(8 years, 1 month ago)
General CommitteesI beg to move,
That the Committee has considered the draft Telecommunications Restriction Orders (Custodial Institutions) (England and Wales) Regulations 2016.
It is a pleasure to serve under your chairmanship again, Mr Owen, following the time we spent together on the Investigatory Powers Bill.
The regulations were laid before the House on 24 May, and I am satisfied that they are fully compatible with our obligations under the European convention on human rights. It is important to say just one or two things about the context. You will know, Mr Owen, that the ownership and use of mobile phones in prison is already illegal. Unfortunately, notwithstanding that, the evidence suggests that some prisoners continue to use mobile phones while behind bars and, more than that, they continue to be engaged in criminal enterprises, including offending, by means of modern communications.
There have been a number of recent convictions where prisoners have used mobile phones to commit a wide range of very serious crimes, such as importing automatic firearms and drugs. Indeed, in 2015 a prisoner received a 19-year sentence for using a mobile phone to orchestrate the supply of class A drugs. Mobile phones are also used for planning and plotting violent crimes. There are examples of their being used for intimidation and harassment. In essence, it is clear to the Government, as I think it will be to the Committee, that we need to take further steps.
As I said, the possession and use of a mobile phone in prison is already a criminal offence. The National Offender Management Service already uses a range of measures to prevent mobile phones from getting into prisons and to seize them when they do. To give hon. Members some feeling for the scale of the problem, in 2013 NOMS recovered more than 7,400 handsets and SIM cards from its estate. In 2014 the number of devices seized increased by 30% to 9,745. That is the equivalent of one seizure for every hour of the year, which it is fair to say is a truly remarkable figure.
We need to do more to ensure that we can prevent the use of mobile phones by prisoners without taking possession of the phone. A new, cost-effective approach is also needed to augment and strengthen the existing measures.
My right hon. Friend is making a compelling case for the need for the regulations, and he is absolutely right that they must be effective. Can he share with the Committee how he plans to measure their effectiveness once implemented, so that they do what they are designed to achieve?
I asked the same question. My right hon. Friend is an immensely experienced parliamentarian with an eagle eye for these things. He will know that it is all very well to pass regulations, but unless we know that they will work, that does not mean a lot. Of course, there is the contextual point, and no doubt the hon. Member for Swansea East, in what I think is her first encounter of this kind, will want to ask questions on this as well. The problem is that if I am right about the context—the figures suggest that I am—and the problem is growing and the number rising, how do we chart what difference these measures make against that backdrop?
The answer, I think, is that we need to put in place— I am happy to commit to this now—a review of the effect of the regulations that involves prisoners themselves, through prison governors. We should involve the National Crime Agency, which of course will be associated with this, and the police, and I think that we should have the engagement of the prisoner community itself. By a variety of means we should conduct a review. On the basis of that review, we should consider the effectiveness of the regulations, and clearly that would mean that if we felt that they had not had an effect or we needed to do more, we would do more. I am more than happy to commit to that now, in the course of this Committee. As I have said, I have no doubt that the hon. Lady will want to question me further on that.
Presumably the Minister will be able to tell the Committee how far the range will extend when these blockers are installed in prisons. Will that affect local communities around prisons?
That in itself is an interesting point. The hon. Lady is absolutely right that that is one of the challenges technologically. We have been engaged with mobile phone operators on this, and I held a roundtable event at the Ministry of Justice with my right hon. Friend the Minister for Prisons very recently. One of the challenges is finding a technological solution that does not have unintended consequences of the kind the hon. Lady describes. Part of that review was to look at the changing character of technology, which of course is by its nature dynamic, to ensure—[Interruption.]
I will come back to my hon. Friend the Member for Enfield, Southgate, who I think might be indicating that he is going to intervene, but first I want to finish answering the question from the hon. Lady, as my hon. Friend would expect me to do as a matter of courtesy, chivalry and parliamentary practice.
The review will also need to engage the service providers, who will have to give us a view on whether the measures that they are being asked to put in place—for that is what this order does; it asks them to put measures in place—are fit for purpose, and whether technological changes necessitate a fresh approach. The hon. Lady is absolutely right that that must be part of the review, and I committed to that in my answer to my right hon. Friend the Member for Chelmsford.
I serve as a criminal defence solicitor and see clients who will be affected by these regulations, which I welcome. I am particularly concerned about the prevalence of drugs in institutions. I want to focus on the types of institutions that will be subject to the regulations. Can the Minister confirm whether they will extend to other institutions where there are detainees, such as mental health hospitals? In those institutions people are also under an order and subject to detention, and mobile phones are particularly prevalent, so there will be an impact. Can the Minister also confirm that this will not extend to the immigration detention estate?
I asked those questions too when preparing for this short debate. In the course of my remarks, I will happily make clear the answers to those pertinent inquiries. The issue is of course most acute in the prison estate itself. The alarming thing—I think it is fair to be absolutely open with the Committee—is how apparently easy it is to smuggle those kinds of goods into prison. Of course, a SIM card is a tiny thing. There are even examples of devices being thrown over prison walls, and smuggling a very large number of very small SIM cards into and out of prisons has become something of a specialism for certain people. I am baring my soul to the Committee, but that is the way a Minister should behave among colleagues, because it is important that they know what I have asked of my officials.
My other question was whether it is possible to find a straightforward way of doing this merely by prison staff searching prisoners, dealing with visitors more effectively, checking cells and so on. However, given the sort of numbers I have mentioned, the logistics of that would of course make it extremely difficult. The business of switching SIM cards between phones, and indeed switching phones between prisoners, means that no prisoner is using the same SIM card on any consecutive days. Essentially, the trading of phones between prisoners, the movement of SIM cards and the business of bringing them into and out of the prison are such that simply putting in place a series of protocols, measures or disciplines in the prison would be insufficient to deal with this. We need to find a technological solution that is more comprehensive in its effect, which is precisely what these regulations do.
I turn now to the draft regulations, as I do not want to detain the Committee unduly, even though we are having this interesting and useful discussion. The draft regulations allow NOMS and other law enforcement bodies to apply to the county court for a telecommunications restriction order. If the court is satisfied, on the balance of probabilities, that the handsets and SIM cards specified in the application are in use and inside a prison, they will make a telecommunications restriction order. The terms of the order will require the mobile network operators to take whatever action the order specifies to prevent or restrict the use of those handsets and SIM cards. In practice, the operators will blacklist the handsets, which will prevent the handset from connecting to the mobile network, irrespective of the SIM card inside that handset, and disconnect the SIM cards that are identified in the application from the mobile network.
The blacklisting of handsets and disconnection of SIM cards found to be operating without authority inside prisons will therefore allow us to take much more decisive, comprehensive and effective action against the use of mobiles that are doing the damage I described earlier.
The emphasis on asking the providers to engage in this process will rightly prompt members of the Committee to ask what view the providers take. I assure the Committee that this order has been brought to the House after extensive discussions with providers to ensure that they are satisfied that the measures contained herein will do the job that they are supposed to.
For obvious reasons, I have had this discussion with several prison governors, and some see it as a much larger problem than others. For example, a women’s prison I visited recently said that there was no problem with mobile phones. In fact, only one had been confiscated in the last year. Will the cost of this be borne right across the Prison Service? Will prisons be expected to cut other budgets in order to pay for this technology?
The hon. Lady makes a valid point. Let me be clear about the priority here, which is those institutions where we know there is a profound, serious, compelling problem. I have mentioned some figures, but I cannot give the latest data, given that it is not yet publicly available. I assure the hon. Lady that this is a growing problem. We know that, year on year, the use of mobile phones is growing—despite all the good practice of prison governors, by the way; this is by no means an indictment of their management. We know, too, as I have already described, that phones are being used to facilitate a large number of very serious crimes. The hon. Lady is right that that will vary to some extent from place to place. Of course, the nature of the order is that a TRO will be applied for only when we know there is good reason to do so. In that sense, it is specific to the problems she sets out. If an order is necessary it will be brought forward, and the judge must be satisfied that it is proportionate and, on the balance of probabilities, the right thing to do. There is due process associated with this: it is not a question simply of applying the regulations without consideration of where they are needed and why.
On the funding issue she raised, NOMS has secured funding centrally to operate the measure, so there will be additional money.
On the issue that my hon. Friend the Member for Enfield, Southgate raised, the regulations apply only to custodial institutions. I take my hon. Friend’s point that there may be a good case to look more widely, if we can find evidence that mobile phones are being used for malevolent purposes elsewhere. As I said to the hon. Lady, this is about application based on need. Nevertheless, I would not want to ignore the implications of my hon. Friend’s remarks, and I will go away and look at that. It is not contained in this order, but he makes a valid point. If we find, on analysis, that there is a need to look at the issue more closely, we certainly will.
I actually want a proportionate approach. I certainly do not want the measure to be extended to the immigration removal centre for those who are not convicted prisoners, and I am concerned that there would be an extension. It needs to be dealt with proportionately. Having said that, in my local hospital, there is a forensic wing for convicted prisoners who are subject to a hospital order, and that could be a good case in which access to mobile phones should be prevented.
I am little surprised by what my hon. Friend said. He makes a reasonable point. All of this could be tested against the actuality of the problem. The regulations are not blanket provisions; they are provisions based on need. My hon. Friend makes a valid point, and I am happy to build that into our further consideration.
I have set out the importance of the regulations, but it is right, too, that there are safeguards. We need to be able to disapply the order if mistakes are made and if anyone is affected in error. That is another point on which I am sure the hon. Member for Swansea East wants to be assured. We want to ensure that if someone is wrongly affected by a telecommunications restriction order, it can be disapplied quickly and they can be reconnected to the network. I want to put in place an additional safeguard to ensure that there is independent and transparent scrutiny of the measures, so I have provided that the use of the regulations will be overseen by the proposed Investigatory Powers Commissioner when the Investigatory Powers Bill receives Royal Assent.
With that introductory explanation of why we are doing what we are doing, I happily commend the regulations to the Committee.
I like to think of these things in theatrical terms, as you know, Mr Owen. I am grateful for the tone and spirit of what she said, as well as for the inquiries she made. Let me be clear: she is right that the issue is not only about crime. It is about crime, as she said, but it is also about the system being made a mockery of. Prisoners are using Twitter and Facebook in a way that makes prison authorities look foolish. It can be worse than that. They can send all kinds of messages over those media of a most unpleasant nature—I mentioned harassment and so on earlier.
The hon. Lady is right that, as I said in answer to my right hon. Friend the Member for Chelmsford, we need to be open-minded about how the system develops and how the technology changes. In the form in which it has been introduced to the Committee and the House, the instrument is a means by which we can cut off handsets and SIMs, but I take the hon. Lady’s point that we will need to review that over time, which is precisely why I committed to do what my right hon. Friend asked me to do.
I shall now give some detail on that commitment. My officials will not like this, but that is not a problem because the Ministers make the decisions. I suggest that we complete the review by the end of 2017, and that I, or whoever is Minister then, write to the House with the details of that review. The review should encompass all that I described, including the National Crime Agency, the police, the prison authorities—NOMS will clearly be closely involved—and the telecommunications operators, who Members from both sides of the House suggested will need to be involved. It will be based on an analysis of whether we need to go further both technologically and in terms of the prison estate, as my hon. Friend the Member for Enfield, Southgate said.
Let us commit to that on the basis of what has been discussed in this brief debate. So that right hon. and hon. Members can go about their daily business, I draw my remarks to a close.
Question put and agreed to.
9.19 am
Committee rose.
(8 years, 2 months ago)
Commons ChamberPart 6 of the Bill, on bulk powers, is perhaps one of its most controversial parts. The Scottish National party is calling for part 6 to be shelved along with part 7 until such time as an argument for their inclusion has been demonstrated by an independent review of their proportionality and operative necessity—that is to say that we believe that the powers in part 6 should be removed from the Bill until a satisfactory operational case is made for them.
The review the Government have agreed to is most welcome but they must get it right. It must be conducted properly if it is to be of any value to the process of parliamentary scrutiny or is to secure the public’s confidence in its conclusions. Yesterday we had sight of some more detail about the review, in a letter from the Minister to the hon. and learned Member for Holborn and St Pancras (Keir Starmer). We were particularly pleased to note that one of the review team will be a barrister who has a great deal of experience working as a special advocate acting against the Government in terrorism cases. That degree of balance is good and is to be welcomed.
The review needs to be given the time to do a thorough job, however, and we simply do not believe that three months is long enough. Even if it were, it would not be the first time we have been promised a date by which a report will be published, only then to be given another, and another.
I thank the hon. Lady for the warm words she is offering, which reflect the spirit in which this debate has been conducted throughout. The review will be conducted in the timeframe she describes because the Government are clear that it should take place while the Bill is live and is enjoying its passage through both Houses of Parliament. It would have been quite inappropriate to have a review once the Bill had passed into law.
I would argue that the review should have happened before now. Even if it is completed within three months, that will not be while scrutiny of the Bill is taking place here by elected Members; the scrutiny will be in the other place by Members of the House of Lords, who are not elected.
We are also confident that the review’s findings will not be significantly different from those of the reviews carried out by other countries, which I will come on to in a moment. In other words, it is likely to find that bulk powers are not necessary and give us no unique information that could not be garnered by other investigative techniques. Regarding those other techniques, the Government are arguing that new clause 5 will mean that bulk powers will be used only when other investigative techniques show up nothing, because the new clause recognises the importance of privacy to the individual—indeed, new clause 5 has been dubbed the privacy clause.
I wonder how the hon. Lady believes we will do that. The evidence reviewed by the Committee showed that bulk powers are counter-productive because the sheer scale of the data makes them impossible to analyse adequately. In fact, I believe the Government used the limited capacity of the security services to analyse bulk quantities of data as a form of assurance, which was strange to say the least.
I say this to be helpful to the hon. Lady. I fear that the debate has moved on and she has not. The truth of the matter is that the bulk powers she describes were considered by the Intelligence and Security Committee, which is chaired by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve). It established that there was both validity and necessity. She is arguing a general case on bulk rather than the case for safeguards. The debate we ought to be having is about safeguards, is it not?
I thank the Minister for that advice and will pass it on to my constituents, who have the same concerns as I do and whose concerns I am expressing.
As we know, the Bill is supposed to be a basis for the use of those techniques for quite some time, and we are not future-proofing the Bill if we say that it is absolutely fine to have intrusive bulk techniques because now, in 2016, we do not have the technical capabilities to analyse all the data. Some present-day practices are reliant on 32-year-old laws—they date back to 1984, of all years. If we get the measure wrong, there is every possibility that we will enshrine in law invasive practices that will become feasible only at some point in the next 32 years.
Perhaps the most worrying powers of part 6 refer to bulk equipment interference, which the Government helpfully outline as follows:
“bulk equipment interference is not targeted against particular person(s), organisation(s) or location(s) or against equipment that is being used for particular activities”.
It is therefore an indiscriminate form of interference that leaves systems vulnerable, not only to our own security services using their powers sparingly and proportionately, but to those looking to cause harm and to profit from broken security. If the front door of someone’s house has been kicked in by the police, criminals are not prevented from entering after their departure.
Our concerns regarding the bulk powers provisions in part 6 are connected to many of our concerns regarding the use of bulk datasets. At the heart of the matter is the retention of intimate personal details regarding the tens of millions of ordinary citizens of this country who do not merit such information being held by the state. We welcome the review of the use of bulk powers and recognise that other parts of the Bill impact on part 6 —it cannot stand in isolation. If bulk datasets are acquired by other mechanisms in the Bill, how are they to be dealt with and properly handled? Therefore, as we have stressed throughout, the Bill should be easy to understand, and should clarify what is permitted and what is not. We should not provide a mechanism whereby we rubber stamp practices that were never previously debated.
Again, the offline analogy is instructive. If we were asked by the state to deposit our membership forms for various organisations—political parties, campaign groups, golf clubs—or forms with our direct debit details, health records and other such bulk information into a big safe on the understanding that only the security services would have access to it, we would rightly baulk at such a proposal. Just because such a system is being proposed online and without the consent of the individuals concerned does not make it acceptable—in many ways, it makes it much worse. I hope the Minister will address that comparison.
Yes, I agree entirely. I am afraid that, because human society is not perfect, eradicating every instance of misconduct by public servants is likely to be impossible. We therefore have to ensure proper safeguards and ethics. Here I simply repeat what I said before. My own experience is that the ethical standards of the agencies are very high; that is not to say that one does not have to be vigilant about maintaining those standards, or that there might not have been instances where their ethical standards slipped, but everything I and, I think, my fellow members of the ISC have seen has constantly reassured us that those ethical standards are at the heart of what they do. I recollect Sir Iain Lobban saying that if he had asked his staff at GCHQ to do something unethical, they simply would not have done it. He said they would have refused, had he made the request of them.
I simply say that about the framework. I now turn to our amendments, the first group of which consists of amendments 9 to 12 and deals with an issue that goes to the heart of bulk powers: operational purposes. In the ISC’s report on the draft Bill, we were critical of what appeared to us to be the lack of transparency around operational purposes, which are of the utmost importance—this picks up on what the hon. Member for Glasgow North East said—as they provide the justification for examining material collected using bulk powers. If it falls outside legitimate operational purposes, one cannot examine it. We therefore recommended that in some form and in a manner consistent with safeguarding security—the two things are often difficult to reconcile—the list ought, so far as possible, to be published. We also recommended that the ISC have a role on behalf of Parliament in scrutinising the full classified list of operational purposes.
