subject to recommendations made by the independent Judicial Appointments Board of Scotland, the independent Judicial Appointments Commission in England and Wales, or the Northern Ireland Judicial Appointments Commission.
Sir Simon Burns (Chelmsford) (Con)
I am pleased to take part in this debate, although I shall only speak briefly because I know that many of my right hon. and hon. Friends, and Opposition Members, wish to participate. What we are debating in this group of amendments is crucial, because we are dealing with investigatory powers and, specifically, the role of technology in policing the modern age. Although I represent a constituency in Essex, which sometimes seems a world away from Westminster, I can tell hon. Members that my constituents and I worry about the same things: how we protect our country’s visible and invisible borders; how we keep our local community safe; and how we spot young people at risk of abuse or of going off the rails, so that we can do something about it before it is too late.
I certainly want to ensure that our liberties are fully understood and protected. That is why I welcomed the fact that during the Committee stage, which I took part in towards the end, the Government, my right hon. Friend the Home Secretary, the Solicitor General and the Minister for Security were prepared to listen to arguments—particularly those made by the hon. and learned Member for Holborn and St Pancras (Keir Starmer)—that sought to strengthen the protections without compromising the aims of the legislation. It was refreshing, in many ways, not to have the normal Punch and Judy politics, whereby everything the Opposition proposed must be wrong because the Government had not thought of it first. That give and take, which is shown in Government new clauses 5 and 6, and in some of the amendments, particularly amendments 33 to 38 and 45 to 48, is important in meeting concerns about protecting civil liberties without compromising the main aims of the Bill. Those amendments have been tabled to make it clear that warrants or other authorisations should not be granted where information could be reasonably obtained by less intrusive means.
More than anything, however, we have to ensure the liberty of my constituents to live quietly and peacefully, free from attack—that is, of course, the most fundamental liberty of all—and it must be protected from those who wish them harm. Today such people live everywhere, and they have the powers, through the internet and modern communication techniques, to be everywhere, plotting, planning and executing their evil deeds. That is why I was pleased to see the supporting provisions that this group of amendments address in ensuring that we have not only those protections for my constituents and others, but a sympathetic and reasonable approach to protecting people’s civil liberties.
This Bill goes further than ever before in terms of transparency, making clear the most sensitive powers available to the security and intelligence agencies and the strict safeguards that apply to them. The controls on bulk powers and the double lock protection, which requires a sign-off for action by not just the Home Secretary but independent commissioners, are extremely important in winning public confidence in the measures being proposed. That will be discussed in greater detail when those Committee provisions come before us later in our proceedings on this Report stage.
I ask those who worry about interception powers to remember the following simple facts relating to technical capability. Since 2010, the majority of MI5’s top priority British counter-terrorism investigations have used intercepted material in some form to identify, understand or disrupt plots to harm Britain and its citizens. In 2013, this material was estimated to form between 15% and 20% of the total intelligence picture in counter-terrorism investigations. Data obtained by the National Crime Agency suggested that in 2013-14, interception played a critical role in investigations that resulted in more than 2,200 arrests and the seizure of more than 750 kg of heroin and 2,000 kg of cocaine, more than 140 firearms, and more than £20 million.
I believe that the power to intercept communications from potentially very dangerous people has helped to keep my constituents and those of other right hon. and hon. Members much safer and much more secure in their homes, in their jobs and on the streets they walk every day; but I also recognise the calls from some that we must be careful not to risk the fundamental liberties of our democracy as we do battle with potential terrorists. The Government have clearly been mindful of the Wilson doctrine and have tabled amendments, which I welcome, to require that the Prime Minister approve, rather than just be consulted on, all equipment interference warrants relating to parliamentarians.
We must ensure that the powers that we give to our police and security agencies, while they are sufficiently transparent, are also fit for purpose. Terrorists and other threats to my constituents’ safety are constantly evolving and adapting their techniques to trump the safety system. They do not want to get caught; they want to catch us out, and that is why we must be prepared to adapt our rules to keep pace with technology. We cannot use an analogue approach to tackling criminals in a digital age. Such an attitude just is not safe, and I am not prepared to go back to Chelmsford and explain to my constituents there and in Great Baddow, Chelmer Village, Beaulieu Park and Old Moulsham that I was not prepared to support measures designed to make them all more secure.
