Oral Answers to Questions

John Hayes Excerpts

Wednesday 1st February 2023 Commons Chamber

[The Prime Minister]

The hon. Lady failed to mention the horrific attacks on civilians inside Israel as well. It is important in this matter to remain calm and urge all sides to strive for peace, and that is very much what I will do as Prime Minister and have done in the conversations that I have had with the Israeli Prime Minister.

[Sir John Hayes (South Holland and The Deepings) (Con)]

In 2016, the British people had the wisdom and foresight to take back control from foreign lawmakers. When they did so, they believed we were taking back control of our borders, yet since that time we have faced wave after wave of illegal migration. Will my right hon. Friend, without further delay, bring forward the necessary legislation to turn back the tide and fulfil the promise that was made to the British people?

[The Prime Minister]

My right hon. Friend makes an excellent point. That is why one of this Government’s five priorities and promises to the British people is indeed to stop the boats. We will introduce new legislation that makes it unequivocally clear that if you arrive in this country illegally, you will not be to stay, and we will swiftly detain you and remove you to your own country or a safe third alternative. That is the right and responsible way to tackle this problem.

Covert Human Intelligence Sources (Criminal Conduct) Bill

John Hayes Excerpts

Consideration of Lords amendments
Wednesday 24th February 2021 Commons Chamber

[Apsana Begum (Poplar and Limehouse) (Lab) [V]]

I rise to speak on Lords amendments 3B and 4B to 4J. While there are improvements to the legislation, I would like to reaffirm on record that I continue to be utterly astounded at the chilling gravity and significance of this piece of legislation, which seeks to decriminalise criminal conduct by intelligence and undercover agents, representing another departure from the recognised rules of domestic and international law.

Amendments 4B to 4J provide safeguards where children and vulnerable individuals who are involved in criminality become covert human intelligence sources. However, I would have liked this to go much further and, in particular, include safeguards for ethnic minorities, protest movements and trade unions in particular. The amendments outline that no criminal conduct authorisation can be made for a source who is under the age of 18 or is a vulnerable individual unless in exceptional circumstances, yet human rights and the rights of children are absolute in my mind, and I am not sure what circumstance could possibly render this fundamental principle secondary.

As a Muslim growing up in east London, I have experienced the well documented rise in Islamophobia and the steady erosion of civil rights, including the installation of cameras on street corners and increased surveillance. Our communities are too often seen not as citizens worthy of equality and respect, but as a threat viewed with hostility and suspicion. Indeed, Prevent has been widely criticised for fostering discrimination against people of Muslim faith or background. It was developed without firm evidence, and is rooted in a vague and expansive definition of extremism, including overt targeting of Muslim children in schools, which has meant that our Muslim young people in particular are being increasingly viewed through the lens of security. I fear that, as currently drafted, amendments 4B to 4J, while a moderate improvement, do not provide the safeguards for ethnic minority children. They will not protect my constituents from what they increasingly feel to be the lawlessness of undercover agents, which makes our communities feel less safe.

The use of undercover police posing as protesters, committing crimes and provoking violence, including violent responses from the authorities, has been discussed in the public domain in recent years in relation to Black Lives Matter protests, actions on climate change and G20 demonstrations. Lords amendment 3B seeks to ensure that innocent victims are able to seek compensation from the Criminal Injuries Compensation Authority. Throughout its passage, this Bill has triggered alarm bells for trade unions and justice campaigns such as the Orgreave Truth and Justice Campaign, which fear that these latest draconian powers could be used to interfere with the legitimate activities of trade unions. The deployment of agents provocateurs to commit and incite criminal activity, misconduct, malpractice and corruption during the miners’ strike has been well documented—the idea being to sabotage and destroy from within. Lords amendment 3B, while an improvement, falls far short of providing innocent victims with the right to seek justice.

To conclude, it is because I believe in a free and democratic society that I have opposed this Government’s authoritarianism with all my might. Our police and security services should exist to uphold the rule of law, not to break it. Human rights are absolute. The amendments today, despite their relative merit, are unable to counter- balance this legislation’s unprecedented breach of this essential principle.

[Sir John Hayes (South Holland and The Deepings) (Con) [V]]

This legislation is first and foremost about taking risks to save lives. The information acquired by covert human intelligence sources, often requiring great personal sacrifice at the cutting edge of terror, disrupts plots, secures prosecutions and prevents death and destruction, all of which takes courage and skill; sharp minds and brave hearts. As the Chairman of the ISC, my right hon. Friend the Member for New Forest East (Dr Lewis), said, reiterating the advice from MI5, if it was not for the covert intelligence sources, many of the attacks foiled in recent years would not have been prevented, and dozens of individuals presently alive would have been killed and, with them, loves lost and lives blighted.

The Bill before us is timely and necessary. It is right that the Government have engaged with those in the other place and elsewhere to improve safeguards, but in the end, for all the talk of rights, it is wrongs that ruin lives. The people whom we mission to keep us safe expect of us the legal means and mechanisms that are necessary for them to succeed, and by definition, those tasked with infiltration of organisations intent on wickedness are fraternising with individuals and groups capable of ruthlessness, often rationalised as a means to a desirable end. Not only would abject and inflexible refusal to engage in any and all criminal activity by covert human intelligence sources render it impossible to gain or retain trust, it would place those who are defending our interests in direct danger.

I am grateful, therefore, that this Bill provides our brave operatives with legal protection. While carefully authorised participation in criminality has been, for some time, accepted in the UK courts as a necessary and proportionate means to safeguard the public, there remains at present no formal, single, statutory basis for that. This Bill alters that by providing legal clarity, as previous contributors have made clear. It means that the current authorisation to engage in monitored criminal activity, which confers no immunity from prosecution, will be put to an end. By amending the Regulation of Investigatory Powers Act 2000, we can correct what has, up until now, been an uncertain situation by ensuring that those engaged in preserving and protecting our freedoms and liberties are not themselves treated as common criminals.

Of course, all criminal authorisations by the security and intelligence agencies must be properly circumscribed, absolutely necessary, proportionate, compatible with law, and—most importantly—subject to proper scrutiny, which is what this Bill also does. I am pleased that the Government have added to that scrutiny during the course of the Bill’s consideration and through the amendments they have accepted. Along with other members of the ISC, I have made clear that any and all authorisations must be specifically limited, and any criminal activity outside that expressly approved can, of course, be prosecuted. Moreover, authorisation must be reasonable, and positive and potential outcomes should outweigh criminal conduct. I think all Members of the House will agree that it is essential that criminal conduct authorisations must only be granted by highly trained and experienced authorising officers.

Finally and most importantly, effective scrutiny must underpin the entirety of this legislation. Authorisations must be overseen by the independent investigatory powers commissioner; the ISC should be kept informed of the use of CCAs; and the Investigatory Powers Tribunal will investigate any complaints about public authorities using this power. Lord Anderson’s amendment, accepted by the Government, on the timely referral of these matters to a judicial commissioner is helpful and valuable.

It is the very nature of law enforcement that risks and rewards must be balanced and considered. Few would doubt that access to unique information is essential to the prevention of horrors beyond our dreams but, tragically, not beyond our lived experience. Certain controlled criminal conduct, subject to specific safeguards, is necessary for our protection. This is the pragmatic principle on which the Bill is based, and I am pleased to support it.

This Bill does strike a balance between powers and scrutiny. It strikes a balance between giving those whom we have missioned to defend us what they need, and ensuring that in doing so, they act properly. It clarifies the law protecting operatives, and makes clear the circumstances in which those powers should be used. Its provisions are specific and limited; its purpose is right; and its time is due. It should be supported by all Members across the House.

[Mr Alistair Carmichael (Orkney and Shetland) (LD) [V]]

First, on behalf of my party, I welcome the amendments that have come from the other place that the Government are accepting. These are important concessions, which certainly improve the Bill. It has be said, however, that the Bill as a whole remains inadequate in the protections that it puts in place, and it bears the hallmarks of its history. Let us not forget that the Government did not bring in this Bill because they had a sudden damascene conversion to the need for scrutiny of this particular area of security and intelligence. They brought it in because they thought that they were at risk of losing a case in the Court of Appeal, having had a very close judgment in the Investigatory Powers Tribunal.

Essentially, in bringing in the Bill in this way, the Government have tried to recreate in statute the very loose and uncontrolled system that they have had prior to this. I suggest to the House that that will not stand the test of time. The right hon. Member for Haltemprice and Howden (Mr Davis) is absolutely right when he says that we need to hear from the Solicitor General at the Dispatch Box tonight clear undertakings in regard to the operation of the Human Rights Act as it applies to this Bill—soon to be an Act, no doubt.

The ambiguity is not just inherent in the Bill, as the right hon. Member for Haltemprice and Howden correctly said. Actually, that ambiguity can be seen between the way in which the Government have sought to argue their case in the Investigatory Powers Tribunal and the way in which they have presented their case in relation to this Bill. The Government have sought to claim that acts of torture by covert agents could be justified

“where the intention is to disrupt and prevent that conduct, or more serious conduct…or where the conduct would take place in any event.”

That, in itself, is not consistent with the Human Rights Act. It is clearly wrong and has been described as such by the Joint Committee on Human Rights in its report on the Bill. The Committee found that covert agents could not be authorised to get involved in abuses such as torture and that

“the intention behind that conduct cannot justify the violation.”

It has also been said, I think by the Intelligence and Security Committee, that the Bill is effectively about the Government outsourcing decisions that they could not take for themselves. That approach should provide us with concern and does worry us, because we know that these provisions will not then stand the test of time, and we will be back in the same territory that we have seen in recent years with other legislation, where the Government have to come back with legislation that is retrospective or seeks to amend the law to catch up with the courts.

I fear that we have a Bill that is not the last word on this matter. The Houses have made significant improvements to it, but it remains some distance from what the country needs and what those who do this very dangerous work on our behalf deserve to have.

Unduly Lenient Sentence Scheme

John Hayes Excerpts

Monday 5th October 2020 Commons Chamber

[Lee Anderson (Ashfield) (Con)]

I am grateful for the opportunity to open this Adjournment debate on an issue that is of great importance to my constituents. We have a brilliant judicial system in our country—it is the envy of the world—and we get it right most of the time. However, sometimes we get it wrong when it comes to sentencing. The good news is that we have the unduly lenient sentence scheme, a highly successful scheme that allows sentences for certain offences that are unduly lenient to be referred to the Attorney General and, subsequently, the Court of Appeal, to hopefully get the sentences of some of the worst criminals in our society increased.

It is right that the most serious offenders, including those who have committed violent and sexual offences, should spend more time in prison to match the severity of their crimes. The Prime Minister has been clear that the Government he leads will strengthen public confidence in the criminal justice system, and on behalf of the residents of Ashfield and Eastwood, I will support legislation designed to achieve that.

Legislation was recently introduced in Parliament to abolish automatic halfway release for serious offenders who receive standard fixed-term sentences of seven years or more. That includes those found guilty of rape, manslaughter or grievous bodily harm with intent. Instead, a new requirement to serve two thirds of a sentence in prison was introduced, with the existing strict licence conditions on release continuing. That action means that around 2,000 serious offenders will spend longer in custody, keeping the public safe—and rightly so.

[Sir John Hayes (South Holland and The Deepings) (Con)]

With the permission of my hon. Friend, which I sought in advance, Madam Deputy Speaker, I wonder whether he agrees with me that the Government also need to tackle the vexatious liberal bourgeois lawyers who try to get the thugs, villains and crooks that he describes—

United Kingdom’s Withdrawal from the European Union

John Hayes Excerpts

Friday 29th March 2019 Commons Chamber

[Wera Hobhouse (Bath) (LD)]

Today is a sad day—not because we should have left the EU but have not, but because today signifies the pinnacle of a process in which a Government have for months refused to respect and listen to Parliament. We live in a parliamentary democracy. The sovereignty of our Parliament is a cornerstone of our democracy, but today MPs are being handcuffed, blindfolded and threatened to approve a deal that Parliament has overwhelmingly refused twice. If anything signifies the death of our parliamentary democracy, this is it.

This is the desperate last attempt of a Government and a Prime Minister who have lost control. For anybody who is a passionate supporter of democracy, Parliament and sovereignty, this is an outrage. For that reason alone, MPs should vote against today’s motion from an arrogant Government who have attempted to bamboozle, arm-twist and vilify the very representatives of the will of the people. The Government have lost not only trust but the last morsel of good will, and this is no way to get consent. Who buys the argument that voting for today’s motion will provide certainty? It will do nothing of the sort.

[Sir John Hayes (South Holland and The Deepings) (Con)]

Will the hon. Lady make it absolutely clear whether she and the Liberal Democrats want to honour the result of the referendum and leave the European Union, or whether they want to frustrate the will of the people and keep us locked into it?

[Wera Hobhouse]

I thank the right hon. Gentleman for that contribution and for the opportunity to say this again. If it was 100% clear that 17.4 million people voted to leave without a deal, or if it was 100% clear that 17.4 million people voted for the Prime Minister’s deal—which is what he should discuss with his own Prime Minister—then I would agree. But we do not know that, which is exactly why we need to test the will of the people. It was not clear.

European Union (Withdrawal) Bill

John Hayes Excerpts

Wednesday 13th June 2018 Commons Chamber

[The Solicitor General]

No. That is not true, I am afraid. Perhaps I will be a bit more polite to the hon. Gentleman and say that he raises a proper concern, but I can reassure him that that is not the case, and it is certainly not the approach of this Government.

May I now deal with the issue of the protections?

[Mr John Hayes (South Holland and The Deepings) (Con)]

Will my hon. and learned Friend give way?

[The Solicitor General]

No; may I develop this point?

This amendment will deliver robust protections. In particular, it acknowledges that there may be circumstances where the new environmental body should be able to take the Government to court; this is the important enforceability point. That power will be proportionate and appropriate, and used only as a provision of last resort, supplementing established processes including parliamentary scrutiny.