We were also concerned, when we investigated the matter further, that in some cases the nature of the list of operational purposes lacked clarity, as did the procedures for managing it, which seemed largely informal, particularly those for adding an operational purpose to the list. As matters stand now, that can effectively be done by a senior officer in the organisation. Our amendments are therefore intended to give effect to our original recommendations for greater scrutiny and transparency, while also trying to create a formal mechanism for the establishment, management, modification and review of the list of operational purposes.
I anticipated that my right hon. and learned Friend would raise this matter, given that he puts such emphasis on his report. I am absolutely committed to considering the matter in the way he describes, and I am prepared to say now that we will go away and consider his amendments, with a view to introducing further amendments to the Bill to satisfy him and his Committee on this issue.
I am grateful to the Minister and will keep that in mind, but so that the House might understand, I will just take it through what we proposed.
Amendment 9 sets out:
“The operational purposes specified in the warrant must be ones specified, in a list maintained by the heads of the intelligence services, as purposes which they consider are operational purposes for which intercepted content or secondary data obtained under bulk interception warrants may be selected for examination.”
That is to formalise the process, which at the moment we think is too informal. Under amendment 10, an
“operational purpose may be specified in the list…only with the approval of the Secretary of State.”
We think that when an operational purpose is added to the list, it should go through the Secretary of State and be signed off by her. My understanding—I hope that the Minister will confirm this in due course—is that the Government do not see any significant problem with introducing such a system.
I see the Minister nodding; I am grateful to him.
Amendment 10 also states:
“The Secretary of State may give such approval only if satisfied that the operational purpose is specified in a greater level of detail than the descriptions contained in section 121”.
That is to ensure that the Minister understands what the agency is asking for in adding an operational purpose to its list.
I do not think the list should be too prescriptive. It will clearly be flexible. From my understanding of the list and what I know about the existing lists, they do have flexibility and can be added to and subtracted from. They are the day-to-day operational purposes for examining bulk data. That is what should be there. At the moment, it is something of an informal process; there is no suggestion that it is not being followed properly, but I think it needs to be formalised a bit more, which is what the amendments are intended to do. Amendment 11 states:
“The list of operational purposes…must be reviewed at least annually by the Prime Minister.”
Amendment 12, which has caused the Government greater—and understandable—difficulty, would put in place the following requirement:
“The Investigatory Powers Commissioner and Intelligence and Security Committee”—
that is us—
“will be kept informed of any changes to the list of Operational Purposes in a timely manner.”
I always stress that the Committee is not there to monitor the activities of the intelligence agencies in real time; it is outside our remit to do so, as the Executive has to get on with its decision making, but we have the power to look at virtually everything we want—unless the Prime Minister denies us access, which has never happened in my time as Chairman—and the right to ask for material and to be briefed on what has happened in the past.
My impression is that the Government have no great objection to letting us see, on an annual basis, how the list has been reviewed, but we took the view that “timely” meant a bit more frequently than that. To make our position clear to the Minister and the Treasury Bench, we think that we ought to be kept informed of any changes not necessarily the day after they happen but certainly within a reasonable timeframe so that we might follow the changes that take place. The merit is that because we can, if necessary, call an evidence session and ask the head of an agency to come and explain to us what has been going on, we could provide reassurance to the House that the system was being operated correctly. I want to emphasise that that is the purpose of the amendment.
I do not expect the Minister to give me a completely positive response to amendment 12 today—he has kindly intervened already—but I would like him to provide an assurance that the Government will give this careful consideration and come up with a solution that enables the ISC to do its job. If he cannot, I might have to press the amendment to a vote, which I do not particularly want to do
My right hon. and learned Friend is right to anticipate that this is the issue that has troubled us most of all his Committee’s many sensible proposals. From what he has said, I know he will understand that the balance to be struck is between that kind of proper scrutiny and ongoing security operations, which clearly require that consideration of operational purposes be a dynamic matter. It is critical that we strike that balance, but I hear the tone and tenor of his remarks and I am happy to say that the Government will consider the matter carefully and continue our discussions with him.
I am grateful to the Minister. On that basis, I think that these will be probing amendments, but I hope the matter can be properly resolved as the Bill goes through another place.
Amendment 12 states that the
“Investigatory Powers Commissioner must include in his Annual Report a summary of those Operational Purposes”.
Those would likely be more limited than the full list, but it would help to have some broad understanding.
I must take a moment on new clause 3, given that it deals with such an important matter. In the ISC’s report, we recommended that class bulk personal dataset warrants be removed from the Bill on the basis that the potential intrusion into privacy was sufficient to require that each distinct dataset should require specific approval by Ministers. However, we then had further evidence—as has happened in the dialogue with the Government and the agencies—in particular from the Secret Intelligence Service, about the rationale for retaining class warrants in the Bill. In particular, the evidence highlighted the fact that many of these datasets covered the same information or type of information. In those circumstances, we considered that a class warrant would be appropriate, as the privacy considerations were identical.
However, were we to accept class warrants for bulk personal datasets, we would need safeguards to ensure that their use was limited. We therefore proposed three restrictions. The first relates to the most sensitive personal data, using the definitions in the Data Protection Act 1998, and would prohibit the retention of any dataset containing a significant quantity of data relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life. The second restriction relates to bulk personal datasets that are somehow novel or out of the ordinary. In those circumstances, we would not consider a class warrant to be appropriate, so subsection (1)(b) of new clause 3 is designed to ensure that such cases will be referred to the Secretary of State and the commissioners by way of a specific warrant.
Finally, we express concern that we should not end up with bulk personal dataset inflation and have suggested that bulk personal dataset warrants should be limited to 20 individual datasets. I emphasise to the House that that is a completely arbitrary figure in many ways. If the Government have an alternative approach, I am more than happy to listen. I accept that if we impose a limit of 20, it is possible that the Home Secretary might be asked to sign two identical bulk personal dataset warrants in one go, if they are expecting to pick up 40. However, it seems to me that there needs to be some numerical cap, above all to ensure that the Home Secretary or Foreign Secretary, depending on who it is, is aware of what is being collected.
I would emphasise that we have seen the entire list of bulk personal datasets and we have never been of the opinion that anything is being collected that is not legitimate, and some of it, I can tell the House, is pretty mundane as well. That said, it is right that the House should exercise some caution about the expansion of those datasets, because one can see that in some circumstances they could touch upon information that is regarded as highly sensitive.
I hesitate to intervene again, but I hope these exchanges are proving helpful to the House, as well as to my right hon. and learned Friend and me—and to you, Mr Deputy Speaker. My right hon. and learned Friend touches on an important issue. I think he will acknowledge that it would be undesirable to set an arbitrary figure, but it is certainly the case that the Home Secretary, the Foreign Secretary and the Northern Ireland Secretary would want to take into account the numbers. It seems to me that the numerical case that my right hon. and learned Friend is making is not without merit. I am not sure that this is a matter to be dealt with on the face of the Bill, but it certainly should be dealt with.
I am again most grateful to the Minister. I entirely accept that if he can produce, for example, an assurance before the passage of this Bill through Parliament that there will be a protocol in place—which we, for example, have access to—that sets out exactly how the process will be managed in practice and that we can provide the House with the reassurance that that is being followed, that would satisfy my concerns.
However, I do think there is an issue here, because frankly the world is made up of more and more bulk personal datasets, largely being collected in digital form, and there needs to be a process in place to ensure that what is there is legitimately held and is not just being added to in a way that could be outside Ministers’ line of vision altogether, unless they specifically started asking questions. That is the sort of approach I am talking about, so on that basis I am happy to accept the Minister’s assurance.
I sense that the hon. and learned Gentleman is about to move on to wider issues. Before he does so, let me deal with the issue of the application of the content of the manuscript amendment, which, as he said, specified a part of the Bill. He is right to say that the principles that underpin the amendment should apply to the whole Bill, and I will ensure, as the Bill proceeds, that that is the case legislatively. If we need to table further amendments to make the position categorically clear, we will do so.
I am grateful to the Minister for clarifying the position, because that is an important additional measure in relation to bulk powers. We will, of course, support whatever amendments are necessary to achieve that end.
As I have said, the bulk powers are very wide. They will inevitably have an impact on people who are not suspected of doing anything wrong, and they will inevitably have an impact—or, at least, it is impossible to ensure that they will not—on legally privileged material, or material that involves journalistic material or journalistic sources, or, indeed, MPs’ correspondence. It would be good if a way could be found of excluding such material from the operation of bulk powers, but it is not possible to do so, and that is why there is concern about bulk powers. [Interruption.] I will give way to the right hon. Member for Haltemprice and Howden (Mr Davis) in a moment.
Bulk powers involve ordinary members of the public who have never done anything wrong, and they involve the potential to capture legally privileged material, journalistic material and MPs’ correspondence. I shall come on to the safeguards, but it is important to understand first why there is that concern about the bulk powers.
There is a case for frequent review, but what form that would take is a matter for us to discuss during the debate on the next group of amendments. I take the point that, in many senses, most of the bulk powers are currently available and being used. As I said yesterday, however, that does not mean that we should not scrutinise them now through the passage of the Bill. This is the first time that Parliament has had the chance to examine and scrutinise the provisions, because they simply were not avowed. The change of position on the avowal of the powers over the past three or four years and the fact that they are in statute are quite extraordinary. It would be wrong to say that as they existed and were used under more general provisions in the past, we should not ask for the operational case to be made now and have that properly scrutinised. This is the right way of doing things, even though one might say that it should have been done five, 10 or 15 years ago when things were different.
That is why the focus on necessity and not merely utility is so important. It would have been easy to have focused on utility. As the hon. and learned Gentleman emphasised earlier, this is about establishing to the satisfaction of independent people that the powers are necessary.
That word necessary is important in all of this. As I say, the review team’s ability to assess whether the same result could have been achieved through alternative investigative methods is important to that exercise and the confidence that we can have in the outcome.
Pressing on, the letter goes on to say that
“all necessary information, access and assistance as is needed for the review”
will be provided. It then states:
“We are absolutely clear that there is nothing to be gained, and much to be lost, by in any way restricting the review team’s access to sensitive and classified material where this is necessary to inform the review process.”
On timing, it states
“you are correct that the review will be concluded in time to inform Parliament’s consideration of Parts 6 and 7 of the Bill at the Lords Committee.”
There is a complete and instructive response to the request in my letter and that will help a great deal in how the review is received.
The review is important. It is not just an exercise for us in this House or those in the other place; it is for the public. As the right hon. and learned Member for Beaconsfield said, some Members of this House have had access to some of the powers and have seen them in operation either in previous roles or in briefings to the members of various Committees. However, it is no longer enough, nor should it be, for members of the public for politicians to stand up and say, “I have had it demonstrated to me that these powers are necessary or have been used in a particular way.” They have the right to as much information as possible to make decisions for themselves.
I agree with those sentiments. Conventions and attitudes change. To take an example from my past, it was once a convention that a prosecuting authority would not give reasons for its decisions, but that has changed and for the better. The days of politicians with access to particular information assuring the public simply by saying that they have had access and that they are satisfied are well and truly over. That presents problems and difficulties in relation to what must be put in the public domain.
The intervention of the right hon. Member for Slough (Fiona Mactaggart) has been helpful in aiding me to frame my own. She is right that operational concerns are sensitive, delicate and, of course, secret matters. The hon. and learned Member for Holborn and St Pancras (Keir Starmer) is absolutely right that we should put as much information as possible in the report. He is also right that there will be access to security-cleared information of a highly sensitive nature, but that should not prevent us from being as clear as we can to this House, and more widely, about why it has been decided whether certain powers are necessary.
I am grateful for that intervention, which I will take in the spirit with which it was put forward. We want maximum publicity within the constraints that apply when highly sensitive information is considered. The first point of the review is to inform their lordships so that they can perform their scrutiny function, but they will be unable to do that if the report is not available to assist them in their deliberations. The review and its terms are a material and important step forward, and I am grateful for the indication about its publication when it is complete.
That takes me to the subject of medical records, which I can deal with swiftly.
I can only regret the tone of the remarks of the hon. Member for North Dorset (Simon Hoare). Had he said anything about the content of the Bill or the amendment, I might have regretted that as well.
There are a number of matters on which I wish to touch today. I should like to speak first of all in relation to the review, which has formed so much of today’s debate. I very much welcome the appointment of David Anderson, QC. He commands respect and confidence in all parts of the House. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer) said earlier, it is significant and important that, first of all, he has a remit that looks at the necessity of these provisions and also that he has been able to select for himself the team with which he will be working.
I very much hope that the report will be produced in time for the Bill to be given the benefit of it when it is considered in the other place. I say to the Minister that if it is a question of a week or two here or there, notwithstanding the deadlines to which we are all working, it would be proper for the Government to take the view that it is best to get this report right rather than to get it out quickly. For my part, I am disinclined to think that David Anderson would have taken on this job if he were not able to do it in the time that is allowed to him, but, as we all know with these matters, sometimes the unexpected happens and sometimes it is not always easy to get to the truth of things. I do hope that there will be a degree of flexibility among the Government’s business managers, not least if we need a Government day to debate the report, so that the House has its voice heard.
I will, if I may, suggest to the right hon. Gentleman, whom I worked with in government and whom I know very well, that the scope of the report should be a matter for David Anderson. For example, if he were to want to take into account the experience of other countries—this is something that the right hon. Gentleman and the SNP spokesperson called for—that would be a matter for David Anderson. We are not attempting to tie his hands in any way. As the right hon. Gentleman knows, it is my view that we need to get this review completed, so that we do not pass something into legislation without the information that emanates from it.
I am grateful to the Minister for that. We are now best served by allowing Mr Anderson to get on and do the job that we have given him. I merely say in passing that it would have been better if we had given him that job some time ago, so that this House might have had the benefit of his conclusions when debating this whole matter. None the less, I welcome the conversion of the Government, however late in the day it may have come, to the need and to the acceptance of what even the Labour party has said, which is that the operational case for the extent of the bulk powers that the Government have sought to introduce in this Bill has not yet been made. The operational case that they have published has been vague, to be kind to it, and it has certainly been lacking in any persuasiveness.
We will look very closely at David Anderson’s conclusion with regard to the necessity of these powers, because that should have been the first test that was set and that was required to be met. I take very little issue with the right hon. and learned Member for Beaconsfield (Mr Grieve), or indeed the hon. and learned Member for Holborn and St Pancras, when they talk about the protections that they think should be built into the Bill. Protections are necessary only if the powers are first judged to be necessary, which comes to the very heart of the points made by the hon. Member for North Dorset. The Bill has very much been a work in progress and I wonder whether we would have had the 104 Government amendments we had yesterday and the 20 that we have today, never mind those tabled by the Intelligence and Security Committee, by those on the Opposition Front Bench and by the Scottish National party, if the House had taken the approach to the Bill and its scrutiny that was being urged on us a few minutes ago.
On the question of bulk personal datasets, I share the substantial concerns that have already been expressed. That brings me back to the objection that I have already spoken about—to the operational case. That is another aspect of the Bill that the Government have failed to explain. The operational case is perhaps even more opaque than anything else in the Bill. Although the abuses—let us use that term—outlined by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and acknowledged by the right hon. and learned Member for Beaconsfield might be at the lower end of the scale, I have a strong suspicion that it was because they were at the lower end of the scale that they came into the public domain in the first place. When we are dealing with something that strikes in such a fundamental way at the relationship between the citizen and the state, there is, frankly, no such thing as a trivial abuse. Any abuse is serious, any abuse is to be taken seriously, and that is why I thought that the hon. and learned Lady was right to bring them to the House’s attention.
I am grateful to the shadow Minister for that clarification, which is very helpful.
On bulk data collection generally, the correspondence that was shared yesterday was incredibly useful. I do not recall getting correspondence between a shadow Minister and the Minister, which was shared with us all and made available in the Vote Office so quickly. It was useful and defused many of the fears and concerns that had been raised with Members of Parliament about the consequences of passing the Bill. It is important, as the right hon. Member for Orkney and Shetland (Mr Carmichael) said, that we let that process commence and that we engage in it thoughtfully.
Having made the point that there was no Northern Ireland representation during scrutiny of the Bill in Committee, I hope there is a mechanism whereby Members, be they Democratic Unionists, Ulster Unionists, Social Democratic and Labour party Members or others, get the opportunity to engage thoughtfully and purposefully in the conversation because, as we all know in the House, the history and legacy of Northern Ireland means that these are acutely live issues for us daily.
Just before the hon. Gentleman finishes, I am more than happy to give him the assurance that my door is open to him, his colleagues and other parties during the whole passage of the legislation. When it leaves this House it will go to the other place, but I will continue to be engaged and involved with all parties who want to contribute in the way that he has described, and I thank him for it.
No, I am afraid I will not. I have given way enough.
It would be baffling to look at that list and accuse people of such integrity of having anything other than the best intentions. The important thing, however, is that we not only trust them, but supervise them. We trust but verify, as the old diplomatic phrase goes. The verification comes from the commissioners, which were listed yesterday, with their explanations, which the right hon. Member for Knowsley (Mr Howarth) was talking about yesterday. The supervision also comes from the Minister, and ultimately and eventually from the House.