I support the proposals that my right hon. Friend the Home Secretary has outlined to strengthen judicial commissioners’ oversight and give commissioners a role authorising national security notices and technical capability notices, but we must not lose sight of the essence of why we need these proposals: we need them to help our police and security agencies to better identify the internet activity of potential threats, and indeed victims of crime, so they can do their jobs more quickly and effectively.
The people outside Westminster who think this is about stopping people being rude on Twitter, or cleaning up the Facebook jungle, are wrong. The Bill is about protecting those rights—the right to be irreverent or to disagree; the right to surf the net without being at risk from those who would do us harm. The Government have acted properly by being prepared to listen and to think again to a degree that I have not often encountered in the past. They have considered carefully, and we should be careful not to assume that our police and security agencies do not need these powers as amended, with the new safeguards that have been promised today. For those reasons, I shall support my right hon. and hon. Friends in the Lobby tonight.
Mr John Hayes
On a point of order, Mr Deputy Speaker. Reference was made earlier to an exchange of correspondence that I enjoyed with the hon. and learned Member for Holborn and St Pancras (Keir Starmer). I wanted you and the House to know that that correspondence is now available in the Vote Office for the information of Members.
Mr Deputy Speaker (Mr Lindsay Hoyle)
That is certainly a good point of clarification. I call Harriet Harman.
Stephen McPartland (Stevenage) (Con)
I will keep my remarks short, Mr Deputy Speaker, as I appreciate that you want them to be short. I want to speak to new clause 16 and to amendments 189 to 195, but I will group them together.
I welcome new clause 5 because it puts privacy at the heart of the Bill. Although I found the draft Investigatory Powers Bill to be some kind of absolutely Orwellian nightmare that I would never have been able to support, this Bill goes some way towards being something that I would be able to support. It is horrible that we live in a society where this House, as a cross-party organisation, will have to legalise mass surveillance of every man, woman and child in the United Kingdom who has an electronic device, but sadly that is the society we live in, and we have to have a trade-off between what keeps us free from terrorism and what keeps us free in terms of privacy. I appreciate the Government’s efforts in trying to put privacy at the heart of the Bill.
On my new clause and my amendments, I want to look at possibly introducing into the Bill notification of surveillance against innocent people. I have tabled 63 amendments because I know there will be a review before the Bill gets to the upper House. The Government have been incredibly conciliatory and have provided concessions all the way through. I consider both the Ministers on the Front Bench friends, and I have been speaking to them about the Bill for many months—for well over a year, in fact. I have tried to be constructive in my disagreements with them; my amendments are probing amendments—they are there not to cause difficulty but to try to tease out more information.
The Bill fails to provide a viable system of notification of surveillance, particularly for those who have been wrongly surveilled. The current drafting covers only error reporting, and it places a higher importance on public interest—I understand that that is the source of the dispute about whether we should have new clause 5 or new clause 21, in terms of privacy and what is in the public interest. The concepts of public interest and serious error are difficult to define, and that leads to the problem of the judicial commissioners and others having to decide what those concepts are, and whether there are varying degrees of them. I want the Bill to state very clearly what we want them to be, so that we do not have that mission creep.
Adding notification to the Bill through a new clause would go some way towards ensuring that privacy is further enhanced as the backbone of the Bill. To put the issue into context, the countries that permit notification of surveillance include America, Canada, New Zealand, Germany, Belgium, the Netherlands, Austria, Ireland, Switzerland, Slovenia, Montenegro and Hungary, so this is not something that will be specific to the United Kingdom, and we will not be leading the way; we will be trying to catch up with our partners. I appreciate that each of those countries offers a different threshold in terms of how people will be surveilled, but there is no possibility of notification in the Bill at the moment. The Ministers have been very conciliatory, and if they want to intervene on me to say that they will accept my new clause 16, I will happily sit down. No, I didn’t think so. Never mind—we will keep trying.