The amendment also requires that the Government list the environmental principles, such as the “polluter pays” principle and the precautionary principle, in the proposed draft Bill. The draft Bill and forthcoming policy statement will provide further details of how these principles will be interpreted and how they will apply. It will also set out that the principles should have an effect in the UK after we leave the EU that is equivalent to that before we leave. It will ensure that their primary focus will be on the formation of policy at a national level. In addition, the statutory policy statement will set out how, as at EU level now, the environmental principles will be considered in the context of the Government’s wider policy objectives. That includes the applicability of the principle of proportionality.

A policy statement will be presented here in Parliament for scrutiny before it comes into effect. As at EU level, the principles will also be considered in the context of wider objectives to ensure balanced decision making, meaning that Ministers of the Crown will also be required to give proper consideration to other important policy objectives, such as delivering a thriving economy and building the homes that people need, when making decisions. I thank my right hon. Friend the Member for West Dorset for tabling his amendment, and I urge hon. Members to support it.

I want to move on to the important issue of refugees—

[Mr John Hayes]

Will the Solicitor General give way?

[The Solicitor General]

Please forgive me, but I need to press on.

The Government recognise and share the strength of feeling in this House and beyond on the important matters of asylum and refugees, not least in relation to unaccompanied asylum-seeking children. I should be clear that what we are discussing here is the situation concerning asylum seekers—that is, people who have made an application for international protection and have not yet had their claim decided. That is entirely distinct from the equally important issue of refugees: people who have had their claims considered and been found to be in need of protection.

We as a country can be proud of the role that we have played in supporting children affected by the migration crisis. Since the start of 2010, we have granted more than 51,000 children resettlement, refugee status or alternative forms of protection. Our resettlement schemes have provided protection to more than 6,500 children. These are among the most vulnerable refugees, who the Government, with the UNHCR, have brought directly to the UK from conflict regions, together with their family members, so that they do not have to make appalling, perilous journeys to Europe, often in the hands of traffickers or smugglers.

Investigatory Powers Bill (Fifteenth sitting)

John Hayes Excerpts

Committee Debate: 15th sitting: House of Commons
Tuesday 3rd May 2016 Public Bill Committees

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

The clause introduces schedule 8. I seek an assurance for the record from the Minister, but if it is not convenient to deal with this point now, it can be dealt with in some other way. Schedule 8 deals with the supplementary provisions for combined warrants. Having been through it, I think its effect is that any of the conditions necessary for any single warrant will apply notwithstanding that there is a combined warrant—in other words, none of the safeguards is lost by virtue of the combination—and the duration of the shortest warrant will apply. I am pretty sure that that is the intention, but it would be helpful to have that to confirmed for the record, so that we are clear that none of the safeguards is lost when warrants are combined.

[The Minister for Security (Mr John Hayes)]

With brevity that I know you will welcome, Ms Dorries, I can say that that is certainly so.

Question put and agreed to.

Clause 212 accordingly ordered to stand part of the Bill.

Schedule 8 agreed to.

Clause 213

Payments towards certain compliance costs

[Keir Starmer]

I beg to move amendment 844, in clause 213, page 165, line 26, leave out subsection (6) and insert—

“(6) The appropriate contribution shall represent the full amount of the relevant costs, subject to any audit process under subsection (4)”.

This amendment would ensure that the Government meets 100% of the compliance costs and that there is full cost recovery for Communication Service Providers (CSPs) implementing the legislation.

It is a pleasure to serve under your chairmanship, Ms Dorries. The amendment speaks for itself, I think. The clause deals with payments towards certain compliance costs and subsection (1) deals with appropriate contributions. As the Committee will know, there has been real concern about what the cost of compliance will be for those called upon to comply and what contribution they will receive toward their relevant costs. The clause allows for “an appropriate contribution”. The amendment would ensure that the Government met 100% of the compliance costs and there was full cost recovery for communication service providers implementing the legislation..

There is concern among providers about what they will be expected to do by way of compliance and what the cost will be. It may be convenient for the Minister to deal with the estimated costs, because £170 million was mentioned at one stage but I am not sure that that is a final figure as far as the Government are concerned.

[Mr Hayes]

The amendment is designed to ensure that the Government’s commitment to cost recovery for providers is explicitly provided for in the Bill. The hon. and learned Gentleman is right to raise this issue again, reflecting what we heard during the witness session when we debated the issue in part. In his evidence, Mark Hughes said he was aware that

“Under the proposals in the Bill—the Home Secretary has made reference to it—we would recover our costs from the Home Office, as we have done under existing legislation.”

He went on to say that

“the proposed regime is more sensible as long as it is clear that we will recover 100% of our costs.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 45-46, Q126.]

And I am clear, quoting the Home Secretary, that

“100% of the compliance costs will be met by the Government.”—[Official Report, 15 March 2016; Vol. 607, c. 821.]

The hon. and learned Gentleman asks what that means in practice. The £174 million he mentioned is not a cap, but an estimate. It is dealt with in the impact assessment, and there is no cap in the impact assessment. We will meet costs such as they arise. We are determined to make sure that the Bill works and is not inhibited by any doubts about the cost of its implementation. Clearly, future Governments will inherit this legislation. It is worth emphasising that the current policy has not changed since the passage of the Regulation of Investigatory Powers Act 2000, so it has survived three Governments of different colours or combinations of colours—we used to be more rainbow-like than we are now, which is actually quite welcome, by the way. We are clear that 100% means what it says.

Above and beyond that—the hon. and leaned Gentleman did not ask for this, but I will add it—we need to be clear that the providers are consulted on any changes to the cost model and that they will be able to seek review of any variation to the notice that affects the level of their contribution. To sum up: we have an estimate, not a cap; a determination that 100% means 100%; a willingness to have a proper input into this; and an assurance—which I think is what the hon. and leaned Gentleman really seeks—that the Government will cover the costs so that the Bill does what it should.

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

What a great reassurance it is to see you in the Chair, Ms Dorries. I will be very brief. I welcome the contributions of my hon. and learned Friend the Member for Holborn and St Pancras and the Minister for Security. As Committee members know, I have been banging on about this issue—

--- Later in debate ---

[Mr Hayes]

Yes.

[Christian Matheson]

—rather tediously. The Minister says, “Yes,” but I have to point out that he said it before I said “rather tediously”. I welcome the Minister’s assurance as I have been concerned about communications service provider security since Second Reading. Will the Government consider providing security advice and testing for the smaller communications service providers, in addition to the financial contribution that they are making?

[Mr Hayes]

I will make only two points in reply to the hon. Gentleman. First, when he describes it as “banging on”, he understates his contribution. I see it more as informed, eloquent and sensible inquiry. Secondly, he is absolutely right that the small providers need to be fully involved at all stages. It may be fair to say that the bigger providers have the mechanisms to implement the requirements for data retention more straightforwardly, so we need to ensure that that does not mean that small providers are in any way disadvantaged. I acknowledge that point, and he is right to make it elegantly. He should never apologise—at least to me—for banging on about anything.

[Keir Starmer]

I am grateful to the Minister for setting out that assurance for the record. That will reassure those who are concerned about this issue. In those circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 213 ordered to stand part of the Bill.

Clauses 214 and 215 ordered to stand part of the Bill.

Clause 216

National security notices

--- Later in debate ---

[The Solicitor General]

I have been interested in the clause for a while, because there are issues about what “relevant notice” means, for example. I assure the hon. and learned Gentleman that that applies only to technical capability notices, not national security notices. I will carefully consider how we can make that absolutely clear, and in that context I will have another look at the how the clause is worded. I want to put beyond any doubt the fact that the clause relates only to a technical capability notice and does not relate to third parties. That has been an important undertaking that we have given.

[Mr Hayes]

Deliberating on the interesting discourse that has taken place between the Solicitor General and the hon. and learned Member for Holborn and St Pancras, I take the point that the hon. and learned Gentleman makes about necessity and proportionality running as a theme throughout the Bill. My hon. and learned Friend the Solicitor General is of course right that these are preliminary measures, and therefore once an outcome that has been tested for proportionality has been reached, that will not be a problem. I say to him that there is an argument for taking that into account and making it even clearer, either in the supporting documentation or in the Bill.

[The Solicitor General]

I am grateful to my right hon. Friend, and I will do that.

Before I go further, I will deal with the point that the hon. and learned Member for Edinburgh South West made about Apple. My understanding is that the process will give her some reassurance. In that scenario, Apple, as the recipient of the notice, could refer it back to the Secretary of State, who in turn must then consult the technical advisory board and the IPC before deciding whether to proceed further with the notice. If the Secretary of State proceeded, it would then be judicable in the courts, which would determine whether the notice could be enforced. It is quite similar to the scenario that we discussed in the context of national security notices. I hope that gives her some assistance.

--- Later in debate ---

[Joanna Cherry]

The SNP takes the same position as it did on the previous clause.

Question put and agreed to.

Clause 218 accordingly ordered to stand part of the Bill.

Clause 219

Variation and revocation of notices

[Mr Hayes]

I beg to move amendment 734, in clause 219, page 170, line 8, at end insert

“(and in the application of section 218(3) and (4) in relation to varying a relevant notice, references to the notice are to be read as references to the notice as varied).”

This is a technical amendment. Ms Dorries, I should have welcomed you to the Chair earlier, but I do so now. The amendment is uncontentious and makes a drafting correction to clause 219. On that basis, it should not cause the Committee any undue concern, and I move it in that spirit.

Amendment 734 agreed to.

Clause 219, as amended, ordered to stand part of the Bill.

Clause 220

Review by the Secretary of State

[Keir Starmer]

I beg to move amendment 851, in clause 220, page 170, line 31, leave out subsection (6) and insert—

‘(6) The Board must consider the technical requirements and the consequences, for the person who has made the reference and for others likely to be affected, of the notice so far as referred.”

This amendment would require the Technical Advisory Board to look at more than just an implementation of cost measure and instead examine the full costs of the notice.

Our discussions have already strayed on to clause 220. This short amendment is reasonably clear. Subsection (6) makes it clear that the technical advisory board, referred to in subsection (5)(a),

“must consider the technical requirements and the financial consequences, for the person who has made the reference, of the notice so far as referred.”

That is where the person served with the notice has referred the notice back to the Secretary of State, which then triggers a consultation exercise. The board must be consulted; subsection (6) sets out what the board must consider. The amendment is fairly self-explanatory; it would serve the limited purpose of requiring the technical advisory board to look at more than just the implementation of cost measure, and instead examine the full costs of the notice.

[Mr Hayes]

As the hon. and learned Gentleman said, the amendment would broaden the scope of the technical advisory board by requiring it to consider other matters as part of any review of the obligations imposed by the Secretary of State in a notice. Under the amendment, the board would be required to consider the consequences for others likely to be affected by the obligations imposed by a notice. That is understandable—I can see why the hon. and learned Gentleman tabled the amendment—but unnecessary.

The technical advisory board is essentially a committee of experts. It has a very specific role to play in advising the Secretary of State on cost and technical matters. That role is reflected in its membership: a group of experts drawn from communications service providers and from those entitled to apply for warrants and authorisations under the Bill. Such people are well placed to consider the technical requirements and the financial consequences. If they consider it appropriate, they may look beyond cost and technical feasibility, but those matters, rightly, are the board’s central purpose and are at the core of its work. The board is also required to consider evidence or representations made by communications service providers and must report its conclusions to them and to the Secretary of State.

In my view, responsibility for considering the broader effects of the notice on the communications service provider to whom it has been given should sit with the Investigatory Powers Commissioner. While it is absolutely right that the board considers both the technical aspects and the cost, the broader matters that the hon. and learned Gentleman is rightly concerned about should fall within the scope of the commissioner, as they do in the Bill. As part of any review of the obligations set out in the notice, the commissioner must report on the proportionality of those obligations; that will include an assessment of the consequences of the notice, both on the persons seeking the review and on anyone else affected—which is essentially the argument the hon. and learned Gentleman made for the amendment.

Furthermore, the clause requires the commissioner to seek out the views of the person who has received the notice, who will have the opportunity to raise any concerns about the effect of the notice with the commissioner for consideration; the commissioner must report his or her conclusions to that person and to the Secretary of State. Essentially, combining the role and responsibilities of the board with the role and responsibilities of the commissioner means that each of them will provide a function central to the hon. and learned Gentleman’s concerns, so the amendment is unnecessary. I should add that the commissioner is properly and well placed to consider the proportionality of the matter as a whole, after careful assessment. The amendment’s wording would introduce duplication and, frankly, a degree of ambiguity about the respective roles of the board and the commissioner and about what each of them is considering. With that reassurance, I hope the hon. and learned Gentleman will withdraw the amendment.

[Keir Starmer]

The Minister says that the Bill places no inhibition on the wider technical consequences looked at by the board, and that other consequences rightly come under the remit of the commissioner. I am grateful for that clarification; I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: 852, in clause 220, page 171, leave out lines 1 and 2 and insert—

“(9) The Secretary of State may, after considering the conclusions of the Board and the Commissioner, and with approval of a Judicial Commissioner—”.—(Keir Starmer.)

This amendment would require judicial authorisation for these clauses and bring them in line with other parts of the bill.

Question put, That the amendment be made.

--- Later in debate ---

[Keir Starmer]

Yes, that is probably the way out of my dilemma, but really this is more for the record. I will not vote against clause 222, but that is not because I think it is preferable to new clause 23; I would like to have the new clause as well. We will reflect on how we deal with that apparent dilemma.

[Mr Hayes]

That was the most heartwarming qualified advocacy of an amendment that I have ever heard in Committee; I was quite touched by it. I could not help thinking that there must be countless Tory voters in Holborn and St Pancras who feel about the hon. and learned Gentleman as he feels about this clause. I know that he bathes in their generous acclamation on a daily basis. It was very decent of him to put his case in the way he did.

I will deal with the substance of the new clause and its purpose. The hon. and learned Gentleman is right that new clause 23 would replace the Government’s proposals for a review of the operation of the Act as set out in clause 222, and he is also right that the clause obliges the Secretary of State to report to Parliament on the operation of the Act within four to five years. He described the detail, and I will not tire Committee members by quoting it more specifically. The new clause proposes instead the appointment of an independent reviewer to report on the operation of the Act every five years, beginning five years after the Act is passed.