I am therefore reassured that the Bill is not a snoopers charter or a grubby attempt to procure the information of the private citizens of these islands. On the contrary, this is an extremely effective Bill. It has been through months of discussion, and hours of detailed and deliberate interrogation. It has satisfied the extremely demanding standards of the Chair of the Intelligence and Security Committee, and the exemplary work of the former Director of Public Prosecutions, the hon. and learned Member for Holborn and St Pancras, whom I am pleased to see on the Opposition Front Bench.
The Bill comes to the House as a nigh-on complete work. Even so, the Government have considered and accepted amendments and further changes. We have not only a final but a polished copy of a Bill that is designed to do exactly what this country vitally needs. It does exactly what the Government are here to do. It keeps the people of these islands safe, whatever their background, origins, occupation or duties.
Fundamentally, it also protects the freedoms that we enjoy. Those freedoms are not, as the Americans put it, free. They are fought for every day, by the people on the list in schedule 4 that I have identified—our armed forces and our intelligence services. That is why I am so proud to be here today to speak up for the intelligence services who have asked for those powers; for the armed forces who require them; for the police who use them; and most importantly for the Government and, in this case, the official Opposition, who have so carefully crafted a legal document that will hold water today and for long into the future.
What an interesting and important debate we have had. This group of amendments addresses bulk powers. It is right that we should consider these matters in considerable detail because, as has been said by Members from across the Chamber, they are matters of profound importance and public concern. The public want to be assured that the safeguards we put in place for these vital powers are right, adequate, properly considered and properly reviewed. Many hon. Members have contributed to the debate. Tellingly, the hon. Member for Belfast East (Gavin Robinson), my hon. Friend the Member for South Ribble (Seema Kennedy) and the hon. Member for Fermanagh and South Tyrone (Tom Elliott) spoke with personal experience of terror.
We all know the scale and nature of the threat we face, but though we know it, that does not mean that it should not be explored again and again in this House. For to explore it is to realise what we need to counter it. That is precisely what was done in speeches by hon. Members from all sides of the House. The threat is real, imminent and unprecedented in character. Our opponents are increasingly adaptable and flexible. Although their aims may be barbarically archaic, their means are up to date. They are entirely modern. They are prepared to use every device and every kind of communications medium to go about their wicked work, which is precisely why the Bill does what it does, why bulk powers matter and why the amendments that stand in the name of the hon. and learned Member for Edinburgh South West (Joanna Cherry), which I will deal with in a moment, are not ones I can accept—that will not come as any surprise to her, by the way.
An argument has been made that the operational case for bulk powers needs to be fleshed out more fully. Hon. Members will know that the Government did just that when they published the operational case for bulk. That informed the Committee consideration, which has been referred to several times during our short debate today, and has been a helpful way of establishing why bulk powers really count.
We are dealing with powers that have played a significant part in every major counter-terrorism investigation over the past decade, including in each of the seven terror attacks disrupted since November 2014. These powers enabled over 90% of the UK’s targeted military operations during the campaign in south Afghanistan, and they have been essential to identifying 95% of the cyberattacks on people and businesses in the UK discovered by the security and intelligence agencies over the past six months. My hon. Friend the Member for Tonbridge and Malling (Tom Tugendhat) is right to say that this is about real life operational necessity. I congratulate my hon. Friend the Member for Fareham (Suella Fernandes) on the role she played both on the Joint Committee and the Bill Committee. The threat she described so vividly is, as she said, worldwide and of a kind that would allow us to do nothing other than take the necessary steps to counter it in the defence of our freedoms.
I was perhaps a little unkind to the hon. Member for Glasgow North East (Anne McLaughlin) who spoke for the Scottish National party, although I make no apology for reprising what I said. Frankly, her contribution missed the point. The point is not whether the powers are necessary; it is whether we can put in place sufficient safeguards to ensure that they are used only when, how and where they should be. That was the point made by the Chair of the ISC and by the ISC when it had the chance to consider these matters. As the Chair of the ISC said, it then also had a chance to reconsider them, having been given further information of a secure kind—that is its function after all—and its members were persuaded that the powers were indeed necessary. It is right to have an informed, thoughtful debate about safeguards, checks and balances, and constraints, but we cannot have a grown-up debate about whether the powers count, because they are not new; they are existing powers. The Bill simply introduces additional safeguards, which I would have thought any reasonable Member would welcome.
I gently suggest to the Minister that, as we have seen already this afternoon, patronising those of us who have taken the trouble to scrutinise the Bill, speak on it in detail and try to understand it does not get us anywhere. If the Government’s operational case for investigatory powers is so convincing and overwhelming, why have they now conceded the need for an independent review?
Let me repeat two things I said yesterday. First, the members of the Bill Committee all made a useful contribution, and the hon. and learned Lady is of course one of them. Secondly, the Government, in wanting to get the Bill right, are prepared to listen and learn, as Governments should be. I have been in the House for a number of years, and there has not been a single piece of legislation that has not been better for having received proper scrutiny, that has not altered during its passage and that has not been a better Act as a result of consideration by the House. We should be proud of that. I was simply saying that to focus on some of the detail around safeguards seems to be absolutely right, whereas the debate about the necessity of the powers has already been had. I think there is a general acceptance that the powers are necessary.
I do not know if the hon. and learned Lady was listening, but I read out three things: 90% of operations in Afghanistan, 95% of cyber-attacks, every single major counter-terrorism investigation over the last decade. I cannot be plainer about the necessity, but because the Government are so determined to ensure adequate safeguards, we have agreed to a further review. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer), generously said, the review is to be completed in exactly the form that emerged as a result of the discussions between the Opposition and the Government—an illustration of the House behaving at its best. The review, chaired by David Anderson, will be able to look not just at utility—the point I made to the Chair of the ISC—but at necessity, and it will be independent.
So the Minister is saying that all these counter-terrorism activities were helped by bulk powers, but now we are going to have a review to see whether that is true. As I said, there were two independent reviews in the US. The NSA argued—much as he is arguing now—that all 54 counter-terrorism events had relied on bulk powers, but both independent committees said, “Absolutely not. Not at all. There were other techniques.” What will he do if this review finds the same as the two reviews in the US? Will he then remove the bulk powers from the Bill?
It is a bit rich to say, “We want a review and we want the Government to listen and agree”, and then, when they do listen and agree, to say, “You haven’t agreed enough or soon enough.” I accept that the review should be entirely independent—I made that clear in my letter to the shadow Minister. I accept that it will be for David Anderson to decide exactly how he goes about his work. I have further accepted today that he should look at international comparisons, which I think is perfectly reasonable. It will be for David Anderson to decide whether he does that; if he wants to, that will certainly be within his scope. This will be an independent review, with as much information as possible made public, and it will be able to range, in the way the hon. Lady has described, across these powers.
I have no doubt at all that the review done by David Anderson will be valuable and I hope it will also inform the House about how bulk powers work. In that context—and because I have picked this up—there has been a suggestion that the examination of material under a bulk warrant is somehow a free-for-all that is left to the discretion of the official, and it plainly is not. It is subject to the operational purposes in clause 125, and if they are departed from, the official concerned would be acting unlawfully.
My hon. and learned Friend the Member for South East Cambridgeshire (Lucy Frazer) made the point, which my right hon. and learned Friend has now amplified, that these powers are subject to a range of safeguards. Let me be clear: the analysis of data intercepted in bulk is subject to automated filtering to ensure that data not of intelligence value are automatically discarded. This is a safeguard set out in the code of practice. There are rigorous safeguards in the Bill for examination, and the suggestion that there are not is, frankly, simply wrong and based on a confusion between the collection of material, as my right hon. and learned Friend has implied, and its examination.
It is right, therefore, that we emphasise—as my hon. and learned Friend, who is about to intervene on me, did—that the safeguards are clearly set out both on the face of the Bill and in the supporting material; and, indeed, that they have evolved as a result of the scrutiny we enjoyed in Committee and through the pre-legislative scrutiny.
My right hon. Friend is responding to a point, which the SNP has made on a number of occasions, about the US. Does he, like me, remember when the hon. and learned Member for Edinburgh South West (Joanna Cherry) put that point to David Anderson on the very first day of our Committee? He said:
“It is difficult, of course, to read across from section 215 in the US to what we have here, which is rather different…I cannot speak for the US…different power, different circumstances”.––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 8, Q7.]
My hon. and learned Friend, with an assiduity that is matched by her intellect, has identified the fundamental flaw in the argument of our critics, which is that those who have looked at these matters most carefully have concluded both that these powers are necessary and that the safeguards we are introducing in this Bill—and by the way, these powers have existed for a long time; this is the first chance we have had to debate the legislative safeguards—are not only numerous but rigorous, in the way she has described. That was precisely the point that David Anderson made.
However, the hon. and learned Member for Holborn and St Pancras, in Committee and since, has said we need to do more. There are two ways for Governments to handle Oppositions, just as there are two ways for Oppositions to handle Governments: we can either do it antagonistically or we can do it co-operatively. The way I go about my work is inspired perhaps by Samuel Johnson—the great Dr Johnson, the man who said, by the way, that the devil was the first Whig, and I agree with him on that. Samuel Johnson said:
“Life cannot subsist in society but by reciprocal concessions.”
This Bill has been a model of that kind of reciprocal approach. And by the way, these concessions have not been climbdowns. They have not been given reluctantly, they have not been turnarounds and they have not been in any sense wrung out of the Government. Nevertheless, they have been given on the basis of the proper pressure exerted by the hon. and learned Member for Holborn and St Pancras and other hon. Members for the Government to do more. Good government is about listening and learning, as I said yesterday, and that is precisely what we have done in respect of this review. I look forward to it and I anticipate its outcome with the same kind of interest that I know the hon. and learned Gentleman and others share.
I am grateful to the Minister, and I feel that I should put on record my gratitude to him for the way in which he has dealt with the demands that I have made on behalf of the Labour party. They have been considerable demands.
I thank the hon. and learned Gentleman for his support. I know that the Government Whips will take careful note of it. [Laughter.]
We have listened to the call for independent validation. David Anderson QC will undertake the review, so I will say no more about that.
We have debated at some length, today and previously, the amendments tabled by the Chairman of the Intelligence and Security Committee, my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), which contain a number of proposals. I am grateful for his contribution to the debate, generally and, more specifically, today. I am pleased that my right hon. and learned Friend has explained the purposes behind new clause 3 and amendment 24. The Government certainly accept in principle the argument that we should provide further restrictions on the use of class bulk personal dataset warrants. We also accept much of the detail contained in the ISC’s draft clause, including reference to the need for restrictions relating to sensitive personal data.
I have dealt with the issue about which—as my right hon. and learned Friend knows—we are least happy, namely the timescale within which these matters are reported to the ISC. I think that more could be done, and I think that a protocol of the kind that my right hon. and learned Friend described in his brief contribution might provide a way of doing it. We will take that suggestion away and do further work, in the spirit to which he referred.
My hon. Friend the Member for Stevenage (Stephen McPartland), who is no longer present but who is an old friend of mine, raised issues relating to modifications. I want to make it absolutely clear that in all modifications, a warrant will require the same double lock. Yesterday and in Committee, the hon. and learned Member for Holborn and St Pancras argued that a double lock that applies when a warrant is originally sought must apply to modifications. I entirely accept that point. My hon. Friend made it again today, and I can assure him that the double lock will apply to bulk powers as well.
The hon. and learned Member for Holborn and St Pancras raised the issue of medical records. It is right for particularly sensitive data to be handled in a particularly sensitive way, and I am pleased that he noted the Government amendment which, I think, deals with that. We will consider the technical points that he raised about social care and mental health, but I am confident that we can find a way forward.
I do not want to delay the House unduly—as you know, Madam Deputy Speaker, that is not my habit, and we have other important matters to consider—but I do want to say that one of my regrets is that we have not had more Proust today, or during our consideration of the Bill more generally. Marcel Proust said:
“The only real voyage of discovery consists not in seeking new landscapes, but in having new eyes”.
The consideration of this Bill has been extensive. Three reports before its publication in draft, three parliamentary Committees once the draft Bill was published, and a very thorough examination in Committee following Second Reading have allowed us to have “new eyes”, and to see more clearly both the need to secure our people and counter the very real threats that we face, and the need to deal with the checks and balances which ensure that the powers we give those who are missioned to keep us safe are used proportionately, and only where necessary. Achieving that balance—a balance that lies at the heart of the Bill—has required the House to take a balanced approach. As I said a few moments ago, Parliament is at its best when it puts national interest beyond party interest, and this is common ground for the common good.
I have to say that the Minister’s tone does not really reflect that which some of his hon. Friends used when addressing this debate. I have felt completely patronised at times today, because people on the Government Benches have been shouting, “You don’t understand this Bill.” Just because we take a different view or come at things from a different angle does not mean that we do not understand. The right hon. Member for Rutland and Melton (Sir Alan Duncan) shakes his head, but it was offensive to have to listen to that nonsense, particularly when it was directed at my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who is a learned QC and certainly does know what she is talking about.
This final group of amendments covers three of the seven substantial concerns that I set out in a letter to the Home Secretary after Second Reading: first, protection of journalistic material and sources; secondly, the definition of internet connection records, and the threshold for their use; and thirdly, the independent review of the operational case for bulk powers. Let me take each in turn.
I will deal with journalistic material and the protection of sources briefly, as the matter was debated at length yesterday. Protecting the ability of whistleblowers in private or public sector organisations to speak to journalists without fear of identification is one of the important checks and balances on state and corporate power. Many journalists and the National Union of Journalists have real concerns that clause 68 weakens the existing protections in law for journalistic sources operated under the Police and Criminal Evidence Act 1984. They point to an incident in 2014 when police secretly accessed the mobile phone records and call data from a national newspaper, bypassing the PACE protections. Rightly, there are now worries that that has set a new precedent. Furthermore, they feel that the Bill might be about to enshrine that new precedent in law.
Under PACE, journalists are notified when the authorities want to access material and sources, so that they have the ability to challenge that in open court. The worry is that the Bill removes those protections. The National Union of Journalists makes the point that there is no real difference between physical notebooks and communications data held electronically; both could reveal the identity of a source. Labour shares those concerns; they were ably raised by my hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) in Committee, and they were also raised on Second Reading.
The Government have gone some way towards addressing our concerns, tabling amendments 51 and 52, which we welcome. The amendments will ensure that judicial commissioners, when considering a warrant, must give weight to the overriding public interest in a warrant being granted for the use of investigatory powers against journalists and that they must ensure that that is in keeping with wider and more general privacy points. That is a significant move. It takes points that would otherwise have been in codes underpinning the Bill and puts them on the face of the Bill.
Labour will accept these amendments, but we will do so while being clear that they do not go far enough. Indeed, they cover only the award of warrants, not general access to communications data. We therefore support the amendments tabled by my right hon. and learned Friend the Member for Camberwell and Peckham (Ms Harman) on behalf of the Joint Committee on Human Rights—amendments 143 to 145—which seek to extend the same level of protection to journalists as is currently the case under PACE.
We accept that this is a difficult area to get right, particularly when the definition of who is and who is not a journalist is changing in the digital world. We accept the difficulty facing Ministers. However, we think that the general principle, enshrined in PACE, of allowing journalists to challenge in open court any attempt to access material that could reveal sources is a good one. It would allow those public interest arguments to be heard and tested in court. We hope that the Government will today commit to working with us and the NUJ to find a wording that in the end does the job.
The right hon. Gentleman has made his case in a measured way. He acknowledges that it is difficult to define journalists because the modern media include many bloggers who are part time, occasional and so forth. However, he is absolutely right that a solution needs to be found, and I am happy to say that we will look at this issue with him and others in greater detail as the Bill enjoys its passage through this House and the other place.
I am grateful for what the Minister has said. It must be possible to find a definition that excludes casual or voluntary bloggers from individuals who make their living from writing or who work for organisations regulated by the Independent Press Standards Organisation or other regulators.
May I, through the right hon. Gentleman, tell the Minister that, when he says he will speak to people in the House and others, those others really must include the National Union of Journalists?
The right hon. Gentleman makes an important point, which I saw was accepted on the Government Front Bench. He has tabled a detailed amendment on this issue, and he is right to do so and to press the Government on this. All of us have to apply our minds to getting these definitions right for all three professions. There is still an open question, as we discussed yesterday, about Members of Parliament and the right level of scrutiny for any warrant against them, but there is equally more work to do on other fronts.
We should not pass a Bill that weakens these professions—as I said yesterday, this is not about preserving the special status of the individuals who work in them, but about protecting the public and their ability to raise issues through those individuals.
I have committed to writing to the NUJ and the Society of Editors, which I have met already. I have been waiting to do so until today’s debate so that my letter can be informed by it. However, I will happily write to them tomorrow, very much on the basis of taking these matters forward.
I very much appreciate what the Minister has said. I think that any colleague in any part of the House who has read the NUJ’s briefing for today’s debate will struggle to disagree with anything in it. If we want this Bill to leave Parliament with a high degree of consensus across society, it is right that these professional bodies feel, in the end, that the Bill is something they can support. That is a prize worth working for. Given his comments, I get the feeling that the Minister agrees.
I am sorry to interrupt the right hon. Gentleman in his flow. I have listened carefully to what he has said, and it has been the subject of discussion, as he knows, in Committee and elsewhere. I do not want to anticipate my hon. and learned Friend the Solicitor General in his summing up, and I mean him no discourtesy, but as the Bill Minister and the Security Minister, I commit to doing what the right hon. Gentleman asked. I do so because it is really important that we have a threshold that works, particularly on ICRs.