Mr John Hayes
I am not going to surprise my hon. Friend or the House, but he will have noted that the changes we have brought forward to the Bill mean that if a serious error has been identified by the commissioner, the individual concerned will be notified. That is a significant and new provision, which goes some way towards satisfying his desire. Perhaps he can meet me halfway.
Sir Edward Leigh
I understand that example, but it can be taken to extremes. Every day of the week the Speaker makes decisions. He decides how we conduct our business and who should be called, and we could always argue that we should not give the Speaker more powers because he might make a mistake or be called to account. We are not talking about the Speaker being involved in whether we should pass a particular Bill or controversy; we are talking about a very narrow circumstance in which the Government of the day have decided to intercept the communications of a Member of Parliament. All I am suggesting is that before they take that step, they consult the Speaker.
Mr John Hayes
There are few Members of this House whom I hold in higher regard than I do my hon. Friend, but like it or not, his proposal would draw the Speaker into issues of national security. He is describing highly sensitive matters of a kind that Speakers have not historically been involved in. It would be a radical change.
Sir Edward Leigh
The Minister makes that point, but as Members of Parliament we should try to think outside the political box and our natural loyalties, and just for a moment think about what might happen in future in a time of crisis. Do we really want to codify the Wilson doctrine in legislation, and say that in future any Government—it does not matter that the Prime Minister ticks a box, because he is also a member of the Government—without any independent second guessing, can intercept those communications and act on them? I understand the Minister’s arguments and assure him that I am not trying to drag the Speaker into politics. I am trying only to protect the traditional privileges of the House. “Privileges” is the wrong word, because it conveys the impression that we are concerned about ourselves. We are not important in all this. What is important is people’s confidence in communicating with their Member of Parliament.
Ms Harman
Let us see whether the Minister and the Government will recognise that we are all trying to get the same thing here. We are trying not only to keep the public safe, but to protect privacy. However, we do that—my hon. Friend will recognise this—in the knowledge that the security services do get tempted to overreach their powers. As night follows day, that is what happens. There are so many examples, after which people think, “How on earth could that ever happen?” It happens because when the security services have powers, they get tempted to overreach them. That is why safeguards and narrow definitions are so important. For example, I was subject to security service surveillance, not because I was subversive but because I was fighting for human rights, women’s rights and workers’ rights. The point is that if they can do it, they will unless there is proper delineation, so I add my voice to those who argue for a narrower definition of thematic powers.
I also highlight the concerns of the Joint Committee on Human Rights to those who query the point about major modifications. The Government have gone such a long way to ensure that warrants are properly issued, so why are they driving a coach and horses through the proposal by saying, “After the warrant has been issued, if you feel like it, you can have a major modification”? Trust me, such modifications will not narrow the scope of warrants, they will only widen them. The Government have moved to an extent and have said that major modifications will be notified to the judicial commissioners, but it is not good enough just to tell them; there needs to be a proper approval process. The Government should look again at the proposal.
As for legal professional privilege and the constitutional issues that we should bear in mind when thinking about what are described as privileges, we must be extremely careful with such areas. Lawyers are able to hold the Government to account and that is called the rule of law. We do not want to give the Executive the ability to interfere unjustifiably with the rule of the law by undermining people in the legal exercise of their rights. I agree with those on the Opposition Front Bench and others who have said that the Government should go back to the Bar Council and the Law Society to ensure that legal professional privilege is properly sorted out.
Turning to my main point, I am sorry that the hon. Member for Gainsborough (Sir Edward Leigh) is not currently in the Chamber because I largely agree with him, but the Joint Committee on Human Rights has a better way of dealing with the matter. What we need to remember, as MPs, is that this is not just about our constituents being able to come to talk to us confidentially, although we should absolutely defend that. Let me just give one example on that. I had MI6 in my constituency and the cleaners there were about to be privatised, and then sacked or made redundant. They lived in my constituency but they had signed the Official Secrets Act and been told that they were to talk to nobody and were not allowed to be in a union. They came to me very upset, with one of them crying. They said, “We don’t know whether we can speak to you.” I said, “You can speak to me.” They then said, “We think that telling you what we are going to tell you is against the law.” I said, “It doesn’t matter what you are going to tell me. Your legal right, as my constituents, to tell me something that I need to know trumps everything.” They then said that they were going to be made redundant, and so I went along to see someone—I believe it was the director general of MI6—handily taking with me the then deputy general secretary of the Transport and General Workers Union, my hon. Friend the Member for Birmingham, Erdington (Jack Dromey). We got them all redundancy payments and that was sorted out, but I do not want to digress.