Where we find common cause is in thinking that both pre-legislative and post-legislative scrutiny are essential. One could make that argument for most legislation, but particularly for legislation in this field, for two reasons: first, its import; and, secondly, the changing circumstances that will doubtless apply, as regards both technology, which the Bill deals with expansively, and the threat we face. All we know about the changes that have taken place over recent years suggests that those changes will continue and may grow in character and speed.

I fully understand why the hon. and learned Gentleman wants the whole House to take a close look at these matters over time. Indeed, the Home Secretary, in her evidence to the Joint Committee on the draft Bill, said:

“As technology advances, it may be necessary to revisit the powers, the legislative framework and the safeguards that are available”.

That is eminently sensible, and something that the Government wholeheartedly support.

As I said, clause 222 provides for judicial review. The hon. and learned Gentleman did not mention it, but he will know that the Joint Committee looked at that, and said that

“the appropriate vehicle to do this would be a specially constituted joint committee of the two Houses. This work should begin within six months of the end of the fifth year after which the Bill is enacted. Although the appointment of such a committee would be a matter for the two Houses, a provision in the Bill would provide a clear mandate and guarantee the timescale for this review.”

The Joint Committee gave that quite careful consideration. The members of this Committee who were also members of that one will recall that they did so because of the shared determination, which the hon. and learned Gentleman has articulated well, that we should not assume that as time goes on we will not need to be reasonably flexible about the application of the powers.

The Solicitor General made a point about providing legislation that looks as far into the future as possible. Certainly, the purpose of the Bill is to not only draw existing legislation into a single place but, as far as one reasonably can, prepare for the future. However, in doing so, it is important to be mindful of what the Joint Committee said, reflecting the Home Secretary’s evidence.

The hon. and learned Member for Holborn and St Pancras will know that the Joint Committee went on to recognise that the Government cannot, in statute, require Parliament to appoint a post-legislative scrutiny Committee. Let me explain that a little more. Ms Dorries, as you will understand with your experience in the House, it is not for the Government to say what Select Committees might look at over time. It certainly would not be for the Government to dictate to the Intelligence and Security Committee, for example, how it should regard or review the legislation within its scope or purview. It would be a dangerous precedent to set to say that any particular Select Committee should, statutorily, consider matters at a particular point in time, or in a particular way.

The clause says that the report should take account of any other report on the operation of the Act, mindful of what I have just described—that is, that the ISC, other Select Committees, or Committees of both Houses could bring evidence to bear that would inform that review. In essence, it would be a matter for Parliament to decide precisely what was looked at and when, within the confines determined in the Bill, but it is essential that the Secretary of State is missioned to report on the Bill’s implementation in the timetable described. That is something that legislation can quite properly do; it both gives all kinds of powers to the Secretary of State, and confirms those powers.

While I can see why the hon. and learned Gentleman supports the new clause, it is unnecessary, not because of the intent, but because of the detail. Essentially, we are offering two different models in order to achieve the same end. A parliamentary Committee would be just as independent as a separately appointed reviewer—and it would avoid the argument, which I know Opposition Members would be quick to have, about who should be responsible for appointing the reviewer.

[Keir Starmer]

This may be blindingly obvious, and any Secretary of State, including the current one, would almost certainly take this into account anyway, but could we amend subsection (3) to make it absolutely clear that the Secretary of State must take into account reports of the independent reviewer in addition to those of Select Committees? While that is not precisely what the new clause would achieve, and while I am absolutely sure that any Secretary of State would do that in any event, it would weave in an element of the new clause’s intention. It would not presuppose that there would necessarily be a report, but if there were one, it would be taken into account.

[Mr Hayes]

I am not unsympathetic to that suggestion, but let me qualify that slightly. There is an argument to say that we would want another reviewer involved in the process, because what we want is as much empiricism as possible. We have neither the time nor the patience for a long debate about the philosophical character of empiricism, and I am not an empiricist, philosophically, but in terms of legislation, it matters. There is an argument for introducing still more independence into the process.

The hon. and learned Gentleman is right to say that, of course, the Secretary of State would want to take into account the views of all those in positions of authority who have taken a view on the Bill and its implementation and effects in her or his report. I certainly would not want to exclude from that consideration any of the authoritative reports published on the Bill. I think that probably meets the hon. and learned Gentleman halfway, and perhaps a little more than halfway.

Any parliamentary review would take evidence from a range of witnesses. It is, again, almost inconceivable that the independent reviewer would not be a key witness, as our current independent reviewer was to the Joint Committee and other Committees of the House. It would—again, as the Joint Committee did—be likely to appoint technical advisers, who would inform the process and work in concert with the ISC. While the Government support a post-legislative review of the Bill, that review should be conducted by Parliament—by legislators drawing on external expertise and evidence, as the Joint Committee recommended. I therefore invite hon. Members not to press the new clause to a vote.

[Joanna Cherry]

I will not press new clause 23 to a vote.

Question put and agreed to.

Clause 222 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Simon Kirby.)

Investigatory Powers Bill (Seventh sitting)

John Hayes Excerpts

Committee Debate: 7th sitting: House of Commons
Tuesday 19th April 2016 Public Bill Committees

[The Minister for Security (Mr John Hayes)]

On a point of order, Madam Chairman. I will be writing to you today to summarise all of the areas on which the Solicitor General and I have offered to provide more information during the course of our sittings. I will do that each week, with a view to informing the debate and ensuring that all members of the Committee have the information.

[The Chair]

Thank you very much, Minister.

Clause 61

Relevant public authorities and designated senior officers

--- Later in debate ---

Relevant public authorities and designated senior officers

[Mr Hayes]

I beg to move amendment 105, in schedule 4, page 206, line 40, at end insert—

[The Chair]

With this it will be convenient to discuss Government amendments 106 to 108.

[Mr Hayes]

Welcome to the Chair, Ms Dorries.

The amendments make minor changes to schedule 4. As has already been said, schedule 4 lists the public authorities that are able to acquire communications data, the types of communications that they are able to acquire and the statutory purposes for which they can do so. Amendment 105 adds a new entry for ambulance trusts in England, amendment 106 removes the existing entry and amendment 108 introduces the definition of an ambulance trust. The changes make the definition of ambulance trusts consistent with the definition in the Policing and Crime Bill.

The amendments also remove purpose (b) in clause 53(7) from the purposes for which ambulance trusts can acquire communications data, because ambulance trusts obviously do not need to acquire communications data for the purpose of the prevention or detection of crime. In the same vein, amendment 107 restricts the purposes that the Northern Ireland Fire and Rescue Service Board can use to acquire communications data, consistent with the purposes for English fire and rescue authorities. These are uncontentious amendments designed to make the Bill consistent and coherent.

Amendment 105 agreed to.

Amendments made: 106, in schedule 4, page 207, leave out lines 24 to 35.

See the explanatory statement for amendment 105.

Amendment 107, in schedule 4, page 207, line 39, leave out—

--- Later in debate ---

[Mr Hayes]

I know the hon. and learned Gentleman is probing. He is right that the clause sets out how the Secretary of State may, by regulation, add or remove public bodies listed in schedule 4 and make modifications accordingly, but it also sets out that the Secretary of State does so by means of regulations. He will have noted that in practice that means a statutory instrument, which is subject to the affirmative procedure, as is made clear in clause 63(3).

I understand the hon. and learned Gentleman’s point, which is reasonable, but there are limits on what the Secretary of State can do in the sense that the affirmative procedure must be followed, which will give an opportunity for further consideration. I am happy to confirm that the intention in the Bill and the spirit in which it was constructed are very much along the lines he described.

[Joanna Cherry]

I wish to oppose this clause.

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

--- Later in debate ---

[Mr Hayes]

They were.

[Keir Starmer]

That is welcome and we support them for that reason. In tightening controls, there has been a failure, perhaps deliberate, not to align this with the test in other cases. The judicial authority would be able to say, “I would not in fact authorise, but there were reasonable grounds on which somebody else could have done so.” I am making a probing point; no amendment was tabled. I support the further protection in relation to local authorities. I just wondered whether there was a deliberate intention not to align this provision with the other safeguard provisions in the Bill.

[Mr Hayes]

There are two things to say. First, the measure replicates the current position under the Regulation of Investigatory Powers Act 2000, so it is established practice. Secondly, as the hon. and learned Gentleman conceded, it is an attempt to add an additional safeguard, for the reasons he gave. It seemed important that this was not used permissively. The only other thing I would add, given that he is probing, is that all of this would have to pass the tests of proportionality and necessity; that is a given. I am happy to look at whether we need to reinforce that, in the code or perhaps elsewhere, because proportionality and necessity underpin all of this; that is not specified in this part, but it is a prevailing and underpinning assumption about authorisation. I understand that he is probing and also appreciate that he understands what we are trying to do.

[Keir Starmer]

I am grateful to the Minister for the spirit in which he is approaching this issue. I accept that necessity and proportionality are the key tests for the application in the first place. The question for the magistrate is then whether there are reasonable grounds for considering it to be necessary and proportionate. That leaves room for the magistrate to say, “I personally do not think it is necessary and proportionate but I accept that somebody else might think there are reasonable grounds.” I do not want to take this too far because it is a relatively minor provision in the Bill and I accept that it is in the scheme of tightening the safeguards; however, I just wonder whether some thought can be given. When the other tests have been so carefully construed—and we will have further discussion on what those tests are—this is an outlier in the way that it is expressed. I accept that it reflects current practice, but I do not think that is necessarily a good reason for simply replicating that unless, on reflection, current practice is thought to be the right way forward from here.

[Mr Hayes]

I will test that. The hon. and learned Gentleman makes a reasonable point, so I will test our experience of current practice regarding this issue and I will also test and consider whether we need to provide further guidance. I would not want to go too far because, as he says, it is a minor matter, but he is right to say that it is important that it is consistent. I am more than happy to take a look at that, and on that basis I think we should move on.

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

--- Later in debate ---

[Joanna Cherry]

The amendments are jointly supported by Labour and the Scottish National party.

Throughout this part of the Bill, public authorities and other decision makers are placed under a duty to consider a range of factors connected to the decision to access retained communications data. Those factors include cost and other resource implications and

“any issues as to the lawfulness of the proposed authorisation.”

These amendments include a specific duty to consider the public interest and the protection of individual privacy—that is, the protection of the privacy of our constituents; and the security of communications systems and computer networks—that is, the security of our constituents’ private data. Both David Anderson, in his independent review, and the Intelligence and Security Committee, in its report on the draft Bill, emphasise the importance of privacy principles and the need to make clear the legality of the use of surveillance powers in this new legislation.

Although we are focusing on a specific amendment to increase safeguards for individual privacy and security of data, we are concerned that throughout the Bill there appear to be statutory duties on public agencies, officials and agents and on judicial commissioners, to consider factors relevant to national security and the prevention and detection of crime, and the effectiveness of powers and resources expended, but there is no specific treatment of privacy standards and the public interest.

While the clauses that these amendments are attached to refer to

“any issues as to the lawfulness”

of the powers, the vagueness of this instruction is, in my submission, very contradictory. Surely it must be the first consideration of any individual considering the exercise of powers under the Bill that they should be legal. Legality should be a first consideration; treating it as just one at the end of a list of other factors to be considered seems entirely inappropriate. In this regard, it would be of huge assistance if the Minister could give us a fuller explanation of why statutory duties in the Bill have been approached in this way, with legality as a final duty; of the objectives of including the factors as provided in the manner in which they are drafted; and of why the protection of privacy and the public interest in the integrity of communications systems and computer networks will not be mentioned unless this amendment is made.

[Mr Hayes]

The hon. and learned Member for Holborn and St Pancras is right about the purpose of the clause, and I understand the reason for the amendments. The single point of contact may advise the applicant and designated senior officer of the cost and resource implications for the public authority, and the communications service provider of any unintended consequences of the proposed authorisation and any issues surrounding the lawfulness of the proposed authorisation—one of the points that the hon. and learned Member for Edinburgh South West raised.

The points about cost and lawfulness that the hon. and learned Lady raised are certainly part of the advice that the applicant should receive, as well as the appropriate methods to obtain the data they are seeking, while the designated senior officer will be advised on the practicality of obtaining the data sought. Bear in mind that the single point of contact can already advise on the lawfulness of proposed authorisations. For authorisation to be lawful, it has to be both necessary for one of the statutory purposes in the Bill, and proportionate in all circumstances.

The point the hon. and learned Lady made about privacy is a reprise of the debate we had at the very beginning of our consideration, when I argued—I thought pretty convincingly, but clearly not—that privacy is woven through the Bill. For the sake of emphasis, I say again that the protection of privacy and personal data must be a key consideration in gauging proportionality.

[Joanna Cherry]

I hear what the Minister is saying. As I understand it, he is saying that the issues highlighted by the amendments will be taken into account, so why not say so? What is the detriment in saying so and making it crystal clear? This is for the comfort of the many constituents and members of the public who are concerned about the privacy and integrity of their data, so why not say so in the Bill? What possible detriment could there be in following that course of action?

[Mr Hayes]

Let me rehearse the argument that I used originally, because despite what I described as its persuasiveness, it clearly was not sufficiently well articulated to convert the hon. and learned Lady to the cause of virtue. Let me rearticulate it: if privacy is separated out in the way that some argue we should have done and might do now, and it is identified in the desiccated way that those people suggest, its significance is curiously—one might even go so far as to say paradoxically—weakened as a defining characteristic of the purposes of the legislation. However, it is worth emphasising the point I made a few moments ago about the need to tie personal interests and the protection of private data in to the test of proportionality in the draft codes of practice.

I draw attention to the codes of practice at paragraph 3.18—the heading is “Further guidance on necessity and proportionality”—which says:

“An examination of the proportionality of the application should particularly include a consideration of the rights (particularly to privacy and, in relevant cases, freedom of expression) of the individual and a balancing of these rights against the benefit to the investigation.”