ICRs are, as the right hon. Gentleman says, qualitatively different. He is right about cases of harassment, and so on and so forth, which is why the matter is challenging and complex. He has made a powerful case here, following the powerful case made by the hon. and learned Member for Holborn and St Pancras (Keir Starmer), and I will bring the matter back to the House during our proceedings on the Bill in the form of an amendment, in the spirit that he has described.
I said at the start that I was looking for considerable comfort, and I think I have just received it from what the Minister has said. To be clear, I was saying that there should be a threshold of six months for the use of communications data, and a higher threshold on top of that for internet connection records. As the Minister just acknowledged, there is a qualitative difference between the two. If that is what we are agreeing, and if we are also agreeing that there should be no restriction on the use of internet connection records for the other serious purposes that I have outlined, the Opposition can probably move forward on that basis without pressing our amendments to a vote.
This is the area in which the Bill has the ability to lose public trust if we do not get it right, because it could affect every single citizen in the land. I am sure that as constituency MPs many of us have dealt with situations where an individual falls out with the police at a local level, and they perceive that they are being investigated for all kinds of things and that all aspects of their lives might be turned upside down. We have to put in place appropriate protections that would not allow personal information to be handed over freely in relation to more trivial offences.
I am grateful to the hon. Lady for making a point that will enable me to be absolutely clear about what I am saying. I am not arguing against the retention of the data, as I think I made clear at the beginning. I am not arguing against ICRs per se. I acknowledge that they could be a very important tool. In an age when communications have migrated online and people have fewer voice telephone calls, this information could be crucial in detecting serious crime. I am saying that while we should legislate to allow the data to be held, we must also legislate to put in place a very precise threshold, so that the circumstances in which those data can be accessed are explicitly clear. There is not a broad reasonableness or necessity test. What I am saying is that we need a very clear definition of what level of crime permits the authorities to access those records.
I believe that if we find that definition—I feel that the Minister has given a commitment that we will get it—it will enhance public trust in this legislation. In my view, it will knock out completely that lazy label of “snoopers charter”. That is why it is so important that the Government nail this point before the Bill concludes its passage.
The right hon. Gentleman has looked at these matters very closely, as is illustrated by the fact that he has rightly said that there are some crimes, such as harassment, stalking and so on and so forth, that would not neatly fit into a simple category. He is also right that the threshold must be robust. This is not about minor crimes and it is not about snooping, as the less well-informed critics have sometimes described it. I have given the commitment that we will work with him and others during the passage of the Bill to move an amendment to address this issue. He was right to raise it today. He has asked for a commitment and he is getting one.
We have learned to admire the Minister greatly through this process, and we have learned that when he says something, it happens. I am reassured by the words that he has just put on the record.
If it helps—perhaps it does not, but I will say it anyway—I would favour quite a high test for ICRs, and significantly higher than six months. Alongside that, it might be possible to itemise the other individual occasions on which they could be used, be it online grooming or missing persons. The danger with trying to capture it all in a single time period is that we might open the net to other offences that we would not want to be included. I fully acknowledge that this is a complex area. That is why I want to give the Ministers leeway to see whether, working with us, they can find the right definition.
(8 years, 2 months ago)
Commons ChamberI beg to move,
That the Order of 15 March 2016 (Investigatory Powers Bill (Programme)) in the last session of Parliament be varied as follows:
(1) Paragraphs (5) and (6) of the Order shall be omitted.
(2) Proceedings on Consideration shall be taken on the days and in the order shown in the first column of the following Table.
(3) The proceedings shall (so far as not previously concluded) be brought to a conclusion at the times specified in the second column of the Table.
Table | |
---|---|
Proceedings | Time for conclusion of proceedings |
Day 1 | |
New Clauses and new Schedules relating to, and amendments to, Part 1; new Clauses and new Schedules relating to, and amendments to, Part 8 New Clauses and new Schedules relating to, and amendments to, Part 2; new Clauses and new Schedules relating to, and amendments to, Part 5; new Clauses and new Schedules relating to, and amendments to, Chapter 1 of Part 9 | Three hours after the commencement of proceedings on the Motion for this Order Six hours after the commencement of proceedings on the Motion for this Order |
Day 2 | |
New Clauses and new Schedules relating to, and amendments to, Part 6; new Clauses and new Schedules relating to, and amendments to, Part 7 New Clauses and new Schedules relating to, and amendments to, Part 3; new Clauses and new Schedules relating to, and amendments to, Part 4; new Clauses and new Schedules relating to, and amendments to, Chapter 2 of Part 9; remaining proceedings on Consideration | Three hours after the commencement of proceedings on Consideration on the second day One hour before the moment of interruption |
I am not sure whether “excited” is correct; I think “irritated” might be, but in my experience the right hon. Gentleman has never let that put him off in the past.
And will certainly not do so in the next two days, Mr Speaker.
The programme motion is relatively straightforward, because, as I was about to say, it is the Government’s habit, in respect of the Bill, to both listen and learn. Over the next two days, I hope to be able to show that we have done both. Scrutiny has been considerable, and the draft Bill that preceded the Bill that we are considering on Report was scrutinised closely by three parliamentary Committees, including a special Joint Committee, chaired and supported by Members of the Lords and the Commons, who gave the measure considerable attention. The Joint Committee produced a report with numerous recommendations, and members of the Public Bill Committee engaged in debate on those recommendations. There has therefore been a thorough process, and that will continue over the next two days.
Question put and agreed to.
(8 years, 2 months ago)
Commons ChamberI beg to move, That the clause be read a Second time.
With this it will be convenient to discuss the following:
Government new clause 6—Civil liability for certain unlawful interceptions.
New clause 4—Offence of unlawful use of investigatory powers—
“(1) A relevant person is guilty of an offence if—
(a) by way of conduct described in this Act, he knowingly or recklessly obtains the communications, communications data, secondary data, equipment data or personal information of an individual, and
(b) the person does not have lawful authority to make use of the investigatory power concerned.
(2) Subsection (1) does not apply to a relevant person who shows that the person acted in the reasonable belief that the person had lawful authority to obtain the information referred to in subsection (1)(a).
(3) In this section “relevant person” means a person who holds an office, rank or position with a relevant public authority (within the meaning of Part 3).
(4) A person guilty of an offence under this section is liable—
(a) on summary conviction in England and Wales—
(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or
(ii) to a fine, or to both;
(b) on summary conviction in Scotland—
(i) to imprisonment for a term not exceeding 12 months, or
(ii) to a fine not exceeding the statutory maximum, or to both;
(c) on summary conviction in Northern Ireland—
(i) to imprisonment for a term not exceeding 6 months, or
(ii) to a fine not exceeding the statutory maximum, or to both;
(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.
(5) The offence in this section shall have precedence over any other relevant offences in the Data Protection Act 1998, Wireless Telegraphy Act 2006, Computer Misuse Act 1990, and the common law offence of misfeasance in public office.”
On behalf of the Intelligence and Security Committee of Parliament, to provide for a unified offence for the misuse of intrusive investigatory powers at the beginning of the Bill, in Part 1, rather than having each offence scattered throughout the Bill or in other legislation.
New clause 21—General duties in relation to privacy—
“(1) Subsection (2) applies where a public authority is deciding whether—
(a) to issue, renew or cancel a warrant under Part 2, 5, 6 or 7,
(b) to modify such a warrant,
(c) to approve a decision to issue, renew or modify such a warrant,
(d) to grant, approve or cancel an authorisation under Part 3,
(e) to give a notice in pursuance of such an authorisation or under Part 4 or section 216, 217 or 220,
(f) to vary or revoke such a notice,
(g) to approve a decision to give a notice under section 216 or 217, or
(h) to apply for or otherwise seek any issue, grant, giving, modification, variation or renewal of a kind falling within paragraph (a), (b), (d), (e) or (f).
(2) The public authority must give effect to—
(a) the requirements of the Human Rights Act 1998, and
(b) other requirements of public law.
(3) The public authority must also have regard to—
(a) whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means,
(b) the public interest in the integrity and security of telecommunication systems and postal services, and
(c) any other aspects of the public interest in the protection of privacy.
(4) The duties under subsection (3)—
(a) apply so far as they are relevant in the particular context, and
(b) are subject to the need to have regard to other considerations that are also relevant in that context.
(5) The other considerations may, in particular, include—
(a) the interests of national security or of the economic well-being of the United Kingdom,
(b) the public interest in preventing or detecting serious crime,
(c) other considerations which are relevant to—
(i) whether the conduct authorised or required by the warrant, authorisation or notice is proportionate, or
(ii) whether it is necessary to act for a purpose provided for by this Act.
(6) In this section “public authority” includes the relevant judicial authority (within the meaning of section 66) where the relevant judicial authority is deciding whether to approve under that section an authorisation under Part 3.”
This new clause sets out general duties in relation to privacy.
Amendment 14, in clause 1, page 1, line 4, at end insert—
“( ) This Act sets out the extent to which certain investigatory powers may be used to interfere with an individual’s privacy.”
On behalf of the Intelligence and Security Committee of Parliament, to place privacy at the forefront of the legislation.
Government amendments 26 to 34.
New clause 1—Notification by the Investigatory Powers Commissioner—
“(1) The Investigatory Powers Commissioner is to notify the subject or subjects of investigatory powers relating to the statutory functions identified in section 196, subsections (1), (2) and (3), including—
(a) the interception or examination of communications,
(b) the retention, accessing or examination of communications data or secondary data,
(c) equipment interference,
(d) access or examination of data retrieved from a bulk personal dataset,
(e) covert human intelligence sources,
(f) entry or interference with property.
(2) The Investigatory Powers Commissioner must only notify subjects of investigatory powers under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.
(3) The notification under subsection (1) must be sent by writing within thirty days of the completion of the relevant conduct or cancellation of the authorisation or warrant.
(4) The Investigatory Powers Commissioner must issue the notification under subsection (1) in writing, including details of—
(a) the conduct that has taken place, and
(b) the provisions under which the conduct has taken place, and
(c) any known errors that took place within the course of the conduct.
(5) The Investigatory Powers Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of an on-going serious crime or national security operation or investigation.
(6) The Investigatory Powers Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”
New clause 2—Referrals by the Intelligence and Security Committee of Parliament—
“(1) Subsection (2) applies if the Intelligence and Security Committee of Parliament refers a matter to the Investigatory Powers Commissioner.
(2) The Investigatory Powers Commissioner must inform the Intelligence and Security Committee of Parliament of the outcome of any investigation, inspection or audit arising from such a referral.”
To allow the Intelligence and Security Committee to refer matters, on behalf of Parliament, to the Commissioner and to provide a mechanism for the Committee to be informed of the outcome.
New clause 16—Investigatory Powers Commissioner: obligation to notify—
“(1) The Investigatory Powers Commissioner is to notify the subject or subjects of investigatory powers relating to the statutory functions identified in section 196, subsections (1), (2) and (3), including—
(a) the interception or examination of communications,
(b) the retention, accessing or examination of communications data or secondary data,
(a) equipment interference,
(b) access or examination of data retrieved from a bulk personal dataset.
(2) The Investigatory Powers Commissioner must only notify subjects of investigatory powers under subsection (1) upon completion of the relevant conduct or the cancellation of the authorisation or warrant.
(3) The notification under subsection (1) must be sent by writing within ninety days of the completion of the relevant conduct or cancellation of the authorisation or warrant.
(4) The Investigatory Powers Commissioner must issue the notification under subsection (1) in writing, including details of the provisions under which the conduct has taken place.
(5) The Investigatory Powers Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (3) if the Commissioner assesses that notification may defeat the purposes of the on-going serious crime or national security operation or investigation.
(6) The Investigatory Powers Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (5).”
This new Clause would ensure that individuals are informed after the event that they have been a subject of investigatory powers.
Amendment 465, in clause 194, page 149, line 7, at end insert—
“( ) There shall be a body corporate known as the Investigatory Powers Commission.
( ) The Investigatory Powers Commission shall have such powers and duties as shall be specified in this Act.”
See amendment 469.
Amendment 466, page 149, line 12, at end insert—
“(1A) The Investigatory Powers Commissioner must appoint—
(a) the Chief Inspector, and
(b) such number of Inspectors as the Investigatory Powers Commissioner considers necessary for the carrying out of the functions of the Investigatory Powers Commission.
(1B) In appointing Investigators the Investigatory Powers Commissioner shall—
(a) appoint an individual only if the Investigatory Powers Commissioner thinks that the individual—
(i) has experience or knowledge relating to a relevant matter, and
(ii) is suitable for appointment,
(b) have regard to the desirability of the Investigators together having experience and knowledge relating to the relevant matters.
(1C) For the purposes of subsection (2)(a) the relevant matters are those matters in respect of which the Investigatory Powers Commission has functions including, in particular—
(a) national security;
(b) the prevention and detection of serious crime;
(c) the protection of privacy and the integrity of personal data;
(d) the security and integrity of computer systems and networks;
(e) the law, in particular, as it relates to the matters in subsections (-)(a) – (b);
(f) human rights as defined in Section 9(2) of the Equality Act 2006.”
See amendment 469.
Amendment 295, page 149, line 19, leave out paragraph (a).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 296, page 149, line 20, leave out paragraph (b).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 297, page 149, line 21, leave out paragraph (c).
A paving amendment for the proposed requirement on the Prime Minister to act on the recommendation of the relevant chief justice when appointing Judicial Commissioners.
Amendment 7, page 149, line 23, at end insert—
“(3A) The term of office of a person appointed under subsection (1)(a) as Investigatory Powers Commissioner must not begin before the Intelligence and Security Committee of Parliament has consented to the proposed appointee.”
This amendment would require the appointment of the Investigatory Powers Commissioner to be agreed by the Intelligence and Security Committee of Parliament.
Amendment 298, page 149, line 28, at end insert—
“(5A) When appointing any person under subsection (1), the Prime Minister must act on the recommendation of—
(a) the Lord Chief Justice of England and Wales, in relation to Judicial Commissioners appointed from England and Wales,
(b) the Lord President of the Court of Session, in relation to Judicial Commissioners appointed from Scotland, and
(c) the Lord Chief Justice of Northern Ireland, in relation to Judicial Commissioners appointed from Northern Ireland.”
An amendment to require the Prime Minister to act on the recommendation of the Lord Chief Justice of England and Wales, the Lord President of the court of Session, or the Lord Chief Justice of Northern Ireland, when appointing Judicial Commissioners.
Amendment 146, page 149, line 35, at end insert—
“(7A) The Investigatory Powers Commissioner shall ensure that all judicial authorisation functions under this Act are carried out by different Commissioners from those who carry out the audit and inspection functions set out in this Part.”
This amendment requires the Investigatory Powers Commissioner to ensure the separation of the judicial authorisation function from the ex post audit and inspection function..
Amendment 467, page 149, line 35, at end insert—
“(7A) The Prime Minister may make an appointment under subsection (1) only following a recommendation by—
(a) The Judicial Appointments Commission;
(b) The Judicial Appointments Board of Scotland; or
(c) The Northern Ireland Judicial Appointments Commission.”
See amendment 469.
Amendment 468, page 149, line 35, at end insert—
“(7A) The Chief Inspector is an Inspector and the Chief Inspector and the other Inspector are to be known, collectively, as the Inspectors.”
See amendment 469.
Amendment 469, page 150, line 2, at end insert—
“(c) to the Investigatory Powers Commission are to be read as appropriate to refer to the body corporate, the Investigatory Powers Commission, and in so far as it will refer to the conduct of powers, duties and functions, those shall be conducted by either the Judicial Commissioners or the Inspectors as determined by this Act or by the Investigatory Powers Commissioner, consistent with the provisions of this Act.”
The purpose of these amendments is to replace the proposal to create an Investigatory Powers Commissioner with provisions to create a new Investigatory Powers Commission. They would provide that no appointment can be made except pursuant to a recommendation by the independent bodies in England and Wales, Scotland and Northern Ireland tasked with making judicial appointments in those jurisdictions.
Government amendment 35.
Amendment 8, in clause 196, page 152, line 9, at end insert—
“(4A) In keeping matters under review in accordance with this section, the Investigatory Powers Commissioner must, in particular, keep under review the operation of safeguards to protect privacy.”
On behalf of the Intelligence and Security Committee of Parliament, to make explicit that the Investigatory Powers Commissioner is required to scrutinise the underlying safeguards, procedures and processes relating to bulk powers, including the arrangements for the protection of, and control of access to, material obtained through their use.
Amendment 18, in clause 197, page 153, line 8, after “Commissioner”, insert
“or the Intelligence and Security Committee of Parliament.”
On behalf of the Intelligence and Security Committee of Parliament, to allow the Prime Minister to issue directions at the request of the ISC (in addition to the Commissioner).
Amendment 189, in clause 198, page 153, line 21, leave out
“if the Commissioner considers that—”.
See amendment 195.
Amendment 472, page 153, line 21, leave out from “aware” to end of line 24.
See amendment 477.
Amendment 190, page 153, leave out line 23.
See amendment 195.
Amendment 191, page 153, leave out line 24.
See amendment 195.
Amendment 473, page 153, line 25, leave out subsections (2) to (5) and insert—
“(2) The Investigatory Powers Commissioner may decide not to inform a person of an error in exceptional circumstances.
(1) Exceptional circumstances under subsection (1) will arise if the public interest in disclosure is outweighed by a significant prejudice to—
(a) national security, or
(b) the prevention and detection of serious crime.”
See amendment 477.
Amendment 192, page 153, line 25, leave out subsection (2).
See amendment 195.