I think that the right of individuals to speak to their MP is important, but we face an even bigger constitutional issue, which relates to the fact that we are here not just to listen to what our constituents say, but to hold the Government to account. They are the Executive, and so the idea that the Executive has the power to hack into the emails and listen to the phones of those who are supposed to be holding them to account—to do all of this—offers a big prospect of the Executive abusing their power and undermining the legislature’s ability to hold them to account. The person in pole position to defend the importance of the legislature holding the Government to account is not the Prime Minister, who is the pinnacle of the Executive. We are here to hold the Prime Minister to account.
I appreciate that the Minister has said, “Make the Prime Minister consent to all our emails being hacked, all our phones being listened to and everything else”, but that gives me no reassurance at all, because the Prime Minister is the wrong person for this. We have gone higher up the tree, but we have gone up the wrong tree, because the person who is there to protect us in doing our job of holding the Government to account, including the Prime Minister, is the Speaker. That was recognised in relation to the situation of the right hon. Member for Ashford (Damian Green) when there was the question of the warrant being issued, so this is not unprecedented—the recognition that it is the Speaker who has to protect our rights to hold the Executive to account, which is what we are actually here for.
My Committee discussed this issue at great length. We do not suggest that we make the Speaker an arm of the state and make him start looking at warrants for all of us, but we go further than the hon. Member for Gainsborough, who says that the Speaker should be notified. We say that the Speaker should be notified sufficiently well in advance that if he or she feels that it is right to do so, they can go to be heard by the judicial commissioner to make their views known, and so they can have an intervention in the process. I am certain that if it was known that the Speaker would be notified and have the opportunity to speak about it to the judicial commissioner, that would make the security services much more cautious before they actually went for warrants to intercept all the communications that we are having.
Mr John Hayes
I could make two points about what the right hon. and learned Lady said. She says that the Speaker should be involved but not implicated, but I do not see how the Speaker would not be implicated and become an “arm of the state”—that is not a phrase I would have used, but she used it. The Speaker would by necessity become implicated because he would have to know the grounds on which the Prime Minister or others were acting. I do not really understand how she can claim that the Speaker can be involved but not implicated.
Ms Harman
It is true that we are sending part of the process to the Speaker, but we are not giving them the power to authorise. It would be wrong to make the Speaker be part of the authorising process—someone who applies for the warrant, or someone who, like the judicial commissioner, has to authorise the warrant. What we are talking about is notifying the Speaker, but in sufficient time so that if they notice that it is becoming very widespread, they have the opportunity to go before the judicial commissioner and say, “Look, this is going on too widely.”
Ms Harman
No, I think the Speaker would have to know the basis of the application if they wanted to; otherwise, how could they go before the judicial commissioner and say it was unacceptable? If people say, “Goodness me! That would be telling the Speaker information that would be useful in the hands of Daesh or al-Shabaab,” we would be in trouble anyway if the Speaker were the wrong sort of person to have it. I take a slightly different approach from the hon. Member for Gainsborough. He postulated the issue as politics, which is the Government and the Prime Minister, versus non-politics, which is the Speaker. It is not politics versus non-politics; it is the legislature versus the Executive. That is how we should think about it.
Mr Grieve
I am grateful to the Solicitor General, and I have no reason to disagree with his analysis of the way in which this matter has been approached. I also have no reason to disagree with him about the necessity of having thematic warrants in addition to warrants targeted at premises, individuals or organisations, but the question is how that reassurance can be provided. I hope very much that the Government can go away and give this issue some thought. I suspect it will arise in the other place, when these provisions are debated there. It is important, and I think that a solution can be found, but I accept that, although the amendment we have tabled would provide one, it would also place the agencies in difficulty.