That could not be plainer in doing precisely what I have described, which is to look at the right to privacy—I do not like to use the word “right”; I prefer to use “entitlement”—the entitlement to privacy with the functioning nature of an investigation into the effectiveness of the process.

[Joanna Cherry]

As I understand it, the Minister is saying that privacy is so important and so woven into the Bill that to single it out would weaken its importance. Surely lawfulness is equally important and that has been singled out by the draftsmen in subsection (6)(d).

[Mr Hayes]

I have already argued that lawfulness is, again, an underpinning requirement in these terms. Just to be absolutely categorical, the designated senior officer is the one who makes the final assessment of necessity and proportionality, as required by the code of practice. They must have a working knowledge of legislation, specifically that which relates to necessity and proportionality and the entitlements of individuals in those terms.

I just think that the combination of the Bill and the codes of practice render the amendment unnecessary. I emphasised previously that the codes of practice are drafts and the final code of practice will reflect some of this Committee’s considerations. If I may turn my attention momentarily from the hon. and learned Lady, if the hon. and learned Member for Holborn and St Pancras feels that the code should be strengthened in that regard—I re-emphasise that I think they are pretty clear—I would of course be prepared to hear his argument. [Interruption.] Before I move on to the amendment about system integrity, I can see that he is champing at the bit, or maybe I am misinterpreting him.

[Keir Starmer]

I was going to cover this in my reply, but the argument the Minister is now putting is unpersuasive, and I am afraid I found it unpersuasive a week ago. In practical reality, when a senior designated officer gets to lawfulness, they will be thinking necessity and proportionality, and they are likely to be advised about that. That is the test for restricting privacy. What we do not see is the statement of privacy, either in this subsection or an overarching clause—I have been trying to articulate what is nagging away as to why the overarching clause is needed. In the end, real people, in real time, will find that lawfulness will mean going back to check necessity and proportionality. That is welcome and right, but they are not the definition of privacy; they are the permitted restrictions of it.

[Mr Hayes]

That is a fair argument and that is why it is necessary to supplement what the hon. and learned Gentleman describes with the code of practice in the way that I have described. My invitation to him was that if he accepts that, he might want to focus attention on the code of practice to see whether it is as good as it might be. I drew attention to the provision on the necessity and proportionality. It might be that the draft could be further improved. After all, nothing, at least on earth, is perfect, and certainly no Government would want to claim perfection—

[Suella Fernandes]

rose—

[Mr Hayes]

I was about to say that perfection was an intellectual construct, but I am happy to give way on that note.

[Suella Fernandes]

Is it not impossible that privacy will not be considered as part of any application? Proportionality runs through the authorisation regime, and if a single point of contact has to apply a proportionality test, by definition and necessity, he will incorporate a wide-ranging consideration of the impact on privacy.

[Mr Hayes]

Yes, I agree. That is an elegant re-articulation of the point that I was imperfectly making about the intrinsic relationship between a consideration of personal interest and the test of proportionality. For the exercise of the power to be proportionate, it must take proper account of the balance that I described between personal interest and investigative effectiveness.

[Keir Starmer]

This is a relatively minor point, but it goes to the wider question of the overarching clause.

[Mr Hayes]

It does.

[Keir Starmer]

We have to look at this issue practically, through the eyes of the people who will operate such authorisations. I know how it will work: they will be directed to look at the necessity against clause 53(7) and they will go through a list. They will then be asked to look at the proportionality against the matters set out in clause 53. That does not point them to privacy. In the vast majority of cases—in good faith, I am sure—they will go through that clause, rather like a checklist. I do not mean to demean or undermine the exercise that they will go through, but I have seen the operation of such tests many times. Those people will ask themselves, “Is it in the interests of X, Y and Z? Is it proportionate to that?” I accept the point about the code of practice, but they will not necessarily ask themselves about privacy. That point is probably more about the overarching clause than about the specific amendment, but that is our nagging concern. One has to see this issue through the eyes of how in practice the process will work on the ground in real time.

[Mr Hayes]

The hon. and learned Gentleman describes the concerns and says that he knows them. Of course, he will also know that it is part of the requirements that those people undertake the right training and that they are expected to have competence, in particular an understanding of all the necessary legislation, including rights legislation. It is important to understand that those people will be making an assessment based on both evidence and comprehension. I re-emphasise that the code of practice is vital. I am trying to tip him off—perhaps I am being too subtle—that he may want to press me further on those very matters in terms of the draft code of practice, which is pretty good, but such drafts can always be improved.

Let me be even more generous. I am an Hegelian, as the hon. and learned Gentleman knows, and I believe that the truth lies in the whole, as Hegel said. The emphasis on privacy that underpins the whole Bill is fundamentally important, but in this regard I take his point that those missioned to do this job need to be very clear about that balance. To be still more generous, he is right in his strong implication that the training and guidance that those people receive about the interpretation of proportionality in this regard is important. That is the purpose of the code of practice, but we might want to go still further and I am happy to be tested further on that during the course of our consideration. I want to move on to the next group of amendments, because otherwise we will do this to death, but have I signalled clearly my direction of travel?

[Keir Starmer]

I am grateful to the Minister. I raised this issue of how we go through this exercise with the codes of practice, to which we cannot table amendments, a week ago today. I take his comments as an invitation to draft or suggest tightening amendments—not necessarily in Committee, but outside it—where we think they are appropriate. I take it that those will be taken into consideration in any possible re-drafting of the code. I am grateful for that and we will engage with that exercise.

[Mr Hayes]

Yes. I think we have settled that, then. I was trying to act as an old hand to a young blood, despite our appearances and demeanour. To that end, I think the hon. and learned Gentleman has got the point.

[Simon Hoare]

To my simple mind, I just wondered which was which.

[Mr Hayes]

I would like to think I was a young blood with an old head. That is how I would see it; let us leave it there and move on.

Let me turn to systems integrity. It is important to set out the process for obtaining communications data. A public authority must require a communications provider to disclose communication data or it may engage in activity to acquire the data directly from a telecommunications system. Where data are sought from a provider, they will mostly be data that the provider has for business purposes or data retained under a retention notice. To the extent that a provider has put in place any dedicated system to provide for the acquisition of communications data, that capability and the necessary security assurances will be provided for under a data retention notice or technical capability notice.

In relation to obtaining data directly from a telecommunications system, the communications data code of practice makes it clear that communications data authorisation cannot permit the undertaking of any technique that involves interference with those systems themselves. That is quite important because, as various Committee members will know, that is an important assurance for providers. Such techniques could be authorised only under an equipment interference warrant. We will discuss those matters in the next part of the Bill.

The processes of requiring a provider to disclose data or the obtaining of data directly from a network will not have any impact on the integrity of telecommunications systems or the computer networks concerned. Accordingly, this is not an area on which the applicant or designated person will require advice. In essence, with that absolute firm assurance, the amendment is unnecessary and I invite the hon. and learned Member for Holborn and St Pancras to withdraw it.

[Keir Starmer]

The more I have listened to the debate on the amendment, the more convinced I have become that there is a need for an overarching privacy clause, to which I will turn our attention at a later stage. It follows from that that I will focus my energies elsewhere, and therefore I beg to ask leave to withdraw the amendment.

Investigatory Powers Bill (Fifth sitting)

John Hayes Excerpts

Committee Debate: 5th sitting: House of Commons
Thursday 14th April 2016 Public Bill Committees

[Keir Starmer]

I am grateful for that guidance, Mr Owen. If there is any further information that the tech companies can provide, they will do so. To be absolutely clear, these concerns were raised with me by a particular company but, after reflecting on them, I put them forward in my own name because I think they are genuine concerns. The conflict of laws is a real concern.

This comes up in a later clause, so we can look at it in detail then, but the problem the companies foresee is that if they are asked to do something that puts them in breach of the law in the country in which they are based, they will have a real dilemma. The Bill as drafted does not give them a way out of that dilemma. I am raising their concerns; it is appropriate for a scrutiny Committee to know the real concerns of those who are going to be called upon to implement the warrants, and to consider them.

Amendment 252 states:

“Subsection (4) shall not apply where the person outside the United Kingdom is established for the provision of services in a country or territory with which the United Kingdom has entered in to an international mutual assistance agreement or is subject to an EU mutual assistance instrument.”

It intends to ensure that, where there is a mutual legal systems’ provision that bites, this Bill should not be the route for enforcing the requirements of the warrant. It is a perfectly practical and sensible provision; if that enforcement is provided for by an international mutual assistance arrangement, that should be the primary route, because it will, one hopes, have in-built ways of dealing with the conflict point that I articulated.

Amendment 252 is to clause 34. I will deal with the amendments to clauses 35 and 36 when we get to them, if I may. There is a theme running through.

[The Minister for Security (Mr John Hayes)]

Thank you, Mr Owen, and I welcome you to the chair.

There are two points at the outset. I am grateful to the hon. and learned Gentleman for being clear about the genesis of these amendments. I also asked my officials that question; I assumed that the amendments had come from that source. Secondly, he will be aware that extra-territorial matters regarding overseas organisations or companies are always challenging, but, equally, he will recognise that in this context it is critically important that we address that point, because the ownership of companies that have a profound effect on the matters we are debating is often outside the UK.

Mindful of those points, let me move to the amendments. Amendment 252 seeks to remove the ability to serve warrants on an overseas provider, where a mutual legal assistance agreement is in place. It is important to understand that that would have several consequences. One possible consequence would be to slow the process down. The second, more fundamental, consequence would be for us to lose the ability to serve a search warrant on a company based outside the UK that provides services to users in the UK. Contextually, many of the people who pose the greatest threat to us use services which are based in companies outside this country, especially, as the hon. and learned Gentleman suggested in his opening remarks, in the United States of America. The mutual legal assistance treaty does not provide a course for interception warrants. It is a route to secure evidence, as he will be very much aware from prosecutions. It is used to obtain communications data and store them for use in prosecution. It is of little or no use in very fast-moving counter-terrorism circumstances or in serious crimes operations, which we are frequently dealing with. I do not need to go into immense detail because, I think, the demand for brevity is such that that would be superfluous. Any number of the pieces of evidence offered in the work done so far on the Bill make it absolutely clear that, in both of those kinds of cases, communications data are absolutely central, which is true to an increasing degree, and it is often provided by companies from outside the United Kingdom.

In his report, with which you will be familiar, Chairman, David Anderson addresses that point precisely. He argues that the mutual legal assistance treaty route is

“currently ineffective. Principally this is because it is too slow to meet the needs of an investigation, particularly in relation to a dynamic conspiracy”

of the very kind I have described in relation to organised crime and terrorism. He argues that it does not address intelligence needs. He notes that progress has been made and he cites the Irish Government in the context of the EU protocols for legal assistance. The hon. and learned Member for Holborn and St Pancras made reference to the work that the Prime Minister’s envoy is doing in this regard, but the Prime Minister’s envoy has said:

“While we should improve our current Mutual Legal Assistance Treaty, it will never be fast enough or have a scope wide enough to allow for urgent counter-terrorism and similar requests.”

The final point is critical. As well as being too slow, the MLAT route is limited to a request for evidence in relation to serious crime prosecutions; it does not provide for national security or investigations that are at an intelligence-gathering stage rather than those in which the focus is on obtaining evidence. As I said, it is essentially about prosecutions, so it cannot deal with that earlier work. Other similar agreements—for example, the European mutual legal assistance convention—have similar drawbacks. Although I appreciate that the amendment is probing, relying on this route simply would not deliver the effectiveness that we need.

Clause 35 makes provision for the service of a targeted interception warrant or a mutual assistance warrant on a person outside the UK. The amendment would require a warrant to be served on an overseas communications provider at their principal overseas office in the first instance. The ways in which an interception warrant may be served on a person outside the UK are already set out in the clause, providing a number of alternative methods, to allow flexibility.

It is interesting that the hon. and learned Gentleman spoke about companies that have been deep in discussion. He will know that there is quite a difference of opinion among companies about this. Some want flexibility and some take a different view. It is a mixed picture. He will also know that we have had extensive discussions with the sector and providers over a considerable period of time about various aspects of the Bill, including this one, and there is a difference of opinion among companies about that. Service to the principal office overseas is already possible under the clause, so there is nothing added to the Bill in that sense, but stipulating a mandatory method for how a warrant is served is unnecessary and possibly even unhelpful.

On the amendments to clause 36, I have set out the importance of the need for flexibility, and I hope that I have also made the case about vital intelligence work and so on. I can see the hon. and learned Gentleman beginning to stir.

[Keir Starmer]

The last time I was in a Bill Committee, I moved my arm in a particular way and somebody thought it meant I wanted to intervene. On this occasion, I do.

On clause 36, there is a concern, and anything the Minister can say on the record would be helpful. The problem is subsection (5), which is an attempt to help or to get round a problem, but does not go all the way. It states:

“In determining for the purposes of subsection (4) whether it is reasonably practicable for a relevant operator outside the United Kingdom to take any steps in a country or territory outside the United Kingdom for giving effect to a warrant,”—

because it is only reasonable steps they must take—

“the matters to be taken into account include the...requirements or restrictions under the law of that country”.

The concern is about asking for something that is unlawful.

[Mr Hayes]

I was going to refer to that, of course, because that is the part of the Bill that explicitly deals with the legal conflict issue, as he describes.

[The Chair]

Order. Just to help the Minister, we are still on amendments 252 to 256 to clause 34. We will come to the future clauses.

[Mr Hayes]

Without question, we will return to the matters in hand. The hon. and learned Member for Holborn and St Pancras is very helpful, but I appreciate your guidance, Mr Owen.

The effect of removing subsection (5) would leave the company alone to decide what reasonable steps were required to be taken for giving effect to the warrant. I do not think we should accept that position. Our engagement with overseas companies over the past few years has been clear. They require certainty of their obligations, and I know that is what the hon. and learned Gentleman is seeking. For that reason, Parliament enacted the Data Retention and Investigatory Powers Act 2014 as emergency legislation, to remove uncertainty.

I am not sure, given the threats we face, whether it is appropriate to leave a private company to determine whether it is obliged to do what is asked of it by legal instrument. The Bill already requires any requirements and restrictions under the law of the country where a company is based to be taken into account. In my view, it is wholly right that the UK Secretary of State makes that decision rather than a corporation.