Amendment 193, page 153, line 29, leave out subsection (3).
See amendment 195.
Amendment 194, page 153, line 32, leave out subsection (4).
See amendment 195.
Amendment 474, page 153, line 44, at end insert—
“(5A) Provide the person with such details of the submissions made by the public authority on the error and on the matters concerned pursuant to subsection (5) as are necessary to inform a complaint to the Investigatory Powers Tribunal.”
See amendment 477.
Amendment 195, page 154, line 6, leave out from “having” to end of line 9.
These amendments will remove excessive restrictions on the Investigatory Powers Commissioner to instruct and inform individuals who have been subject to surveillance and will ensure that they are always notified of that fact when unlawful errors occur.
Amendment 2, page 154, line 10, leave out subsection (7).
Amendment 476, page 154, line 16, leave out paragraph (b).
See amendment 477.
Amendment 477, page 154, line 23, leave out paragraph (b).
These amendments would amend the Bill to provide for the Commissioner to notify any relevant person of any error made pursuant to the activities in the Bill, in order to allow those individuals to consider whether a claim may lie to the Investigatory Powers Tribunal for redress. It makes provision for non-disclosure in circumstances where the public interest in disclosure would be outweighed by a significant risk of prejudice to national security or the prevention and detection of crime.
Amendment 479, in clause 199, page 154, line 28, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
See amendment 481.
Amendment 478, page 154, line 34, at end insert—
“(1A) A Judicial Commissioner may refer to the Investigatory Powers Tribunal any matter the Commissioner considers may have involved the unlawful use of investigatory powers.”
See amendment 481.
Amendment 480, page 154, line 35, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
See amendment 481.
Amendment 481, page 154, line 38, leave out subsections (3) and (4) and insert—
“(3) In any circumstances where the Commission has identified a relevant error pursuant to section 198, the Commission must give such documents, information or other material as may be relevant to the investigation of the error to the Tribunal.
(4) The duty in subsection (3) shall be exercised without request from the Tribunal.”
These amendments would remove the requirement to consult the Secretary of State and would make clear that in circumstances where a relevant error has been identified, material should be provided to the Tribunal by the Commission. It would make clear that any potentially unlawful use of the powers in this Act may be referred to the Tribunal by the Commissioners. These amendments would remove the requirement to consult the Secretary of State before giving assistance direct to other public authorities.
Amendment 482, in clause 203, page 159, line 2, at end insert—
“(1A) A disclosure pursuant to subsection (1) will not constitute a criminal offence for any purposes in this Act or in any other enactment.
(1B) In subsection (1), a disclosure for the purposes of any function of the Commissioner may be made at the initiative of the person making the disclosure and without need for request by the Investigatory Powers Commissioner.”
This amendment would make it clear that voluntary, unsolicited disclosures are protected, and that any whistle-blower is also protected from criminal prosecution.
Amendment 483, in clause 208, page 160, line 29, after “determination” insert
“or ruling or decision, including relating to a procedural matter.”
See amendment 486.
Amendment 484, page 160, line 29, leave out from “Tribunal” to the end of line 30.
See amendment 486.
Amendment 485, page 161, line 8, leave out subsection (6).
See amendment 486.
Amendment 486, page 162, line 38, at end insert—
“(6) After section 68(1) of the Regulation of Investigatory Powers Act 2000, insert—
(1A) Any hearing conducted by the Tribunal must be conducted in public, except where a special proceeding is justified in the public interest.
(1B) Any determination by the Tribunal must be made public, except where a special proceeding may be justified in the public interest.
(1C) A special proceeding will be in the public interest only where there is no alternative means to protect sensitive material from disclosure.
(1D) Material will be sensitive material for the purposes of this Section if its disclosure would seriously prejudice (a) national security or (b) the prevention and detection of crime.
(1E) Publication for the purposes of this Section will be seriously prejudicial if it would lead to a significant threat to life or of a serious physical injury to a person.
(1F) The Tribunal shall appoint a person to represent the interests of a party in any special proceedings from which the party (and any legal representative of the party) is excluded.
(1G) Such a person will be known as a Special Advocate.”
These amendments make clear that all decisions, determinations and rulings can be appealed on a point of law.
Amendment 487, page 162, line 38, at end insert—
“(6) After Section 4(5)(f) of the Human Rights Act 1998 insert—
‘(g) the Investigatory Powers Tribunal.’”
This amendment makes clear that all decisions, determinations and rulings can be appealed on a point of law.
Government amendments 36 to 43 and 48.
As you know, Mr Speaker, practice makes perfect, and we have two days to perfect all we do and say.
We open the debate on the Bill with a group of provisions that address a matter which lies at its very heart. Throughout the lengthy consideration the Bill has enjoyed in its draft form and its final form, the issue of privacy, and the balance between security and private interest, has been frequently considered and debated. The balance that lies at the heart of our considerations and the proposed legislation is critical to the acceptance we need to engender for a Bill that is in the national interest.
The word “balance” was used by the hon. Member for City of Chester (Christian Matheson) during the Committee’s scrutiny of the Bill. He talked about the balance between national interest and personal interest— in my terms, the defence of personal privacy and the underpinning of the common good. For me, communal wellbeing and individual fulfilment are inseparable, and the national interest can only be defined as the people’s interest. It is right that we should consider how that balance is reflected in the words before us. The issues of privacy and oversight are central to our considerations, and the Government are determined to ensure that the Bill reflects the concentration on those two matters.
We are clear that, in considering and passing the Bill, we must do more—more in respect of checks and balances, more in respect of safeguards and more in respect of oversight, and that is indeed what we have tried to do in the provisions we are considering. It is important to understand that privacy is at the very core of the Bill—it runs through its very fabric. The protection of private interests and the protection of the public are at the heart of all we seek to do.
In Committee, the hon. and learned Member for Holborn and St Pancras (Keir Starmer) tabled a new clause to strike a balance on this issue in sympathy with my view that privacy is woven throughout the Bill’s provisions. I have concluded that he was right to emphasise the need to make that palpably clear on the face of the legislation; to seek to reinforce the determination that I have described to protect private interest. It seemed to me that he was also right to suggest that that should be an overarching aspect of the Bill—in other words, that we should, explicitly, at the outset of this legislation, make it clear that privacy matters in the way that I have described. He therefore suggested—indeed, he has tabled an amendment today, too—that we add to the Bill just such an overarching emphasis on the defence of private interests.
By underpinning the powers and the sensitive capabilities available to our law enforcement and security services, the Bill provides—as successive Governments have, by the way—an appropriate degree of oversight of those powers. Furthermore, through the change to authorisation, we have, for the first time, and in highly significant—one might even say groundbreaking—terms, struck an important balance between the role of the Executive and the role of the judiciary. That answers the call of those who, on the one hand, made the case in our earlier considerations that it is politicians who should decide these things because they are accountable to the people and those who, on the other hand, felt that that alone was not sufficient and that it was also important for lawyers to play their part in ensuring that decisions made in respect of warranting were reasonable, necessary and proportionate. The core principle—the necessity of proportionality—therefore applies to all such powers. It is underpinned by the changes that we seek to make in the Bill.
In essence, the provisions reflect the collective consideration of the three independent reviews I mentioned briefly in our short consideration of the programme motion. The Intelligence and Security Committee’s report on the draft Bill, which was published last year, called for the inclusion of an overarching clause dealing with privacy protections, and that call was echoed by the Opposition and the Scottish National party during the Committee stage.
The Government have been clear throughout the passage of the Bill that they would listen to recommendations that would improve this important proposed legislation, and that is just what we have done. We have tabled a number of amendments that demonstrate exactly that willingness to listen and that desire to strike the right balance.
Government amendment 34 relates to clause 10, an important safeguard in the Bill that prevents numerous powers in other legislation from being used to acquire communications data. There are a small number of exceptions to that restriction, and the purpose of the amendment is to ensure that they are clearly limited. The amendment therefore makes it absolutely clear that the use of regulatory powers to acquire communications data is limited to those that are exercisable in connection with telecommunications or postal regulation.
Government amendment 35 extends the oversight provided by the Investigatory Powers Commissioner to all efforts made by prison governors to prevent the use of illegal mobile phones in custodial institutions. That is something that the Interception of Communications Commissioner has previously called for, so I am pleased to be able to amend the Bill to take account of his advice. The amendment will also ensure that the Investigatory Powers Commissioner has oversight of any interference with electronic communications.
That issue was raised in Committee by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and I said that we would give it further consideration. We have done so and come to the conclusion that her argument is right. Although this tort would apply only to very limited circumstances—indeed, we believe that it has never been used—I accept that in such cases a person should have the power to seek appropriate redress through the civil courts.
Probably the most important amendment tabled by the Government is new clause 5—the privacy clause to which I referred at the outset. It puts privacy at the heart of the Bill in precisely the overarching way that those who scrutinised it prior to and during Committee recommended. It responds, therefore, both to the recommendations of the Intelligence and Security Committee and to the extensive debates held since then. As we have indicated, the protection of privacy is woven throughout the Bill, but we recognise the merit in setting it out at the very start.
I do not want to indulge in hyperbole, but consideration of the Bill has been characterised by an unusual degree of co-operation to get it right across the House. All legislation benefits from that kind of considered scrutiny and co-operation. Legislation that is in the national interest, as this Bill certainly is, is far better for that kind of approach, and that is exactly the approach that the Government have adopted.
My right hon. Friend is being ever so slightly modest in relation to new clause 5, which is aimed primarily at protecting personal privacy. Clearly he has been listening, since one of the concerns expressed by industry is that interference and hacking may cause a failure of business confidence in IT. Subsection (2)(b) will go some way to protect the interests of such companies and businesses, since it states explicitly that the public authority must have regard to the public interest in such matters, including the viability of those undertakings.
It is true that such concerns have been expressed. Indeed, as we debate the Bill in further detail, particularly with regard to internet communication records, we will see that the capability of organisations to meet the Bill’s requirements must be met in a way that is not excessively expensive or impossible to implement, and that does not have the sort of unintended consequences described by my hon. Friend. It is partly the response to those overtures that has stimulated the changes under discussion. So it was, as he said, partly about what the Opposition said in Committee, partly about what the three reports said in respect of privacy and the consequences he described, and partly about the extensive discussions we have had with the sector on how these things could best be implemented.
I realise that the Bill is complex, but could I ask my right hon. Friend—not during today’s debate, but before our consideration of the matter is concluded—to write to me setting out each of the penalties for each of the misconducts identified in the Bill? The point that I will make to him in due course is that it remains extremely complex to follow, and, in some cases, the penalties appear to be little more than a rap over the knuckles under the Data Protection Act.
My right hon. and learned Friend has made the point about incomprehensibility previously. Indeed, when we debated the draft version of the Bill, one of the telling points he made was that new legislation was needed in part because it should be more comprehensible, easier to navigate and thus more understandable to more people. He is right that the fact that existing provisions are to be found in a number of places makes it hard to determine exactly what powers there are and how the abuse of those powers will be dealt with. I happily concede the point that he has made, because it is important that all Members of this House, particularly he and the Committee that he chairs, are fully aware of the kinds of penalties that might apply. I have described them as “severe”, and I have made the point that wrongdoing cannot be tolerated. Therefore, the least I can do is agree with him that it would be helpful to set out those penalties as he has described. We will do so before the Bill completes its passage through Parliament, because it is only right for us to do so.
The purpose of the amendments and new clauses that we have tabled is to reflect the consideration of the Committee chaired by my right hon. and learned Friend, and to reflect the character and content of the debate that took place when the Bill enjoyed scrutiny in Committee. As we considered privacy to an increasing degree, it became clear that as well as the implicit emphasis on private interest, which runs through the Bill, there was a compelling case for an explicit commitment to privacy in the form of a new clause. To that end, it is right to say that both the minor parties on the Committee—in this case, the Scottish National party—
The hon. Member for Perth and North Perthshire (Pete Wishart) shakes his head, but given that the SNP had only two Members on the Committee, I cannot describe it as the major contributor. Before he started shaking his head, I was about to say that the SNP made an incredibly helpful contribution, because it tested the Government, held us to account and made a number of useful and thought-through proposals. The Opposition—by the way, I say to the hon. Gentleman that they are Her Majesty’s Opposition—equally added immense value to our consideration by making the proposal for this new clause, among others. In my judgment, it was absolutely clear that the Opposition were determined to improve the legislation, rather than to weaken or dilute it. In that spirit, I am happy to propose the Government new clauses and amendments in this group.
To allow as many colleagues as possible to contribute to this important debate, I will now finish, except to say this: when Bills come before the House and are considered on Second Reading and debated in Committee and on Report, different circumstances apply and different shadow Ministers and Ministers approach the matter in their own style, but I take the view that although circumstances are beyond human control, our conduct, to quote Benjamin Disraeli, “is in our power”, and our conduct in consideration of this Bill, which is in our power, should continue to be as measured, reasonable and moderate as it can be.
I thank all Members who have so far been involved in the scrutiny of the Bill, both in its early stages and in the Public Bill Committee. I particularly pay tribute to all members of the Committee from both sides of the House. That of course includes the SNP Members, who worked hard and constructively with us on the Bill. I pay tribute to the hon. and learned Member for Edinburgh South West (Joanna Cherry), who leads for the SNP on this matter.
This group of amendments deals with the general provisions and the overarching privacy clause, so it is important for me to set out Labour’s position before I move on to new clause 5. Safety and security matter. The current threat level for terrorism is severe, which, as we all know, means that an attack is highly likely. We all remember and are deeply conscious of the attacks in Paris and Brussels in the not too distant past, as well as other attacks. However, the Bill deals with not just terrorism, but other serious crimes, such as the threats from people traffickers, including those who traffic children, as well as those who indulge in sexual abuse and those who commit stalking and harassment. The starting position must therefore be that the security and intelligence services, GCHQ, the National Crime Agency and the police should have the powers to deal with these threats.
However, human rights matter, too. That includes the right to privacy, the right to be left alone, the right to have private data protected with security and integrity, and the right to redress when things go wrong, which are important rights. In relation to the issues covered by the Bill, I have seen things from at least two important perspectives. I was a defence human rights advocate for 20 years, taking many cases against some of the law enforcement agencies, and I then had the privilege to be the Director of Public Prosecutions for five years, working with the security and intelligence services and the other law enforcement agencies, so I have seen the threats and how they are dealt with, but also the importance of human rights considerations.
Safety and security and human rights are not mutually exclusive: they are not either/ors and we can have both. That is why Labour has supported the principle of the Bill, but also why we are focused intensely on the necessity of the safeguards for the powers in the Bill. We have supported the principle of the new legislation not only because investigatory powers need updating in a fast-changing world, but, equally importantly, because, after Snowden, it is important that the powers exercised are avowed, that they are placed in statute and that everybody understands the safeguards around them.
In that respect there are two very important reasons why we need new legislation. But some of the proposed powers are very wide—the bulk powers are very wide indeed. That is why Labour’s first and consistent demand of the Government has been for an independent review of the operational case for the bulk powers. The Government published a short operational case alongside the Bill, but we judged that inadequate and have been pressing for a full independent review since.
I am pleased to say that in a letter of 23 May the Home Secretary accepted the case for an independent review of the operational case for the powers. That is a significant and welcome step, and is the right step. I want to strike the right tone here. Labour made very significant demands when the Bill was in Committee. We sought to do so constructively, and there have been significant movement and concessions from the Government; again, that has been constructive. Important moves in the right direction, which will improve the Bill, have been achieved through that dialogue.
Having gone that far it is important now to focus on the task and terms of the review—having the review of bulk powers is one thing, but having the right terms is equally important.
I take that point, although obviously one of the letters is not mine—
I am more than happy to make my letter to the hon. and learned Gentleman available to the House immediately, and I am sure he will do the same. One important point—I want to prevent the hon. and learned Gentleman from having to deal with this himself—is that the review must be conducted during the period in which the Bill is considered, because a review after the legislation has been passed would not be sufficient. I know that the hon. and learned Gentleman has asked for that, and other hon. Members will also take an interest in it, so I happily make that further commitment on the Floor of the House.
If the House is content, I will deal with that in detail later. I have tabled an alternative in new clause 21 precisely to tighten up the reference to human rights and public law. It might be easier if I deal with that point in a few minutes when I get to that provision.
Labour has asked for a revised test for judicial commissioners. Currently in the Bill, the test is reviewed by reference to judicial review principles. The concern is that the judicial review exercise is a flexible test that, at one end, has close scrutiny, when judges look at the substance as well as the process of the decision. At the other end, there is a light-touch review, when the judges look more at process. We have argued that the review should be towards the upper end of strict scrutiny. I am pleased that the Government this morning tabled a manuscript amendment setting out a test for the judicial commissioners that makes it clear that the review will be an upper-end, stricter one—the close scrutiny that we have argued for. That refers back to the privacy clause, and I will try to make good that link when I get to it.
The manuscript amendment is a constructive move by the Government to meet my concern that review must be real and meaningful, not a long-arm, Wednesbury-unreasonableness review. The manuscript amendment is a significant change.
The hon. and learned Gentleman draws attention to the manuscript amendment the Government tabled this morning. We did so, as he describes, precisely to deal with the point raised in Committee and by others that the judicial review process might be interpreted in different ways by different commissioners. The amendment is a tighter definition of their role, strengthens the double lock and is very much in response to the Opposition critique and that of Government Members that the new process needs to be as well defined as possible.