Mr John Hayes
Since my right hon. and learned Friend is inviting me to employ my ingenuity, I will try to do so. This is, in essence, about proportionality. We had quite a lot of debate earlier about necessity, but proportionality matters too. In determining what is reasonable—
Mr Speaker
Order. I wish to listen to the mellifluous tones of the right hon. Gentleman, as some Members do, and people listening elsewhere might conceivably wish to hear his sonorous tones. We would be assisted if he faced the House.
Mr Hayes
I think this is about proportionality. The answer to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) is that yes, of course, in establishing the character of the proportionality and therefore the range he described, we may need to think about the sort of protocol he set out.
Mr Grieve
I am grateful to the Minister, and I leave the matter there.
I turn now to amendments 19, 20 and 21, which deal with the renewal of warrants. They may appear somewhat complicated, but they deal with a very simple issue. Warrants for interception last for up to six months. Under clause 29, the warrant can be extended by a further six months at any time before the original warrant expires. That creates a loophole because it would theoretically allow for a warrant to be renewed immediately after it was issued, thereby permitting interception for 12 months. That is clearly not what the Bill intends. The Secretary of State might well argue—logically—that the commissioner would never approve such a renewal, and that she would not either, but this is nevertheless a loophole that can and should be closed, and these amendments would ensure that it is. I hope very much that the Government can accept them.
I should mention that the amendments in my name relate only to warrants for interception and bulk interception. I would be grateful if the Minister could assure the House that, if the Government accept my amendments, that acceptance will be extended to other consequential amendments of a like character, to ensure that the power cannot be abused elsewhere.
Amendment 16 relates to clause 45 and interception in accordance with overseas requests. The clause gives effect to the European Union’s convention on mutual assistance on criminal matters and permits an overseas authority to request the support of the United Kingdom in undertaking the interception of communications. Curiously, and probably accidentally, it does not repeat the protection that exists in the Regulation of Investigatory Powers Act 2000, which ensures that requests can be made only where a person being intercepted will be outside the United Kingdom. That seems to us be another loophole that ought to be dealt with. Although the Government had indicated that it could be dealt with in secondary legislation, the Intelligence and Security Committee do not consider that to be satisfactory. It is far too important an issue to be left to secondary legislation; it should be dealt with in the Bill. If our amendment is accepted, the matter can be resolved without more ado.
Finally, may I touch on an issue that has been raised by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and others, namely economic wellbeing? When the Intelligence and Security Committee first came to consider the issue as a subset of national security in our initial evidence-taking sittings, we came to the conclusion that it ought to be possible to remove economic wellbeing as a criterion altogether. That is why we made the initial recommendation that economic wellbeing, so far as it is relevant to national security and relates to people outside the British islands, be removed from the Bill as grounds for interception. We took the view that it could all be safely contained in the subset of national security. After we published our report, the Government provided us, through the agencies, with additional evidence regarding their reasoning for including it as a separate ground. They also provided us with a number of examples of where it was being or might be used, which illustrated areas where it was useful to have it as a separate category.
Mr Cox
I shall be very brief, Mr Speaker, and I am grateful to you for calling me at this late hour. I wish to address clause 25 and legal professional privilege. In what circumstances, other than the iniquity exception, will legal professional privilege be overridden? In introducing his remarks, the Minister said, I think, that there was some margin where legal professional privilege could be overridden, even where the iniquity exception did not apply. That would be a radical and fundamental change to the legal protection given to the privilege of those conversing with and confiding in their lawyers. It would be unprecedented, and contrary to the decisions of the highest courts in this country. Where does the distinction lie in the Minister’s mind, and how would that square with current legal authority on the subject?
Mr John Hayes
I only hope that your earlier remarks about my style, Mr Speaker, can be matched by my substance.