The effect of the amendments in practice would be to transfer fundamental decision making to the corporation and I am not comfortable with that. I think it is right that these companies providing communications services to users in the UK should be required to comply with our law. I know that is not necessarily always their view but it is certainly mine and the Government’s. That must include UK warrants requesting the content of criminal and terrorist communications.

Members might recall the Home Secretary’s comments on Second Reading that made clear that we are working with the United States—I know the hon. and learned Gentleman wanted that assurance—to establish a new framework, which would release American companies from any perceived conflicting legal obligations.

The hon. and learned Gentleman makes a perfectly reasonable point about balancing a range of possibly competing or conflicting legal requirements but, frankly, multinational companies deal with that kind of thing all the time. These are companies dealing with all kinds of legal provisions and demands from all kinds of places in the world. This is not uncharted territory for them.

[Joanna Cherry]

It is incumbent on me to challenge something the Minister has just said. As I understood him, as far as possible it is desirable for the law of the UK in this respect to have effect abroad. How would the Minister feel if the French passed legislation that they wanted to have effect in England and Scotland?

[Mr Hayes]

That would be a more appropriate question to put if we were debating different amendments. I do not want to stray too far from your guidance, Mr Owen, so I will stick strictly to the amendments, rather than being encouraged down a tributary that I would not necessarily seek or want to navigate, particularly as it is implicitly about the European Union.

Let me return to the subject in hand. I accept that this is challenging but we need flexibility in the way we go about these things, coupled with determination that everyone must play their part, including these corporations, in helping to deal with the threat we face. We are trying to do that as much as we can through co-operation, as the hon. and learned Member for Holborn and St Pancras knows. It is vitally important that we retain the ability to take action against companies that do not comply with their obligations.

Once an agreement is reached it will be placed before Parliament under the Constitutional Reform and Governance Act 2010 in the normal way. On that basis, notwithstanding the hon. and learned Gentleman’s perfectly proper desire to probe the matter, I invite him to withdraw the amendment.

[Keir Starmer]

Of course, I accept the need for arrangements to be made with service providers and others in other jurisdictions. If that were not provided for, a lot of the Bill simply would not work or have any meaningful effect. I accept that proposition. I also accept that there are problems with the existing mutual legal assistance arrangements. The amendment—it was a probing amendment, so I shall not push it to a vote—envisaged further arrangements in due course. In truth, the sooner they can be progressed and agreed, the better.

I accept the proposition that we cannot necessarily leave it to the companies themselves to take decisions about which bits of any requirement they ought to comply with. The choice set up by the provisions, which may be a stark choice, is not whether to comply but which offence to commit. I am sure that, in reality, and hopefully in the consultation discussions, there will rarely, if ever, be a requirement that puts a company in breach of the law where they operate, but if it does, the company will have to make a choice: “Either we breach US law or UK law.” That is pretty invidious.

Companies do not want to be put in that position, but they will read carefully what the Minister has said. They are following progress carefully, and I know that progress is being made. On that basis, I will withdraw all three amendments, which address all three clauses, but I hope that I have made clear those companies’ concerns, which I share. Everything that can be done to fast-forward an international legal framework for this sort of requirement should be done as soon as possible. If it is not, not only tech companies but, I fear, the security and intelligence services, will be the losers. The more difficult it becomes to comply with a requirement in real time, the more likely it is that things will be lost while disputes are had about the requirements. I beg to ask leave to withdraw the amendment.

--- Later in debate ---

[Mr Hayes]

I can deal with this in two minutes. First, of course these things are challenging. I said that at the outset. Secondly, David Anderson is very clear in recommendation 25 of his report—the recommendation after the one that the hon. and learned Lady quoted—that:

“Pending a satisfactory long-term solution to the problem, extraterritorial application should continue to be asserted in relation to warrants and authorisations…and consideration should be given to extraterritorial enforcement in appropriate cases.”

That was his consideration, and that is right. These are challenging matters, but, frankly, companies have to make grown-up decisions about where they operate. Conflicts and other issues are already dealt with in the Bill, and we are working with the US to address concerns and to negotiate a new framework.

I think it would be extraordinary, given the current state of multinational business and the increasingly global online environment, if we did not put provisions in the Bill to provide powers to take action where necessary. I commend the clause to the Committee.

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

Investigatory Powers Bill (Sixth sitting)

John Hayes Excerpts

Committee Debate: 6th sitting: House of Commons
Thursday 14th April 2016 Public Bill Committees

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

The clause deals inter alia with interception in immigration detention facilities, and it is that which leads me to oppose its inclusion in the Bill. We can see that there is some replication of previous legislation in the provisions that deal with interception in prisons and psychiatric institutions, but the provision on immigration detention facilities is new and it is deficient in several respects. The theory underlying it is deficient, because immigration detention facilities are dealt with in a part of the Bill that includes psychiatric hospitals and the facilities are defined to include immigration removal centres, which are short-term holding facilities in which people, including families with children, are held in the so-called pre-departure accommodation.

Immigration detention has been the subject of much discussion on the Floors of both Houses because it is done by administrative fiat and without limit of time. The person detained will not have been brought before a court or tribunal to have the lawfulness of their detention or entitlement to bail considered, unless they instigate such a process; and the powers to detain are very broad and cover a large number of scenarios. The Bill states that conduct is to be authorised if it is done in the exercise of any power conferred by or under the detention centre rules or the rules for short-term holding facilities.

[The Minister for Security (Mr John Hayes)]

It may help the hon. and learned Lady to abbreviate her remarks if I say that the provision is not intended and cannot be used to deal with someone’s asylum or immigration status. That is not its purpose. With that assurance, perhaps the last point she made will not quite hold the water in her mind that it currently does.

[Joanna Cherry]

That does not really give me the assurance I seek. I was going to say that, under the clause, conduct is to be authorised if it is done in the exercise of any power conferred by or under the detention centre rules, or the rules for short-term holding facilities and pre-departure accommodation made under sections 157 and 157A of the Immigration and Asylum Act 1999 respectively. The latter sets of rules do not actually exist. Rules governing the regulation and management of short-term holding facilities were made in 2002, but it took until 2006 for draft rules to appear covering similar ground for short-term holding facilities as the detention centre rules do for immigration removal centres.

Back in 2006 the Home Office consulted on draft rules, to which various persons responded. In 2009 the Home Office consulted on another draft of the rules, to which there were further responses, many of them adverse; a number of freedom of information requests and parliamentary questions followed. In April 2012 the rules were described by the then Minister, the right hon. Member for Ashford (Damian Green), as being “still under development”.

In March 2014, during the passage of the most recent immigration Bill, which became the Immigration Act 2014, Lord Taylor of Holbeach gave a commitment to Lord Avebury, who had been chasing the rules since 2006, that

“rules governing the management and operation of short-term holding facilities and the Cedars pre-departure accommodation will be introduced before the Summer Recess.”—[Official Report, House of Lords, 3 March 2014; Vol. 752, c. 1140.]

Lord Avebury was informed before the recess that the commitment would not be met. He continued to pursue the matter, and draft rules were finally published on 18 February this year, almost a decade after the first draft was published and some 14 years after they were envisaged. That wait does not appear to have produced a version markedly different from earlier versions or particularly tailored to short-term facilities. In those circumstances, it is very far from clear what powers are being given by the current Bill. That shall be the gravamen of my exception to the clause.

In his review of immigration detention, Sir Stephen Shaw paid special attention to the problems of short-term holding facilities and the dreadful conditions in some of them. We have all heard about that on the Floor of the House. His concerns led him to recommend that a discussion draft of the short-term holding facility rules should be published as a matter of urgency. In the meantime, after he had said that, Her Majesty’s chief inspector of prisons published a damning report on one particular facility, the Longport freight shed in Dover, describing the dire state of the facilities there. He said:

“on various occasions Home Office staff told us that they did not consider Longport to be a place of detention…despite detainees being in possession of legal authority to detain documentation and obviously being unable to leave. At this facility, the normal mechanisms of internal oversight and accountability that should apply to any form of detention were lacking.”

Under such circumstances, the notion of any lawful exercise of the powers contained in clause 44 seems fanciful.

There are also problems with immigration removal centres. The latest version of the detention centre rules dates from 2001. They were last amended in 2005 to update the name of the tribunal hearing immigration cases and bail applications, but by the time that was done the name itself was out of date because it had already been replaced by the immigration and asylum chamber of the first-tier and upper tribunals. The rules contain a broad range of powers from powers to fingerprint individuals and powers of search, to powers to identify survivors of torture or persons with a mental or physical illness; powers on medical information and notification of illness and death; powers to segregate and use force, and powers to carry out compulsory tests for drugs. There are also rules regarding visitors to centres and contractors.

My point is that the rules cover the sorts of matters that would be covered by prison rules but they apply to a different regime and to people who have not been detained by the courts or by due process of law. The overall effect is a lack of clarity. When one is working against the background of rules that do not exist or, if they do exist, lack clarity, a clause such as clause 44 potentially has a very far-reaching impact on people whose civil liberties are already severely undermined by the circumstances of their detention. The Government do not need to take just my word for that; it is a view widely held, including by a number of Government Back Benchers and peers.

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

We will not oppose the clause but I wish to put on record our concern about immigration detention and the intercept of communications in immigration detention facilities. There is growing concern, as has already been said, about the fact of that detention, the length of it and the conditions. There have been a number of reports, to which the Government have responded. In those circumstances, it is incumbent on the Government to justify the clause, although we will not seek to delete it.

[Mr Hayes]

I will be equally brief. There is a misconception about this matter. The Bill as drafted simply ensures that any interception carried out at a detention centre and under detention centre rules is lawful. No purpose is intended other than the maintenance of safety and security of the people in those centres. It is clearly right that officers should be able to intercept attempts to send contraband material, for example, such as drugs, in particularly sensitive environments. The power cannot be used to deal with the outcome of any immigration cases, asylum applications and so on.

The Immigration and Asylum Act 1999 contains the power to make rules for management of immigration detention centres. Clause 44 provides that interception, carried out in accordance with those rules will be within the law. In a sense, it is as simple as that. I can see why the hon. and learned Lady might have misunderstood this, but I can assure her that that is what is in the Bill and, I put on the record, is the Government’s position. Rather than detain the Committee now, it might help if I send copies of the detention centre rules to Committee members, as they contain the essence of the argument that I have just made.

[Joanna Cherry]

My essential objection to the clause is that subsection (1) states:

“Conduct taking place in immigration detention facilities is authorised by this section if it is conduct in exercise of any power conferred by or under relevant rules”,

with the relevant rules described in subsection (2), and the underlying “relevant rules” are wholly inadequate. There has been a long history of problems with the rules, so the clause rests on a very shaky and unsafe foundation. I am concerned to protect the civil liberties of persons who are not criminals, who are not guilty of any violation of the law, but who are detained under immigration rules and whose civil liberties are already severely curtailed.

[Mr Hayes]

I have a great deal of regard for the hon. and learned Lady’s diligence, but she is tilting at windmills. The clause is pretty straightforward. The points she makes about the management of detention centres may be perfectly reasonable debating points for a different Bill at a different time, but this Bill is not really about the management of detention centres and similar places. That matter is rightly dealt with in the relevant legislation. This Bill is merely about the application of certain powers to those centres to ensure that they are lawful. It is not much more complicated than that. On that basis, I commend the clause to the Committee.

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

--- Later in debate ---

[Keir Starmer]

I can be brief because the amendments speak for themselves. Amendment 77 is intended to insert a reasonable excuse exception to the duty not to make an unauthorised disclosure, and amendment 78 goes with it by spelling out that it is a reasonable excuse if the disclosure is made with the permission of the person issuing the warrant or the person to whom it is issued.

There are two principal arguments. One is that in this and the following two clauses flexibility is needed for disclosure made in certain circumstances. The second point is one that some of the service providers are concerned about. They want to have discussions among themselves and with others about how to make the provisions in the Bill work.

At the moment, clause 49 would prohibit them from discussing either particular warrants or steps that they may be asked to take in order to solve some of those difficulties. It is the absolute nature of the prohibition that is the concern. Amendment 78, which allows disclosure if it is made with the permission of the person issuing it or to whom it is issued, seems to me to be a sensible way of getting around that particular problem.

[Mr Hayes]

As the hon. and learned Gentleman says, amendments 77 and 78 would amend the duty not to make an “unauthorised disclosure” to add the defence of “reasonable excuse”. I accept that that would be on par with clause 73(2), which concerns the communications data provisions. I think that it is right that we retain the position that exists under RIPA, which itself reflects the sensitivity of the techniques of intercepting agencies, the fact that material obtained through intercept cannot be used in evidence—unlike communications data—and makes it an offence to disclose the existence of a warrant.

As clause 50 sets out, disclosure is already permitted if

“authorised by the person to whom the warrant is…addressed”.

I would therefore argue that amendment 78 is not required.

It is worth adding that clause 50 sets out four categories in which disclosure can be authorised. I will not repeat them; they are pretty self-explanatory and, for the sake of brevity, we need to move on. Those exceptions provide adequate protection and, in my judgment, collectively render this amendment unnecessary, particularly clause 50(2)(b). I see why the amendment has been tabled and why the hon. and learned Gentleman wants to probe on it, but as he has acknowledged during our deliberations, the techniques and details of the capabilities of intercepting agencies must be protected for all kinds of reasons that we do not need to rehearse once again. Disclosure of such details would potentially cause some damage to the ability of those agencies to do their job.

Having said that, I completely accept that, if there is a case of wrongdoing or impropriety, and that case is made public, it is right that justice is done. There is no doubt about that, which is precisely why we have put into the Bill the establishment of a commissioner with the power to look at any aspect of those matters. In the end, it is better that a senior impartial and qualified person should take a view than, say, a junior official or employee of a telecommunications operator.