I am grateful to the Minister—that was what the Opposition pressed for.
There have been differences of approach to the test for judicial commissioners. On the one hand, colleagues on both sides of the House have made a powerful argument that the judicial commissioners should retake the decision. On the other hand, others have argued that the decision should be reviewed. The amendment strikes a third route, which is to apply a review test but to confine it to the stricter end of the judicial review principles.
As hon. Members know, I have been a lawyer for many years and have dealt with many public law cases, as other hon. Members have. The difference between strict scrutiny and long-arm judicial review is very real —it is a material difference. That is why the manuscript amendment is highly significant.
The hon. and learned Lady made that very important point in the Bill Committee. Normally when decisions are subject to judicial review, there are reasons for the decision. What is envisaged is that the decision itself, plus such material as has been looked at by the Secretary of State, will be put before the judicial commissioner. There will not be reasons, which makes the task more difficult, but what is important about the test set out in the manuscript amendment is that the judicial commissioner must ensure that the duties under the privacy clause are complied with, which means that he or she will have to look at that underlying material. It might well be a good point to say, “If there are reasons, it would be an easier task,” but I do not believe the task cannot be performed without reasons. In due course, the judicial commissioners may say, “We need further help on particular issues.”
The hon. and learned Gentleman made the point in passing, but it is salient: in reviewing what has happened, the commissioner will receive the same information as the Secretary of State. The review will not, as was feared at one point, merely be a review of process, in which the reviewer would say, “Yes, the Secretary of State has taken the right steps,” rather than looking at the arguments that the Secretary of State had considered. Those are the two points I make on what he and the hon. and learned Member for Edinburgh South West (Joanna Cherry) said.
I note the hon. and learned Gentleman’s comments about the difference between the two new clauses, and the Government are not blind to his argument about ensuring that the connection to human rights is secure. The Bill will clearly continue to enjoy scrutiny over the coming weeks and months, and he needs to know that, as he described earlier, we are always happy to listen and learn. I hope that tonight we can establish that an overarching privacy clause is essential, and can continue to have a discussion about the fine details.
The answer to that is twofold, although I should say that if the decision was on the recommendation of the Lord Chief Justice and so on, it would not be open to the Prime Minister not to follow that recommendation. We need a slight reality check. At the moment under clause 194, if the Lord Chief Justice of England and Wales—or, I am sure, the equivalent in Scotland—was consulted and made his or her views clear, it would be highly unlikely that any Prime Minister would act in a way that was contrary to the advice they were receiving from the senior judge in those jurisdictions, but our amendment would bind the Prime Minister. The question is: what is the point of involving the Prime Minister? The answer to that—to some extent this is to the Minister—is that there is the question of accountability for making the appointment.
There is also the point, as the Lord Chief Justice has pointed out, that he—or she, as the case may be—is not in the business of making judicial appointments as such, and will therefore be reluctant to have that power. The Minister might want to confirm that, because he has been having those discussions, not me. I think the Lord Chief Justice and others are reasonably happy to help with the deployment exercise, but not with the business of appointing judges.
I have no doubt that the Solicitor General will deal with this later, but the point is that the Prime Minister is ultimately responsible for the protection of national security. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer) said, when Lord Judge gave evidence to the Joint Committee, he made exactly the point that the hon. and learned Gentleman has made. Just to affirm the other argument that he advanced, the Prime Minister will of course seek advice on these matters in the way that the hon. and learned Gentleman has described, and I share his view that it is highly unlikely that the Prime Minister would then take a perverse decision.
I am grateful for that indication.
I have taken longer than I had anticipated. I think I have taken every intervention, because important points were being made—that is in mitigation rather than an excuse, I suppose—but the House will be pleased to know that I have finished, at least on these amendments.
My right hon. and learned Friend makes a good additional point. He first, perfectly properly and sensibly, asked for clarity about the character of the penalties, and now makes a telling second point about how this Bill relates to other existing legislation that deals with these or related matters. A further note to the House, during the passage of this legislation, dealing with that second point is necessary, and I commit to providing it. Let me draw Members’ attention, as my right hon. and learned Friend will do, to the first part of the Bill, which deals with offences. I accept that that does not wholly answer the question—
Order. Let me help the Minister a little. He has asked for more time at the end in which to deal with various points, but what we are bothered about is eating into that time when so many Members wish to speak. Being quicker in responses would help.
I hear what my right hon. and learned Friend has said. He will be aware that, because of the arguments put forward by him and others—including Opposition Members—on bulk powers, we have agreed to a further independent review. The point of clarity here is that the review will look at the range of bulk powers and apply its assessment of necessity across that range. I just wanted to give him that additional assurance.
I am grateful to the Minister. Clearly, the more targeted a power can be, the better. Indeed, that was one of the reasons that the Committee expressed concern about whether the bulk power was required in the case of equipment interference. However, in classified evidence to us, the Government made the compelling case that simply relying on thematic powers or targeted powers would be likely to be insufficient and unsatisfactory. In changing our position, we have acknowledged that. However, that makes it all the more important that the safeguards should be properly in place. Those are the key amendments in this group that I wanted to bring before the House. I simply reiterate my earlier comment that the Government have really co-operated and moved a great deal in relation to this legislation. They have responded positively, as I shall be able to illustrate as we come to the further amendments.
I knew that that was a pointless exercise that would have eaten into the time that we have, so not opposing it was a practical decision.
More pointedly, the Committee stage finished a day early, so why did she not debate the Bill for another day in Committee?
If anyone reads the records of that Committee, they will see that I made more than my fair share of contributions. I do not have any problem with that. My issue is that other Members—the people sitting behind me, the Labour Members and Government Members—will not get a chance to speak and that we will not get a chance to vote on more than a handful of amendments. Given the degree of concern expressed about the Bill, it is frankly ridiculous that we will get to vote only on maybe eight or nine amendments over the next couple of days out of the hundreds of amendments that have been tabled. I am not ashamed to say that that is no way to legislate. We need to look at the way we go about things.
I am going to have to cut my cloth according to how much time is left, and I want to try to address some of the key SNP amendments to part 8 of the Bill, dealing first with amendment 465 and 466 to clause 194. Part 8 deals with oversight. At an earlier stage in the process, the Government said that they wanted to create a world-leading oversight body, but they have failed to do that. Our amendments seek to say that in addition to the investigatory powers and judicial commissioners there should be a separate body, known as the investigatory powers commission. It is not just some little notion of mine or of the SNP; it is what was recommended by the Royal United Services Institute’s independent surveillance review, the Joint Committee on the Draft investigatory powers bill, and by David Anderson QC’s investigatory powers review. David Anderson said that there should be a new independent surveillance and intelligence commission. It is a matter not only of what it is called; it is matter of what it actually does. Other hon. Members have tabled amendments relating to separating out the judicial and audit functions, and in the unlikely event that we get a chance to vote on them, the SNP will support them.
In written and oral evidence to the Bill Committee, we heard from Joanna Cavan, the head of the Interception of Communications Commissioner’s office. She reminded us that the judicial commissioners will deal only with some 2% of the applications falling within the remit of the oversight body. The remaining 98% will be subject to post-facto oversight only, so it is vital that that oversight is independent and robust. Creating a separate commission, as recommended by the three bodies I mentioned, would help to form a distinction between the approval and post-facto audit elements of the oversight body and would avoid the idea that judicial commissioners might be marking their own homework. That is what Labour’s amendment 146 seeks to address and the SNP will support it if we get a chance to do so. Joanna Cavan also told us that she had spoken to a number of the UK’s international oversight counterparts and that some had expressed surprised that the UK was going down the route of putting both the approval and the post-facto audit elements into the same body. Those amendments are crucial and I will be pressing them to a vote if I possibly can.
I turn now to the SNP’s amendments 467 and 469 and the question of the appointment of the judicial commissioners. I listened to what the hon. and learned Member for Holborn and St Pancras said in his speech, but the SNP does not think that Labour’s amendment goes far enough. The Government have made much of the main safeguard in the Bill being the role of judicial commissioners and the double lock, so it is vital that we get the judicial commissioner appointment process right. I suggest that, like the Justices of the United Kingdom Supreme Court, the commissioners should come from the jurisdictions and the judicial pool across the United Kingdom, not just the English Bench, and that the public must be confident that they are selected on merit, rather than because they can be trusted by government to be conservative or pro the state in their decision making. The SNP amendments therefore propose that, as well as having consultation with the Lord Chief Justice of England and Wales, the Lord Chief Justice of Northern Ireland and the Lord President in Scotland, these appointments should be subject to recommendations made by the independent Judicial Appointments Board of Scotland, the independent Judicial Appointments Commission in England and Wales, or the Northern Ireland Judicial Appointments Commission.
I am pleased to take part in this debate, although I shall only speak briefly because I know that many of my right hon. and hon. Friends, and Opposition Members, wish to participate. What we are debating in this group of amendments is crucial, because we are dealing with investigatory powers and, specifically, the role of technology in policing the modern age. Although I represent a constituency in Essex, which sometimes seems a world away from Westminster, I can tell hon. Members that my constituents and I worry about the same things: how we protect our country’s visible and invisible borders; how we keep our local community safe; and how we spot young people at risk of abuse or of going off the rails, so that we can do something about it before it is too late.
I certainly want to ensure that our liberties are fully understood and protected. That is why I welcomed the fact that during the Committee stage, which I took part in towards the end, the Government, my right hon. Friend the Home Secretary, the Solicitor General and the Minister for Security were prepared to listen to arguments—particularly those made by the hon. and learned Member for Holborn and St Pancras (Keir Starmer)—that sought to strengthen the protections without compromising the aims of the legislation. It was refreshing, in many ways, not to have the normal Punch and Judy politics, whereby everything the Opposition proposed must be wrong because the Government had not thought of it first. That give and take, which is shown in Government new clauses 5 and 6, and in some of the amendments, particularly amendments 33 to 38 and 45 to 48, is important in meeting concerns about protecting civil liberties without compromising the main aims of the Bill. Those amendments have been tabled to make it clear that warrants or other authorisations should not be granted where information could be reasonably obtained by less intrusive means.
More than anything, however, we have to ensure the liberty of my constituents to live quietly and peacefully, free from attack—that is, of course, the most fundamental liberty of all—and it must be protected from those who wish them harm. Today such people live everywhere, and they have the powers, through the internet and modern communication techniques, to be everywhere, plotting, planning and executing their evil deeds. That is why I was pleased to see the supporting provisions that this group of amendments address in ensuring that we have not only those protections for my constituents and others, but a sympathetic and reasonable approach to protecting people’s civil liberties.
This Bill goes further than ever before in terms of transparency, making clear the most sensitive powers available to the security and intelligence agencies and the strict safeguards that apply to them. The controls on bulk powers and the double lock protection, which requires a sign-off for action by not just the Home Secretary but independent commissioners, are extremely important in winning public confidence in the measures being proposed. That will be discussed in greater detail when those Committee provisions come before us later in our proceedings on this Report stage.
I ask those who worry about interception powers to remember the following simple facts relating to technical capability. Since 2010, the majority of MI5’s top priority British counter-terrorism investigations have used intercepted material in some form to identify, understand or disrupt plots to harm Britain and its citizens. In 2013, this material was estimated to form between 15% and 20% of the total intelligence picture in counter-terrorism investigations. Data obtained by the National Crime Agency suggested that in 2013-14, interception played a critical role in investigations that resulted in more than 2,200 arrests and the seizure of more than 750 kg of heroin and 2,000 kg of cocaine, more than 140 firearms, and more than £20 million.
I believe that the power to intercept communications from potentially very dangerous people has helped to keep my constituents and those of other right hon. and hon. Members much safer and much more secure in their homes, in their jobs and on the streets they walk every day; but I also recognise the calls from some that we must be careful not to risk the fundamental liberties of our democracy as we do battle with potential terrorists. The Government have clearly been mindful of the Wilson doctrine and have tabled amendments, which I welcome, to require that the Prime Minister approve, rather than just be consulted on, all equipment interference warrants relating to parliamentarians.
We must ensure that the powers that we give to our police and security agencies, while they are sufficiently transparent, are also fit for purpose. Terrorists and other threats to my constituents’ safety are constantly evolving and adapting their techniques to trump the safety system. They do not want to get caught; they want to catch us out, and that is why we must be prepared to adapt our rules to keep pace with technology. We cannot use an analogue approach to tackling criminals in a digital age. Such an attitude just is not safe, and I am not prepared to go back to Chelmsford and explain to my constituents there and in Great Baddow, Chelmer Village, Beaulieu Park and Old Moulsham that I was not prepared to support measures designed to make them all more secure.
I support the proposals that my right hon. Friend the Home Secretary has outlined to strengthen judicial commissioners’ oversight and give commissioners a role authorising national security notices and technical capability notices, but we must not lose sight of the essence of why we need these proposals: we need them to help our police and security agencies to better identify the internet activity of potential threats, and indeed victims of crime, so they can do their jobs more quickly and effectively.
The people outside Westminster who think this is about stopping people being rude on Twitter, or cleaning up the Facebook jungle, are wrong. The Bill is about protecting those rights—the right to be irreverent or to disagree; the right to surf the net without being at risk from those who would do us harm. The Government have acted properly by being prepared to listen and to think again to a degree that I have not often encountered in the past. They have considered carefully, and we should be careful not to assume that our police and security agencies do not need these powers as amended, with the new safeguards that have been promised today. For those reasons, I shall support my right hon. and hon. Friends in the Lobby tonight.
On a point of order, Mr Deputy Speaker. Reference was made earlier to an exchange of correspondence that I enjoyed with the hon. and learned Member for Holborn and St Pancras (Keir Starmer). I wanted you and the House to know that that correspondence is now available in the Vote Office for the information of Members.
That is certainly a good point of clarification. I call Harriet Harman.
I will keep my remarks short, Mr Deputy Speaker, as I appreciate that you want them to be short. I want to speak to new clause 16 and to amendments 189 to 195, but I will group them together.
I welcome new clause 5 because it puts privacy at the heart of the Bill. Although I found the draft Investigatory Powers Bill to be some kind of absolutely Orwellian nightmare that I would never have been able to support, this Bill goes some way towards being something that I would be able to support. It is horrible that we live in a society where this House, as a cross-party organisation, will have to legalise mass surveillance of every man, woman and child in the United Kingdom who has an electronic device, but sadly that is the society we live in, and we have to have a trade-off between what keeps us free from terrorism and what keeps us free in terms of privacy. I appreciate the Government’s efforts in trying to put privacy at the heart of the Bill.
On my new clause and my amendments, I want to look at possibly introducing into the Bill notification of surveillance against innocent people. I have tabled 63 amendments because I know there will be a review before the Bill gets to the upper House. The Government have been incredibly conciliatory and have provided concessions all the way through. I consider both the Ministers on the Front Bench friends, and I have been speaking to them about the Bill for many months—for well over a year, in fact. I have tried to be constructive in my disagreements with them; my amendments are probing amendments—they are there not to cause difficulty but to try to tease out more information.
The Bill fails to provide a viable system of notification of surveillance, particularly for those who have been wrongly surveilled. The current drafting covers only error reporting, and it places a higher importance on public interest—I understand that that is the source of the dispute about whether we should have new clause 5 or new clause 21, in terms of privacy and what is in the public interest. The concepts of public interest and serious error are difficult to define, and that leads to the problem of the judicial commissioners and others having to decide what those concepts are, and whether there are varying degrees of them. I want the Bill to state very clearly what we want them to be, so that we do not have that mission creep.
Adding notification to the Bill through a new clause would go some way towards ensuring that privacy is further enhanced as the backbone of the Bill. To put the issue into context, the countries that permit notification of surveillance include America, Canada, New Zealand, Germany, Belgium, the Netherlands, Austria, Ireland, Switzerland, Slovenia, Montenegro and Hungary, so this is not something that will be specific to the United Kingdom, and we will not be leading the way; we will be trying to catch up with our partners. I appreciate that each of those countries offers a different threshold in terms of how people will be surveilled, but there is no possibility of notification in the Bill at the moment. The Ministers have been very conciliatory, and if they want to intervene on me to say that they will accept my new clause 16, I will happily sit down. No, I didn’t think so. Never mind—we will keep trying.
I am not going to surprise my hon. Friend or the House, but he will have noted that the changes we have brought forward to the Bill mean that if a serious error has been identified by the commissioner, the individual concerned will be notified. That is a significant and new provision, which goes some way towards satisfying his desire. Perhaps he can meet me halfway.
I understand that example, but it can be taken to extremes. Every day of the week the Speaker makes decisions. He decides how we conduct our business and who should be called, and we could always argue that we should not give the Speaker more powers because he might make a mistake or be called to account. We are not talking about the Speaker being involved in whether we should pass a particular Bill or controversy; we are talking about a very narrow circumstance in which the Government of the day have decided to intercept the communications of a Member of Parliament. All I am suggesting is that before they take that step, they consult the Speaker.
There are few Members of this House whom I hold in higher regard than I do my hon. Friend, but like it or not, his proposal would draw the Speaker into issues of national security. He is describing highly sensitive matters of a kind that Speakers have not historically been involved in. It would be a radical change.
The Minister makes that point, but as Members of Parliament we should try to think outside the political box and our natural loyalties, and just for a moment think about what might happen in future in a time of crisis. Do we really want to codify the Wilson doctrine in legislation, and say that in future any Government—it does not matter that the Prime Minister ticks a box, because he is also a member of the Government—without any independent second guessing, can intercept those communications and act on them? I understand the Minister’s arguments and assure him that I am not trying to drag the Speaker into politics. I am trying only to protect the traditional privileges of the House. “Privileges” is the wrong word, because it conveys the impression that we are concerned about ourselves. We are not important in all this. What is important is people’s confidence in communicating with their Member of Parliament.