Let me deal with the last contribution first. My hon. and learned Friend the Solicitor General made it clear that these are matters of continuing consideration, and further discussions are to be held. My hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) is right to say that we have not yet got to where we want to be, but I understand the weight and significance of his remark about limits on privilege, which will certainly be included in any consideration that we make following those discussions. I do not want to anticipate those discussions tonight, but, as the shadow Secretary of State recommended, we will engage in them without delay, and conclude them on the basis of adding to the Bill in a way that is sufficient to protect legal privilege.
A number of Members on both sides of the House emphasised the importance of the Bill per se. It is important because it provides law enforcement and security and intelligence agencies with the powers they need to keep us safe, and it does so in a way that makes those powers transparent, while also adding to the checks and balances that are vital in the defence of private interest. It therefore radically overhauls the way in which such powers are authorised and overseen, in particular through the introduction of the double lock for the most sensitive powers. This is a radical change—perhaps the most radical change of modern times in these matters.
The Bill also ensures that these powers are fit for the digital age. As the Chair of the ISC, and others, have said, much of what is done now arises as a result of a series of pieces of legislation that I suppose one could call reactive. They were consequent on the need to provide those who are missioned to protect us with what they require to do so. The Bill draws those powers together and makes them more comprehensible and transparent, which adds to the oversight and safeguards that make up the checks and balances I have described. This is an important Bill, and it is therefore important that we get it right.
That brings me to my second substantial point, which is about the spirit of our consideration. This debate has been conducted in a way that I think does credit to this House, and that is largely—it is unusual to hear a Minister say this, so I wish to emphasise it in the style that you recommended earlier, Mr Speaker—due to the Opposition. The Opposition make choices about how they scrutinise the Government, how they hold the Government to account, and how they deal with legislation on the Floor of the House and in Committee. Those judgments are fundamentally important, not only for the health of the House and our democracy, but for the interests of our people. The Opposition and the Government have worked together on the Bill. If that causes pain to the right hon. Member for Orkney and Shetland (Mr Carmichael), so be it, because if we end up with a Bill that is better than it started—and I believe we will end up with a Bill that is considerably better—I take the view that we have done our job as well as we could reasonably be expected to do it.
To that end, as we have said a number of times this evening, we continue to look at these matters. Clearly, the House of Lords will want its say—it is right that it should—and will contribute to further scrutiny, but the spirit that has imbued all we have done until now is important in a Bill that, frankly, any Government of any colour would have introduced, not just because there is a sunset clause on previous legislation, but because the Government know that it is necessary for the powers to be updated so that they are fit for purpose, and for the safeguards to be updated in accordance with that.
Let me deal with some of the specifics—I want to save sufficient time to deal with the salient issue of trade unions, which the shadow Secretary of State spoke about with such passion. Modifications were mentioned by both Opposition and Government Members. It is important to emphasise that the Government have considered the concerns raised in Committee—that point was made by my hon. Friend the Member for Stevenage (Stephen McPartland), Opposition Front Benchers and others.
As a result, we have introduced a number of significant amendments to make it clear that a warrant against a single person cannot be modified into a thematic warrant; to require all major modifications to be notified to a judicial commissioner; and to ensure that the Wilson doctrine and legal professional practice safeguards apply to urgent modifications, so that the double lock, with all that that suggests, applies too.
Those amendments are responses to matters raised in Committee, to ensure that the warranting system is consistent. I entirely accept the point that it would be completely unacceptable to have a robust system for issuing warrants and a less robust system for modifying them. Warranting has to be consistent throughout, and there can be no back-door way of weakening the process. That is not what the Government intend and not what we would allow. We have made those changes but, as I have said, we are happy to consider those matters carefully—I have heard what has been said tonight by Members on both sides of the House about what more might be done.
The hon. and learned Member for Holborn and St Pancras (Keir Starmer) and others have made the argument repeatedly that more should be stated in the Bill. That is what the manuscript amendment does. On that basis, I am grateful for the comments made by the shadow Secretary of State and the shadow Minister in welcoming the amendment.