Nevertheless, I accept that it is important that people can raise concerns without fear of prosecution, which is why—I invite Committee members to look at it—we added clause 203 to the Bill, which we will get to when the Committee considers part 8. You will not let me go into too much detail about that now, Mr Owen, but people will understand that it provides protection for whistleblowers through an information gateway, so that the commissioner that I described will receive information of the kind that I described in a straightforward way.

These clauses combined maintain an important principle: techniques and details of capabilities of intercepting agencies must be protected. Of course, it is important that we caveat that with the checks and balances that I have set out. I am not sure that these amendments would add much—or anything; I was just being polite—and I therefore invite the hon. Gentleman to withdraw them.

[Keir Starmer]

I listened carefully to what the Minister said about clause 50(2)(b). It may be that that provides a different route but achieves the same objective, and in those circumstances I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 ordered to stand part of the Bill.

Clause 50

Section 49: meaning of “excepted disclosure”

--- Later in debate ---

[Keir Starmer]

There is a substantive point, but that comes under clause stand part, so I will deal with it when we get to that, if I may. Amendments 65 and 66 would bring into alignment—where are we? They are both focused on head 4. I think we have missed an Act out.

[Mr Hayes]

I think the hon. and learned Gentleman will find that amendment 65 would remove the exception from the duty not to make disclosures about a warrant where a postal operator or a telecommunications operator discloses statistical information about warrants in accordance with requirements set out in regulations made by the Secretary of State. Is that helpful?

[Keir Starmer]

That is helpful and I am grateful to the Minister. Amendment 66 is designed to align clause 50(7)(b) with clause 49(2)(a)(i) and (ii). The duty not to make unauthorised disclosures applies to both a warrant under chapter 1 of this part and a warrant under the relevant part of RIPA. The problem with head 4, unless I have misunderstood it, is that under clause 50(7)(b), it only relates to chapter 1 of this part and does not cross-relate to RIPA. I am happy to withdraw this amendment if it is catered for by other measures.

[Mr Hayes]

I will deal with this matter as briefly as I can. In the end, if we follow through the logic of the amendment, it would provide additional opacity rather than additional transparency. I think that if the hon. and learned Gentleman thinks through what he has just said and what I am about to say, he will realise that. In life, I am quite keen on opacity, but in legislation I am not keen on it at all.

Just to be absolutely clear, I point out that amendment 66, as the hon. and learned Gentleman said, relates to clause 50(7)(b)—disclosures of a general nature. At present, this subsection allows a disclosure of information that does not relate to any particular warrant under chapter 1 of part 2, but relates to warrants in general. As we understand the intention of the amendment, it would extend this provision to include a warrant under chapter 1 of part 1 of RIPA. Given that the disclosure simply permits disclosures of a general nature, this proposal is one that could be considered, and I think I would consider it. I am happy to take it away to ensure that there is the consistency that the hon. and learned Gentleman calls for, but I think that the amendment as drafted could be unhelpful to the cause that he has articulated. If he is happy for me to do this, I am happy to take it away, because I do take his point about ensuring that there is consistency. That seems to be the essence not quite of the amendment but of the argument that he made.

[Keir Starmer]

I will happily withdraw the amendment on that basis. It is intended to allow appropriate discussion of warranting in general so that all those with an interest can take part in the relevant discussions and debates. At the moment, head 4, subsection (7)(b) achieves that for warrants under chapter 1, but does not relate to other warrants. If there is a way of amending or otherwise achieving the desired objective, that would be acceptable. I will not press the amendment, but there is a need for a debate about warrants in general to make sure the systems and processes are articulated and dealt with. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

--- Later in debate ---

[Keir Starmer]

The purpose of the amendment is to state clearly on the record what the safe route is for whistleblowers. There are similar versions in other legislation, including the Official Secrets Act, and the absolute prohibition causes great concern to those who want to expose iniquity. In certain cases and places, the safe route for a whistleblower has been explained. The challenge on the table for the Minister is recognising the concerns and anxieties of those who want to disclose wrongdoing where it is in the public interest for them to do so. There must be a safe route for them. If not this, what is the route? In support of that way of putting it, I pray in aid the Joint Committee recommendation that there ought to be amendment to make it clearer for those who need to know what the route is.

[Mr Hayes]

This is an interesting amendment. It deals with the tension, which I think all Committee members recognise, between allowing the proper opportunity for those who have legitimate concerns to bring them forward to be dealt with and encouraging feckless complaint. Much of what we do in this House in framing law means dealing with that dilemma, and this is a good example.

The hon. and learned Gentleman—I think that the hon. and learned Lady said it first, actually—drew particular attention to the Joint Committee report. I refer to paragraph 629, which recommends that

“the Bill should contain an explicit provision for Communication Service Providers and staff in public authorities to refer directly to the Judicial Commissioners any complaint or concern they may have with the use of the powers under the Bill”,

and goes on similarly.

That is precisely what we intend and what we have tried to set out. That said, the hon. and learned Lady will understand that it is important to create a duty, as clause 49 does, not to make unauthorised disclosures. Clause 50 sets out the exceptions to that duty, and clause 51 provides for the offence of making an unauthorised disclosure. Providing a public interest defence of the kind that she discussed is unnecessary in light of the exceptions already in the Bill. In my view, it might even encourage feckless or unlawful disclosures.

[Joanna Cherry]

The defence would not apply to a feckless or unlawful disclosure. If somebody sought to pray in aid that defence, the jury would have to decide, under legal direction from a judge, whether what had been done was in the public interest. Something feckless—which I gather means “without good reason”—would not be in the public interest.

[Mr Hayes]

There is a balance to be struck, of the kind that I described. The hon. and learned Lady is right that the route to the commissioner must be clear and straightforward, allowing people of the kind that the hon. and learned Gentleman described to know how they can bring their concerns to his attention. That is why clause 203 provides the information gateway that I spoke about earlier. That is the point made by the Joint Committee. What we have done in clause 203 is essentially give life to the Committee’s recommendations about a direct route to the commissioner.

[Joanna Cherry]

Does the Minister accept that there might be situations in which an immediate disclosure is required to prevent conduct that is seriously unlawful? That is the situation where the defence is required. Somebody might find themselves in a position of having to make a public disclosure immediately to prevent unlawful conduct. Rather than going around the houses looking for advice or being assured after the fact that what they did was all right, they need to know that there is a defence of public interest to encourage them to make a disclosure immediately to prevent unlawful conduct.

[Mr Hayes]

Yes, but I am not so sure that, in the modern age, we do not live in precisely the opposite circumstance to the one the hon. and learned Lady sets out. All kinds of information are put into the public domain, whether for right or wrong and whether for good or bad reasons. That information cannot then be withdrawn and it is often taken to be fair and true, when it is anything but. I am not so sure that we do not need a process that is sufficiently rigorous that the commissioner is better placed to take a view on what is, or is not, in the public interest.

I will go further than that. It seems to me that, if we are going to have the commissioner, we have to vest power in his or her hands. If we then created all kinds of other means for dealing with these issues, I suspect that would undermine the commissioner’s significance and discourage people from taking their concerns to the commissioner.

However, I think perhaps we can reach a synthesis around the way we make the route known. In clause 203, we have done what the Joint Committee asked us to do—I note that there are distinguished Members sitting behind me who were on that Committee. But I am not sure that we have thought enough about how to inform people about the route they can take under clause 203, so I will ask my officials to look at that again. There is an information challenge here, because it is all very well for the cognoscenti—there are many of them in this room—to know about such things, but I am not sure that that is good enough. So I will meet the hon. and learned Lady halfway—halfway in my judgment, at least, even if not in hers—by ensuring that we look closely at how well informed people are about their ability to go down the route I have set out. On that basis, I ask her to withdraw the amendment.

[Joanna Cherry]

I wish to insist on the amendment.

Question put, That the amendment be made.

--- Later in debate ---

[Keir Starmer]

I beg to move amendment 127, in clause 54, page 44, line 20, leave out subsections (1), (2) and (3).

This is formally my amendment and therefore my embarrassment, because I do not think it achieves its intended purpose. I do not intend to press it to a vote. When I looked at it again in the early hours of this morning, I could see that it does not achieve whatever I hoped to achieve.

[Mr Hayes]

I wish to put on the record that I think the hon. and learned Gentleman deserves a big mark for honesty.

[Keir Starmer]

I will make such comments as I have during the clause stand part debate.

--- Later in debate ---

[Keir Starmer]

I understand the Solicitor General’s point, which is that when it comes to access, there is a further, stricter test. I absolutely understand that and I accept that clause 54(4) is there for a purpose. The question that my constituents and I, and others, want answered is, “What about what is being retained?” There is a chilling feeling if it is being retained. The comfort of the Government saying, “Well, we are keeping everything but we will not look without a stricter test”, is, of course, a comfort, but it is not that much comfort to many concerned individuals.

[Mr Hayes]

I support the Solicitor General’s view—I do not want the hon. and learned Gentleman to be caught in a pincer movement by the way. None the less, clause 223(6) is pretty clear, is it not? It mentions anything that

“might reasonably be considered to be the meaning (if any) of the communication”.

That seems very helpful. I know that that clause is in the other part of the Bill but, of course, it relates to the content in exactly the way he describes.

[Keir Starmer]

I am grateful to the Minister for pointing that out but that was the route that I trod a few days ago when I was preparing my submissions. The problem is that content is given the description that he just set out, but it also says,

“any meaning arising from the fact of the communication or from any data relating to the transmission of the communication is to be disregarded, and (b) anything which is systems data is not content.”

That obviously led me to have a look at what systems data are, for which we have to go to clause 225(4), which states that systems data

“means any data that enables or facilitates, or identifies or describes anything connected with enabling or facilitating, the functioning of…a telecommunication system”.

It is true, and I accept, that an internet connection record does not include content in the form set out in 223(6), but then one gets to systems data, and part of it comes back out again. It would be very helpful if someone were to attempt to describe, by reference to the Bill’s provisions, why it is said that, at the point of retention, the provision does not include web browsing history. That is a question that many people would like answered. I leave that challenge on the table for the Government.

I rose to say that at this late hour and it is a complicated point, but it goes to the heart of the question about ICRs. At the moment, it is being framed in the sense of, “Well, they won’t look at it unless”, but people are genuinely concerned about the retention of their browser history.

--- Later in debate ---

I accept the argument that anything that allows the authorities to get to the data they need and moves out of the way data that are irrelevant to any possible exercise has real use. We will not oppose the clause because if the idea is effectively to deselect data on individuals who are not of interest, the sooner that is done the better. Nevertheless, I echo the concerns that have already been expressed that it is a very wide power that will in the end be exercised by relatively low-ranking individuals in an authority to look at and organise a huge amount of data. I have real concerns about the clause, but, for the reasons I have identified, we will not be voting against it.

[Mr Hayes]

We can probably satisfy the need to address the concerns that have been raised. First, let us be clear about privacy. To restate what I said when we began our consideration of the Bill, because there is no one’s canon that I like to draw on more than my own,

“privacy…is at the heart”––[Official Report, Investigatory Powers Public Bill Committee, 12 April 2016; c. 90.]

of all we do. The defence of private interests and the protection of the public are the essence of the Bill. This filter is, of course, an additional safeguard. It will allow public authorities, when they are dealing with such a request, to consider on a case-by-case basis what needs to be released and, by implication, what does not.

The Joint Committee on the Bill considered this matter in some detail and concluded at paragraph 38:

“We welcome the amendments that have been made to the Request Filter proposal. They constitute an improvement on that which was included in the Draft Communications Data Bill.”

There is, however, an argument about the process once a request has been made, and that is the argument made by the hon. and learned Member for Holborn and St Pancras.

The code of practice goes a long way towards making things clearer in chapter 9, paragraphs 9.1 to 9.4. Indeed, that chapter describes the request filter as

“an additional safeguard on the acquisition of communications data”

that will work in tandem with other safeguards to

“limit the volume of communications data being provided to a public authority.”

Therefore, the filter is a way of eliminating unnecessary data from release.

Nevertheless, I hear what the hon. and learned Gentleman says about ensuring that the permission to do that is in the hands of the right people and dealt with in the right way. It might be that we can say a little more about that in the code of practice. I will take a look at that, because there is an argument for refining that part of the code.

In response to the hon. and learned Member for Edinburgh South West, it is clear that public authorities will sometimes need to make complex inquiries. For example, they may ask multiple questions of multiple communications service providers for data to identify an unknown person who is suspected of having committed a crime at different places and at different times. The complexity of the requests is the context in which the application of the filter will be applied.

Currently, public authorities might approach communications service providers for location data to identify the mobile phones in specific locations at the relevant times to determine whether a particular phone and a particular individual is linked to three offences. To get to the end that I have described, very large amounts of data would be required, so the filter process is both a safeguard—a protection—and a way of making the system more practicable. For all of those reasons, it is an important part of the Bill. Having said that, I hear what is being said about the process rather than the principle of it. Maybe we could look at the process, but I am absolutely committed to the principle and on that basis I commend the clause to the Committee.

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

Investigatory Powers Bill (Third sitting)

John Hayes Excerpts

Committee Debate: 3rd sitting: House of Commons
Tuesday 12th April 2016 Public Bill Committees

[The Chair]

I should like to tell Members that, as a general rule, I and my fellow Chair do not intend to call starred amendments. The required notice period in Public Bill Committees is three working days, therefore amendments should be tabled by the rise of the House on Monday for consideration on Thursday and by the rise of the House on Thursday for consideration on the following Tuesday.

The selection list for today’s sittings is available in the room and on the website. It shows how the selected amendments have been grouped for the debate. Amendments grouped together are generally on the same, or a similar, issue. A Member who has put their name to the leading amendment is called first. Other Members are then free to catch my eye to speak on all or any of the amendments in the group. A Member may speak more than once in a single debate. At the end of the debate I shall call again the Member who moved the leading amendment and, before they sit down, they will need to indicate whether they wish to withdraw the amendment or seek a decision. If any Member wishes to press any other amendments or new clauses in a group to a vote, they need to let me know. I shall work on the assumption that the Minister wishes the Committee to reach a decision on all Government amendments.