Let us see whether the Minister and the Government will recognise that we are all trying to get the same thing here. We are trying not only to keep the public safe, but to protect privacy. However, we do that—my hon. Friend will recognise this—in the knowledge that the security services do get tempted to overreach their powers. As night follows day, that is what happens. There are so many examples, after which people think, “How on earth could that ever happen?” It happens because when the security services have powers, they get tempted to overreach them. That is why safeguards and narrow definitions are so important. For example, I was subject to security service surveillance, not because I was subversive but because I was fighting for human rights, women’s rights and workers’ rights. The point is that if they can do it, they will unless there is proper delineation, so I add my voice to those who argue for a narrower definition of thematic powers.
I also highlight the concerns of the Joint Committee on Human Rights to those who query the point about major modifications. The Government have gone such a long way to ensure that warrants are properly issued, so why are they driving a coach and horses through the proposal by saying, “After the warrant has been issued, if you feel like it, you can have a major modification”? Trust me, such modifications will not narrow the scope of warrants, they will only widen them. The Government have moved to an extent and have said that major modifications will be notified to the judicial commissioners, but it is not good enough just to tell them; there needs to be a proper approval process. The Government should look again at the proposal.
As for legal professional privilege and the constitutional issues that we should bear in mind when thinking about what are described as privileges, we must be extremely careful with such areas. Lawyers are able to hold the Government to account and that is called the rule of law. We do not want to give the Executive the ability to interfere unjustifiably with the rule of the law by undermining people in the legal exercise of their rights. I agree with those on the Opposition Front Bench and others who have said that the Government should go back to the Bar Council and the Law Society to ensure that legal professional privilege is properly sorted out.
Turning to my main point, I am sorry that the hon. Member for Gainsborough (Sir Edward Leigh) is not currently in the Chamber because I largely agree with him, but the Joint Committee on Human Rights has a better way of dealing with the matter. What we need to remember, as MPs, is that this is not just about our constituents being able to come to talk to us confidentially, although we should absolutely defend that. Let me just give one example on that. I had MI6 in my constituency and the cleaners there were about to be privatised, and then sacked or made redundant. They lived in my constituency but they had signed the Official Secrets Act and been told that they were to talk to nobody and were not allowed to be in a union. They came to me very upset, with one of them crying. They said, “We don’t know whether we can speak to you.” I said, “You can speak to me.” They then said, “We think that telling you what we are going to tell you is against the law.” I said, “It doesn’t matter what you are going to tell me. Your legal right, as my constituents, to tell me something that I need to know trumps everything.” They then said that they were going to be made redundant, and so I went along to see someone—I believe it was the director general of MI6—handily taking with me the then deputy general secretary of the Transport and General Workers Union, my hon. Friend the Member for Birmingham, Erdington (Jack Dromey). We got them all redundancy payments and that was sorted out, but I do not want to digress.
I think that the right of individuals to speak to their MP is important, but we face an even bigger constitutional issue, which relates to the fact that we are here not just to listen to what our constituents say, but to hold the Government to account. They are the Executive, and so the idea that the Executive has the power to hack into the emails and listen to the phones of those who are supposed to be holding them to account—to do all of this—offers a big prospect of the Executive abusing their power and undermining the legislature’s ability to hold them to account. The person in pole position to defend the importance of the legislature holding the Government to account is not the Prime Minister, who is the pinnacle of the Executive. We are here to hold the Prime Minister to account.
I appreciate that the Minister has said, “Make the Prime Minister consent to all our emails being hacked, all our phones being listened to and everything else”, but that gives me no reassurance at all, because the Prime Minister is the wrong person for this. We have gone higher up the tree, but we have gone up the wrong tree, because the person who is there to protect us in doing our job of holding the Government to account, including the Prime Minister, is the Speaker. That was recognised in relation to the situation of the right hon. Member for Ashford (Damian Green) when there was the question of the warrant being issued, so this is not unprecedented—the recognition that it is the Speaker who has to protect our rights to hold the Executive to account, which is what we are actually here for.
My Committee discussed this issue at great length. We do not suggest that we make the Speaker an arm of the state and make him start looking at warrants for all of us, but we go further than the hon. Member for Gainsborough, who says that the Speaker should be notified. We say that the Speaker should be notified sufficiently well in advance that if he or she feels that it is right to do so, they can go to be heard by the judicial commissioner to make their views known, and so they can have an intervention in the process. I am certain that if it was known that the Speaker would be notified and have the opportunity to speak about it to the judicial commissioner, that would make the security services much more cautious before they actually went for warrants to intercept all the communications that we are having.
I could make two points about what the right hon. and learned Lady said. She says that the Speaker should be involved but not implicated, but I do not see how the Speaker would not be implicated and become an “arm of the state”—that is not a phrase I would have used, but she used it. The Speaker would by necessity become implicated because he would have to know the grounds on which the Prime Minister or others were acting. I do not really understand how she can claim that the Speaker can be involved but not implicated.
It is true that we are sending part of the process to the Speaker, but we are not giving them the power to authorise. It would be wrong to make the Speaker be part of the authorising process—someone who applies for the warrant, or someone who, like the judicial commissioner, has to authorise the warrant. What we are talking about is notifying the Speaker, but in sufficient time so that if they notice that it is becoming very widespread, they have the opportunity to go before the judicial commissioner and say, “Look, this is going on too widely.”
No, I think the Speaker would have to know the basis of the application if they wanted to; otherwise, how could they go before the judicial commissioner and say it was unacceptable? If people say, “Goodness me! That would be telling the Speaker information that would be useful in the hands of Daesh or al-Shabaab,” we would be in trouble anyway if the Speaker were the wrong sort of person to have it. I take a slightly different approach from the hon. Member for Gainsborough. He postulated the issue as politics, which is the Government and the Prime Minister, versus non-politics, which is the Speaker. It is not politics versus non-politics; it is the legislature versus the Executive. That is how we should think about it.
I am grateful to the Solicitor General, and I have no reason to disagree with his analysis of the way in which this matter has been approached. I also have no reason to disagree with him about the necessity of having thematic warrants in addition to warrants targeted at premises, individuals or organisations, but the question is how that reassurance can be provided. I hope very much that the Government can go away and give this issue some thought. I suspect it will arise in the other place, when these provisions are debated there. It is important, and I think that a solution can be found, but I accept that, although the amendment we have tabled would provide one, it would also place the agencies in difficulty.
Since my right hon. and learned Friend is inviting me to employ my ingenuity, I will try to do so. This is, in essence, about proportionality. We had quite a lot of debate earlier about necessity, but proportionality matters too. In determining what is reasonable—
Order. I wish to listen to the mellifluous tones of the right hon. Gentleman, as some Members do, and people listening elsewhere might conceivably wish to hear his sonorous tones. We would be assisted if he faced the House.
I think this is about proportionality. The answer to my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) is that yes, of course, in establishing the character of the proportionality and therefore the range he described, we may need to think about the sort of protocol he set out.
I am grateful to the Minister, and I leave the matter there.
I turn now to amendments 19, 20 and 21, which deal with the renewal of warrants. They may appear somewhat complicated, but they deal with a very simple issue. Warrants for interception last for up to six months. Under clause 29, the warrant can be extended by a further six months at any time before the original warrant expires. That creates a loophole because it would theoretically allow for a warrant to be renewed immediately after it was issued, thereby permitting interception for 12 months. That is clearly not what the Bill intends. The Secretary of State might well argue—logically—that the commissioner would never approve such a renewal, and that she would not either, but this is nevertheless a loophole that can and should be closed, and these amendments would ensure that it is. I hope very much that the Government can accept them.
I should mention that the amendments in my name relate only to warrants for interception and bulk interception. I would be grateful if the Minister could assure the House that, if the Government accept my amendments, that acceptance will be extended to other consequential amendments of a like character, to ensure that the power cannot be abused elsewhere.
Amendment 16 relates to clause 45 and interception in accordance with overseas requests. The clause gives effect to the European Union’s convention on mutual assistance on criminal matters and permits an overseas authority to request the support of the United Kingdom in undertaking the interception of communications. Curiously, and probably accidentally, it does not repeat the protection that exists in the Regulation of Investigatory Powers Act 2000, which ensures that requests can be made only where a person being intercepted will be outside the United Kingdom. That seems to us be another loophole that ought to be dealt with. Although the Government had indicated that it could be dealt with in secondary legislation, the Intelligence and Security Committee do not consider that to be satisfactory. It is far too important an issue to be left to secondary legislation; it should be dealt with in the Bill. If our amendment is accepted, the matter can be resolved without more ado.
Finally, may I touch on an issue that has been raised by the hon. and learned Member for Edinburgh South West (Joanna Cherry) and others, namely economic wellbeing? When the Intelligence and Security Committee first came to consider the issue as a subset of national security in our initial evidence-taking sittings, we came to the conclusion that it ought to be possible to remove economic wellbeing as a criterion altogether. That is why we made the initial recommendation that economic wellbeing, so far as it is relevant to national security and relates to people outside the British islands, be removed from the Bill as grounds for interception. We took the view that it could all be safely contained in the subset of national security. After we published our report, the Government provided us, through the agencies, with additional evidence regarding their reasoning for including it as a separate ground. They also provided us with a number of examples of where it was being or might be used, which illustrated areas where it was useful to have it as a separate category.
I shall be very brief, Mr Speaker, and I am grateful to you for calling me at this late hour. I wish to address clause 25 and legal professional privilege. In what circumstances, other than the iniquity exception, will legal professional privilege be overridden? In introducing his remarks, the Minister said, I think, that there was some margin where legal professional privilege could be overridden, even where the iniquity exception did not apply. That would be a radical and fundamental change to the legal protection given to the privilege of those conversing with and confiding in their lawyers. It would be unprecedented, and contrary to the decisions of the highest courts in this country. Where does the distinction lie in the Minister’s mind, and how would that square with current legal authority on the subject?
I only hope that your earlier remarks about my style, Mr Speaker, can be matched by my substance.
Let me deal with the last contribution first. My hon. and learned Friend the Solicitor General made it clear that these are matters of continuing consideration, and further discussions are to be held. My hon. and learned Friend the Member for Torridge and West Devon (Mr Cox) is right to say that we have not yet got to where we want to be, but I understand the weight and significance of his remark about limits on privilege, which will certainly be included in any consideration that we make following those discussions. I do not want to anticipate those discussions tonight, but, as the shadow Secretary of State recommended, we will engage in them without delay, and conclude them on the basis of adding to the Bill in a way that is sufficient to protect legal privilege.
A number of Members on both sides of the House emphasised the importance of the Bill per se. It is important because it provides law enforcement and security and intelligence agencies with the powers they need to keep us safe, and it does so in a way that makes those powers transparent, while also adding to the checks and balances that are vital in the defence of private interest. It therefore radically overhauls the way in which such powers are authorised and overseen, in particular through the introduction of the double lock for the most sensitive powers. This is a radical change—perhaps the most radical change of modern times in these matters.
The Bill also ensures that these powers are fit for the digital age. As the Chair of the ISC, and others, have said, much of what is done now arises as a result of a series of pieces of legislation that I suppose one could call reactive. They were consequent on the need to provide those who are missioned to protect us with what they require to do so. The Bill draws those powers together and makes them more comprehensible and transparent, which adds to the oversight and safeguards that make up the checks and balances I have described. This is an important Bill, and it is therefore important that we get it right.
That brings me to my second substantial point, which is about the spirit of our consideration. This debate has been conducted in a way that I think does credit to this House, and that is largely—it is unusual to hear a Minister say this, so I wish to emphasise it in the style that you recommended earlier, Mr Speaker—due to the Opposition. The Opposition make choices about how they scrutinise the Government, how they hold the Government to account, and how they deal with legislation on the Floor of the House and in Committee. Those judgments are fundamentally important, not only for the health of the House and our democracy, but for the interests of our people. The Opposition and the Government have worked together on the Bill. If that causes pain to the right hon. Member for Orkney and Shetland (Mr Carmichael), so be it, because if we end up with a Bill that is better than it started—and I believe we will end up with a Bill that is considerably better—I take the view that we have done our job as well as we could reasonably be expected to do it.
To that end, as we have said a number of times this evening, we continue to look at these matters. Clearly, the House of Lords will want its say—it is right that it should—and will contribute to further scrutiny, but the spirit that has imbued all we have done until now is important in a Bill that, frankly, any Government of any colour would have introduced, not just because there is a sunset clause on previous legislation, but because the Government know that it is necessary for the powers to be updated so that they are fit for purpose, and for the safeguards to be updated in accordance with that.
Let me deal with some of the specifics—I want to save sufficient time to deal with the salient issue of trade unions, which the shadow Secretary of State spoke about with such passion. Modifications were mentioned by both Opposition and Government Members. It is important to emphasise that the Government have considered the concerns raised in Committee—that point was made by my hon. Friend the Member for Stevenage (Stephen McPartland), Opposition Front Benchers and others.
As a result, we have introduced a number of significant amendments to make it clear that a warrant against a single person cannot be modified into a thematic warrant; to require all major modifications to be notified to a judicial commissioner; and to ensure that the Wilson doctrine and legal professional practice safeguards apply to urgent modifications, so that the double lock, with all that that suggests, applies too.
Those amendments are responses to matters raised in Committee, to ensure that the warranting system is consistent. I entirely accept the point that it would be completely unacceptable to have a robust system for issuing warrants and a less robust system for modifying them. Warranting has to be consistent throughout, and there can be no back-door way of weakening the process. That is not what the Government intend and not what we would allow. We have made those changes but, as I have said, we are happy to consider those matters carefully—I have heard what has been said tonight by Members on both sides of the House about what more might be done.
The hon. and learned Member for Holborn and St Pancras (Keir Starmer) and others have made the argument repeatedly that more should be stated in the Bill. That is what the manuscript amendment does. On that basis, I am grateful for the comments made by the shadow Secretary of State and the shadow Minister in welcoming the amendment.
My right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) tabled amendments on behalf of the Intelligence and Security Committee. Amendments 15 to 17 would add another condition to clause 45, which provides for circumstances in which a telecommunications operator may intercept communications in response to a request made by the international agreement. The additional condition would require that interception must be for the purpose of obtaining information about the communications of people who are known or believed to be outside the United Kingdom. That amendment would replicate the current position in RIPA and, I agree, would provide valuable assurances. As drafted, the amendment contains minor, technical deficiencies, and for that reason, as my right hon. and learned Friend will understand, we will not accept it.
Order. I know the Minister of State is greatly enjoying his oration, but I am conscious of the fact that the clock in front of him is not functioning, and I want him to know two things: first, that he should face the House, as we continually exhort him to do; and, secondly, that he has a further seven minutes in which to excite the House.
Seven minutes of pure joy, Mr Speaker.
The Government will bring back further amendments to do what my right hon. and learned Friend intends.
Amendments 19 to 23, also tabled on behalf of the Intelligence and Security Committee, seek to prohibit a targeted or bulk interception warrant being renewed for more than 30 days. I do not foresee any circumstance where such a renewal application would be approved by the Secretary of State or judicial commissioner, but this is another matter that I agree could be clearer in the Bill. As with the previous amendment, we will revisit this and table an amendment in the other place.
I am less convinced by the argument my right hon. and learned Friend makes on amendment 25. The amendment would prohibit warrants being sought against suspects who are carrying out the same activity but who may not share a common purpose. In my judgment, a restriction of this kind would have a material impact on current operations. It would, for example, prohibit the targeting of an online forum that is used predominantly—but not exclusively—by child abusers, because the agency could not be certain that everyone accessing the forum was doing so for a common purpose. I have profound reservations about that amendment. I understand the sense of it and I understand why it has been tabled, but I do not think the Government can accept it. I do not want to give the impression that the Government accept any amendment, regardless of what we think about it. That is not our style, however conciliatory we might be.
I did not quite follow what my right hon. Friend meant by that. I exhorted him to give the matter a little further thought and suggested there might be some ways in which it could be dealt with. I very much hope his answer was not suggesting that he was ruling that out, because that might place me in the position of wanting to put the amendment to the House.
“Very much thought” is my middle name. Actually, that is several middle names, isn’t it, Mr Speaker? I will of course do that. Indeed, I thought the point my right hon. and learned Friend made about ways in which we could achieve what he sets out to do was well made, as I said in an earlier intervention.
Power is legitimised only by the means by which those who exercise it are held to account. The health of our open society relies on the acceptance that those with whom we differ should be free to make their case, campaign or crusade. The Labour Opposition tabled an amendment on trade unions, and I want to be crystal clear about our response to it: it would neither be proportionate nor lawful for the security or intelligence agencies to investigate legitimate trade union activity. However, there are good reasons for seeking to put the matter beyond doubt. That is what amendment 262 seeks to do.
I know that this is a matter of profound concern to the Labour party, but again let me be crystal clear: it is a matter of profound concern to me, too. Trade unions make a vital contribution to the free society I mentioned a moment ago. Working people would be considerably worse off if it were not for the activities of trade unions through the ages. My father was a shop steward, my grandfather was the chairman of his union branch and I am proud to be a member of a trade union myself.