My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) tabled amendments on behalf of the Intelligence and Security Committee. Amendments 15 to 17 would add another condition to clause 45, which provides for circumstances in which a telecommunications operator may intercept communications in response to a request made by the international agreement. The additional condition would require that interception must be for the purpose of obtaining information about the communications of people who are known or believed to be outside the United Kingdom. That amendment would replicate the current position in RIPA and, I agree, would provide valuable assurances. As drafted, the amendment contains minor, technical deficiencies, and for that reason, as my right hon. and learned Friend will understand, we will not accept it.
Mr Speaker
Order. I know the Minister of State is greatly enjoying his oration, but I am conscious of the fact that the clock in front of him is not functioning, and I want him to know two things: first, that he should face the House, as we continually exhort him to do; and, secondly, that he has a further seven minutes in which to excite the House.
Mr Hayes
Seven minutes of pure joy, Mr Speaker.
The Government will bring back further amendments to do what my right hon. and learned Friend intends.
Amendments 19 to 23, also tabled on behalf of the Intelligence and Security Committee, seek to prohibit a targeted or bulk interception warrant being renewed for more than 30 days. I do not foresee any circumstance where such a renewal application would be approved by the Secretary of State or judicial commissioner, but this is another matter that I agree could be clearer in the Bill. As with the previous amendment, we will revisit this and table an amendment in the other place.
I am less convinced by the argument my right hon. and learned Friend makes on amendment 25. The amendment would prohibit warrants being sought against suspects who are carrying out the same activity but who may not share a common purpose. In my judgment, a restriction of this kind would have a material impact on current operations. It would, for example, prohibit the targeting of an online forum that is used predominantly—but not exclusively—by child abusers, because the agency could not be certain that everyone accessing the forum was doing so for a common purpose. I have profound reservations about that amendment. I understand the sense of it and I understand why it has been tabled, but I do not think the Government can accept it. I do not want to give the impression that the Government accept any amendment, regardless of what we think about it. That is not our style, however conciliatory we might be.
Mr Grieve
I did not quite follow what my right hon. Friend meant by that. I exhorted him to give the matter a little further thought and suggested there might be some ways in which it could be dealt with. I very much hope his answer was not suggesting that he was ruling that out, because that might place me in the position of wanting to put the amendment to the House.
Mr Hayes
“Very much thought” is my middle name. Actually, that is several middle names, isn’t it, Mr Speaker? I will of course do that. Indeed, I thought the point my right hon. and learned Friend made about ways in which we could achieve what he sets out to do was well made, as I said in an earlier intervention.
Power is legitimised only by the means by which those who exercise it are held to account. The health of our open society relies on the acceptance that those with whom we differ should be free to make their case, campaign or crusade. The Labour Opposition tabled an amendment on trade unions, and I want to be crystal clear about our response to it: it would neither be proportionate nor lawful for the security or intelligence agencies to investigate legitimate trade union activity. However, there are good reasons for seeking to put the matter beyond doubt. That is what amendment 262 seeks to do.
I know that this is a matter of profound concern to the Labour party, but again let me be crystal clear: it is a matter of profound concern to me, too. Trade unions make a vital contribution to the free society I mentioned a moment ago. Working people would be considerably worse off if it were not for the activities of trade unions through the ages. My father was a shop steward, my grandfather was the chairman of his union branch and I am proud to be a member of a trade union myself.
Let me do something else that is rarely done in this House. I have already praised the Opposition and commended the way they have gone about their scrutiny of the Government’s proposals; now I am going to accept the amendment that stands in the name of the Opposition.
Mr Hayes
Notwithstanding that technical point, which I will happily deal with after the debate—I am grateful to the hon. Gentleman for making it—I will certainly accept what the Opposition have proposed as a matter of principle. It seems absolutely right that they have brought it to the House’s attention, and they can perfectly properly claim it as a victory, because I am persuaded of the need to do this. It was not in the original Bill, but it will be in the Bill as it goes forward. In that spirit and that mood, it is vital to understand that the Bill is in our national interest and there to promote and preserve the common good. It is therefore right that it make further progress.
Andy Burnham
The Minister’s comments at the Dispatch Box will have given hope to thousands of trade unionists in this country. Their legitimate role has been properly recognised by him at the Dispatch Box—long may that spirit continue from the Government Benches!