Please note that decisions on amendments do not take place in the order in which they are debated but in the order in which they appear on the amendment paper. In other words, the debate occurs according to the selection and grouping list. Decisions are taken when we come to the clause that the amendment affects. New clauses are decided after we have finished with the existing text, so after consideration of clause 232. I shall use my discretion to decide whether to allow a separate stand part debate on individual clauses and schedules, following the debate on the relevant amendments. I hope that that is helpful.

Clause 1

Overview of Act

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

[The Minister for Security (Mr John Hayes)]

I welcome you to the Chair, Ms Dorries. It is a delight to serve under your stewardship. I also welcome all members of the Committee.

Clause 1 provides an overview of the Bill and, for that reason—and with your indulgence, Ms Dorries—it is perhaps worth my setting our consideration in context. The Bill is significant, bringing together as it does for the first time a set of powers currently used by the intelligence agencies and law enforcement. It adds checks and balances regarding authorisation and oversight, and provides a degree of certainty regarding those powers and those checks and balances, which up until now has not been there in that form. It certainly provides greater navigability. Many of the powers are contained in a variety of legislation passed over time, so the point made by the Chairman of the Intelligence and Security Committee on Second Reading of the draft Bill—that it is hard to navigate the legislation that supports the powers—was well made. The Bill provides greater transparency and, I hope, greater clarity.

It is important to understand that privacy is at the very core of the Bill. Clause 1 deals with that core. There have been calls, and we may hear them again during our consideration, for privacy to be defined more explicitly, but my counter view, without wishing to be unnecessarily contentious at this early stage, is that privacy runs through the very fabric of the Bill and that to separate it out—to desiccate it in that way—would weaken the commitment to privacy that is at the heart of the legislation. The protection of private interests and the protection of the public are at the heart of all we seek to do in the Bill. In my view, it is therefore unacceptable to limit the privacy provisions to a single clause.

Perhaps it would be advisable for me to give a little more detail about what the Bill does in respect of privacy. By underpinning the powers and sensitive capabilities available to 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—for the first time and in groundbreaking terms—they answer the call of those who have argued that both the political masters who drive these things and the judiciary should play a part in reinforcing those safeguards, based very much on the core principle of necessity and proportionality which applies to all such powers.

It is fair to say that in sweeping away some of the cobwebs that surrounded the powers I have described—certainly in the view of some of their critics—the provisions here shed a light on some of the most sensitive powers available to our intelligence and security agencies. It follows absolutely the direction provided by the independent reviewer of terrorism legislation, David Anderson QC, that the capability examined in the Corston review of investigatory powers should be avowed and put on a statutory footing.

It is important that the public and Parliament understand that the powers I describe are there to keep us safe. It is also important that those powers are constrained in the way I have briefly described. The Bill places very strict controls on the use of those powers. They reflect the proposals of the 2015 report by Parliament’s Intelligence and Security Committee on privacy and security. They include limitations around who can use each of the powers; for what purposes and in what circumstances; how information can be obtained under the powers must be protected; when it can be shared and in what circumstances it must be destroyed; and, perhaps most importantly, the penalties—including criminal sanctions—for improper use of the powers.

In addition, the Bill delivers the strongest possible safeguards for the way the powers are authorised. I have spoken about the groundbreaking introduction of the double lock which means that politicians and the judiciary are involved in authorising powers. This maintains democratic accountability and adds a new element of judicial independence. No doubt we will discuss this in subsequent consideration of the Bill. Indeed, I note that amendments have been tabled that will allow us to do just that. However, I remain of the view that it is very important that this House and Ministers play a key part in the business of authorising these powers. The introduction of judges into the process of issuing warrants represents a highly significant change to the way the security and intelligence agencies operate—perhaps one of the most significant changes since they began in the last century. These things are not done lightly and should not be taken for granted. It is a very important change.

I spoke earlier about oversight and the Bill also introduces world-leading new oversight provisions, drawing together some of what is done already but adding visibility and transparency in the way that I mentioned. This is an opportunity for the new Investigatory Powers Commissioner to be an effective advocate for the public. The commissioner will have unfettered access to the work of the security and intelligence agencies and new powers to inform people who have suffered as a result of serious errors. He or she will leave no question in the minds of the public or that of Parliament that these powers are used within both the letter and the spirit of the law.

Returning to my initial point about the clause, let us reflect on what the privacy safeguards amount to. In essence, they reflect the collective consideration of the three independent reviews and three Parliamentary Committees that preceded the Committee’s consideration of the Bill. There have been those who have surprisingly—some might say remarkably or incredibly—argued that the Bill has been rushed in some way. My goodness, I cannot remember a single other piece of legislation in my time in Parliament that has been published in draft preceded by three independent reports; has then been considered by three separate Committees of the House; and published in its full form and debated on Second Reading. The Bill is about to have consideration of the most serious kind—I say that, looking around at the cerebral members of the Committee—and will then, of course, proceed to the other place for similar scrutiny. I hesitate to say that it is unprecedented, but it is quite unusual and reflects the Government’s absolute determination to get this right. I hope that the Committee will move ahead as one in our determination to put both these powers and the safeguards—the checks and balances—in place.

The consideration of the Bill that has already taken place covers the vast proportion of the clauses. No doubt we will refer to some of those reports during the next few days and weeks. I am absolutely sure that all members of the Committee want what I want—for this legislation to be in a form that engenders complete confidence that those whose mission is to keep us safe have what they need to do so, but that the checks on the exercise of their powers are rigorous, robust and transparent. In that spirit, and with that hope about the further consideration, I commend clause 1 to the Committee.

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

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

Our starting position is that in the aftermath of attacks such as those we have recently seen in Brussels, which are only the latest in a series of similar attacks, there can be no doubt that the security and intelligence services and law enforcement agencies need all the powers that are necessary and proportionate to deal with serious threats. That is the starting position on the Bill, so far as the Labour party is concerned.

As the Minister has said, it is a good thing that the powers that had previously been exercised by the security and intelligence services are now avowed on the face of the Bill. That is welcome, but those powers also need to be justified, clearly defined and limited, and there must be proper safeguards. The Opposition’s proper role in the process we are about to undertake is to robustly challenge the Bill’s provisions where they do not meet those criteria and to push back and probe. Through that process, we hopefully will improve the final product so that the Bill achieves what it needs to achieve, but goes no further than what is necessary and proportionate.

On justification, as the Minister no doubt knows, the shadow Home Secretary wrote to the Home Secretary on 4 April making a number of points, one of which was the need for a better assessment of the operational case and, in particular, an independent assessment of bulk powers. He said:

“Whilst I accept the broad argument advanced by the authorities that powers to extract information in bulk form may provide the only way of identifying those who pose a risk to the public, the operational case for bulk powers which accompanied the Bill’s publication has significant gaps. This was clear from contributions made at Second Reading from both sides of the House.”

Anyone who reads the operational cases will see that they are slim indeed, and more than half the printed case is introductory matter.

The shadow Home Secretary suggests in the letter that

“the simplest way to proceed would be, firstly, to produce a more detailed operational case and, secondly, to accept the recommendation of the Joint Committee and commission an independent review of all the bulk powers.”

The Labour party suggests that that review should conclude in time to inform Report and Third Reading. Obviously the Minister will probably not want to deal with the matter here and now, but I ask that a reply to the letter be prepared as soon as possible so that we can move forward on that issue.

The letter also deals with concerns about internet connection records, which we will deal with when we come to the appropriate clauses, but it particularly highlights the problems of definition in clause 54 and the question of the threshold for accessing internet connection records along with other comms data.

The letter also talks about the

“definitions of ‘national security’ and ‘economic well-being’”,

which we will probably start to debate today. The letter also raises meaningful judicial authorisation and oversight and the need for an overarching criminal offence of deliberate misuse and for effective protections for sensitive professions. Can a reply to the letter be prepared as soon as possible so that we can move forward, particularly on the operational case? If there is more work to be done, the sooner it starts the better. With luck it can then be finished in time for the next stage, which is Third Reading. Will the Minister ensure that there is a speedy response to that letter?

On the question of privacy provision, I listened carefully to what the Minister said. The recommendation of the Intelligence and Security Committee was that there should be general safeguards on privacy. Clause 1 does not provide that. The Minister says that the safeguards run through the Bill. I will make the cheap point, but I will make it quickly. The only amendment to part 1 in response to the Intelligence and Security Committee was the insertion of the word “privacy” in the title. It used to say “General protections”, and it now says “General privacy protections”. However, clause 1 in itself is clearly not enough. It is true that there are safeguards in the Bill, but there is also considerable inconsistency, and that is where overarching principles would play their part.

I will flag up for the Committee three examples of that inconsistency. It is the sort of inconsistency that an overarching provision would deal with. The first is in the draft code of practice on the interception of communications that is before the Committee, which we will consider further this morning. There is a strong proposition in paragraph 4.7 of the draft code, under the heading:

“Is the investigatory power under consideration appropriate in the specific circumstances?”

It states:

“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means.”

So there is a clear proposition on necessity; it is not necessary if information can be obtained by other less intrusive means.

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

I welcome you to the Chair, Ms Dorries and it is a pleasure to serve under your chairwomanship. I would like to make some brief opening remarks on behalf of the Scottish National party in response to the Minister. We acknowledge the attempt to codify and modernise the law, and we think that the attempt is laudable. However, we think that the execution of this attempt is not laudable. We believe that there has been a rush to legislate, and it is not only we who say that. Members will remember that, when evidence was given to the Committee by Jo Cavan, the head of the Interception Commissioner’s Office, she spoke of an aggressive timeline for the Bill. When I asked her to elaborate on that, she said:

“It is a really complicated and significant piece of legislation. Although I broadly support the Bill, because it is a good thing to put a number of the powers used by the intelligence agencies on a clearer statutory footing and to try to improve transparency, I do think that the scrutiny process has been very hurried. That is of concern because there are some significant privacy implications to the clauses in the Bill. There is still a long way to go towards strengthening some of the safeguards. Also, a lot of the operational detail is in the codes of practice. It is really important that those are scrutinised properly, line by line.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 70.]

She agreed with me that the time afforded for scrutiny of the Bill is inadequate, particularly with regards to the international legal implications of aspects of the Bill.

[Mr Hayes]

I have no wish to delay us unduly or indeed to embarrass the hon. and learned Lady, but I remember the evidence that was given. As she will remember, I challenged the witness on it because, as I said earlier, I cannot recall another piece of legislation that has enjoyed such close scrutiny over such a period of time. Can the hon. and learned Lady think of another such piece of legislation?

[Joanna Cherry]

I do not recall legislation of such detail and such constitutional significance. I have only been in this House for nine months, but I have followed the operation of this House closely since I was a teenager. This is a massive Bill, and it is its constitutional significance that matters. I chaired an event last night at which the chair of the Bar Council of England and Wales spoke. She raised her concerns about the rush to legislate because of the constitutional significance of the legislation and its implications for the rule of law. The Minister does not embarrass me at all. I wholeheartedly stand by what I say. It is a widely held view, across parties and across society, that there is not sufficient time for the scrutiny of this legislation.

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[Joanna Cherry]

We have considered it in detail and I will be addressing it later in my submissions to the Committee. The hon. Gentleman and I will have to differ in our view on this. I do not consider that there is anything constitutionally unusual in judges being solely responsible for the issue of warrants. That happens in a lot of other western democracies—it is called the separation of powers. The idea that Ministers are democratically accountable to this House for the issuance of warrants on the grounds of national security is nonsense. I will explain later why I consider that to be so.

I was trying to stress that the SNP position is that we recognise the necessity of having adequate powers. I hope to be writing the security policy for an independent Scotland before I am an old lady and I would want to have a responsible, modern security policy that dovetails with that of England and other countries in these islands, but I want to model it on what other western democracies are doing, rather than going as far as this Bill, which, without proper justification, goes beyond what other western democracies do. The SNP intends to table amendments to deal with what I called on Second Reading the fantastically intrusive provisions of this Bill regarding internet connection records and bulk powers. We also want to look at ensuring a proper oversight commission, but that is for a later date. I look forward to addressing amendments on parts 1 and 2 of the Bill.

[Mr Hayes]

The shadow Minister raised a number of issues, some of which related to the letter he mentioned—I have a copy—which the shadow Home Secretary sent to the Home Secretary. This consideration is an answer to the letter; I might even go so far as to say that I am the personification of the answer to the letter. None the less, it is important that a reply is drawn up, not least because that reply will be useful to the Opposition in helping to frame their further ideas. For that reason, I will ensure that a reply to the letter is sent in good time, so that all members of the Committee, mindful of that response to the original letter, can form their consideration accordingly..

[Keir Starmer]

I accept that we will deal with most of the points in the letter when we get to specific clauses—that is an appropriate way forward. The issue of most concern in the letter, which I ask the Minister to consider, is that of the independent assessment of bulk powers. The Committee will not be looking at the operational case in the way that is called for in the letter. It is simply a timing issue: if there is to be any movement here, it needs to be quick. A speedy response would be welcome.

[Mr Hayes]

Let me deal with that specific point. It is true that there will always be a debate about what is on the face of Bills and what is in supporting documentation. The hon. and learned Gentleman mentioned the codes of practice. I emphasise these are draft codes of practice and, of course, it is important that the consideration by the Committee informs how their final version will be framed. The reason we published them was partly so that we could have a better debate here and learn from it in drawing up the final codes of practice.

The hon. and learned Gentleman will know very well that there is a perennial argument about how much is placed on the face of the Bills because of the problem that creates in terms of rigidity, particularly in highly dynamic circumstances, such as those we face in relation to some of these matters. However, I accept that from a legal perspective what is on the face of the Bill adds additional weight to the protections that the hon. and learned Gentleman seeks. I understand that argument and have no doubt it will permeate much of what we consider. I re-emphasise that the codes of practice are themselves not set in stone and will undoubtedly metamorphose as a result of our considerations.

The hon. and learned Gentleman raised a second point in respect of bulk powers and particularly the operational case that needs to be made for such powers. This is a highly sensitive issue. All Governments of all political persuasions have recognised that, because we are dealing with some matters that cannot be debated publicly. That applies to the operational case that the Security Services might need to make when requesting powers to intercept communications, for example, but it could be the case with a number of other powers.

Furthermore, I accept that there are particular sensitivities in respect of bulk powers. The hon. and learned Gentleman and the Committee have been briefed by the intelligence and security services as part of our considerations. He will know that GCHQ use bulk powers very extensively in a number of highly sensitive operations, and there is a limit to how much of that can be placed on the face of the Bill or even made available more widely.

The hon. and learned Gentleman will also know that the Intelligence and Security Committee has privileged access to more information than the House as a whole. It exists, in part, for that purpose. It provides a means by which the Government can be held to account by a Committee made up of members of all political parties in this House. The case that the shadow Home Secretary makes on the definition of the operational case for exercise of these powers is something that we will consider. However, I emphasise that we are treading on quite sensitive ground here and there may be a limit to how far the Home Secretary or I can go. I am sure the hon. and learned Gentleman will want to acknowledge that.

[Keir Starmer]

I am grateful that the Minister will give further consideration to the matter. The reason it is of great concern is because, first, we are being asked to approve new powers in the Bill. I accept that some of the powers are obviously avowal of existing powers, but there are new powers and internet connection records is one. Of the avowal powers, this is the first time that Parliament has had the chance to debate them, so they are new to Parliament in that sense.

I take the point that members of the Committee have been briefed and some of us have experience of the operation of some of these powers, but therein lies part of the problem. I think there is a democratic deficit if we proceed only on the basis that a select number of people can know the detail, but the public cannot. Of course there are sensitivities. I do not think anyone is suggesting that a full operational case without any modifications, redactions and so on, could be published. I ask for consideration of something more than what we have that allows for independent assessment, which does not necessarily need to take place in the public domain, but can be viewed through the eyes of the informed member of the public who wants to be assured about the necessity of the powers without having to listen to politicians or others saying, “We’ve been briefed; trust us”, because in this day and age that approach is no longer acceptable. I hope the Minister and others will try to see this through the eyes of the informed and concerned member of the public who wants to be assured about what the Bill is actually bringing forth for the security and intelligence services and law enforcement.

[Mr Hayes]

I do not want to get into a great debate about this now because we are at the beginning of the Bill and this will come up again during further consideration. I acknowledge that the hon. and learned Gentleman has recognised there is a sensitivity about how much can be put in the Bill and how much can be debated in a public forum. He is right that we tread a tightrope between making sure that we have public confidence that the system is fit for purpose, but also proportionate, and on the other hand not tying the hands of those wishing to keep us safe. That is the tightrope that every Government of all persuasions has had to walk.

Whether the hon. and learned Gentleman is right about a changing public mood is more debatable. Most surveys of the public mood suggest a very high level of confidence in our intelligence and security services and the powers that they exercise, so I am not sure there is a great public clamour for them not to be able to do some of the things they have to do. Contextually, given the threat we now face, I suspect most of the public would say they need absolutely all the powers necessary to face down that threat, so I am not absolutely sure that we do not occasionally see these things through the prism of a chattering class view of what the public should think, rather than what the public actually think. I am committed to the idea of politicians continuing to be involved in these things, because we have a regular and direct link to the British public and are in a pretty good position to gauge what their attitudes to such matters might be. So the issues are sensitive, but I appreciate the spirit and tone of the hon. and learned Gentleman and I am determined that we get this right in a way that we can both be comfortable with in the end.

The hon. and learned Gentleman asked how we might subsequently deal with issues around authorisation. We will have a chance to debate that at greater length as we go through the Bill, so it would be inappropriate to do so now. That point was made by the hon. and learned Member for Edinburgh South West. I think we are going to disagree about quite a lot of these matters, not because I do not want to move ahead in the spirit of generosity and unanimity where we can possibly do so, but I think that my position is more like that of the former Home Secretaries who gave evidence to the Committee, Lord Reid and Charles Clarke, who were very clear that the involvement of Ministers in authorising powers is an important way in which the public can be represented in these areas. Ministers bring a particular insight to such work. I was unsurprised by their consideration, but pleased that they were able to reinforce the view that I know is held by almost everyone who has been involved in the warranting process in modern times.

We heard from the former Secretary of State for Northern Ireland, my right hon. Friend the Member for North Shropshire (Mr Paterson), in similar vein. Indeed, he was doubtful about giving judges any role in the process at all, and many others take that view. The Government, however—always anxious to achieve balance and compromise—developed the double-lock, which the hon. and learned Gentleman mentioned. It retains the involvement of Ministers, as Lord Reid and others argued we should, but introduces judicial involvement and, one might argue, adds a greater degree of empiricism to the process, as David Anderson recommended in his report.

[Joanna Cherry]

The Minister will recall that, under questioning by the hon. and learned Member for Holborn and St Pancras, Lord Judge, in his evidence to this Committee, expressed concern about the phrase “judicial review”. He said that it

“is a very easy phrase to use. It sounds convincing, but it means different things to different people…Personally, I think that when Parliament is creating structures such as these, it should define what it means by ‘judicial review’. What test will be applied by the judicial…commissioner, so that he knows what his function is, the Secretary of State knows what the areas of responsibility are and the public know exactly who decides what and in what circumstances? I myself do not think that judicial review is a sufficient indication of those matters.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 69, Q220.]

What are the Government going to do to take on board what that distinguished judge had to say about this matter?

[Mr Hayes]

Yes, but Lord Judge also went on to say in the same evidence session that what really matters is what Parliament actually wants. He wanted to be clear about what Parliament wants and to respond accordingly. I heard what Lord Judge said, but I also heard what Lord Reid and Charles Clarke said. Frankly, I see no evidence that the warranting process is not considered carefully by Ministers, that they do not take that work incredibly seriously, that they do not seek all the information they need to exercise reasonable judgment and that they do not apply the tests of necessity and proportionality diligently. Neither this Committee nor the Joint Committee heard evidence to suggest that there is anything faulty in that system.

I am a conservative, so I would be expected to say that if something works there is no good reason for changing it, but because I want to be moderate and reasonable—notwithstanding my conservatism—we introduced the double-lock. My goodness, we have already gone a very long way down the road.

[Keir Starmer]

We are going to get to this issue in due course. I will not take long, but it is important that I set it up, because the more thinking that can be done now, the more quickly we can deal with it when it comes up. There are two different issues. Lord Reid talked about whether the judiciary should be involved at all. Lord Judge asked, assuming that they are involved, about the test that they are to apply. He was concerned about judicial review because, as everybody knows, there are different forms of judicial review. Sometimes it involves close scrutiny, where the judges virtually make the decision themselves. In other circumstances, there is much more deference. He was concerned that, within that range, it is not clear what the judges are being asked to do.

There were a number of references in the questioning and on Second Reading to the necessity and proportionality tests. Of course, that is what the Secretary of State considers, but the judges’ function is different. On the face of the statute, their function is to review. The question is, what does that mean? We tabled amendments to that end. It is important that we do not confuse this matter. Lord Judge identified something very important, and when someone as distinguished as him says that what is on the face of the Bill is not clear enough, we have all got to go away and have a good, hard look at what the words are.

[Mr Hayes]

The hon. and learned Gentleman is right that we should not debate things that are going to be debated later—Ms Dorries, you will draw me to order if I do so anyway. The important issues around judicial review principles will be debated when we come to a subsequent amendment. My hon. and learned Friend the Solicitor General will deal with those matters. Lord Judge drew attention to the basis on which the double-lock will operate. The hon. and learned Gentleman is right about that. My point in response to the hon. and learned Lady’s argument was about whether politicians should be involved in the process at all. I do not mean to be unkind to the hon. and learned Gentleman, and I certainly do not want to start off in anything other than a convivial spirit. However, given that the shadow Home Secretary’s letter talks about an equal lock, given that he has argued for the simultaneous presentation of the material to both parties and given the great debate about the same information being available to the judicial commissioner and the Home Secretary, I was slightly surprised to find that amendments had been tabled that would take the Home Secretary out of the process altogether.

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[Keir Starmer]

I have a probing question. It is right to include a provision that makes it clear that the UK authorities cannot evade the protections and safeguards in the Bill by requesting that a foreign authority carry out on their behalf the interception of materials relating to a person in the UK. That is right in principle and we support that. It may be my limitation in going through the provisions in recent weeks, but I am not sure whether there is a sanction for failure to adhere to the clause’s provisions. In other words, it is good that it is there, but I am not sure whether anything formal will happen if it is not followed. Will the Minister answer that now or at least give some consideration to that?

The clause is important and right in principle, but I cannot find a sanction for failing to comply with it and there probably ought to be one. If it is somewhere else in the Bill, I will defer to those who know it better than I do.

[Mr Hayes]

I am happy to say on behalf of my hon. and learned Friend the Solicitor General that we will give consideration to that.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clause 8

Restriction on requesting assistance under mutual assistance agreements etc.

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

[Keir Starmer]

I rise to make essentially the same point as I made on the previous clause, albeit more briefly. This is a good and right in principle clause to ensure that there are restrictions on requesting assistance under mutual assistance agreements, but again the sanction for breach is not entirely clear. That may be something that, under the umbrella that the Minister for Security just indicated, could be taken away to see what the enforcement regime is for these important safeguarding provisions.

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[Joanna Cherry]

No, I will not. I want to continue making my point. Without the amendment, which we support, a GCHQ analyst would be able to search for and view non-content material of anyone in the United Kingdom without a warrant. I do not believe that that is right, necessary or proportionate.

Let us look at what the Intelligence and Security Committee said. If Government Members do not like Mr King’s evidence, let us set him to one side and look at the ISC. Government Members might find its approach more palatable or less easy to criticise. In the ISC’s response to the draft Bill, it highlighted the significant concern that the secondary data, including that derived from content, would not be protected. It said:

“To provide protection for any such material incidentally collected, there is a prohibition on searching for and examining any material that relates to a person known to be in the UK (therefore, even if it is collected, it cannot be examined unless additional authorisation is obtained). However, these safeguards only relate to the content of these communications. The RCD relating to the communications of people in the UK is unprotected if it is collected via Bulk Interception. In direct contrast, if the same material were collected and examined through other means (for example, a direct request to a CSP) then the draft Bill sets out how it must be authorised”.

The ISC expressed a concern that the amendment attempts to address. Because no examination warrant is required for secondary data, a variety of highly intrusive acts could be undertaken without additional authorisation by individual analysts. That is all that the amendment is seeking to address. In my respectful submission, it is appropriate, necessary and proportionate.

[Mr Hayes]

As the hon. and learned Gentleman was speaking—he recalled having a cold towel placed upon him last week—I wondered, as his peroration ranged across so many different clauses of the Bill, whether he wished the same fate for the whole Committee, although I fully appreciate his point on the complexities of this particular area of our consideration. They are such that, to get to the basis of why he tabled the amendments, it is necessary to look across a range of parts of the Bill.

In essence, this is probably the difference between us—perhaps it is not, but let me present that at least as my hypothesis. We recognise, as the Bill reflects, that different levels of authorisation should apply in relation to different investigative techniques. I think the hon. and learned Gentleman is with us that far, but it is important to say why those different levels should apply. The differences plainly reflect the different operational contexts in which the powers are exercised, and that includes the different organisations, how they use the capabilities, and the statutory purposes for which those capabilities are utilised. We are absolutely clear that those differences are necessary, and that the safeguards that apply to different powers are satisfactory, coherent and effective.

[Keir Starmer]

I have checked the evidence, and perhaps the Minister can tell the Committee why it is necessary to distinguish between the protection offered to content and secondary data in relation to bulk warrants, when it is not necessary for targeted warrants. They are treated exactly the same for targeted warrants, but he says that it is necessary to distinguish between them for bulk warrants. What is the necessity? Can he spell it out, please?

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[Mr Hayes]

I will try to do that during my response. If one recognises that a different process should apply in the exercise of different powers, contextualised around the operational function of the organisations that are exercising the powers and the purposes for which the powers are being exercised, one begins to appreciate that what might, at first reading, look like inconsistency is not an error or an inconsistency but is a necessary application of different sets of both powers and safeguards for different needs. I will address the hon. and learned Gentleman’s specific point as I go through my response.

Amendment 57 would extend the requirement to obtain a targeted examination warrant to circumstances in which an agency wishes to select for examination the secondary data, as opposed to content, relating to the communications of an individual who is known to be in the UK when the data have been obtained under a bulk interception warrant. Essentially, secondary data are less intrusive than content; their collection and the circumstances in which they may be examined are directly subject to double-lock authorisation. Furthermore, it is necessary to say that it is sometimes important, indeed essential, to examine secondary data to determine whether someone is in the UK. That does not provide an entire answer to the hon. and learned Gentleman’s question on the difference, but it provides some answer to the argument about where someone resides at a given point in time.

The targeted acquisition of communications data, provided for in part 3 of the Bill, including data relating to individuals in the United Kingdom, currently requires the designation of an authorised person within an organisation. The hon. and learned Gentleman acknowledged that we have taken further steps, which I will talk about later, following the recommendations of David Anderson—forgive me, but this is quite a complex area, and I need to go into it in some detail.

In contrast, bulk interception warrants, which authorise the collection of communications in bulk and set out the circumstances in which material that has been collected can be selected for examination, are subject to the double-lock authorisation of both the Secretary of State and a judicial commissioner. That means that the acquisition of content and secondary data, and the operational purposes for which any of the data can be selected for examination, is explicitly authorised by the Secretary of State and a judicial commissioner when the warrant is approved. The agencies can only select material for examination when it is necessary and proportionate to do so, in line with one or more operational purposes authorised when the warrant is granted.

Where the security and intelligence agencies wish to look at the content of the communications of an individual in the United Kingdom under a bulk interception warrant, they will need to obtain a targeted examination warrant, which reflects the recommendations from the independent reviewer, David Anderson. I draw attention to his report, “A Question of Trust,” with which members of the Committee will be familiar. The report addresses precisely this point in recommendations 79 and 80 on the use of material recovered under bulk warrants. The regime reflects the well-recognised distinction between less intrusive data obtained through these powers and content—