Let me do something else that is rarely done in this House. I have already praised the Opposition and commended the way they have gone about their scrutiny of the Government’s proposals; now I am going to accept the amendment that stands in the name of the Opposition.
Notwithstanding that technical point, which I will happily deal with after the debate—I am grateful to the hon. Gentleman for making it—I will certainly accept what the Opposition have proposed as a matter of principle. It seems absolutely right that they have brought it to the House’s attention, and they can perfectly properly claim it as a victory, because I am persuaded of the need to do this. It was not in the original Bill, but it will be in the Bill as it goes forward. In that spirit and that mood, it is vital to understand that the Bill is in our national interest and there to promote and preserve the common good. It is therefore right that it make further progress.
The Minister’s comments at the Dispatch Box will have given hope to thousands of trade unionists in this country. Their legitimate role has been properly recognised by him at the Dispatch Box—long may that spirit continue from the Government Benches!
(8 years, 3 months ago)
Written StatementsToday my right hon. Friend the Government Anti-corruption Champion (Sir Eric Pickles) and I wish to inform the House that the Government are publishing a progress update on the UK’s first cross-Government anti-corruption plan, on the same day that the Prime Minister is hosting a global anti-corruption summit in London—to galvanise international action against corruption.
On 18 December 2014, we published the UK anti-corruption plan, which set out, for the first time, all of the UK’s anti-corruption efforts under one cross-departmental plan, including how we are tackling the threat of corruption and taking action to reduce corruption risks across a range of sectors, both in the UK and overseas.
In the UK anti-corruption plan, we committed to publishing a progress update on the actions, ensuring that this was a living document which evolved alongside the nature of the threat from corruption and our response. The inter-ministerial group on anti-corruption, which we co-chair, has been overseeing delivery of the commitments and we have been working with colleagues across Government and civil society to drive forward this agenda.
The progress update highlights the UK’s performance in delivering its anti-corruption commitments—62 out of the 66 actions (94%) are complete or on track to be delivered—and sets out the positive progress that has been made: to build a better picture of how corruption is affecting our society and economy; to strengthen our legal and operational tools and activity; to enhance our law enforcement response; to deny use of our financial system for those who are trying to abuse it; and to step up our efforts internationally.
While there is still more to be done, the positive developments outlined in the progress update, coupled with the international leadership being shown by the UK through the global anti-corruption summit, demonstrates the UK’s commitment to rooting out corruption in all its forms. Moreover, the new cross-agency taskforce to respond to any wrong-doing resulting from the “Mossack Fonseca” papers, sends a strong message that tackling corruption is a key priority for the UK and that we take decisive action wherever criminal activity arises.
A copy of the plan will be placed in the Library of the House and also made available on the Government website at: www.gov.uk.
[HCWS729]
(8 years, 3 months ago)
Public Bill CommitteesI hear what the Solicitor General has to say, and in the circumstances I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 225 ordered to stand part of the Bill.
Clauses 226 to 231 ordered to stand part of the Bill.
Schedule 9 agreed to.
Clause 232 ordered to stand part of the Bill.
Schedule 10
Minor and consequential provision
I beg to move amendment 634, in schedule 10, page 235, line 33, leave out paragraph 46.
This amendment omits the amendments of paragraph 19ZD of Schedule 3 to the Police Reform Act 2002. Paragraph 19ZD is to be repealed by the Policing and Crime Bill.
This is a technical amendment that essentially removes the duplication of a consequential provision in another piece of legislation—the Policing and Crime Bill—that makes what is in this Bill unnecessary. It is entirely uncontentious and I will not tire the Committee by speaking for any longer.
Amendment 634 agreed to.
Schedule 10, as amended, agreed to.
Clause 233
Commencement, extent and short title
New clause 24 is a true sunset clause, modelled on clause 1 of the Armed Forces Bill currently before Parliament. We had a spirited debate before the break about potential replacements for clause 222, which is a clause of review. The new clause is another alternative—a sunset clause in the true meaning of the term, which would provide for the Act to expire at the end of a certain period, subject to certain provisos. I do not intend to push the new clause further at this point, given the position we took in relation to new clause 23.
Clearly, the sunset clause that the new clause proposes is being debated—briefly, I hope—as we approach the sunset of our consideration of this important Bill. A sunset provision is often a feature of emergency legislation and has indeed been appeared in legislation of the kind that we are now debating. It is usually because the legislation has been introduced to meet some particular short-term challenge and Parliament is given limited time in which to consider the legislation responding to that challenge. That is not the case in respect of this Bill, which has had extensive prelegislative scrutiny, both before its draft incarnation and since. It has now had considerable scrutiny by the Committee, and will no doubt continue to be scrutinised as it progresses through its further stages. I am therefore not sure a sunset clause is appropriate.
The hon. and learned Lady is well aware of the three independent reviews that preceded the publication of the Bill, and of the three Committees of this House that have considered the Bill in considerable detail since then. One of those—the Joint Committee—considered at length a sunset clause and a review of the legislation. We debated that a few minutes ago under an earlier group of amendments. As I said at that time, rather than proposing a sunset clause, the Joint Committee suggested a review of the legislation. I understand that suggestion, given the dynamism of the circumstances that the Bill is designed to address—the need to deal with changing technology and so on and so forth. Indeed, the Government, taking full account of the sagacity of the Joint Committee, have built that into the Bill in clause 222, which we have debated at some length.
The complexities of this legislation are acknowledged and understood. I can see why the hon. and learned Lady makes a case for this sort of consideration. In David Anderson’s report on these matters, which I will not quote at immense length unless the members of the Committee wish me to do so, he makes clear that although it is important to consider the effects of the Bill, it is not necessary to accelerate that process in the way that the new clause would. He also makes clear, as others have, that it is vital that the legislation stands the test of time and is fit for the future. I am therefore uncomfortable with introducing specific deadlines of the kind proposed in the new clause.
The hon. and learned Lady has repeatedly and rightly argued that many of the provisions of the Bill require considerable investment. The obligations such as those in respect to data retention require a lot of thought, a good deal of planning and an investment of time and effort from communications service providers and others. Putting that infrastructure into place is a testing business; it is the right thing to do, but it is testing none the less—a point made by the hon. Member for City of Chester and others during the course of the Committee’s consideration. Then to say that we are going to look at all of that again in 12 months’ time sends out a very unhelpful signal to those we are missioning to do that work. We have gone about this business thoroughly. We have discussed this at length with communications services providers throughout the process and time and again they have said that they want certainty; they want a reasonable degree of surety about what is expected of them. I think they would be reticent about investing in the way that they need to if they felt that this all might change in 12 months’ time.
The Home Secretary put the case as well as it can be put when she told the Joint Committee that “advances in technology” are not
“going to move according to sunset clauses established by Parliament.”
Although it is important that these matters are reviewed—as I said on clause 222, we have set into motion the means by which they will be reviewed—I do not think a sunset clause of the type proposed is the right way forward. On that basis, given the assurances that I have offered, I hope the hon. and learned Member for Edinburgh South West will see fit not to press the new clause.
Yes, I confirm I will not press the new clause.
Question put and agreed to.
Clause 233 accordingly ordered to stand part of the Bill.
New Clause 12
Warrants: notification by Judicial Commissioner
“(1) Upon completion of conduct authorised by a warrant under this Part, or the cancellation of a warrant issued under this Part, a Judicial Commissioner must notify the affected party, in writing, of—
(a) the conduct that has taken place, and
(b) the provisions under which the conduct has taken place.
(2) The notification under subsection (1) must be sent within thirty days of the completion of the conduct or cancellation of the warrant.
(3) A Judicial Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (2) if the Judicial Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security investigation relating to the affected party.
(4) A Judicial Commissioner must consult with the person to whom the warrant is addressed in order to fulfil an assessment under subsection (3).”.—(Joanna Cherry.)
This amendment would introduce a requirement that all equipment interference produces a verifiable audit trail. This will be particularly vital to the success and legitimacy of prosecutions. It is recommended that further provision for the independent verification of audit trails is included in Part 8 (Oversight Arrangements).
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
The new clause relates to part 4 of the Bill, in particular clause 78, and to the retention of communications data. It would exclude the providers of rural or community access communication services and small service providers from the obligation to collect and retain data, which I believe would be in accordance with policy statements made by the Home Office. I am indebted to William Waites, Duncan Campbell and Adrian Kennard for drawing our attention to the need for this new clause and for assisting in its drafting. I can do no better than remind hon. Members of the statement submitted by Mr Waites on behalf of his organisation, HUBS CIC—document 53 in the written evidence submitted to the Committee—in which he explains:
“I am a founder and director of HUBS CIC, a Scottish Community Interest Company whose purpose is to facilitate broadband provision in rural and remote parts of the country outwith the reach of the large, well-known carriers.”
Hon. Members will be aware of this issue, which has been debated elsewhere in the House in this Session. The statement continues:
“HUBS’ members are small Internet Service Providers typically with tens to hundreds of individual end-user subscribers each. Together they provide the only available Internet service in large swathes of the West Highlands and the South of Scotland…HUBS does not provide service to end-users but instead makes bulk Internet services available to its members that would not otherwise be obtainable due to their small size.”
The members’ concern about clause 78
“is about how the data retention requirements…in particular, and the new obligations and duties on Telecommunications providers in general relate to service providers operating in the environment of HUBS’ membership…A typical member’s entire network infrastructure will cost on the order of tens or hundreds of thousands of pounds. It is optimised for lightweight, energy efficient operation. There are no data centres or indeed cabinets that have adequate physical security for safely storing the most intimate records of individuals’ on-line activities…Indeed it is recognised in general that keeping sensitive data secure is so important, that the best way to meet this obligation is simply to not record it.”
Therefore,
“Constructing facilities in each of these service providers to extract, record, securely store and make available any ‘Internet Connection Records’…would cost at least as much as their entire infrastructure…HUBS, though it is designed to enable the micro ISPs to benefit from economies of scale, cannot help here because it does not know the individual end users…Due regard should also be given to the social dynamics. If an ISP has a couple of dozen subscribers, two or three of which are actively involved in operating the network, data retention has a very different flavour.”
That is very often the position in rural and far-flung communities. It is like asking neighbour to spy on neighbour. I am sure that is not what the Government intend, but the new clause would spell that out. It would give providers of rural or community-access communication services and small service providers the reassurance they require in the Bill.
To put it shortly, the provisions in clause 78 are clearly designed for a very different environment from that which I have described, so those who operate within that environment are keen to have the Government’s assurance that they will be excepted from the requirements of the clause.
I think I can deal with this very briefly, because there are only two points to make. First, the amendment is flawed. The Department for Culture, Media and Sport tells us that the suggested designation is no longer used, if ever it was. That is a fundamental problem, but that is not a good enough argument alone. A better argument—my second point—is that restricting a retention notice to only large operators could result in large geographic gaps in capabilities or indicate to criminals that they should use only small providers. It is understandable that the hon. and learned Lady wants to defend the interests of small providers, but the provision could have unintended consequences of the sort I do not think she means.
Finally, the Joint Committee said:
“We believe that the definition of telecommunications service providers cannot explicitly rule out smaller providers without significantly compromising the data retention proposals as a whole.”
I appreciate the hon. and learned Lady’s intent, but I am not sure the form of the amendment is adequate or the arguments sufficient to be persuasive.
I am not sure what the Minister is saying. Is he saying he could look at the amendment and make it better, or that the principle underlying it is not acceptable?
I am saying that it is not wise to designate providers based on their size. There will be niche market providers who may provide a particular function exclusively and there may be others providing in a particular area. Taking them out of the system would contradict the purpose of the legislation. Let me see if I can compromise. We have said throughout, and when we were debating an earlier group of amendments, that we understand that some smaller providers will face a significant challenge. I have also said that it is important to recognise that while large providers will have mechanisms to implement readily the changes we expect of them—
Sorry, Mr Owen, I have lost my train of thought. The concern behind the amendment is that although certain assurances have been given, I have tried to explain that, without a guarantee that requirements will be placed on such providers, they may simply grind to a halt. Is there any way round that? That is the purpose of the amendment.
Let me try to make a more pithy intervention. Of course we understand that we need to support providers in meeting their obligations and we will take the steps necessary to do that. What I do not want to do is to exclude them in the Bill from the requirement because that would have consequences that the hon. and learned Lady does not intend.
I am sure the last thing the denizens of the west or the south of Scotland want is some mass influx of terrorists to start using their small internet service providers. On the other hand, they do not want their hard-won and hard-fought-for internet access to be completely compromised by unreasonable requirements being put on it. They are concerned that, although assurances have been given, there is nothing in clause 17 to prevent the Government from putting what would be practically and financially crippling requirements on them. That is the purpose of the amendment.
I am grateful for that intervention; there are really two answers. The first is that it has been the constant refrain from the Minister that most of these principles run through the Bill and that therefore they are unnecessary, although I would say it is necessary to flush them out in this form.
To give another example, when the Human Rights Act was being passed, there was a real concern about how freedom of expression would operate in practice, and the Government of the day were persuaded that there ought to be a clause that really indicated to the courts that special consideration or weight ought to be given to freedom of expression.
All that has meant in practice is that the courts, when dealing with freedom of expression, have looked carefully at that clause and given it due weight. It works pretty well in practice; it does not tie the hands of a court. However, it is a reminder to a court of what the most important public interests were in the view of those passing the legislation and what the principles running through the Bill were. More importantly, it was a reminder to decision makers. For every case that goes to court, there are however many hundred thousand decisions that are made by decision makers on the ground.
I have some experience in Northern Ireland of working with the police over there in implementing the Human Rights Act. Counter-intuitively in many ways, having statements of necessity and proportionality built into the decision-making process really helped them, because they were able to assess, probably better than most others, why they thought what they were doing was necessary, and able to articulate why they thought it was proportionate, and they actually came to very good decisions as a result of what might be seen as broad principles being built into their decision-making process.
Such a provision would assure the public as to how the Bill is intended to operate and what the strong currents going through it are. I genuinely think it would help decision makers in the fine decisions, when they are not quite sure where the balance lies, and it would be a reminder to the courts of the particular public interests and principles that Parliament intended to lay down as running through the Bill. The danger of such a clause is always that it will be overused by lawyers, but I do not think that is what has happened in practice with similar provisions.
I have immense numbers of notes prepared for me by my officials. It will surprise neither them nor you, Mr Owen, that I intend to use very few of them.
It is fitting that our last debate in this Committee obliges us to consider the matter that lies at the heart of all that we have debated, which is the balance, to use the word used by the hon. Member for City of Chester, between personal interest and national interest—the balance between what I might describe as the defence of personal privacy and the underpinning of the common good. In those terms, communal wellbeing and individual fulfilment are for me inseparable, and the national interest can only be defined as the people’s interest. It is right that we should consider how that balance is reflected in the words before us.
The hon. and learned Member for Holborn and St Pancras has tabled a measured new clause that attempts to strike that balance. He is right that it is in keeping with and in sympathy with my view, expressed in our very first sitting, that privacy is woven into the Bill throughout its provisions. He is also right that the overarching emphasis we place on privacy is important.
I will draw my remarks into sharp focus simply by saying this: the Government will introduce a clause along the lines proposed, and the new clauses before us will serve to inform that. My hon. and learned Friend the Member for South East Cambridgeshire is right that that has to be done with some caution, because, as both she and the shadow Minister said, we must avoid the pitfall of it being used as a way of frustrating the intent of the Bill in all kinds of other ways. The delicacy of its construction is a matter of appropriate concern.
Nevertheless, I am convinced that the new clause makes things clear. It is a helpful addition to our scrutiny, and I will finish where I started by saying that the balance that the hon. Member for City of Chester described is critical not only to his thinking, but to that of the Government and the shadow Minister. On that basis, I hope that the shadow Minister will withdraw the new clause with the assurance that it will be central to my consideration as we bring forward measures of a precisely similar kind.
I am grateful to the Minister for how he has put his final observations. It was in keeping with how all our debates have been conducted over our various sittings. I will not press any new clause to a vote. Pretty much every time that my wife and I take our children into a restaurant, no matter how many options are on the menu, they inevitably want something that is not on the menu. That is the position I find myself in now. I am happy that the suggested ingredients will be taken away and put together in a way that reflects the clause that the Minister, I am glad to say, has said he will introduce. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Question proposed, That the Chair do report the Bill, as amended, to the House.
In summary, Mr Owen, perhaps I could say a few words of thanks. I start by saying that anyone who has examined what we have done over the last several days and weeks would agree that the interpolations have been posed without contumely and the responses offered without bombast; our consideration has been motivated by well-informed interest and our determination has been tempered by reasonableness. So it should be, for this Bill is of the greatest significance. It is fundamental that we protect our national security and public safety—one might say there is nothing more fundamental—and that is what the Bill attempts to do.
I thank you, Mr Owen, and your co-Chairs, for gluing the Committee together with both sagacity and generosity. I thank the Clerks for grouping the amendments with professional skill; the Hansard Reporters for glowing, as they always do, with expertise; the Doorkeepers for guarding us and honing their locking and unlocking skills—largely due to the hon. and learned Member for Edinburgh South West, by the way; the officials at the Home Office for their gaping and gasping, I hope in admiration at the performance of those they advise, but possibly with incredulity, I cannot quite work out which; and the Ministers and other members of the Committee, for groping for the light in the dusk if not the darkness of their imperfections.
I particularly thank the Members on my side of the Committee: three immensely learned Ladies and three honourable Gentlemen learning at their knee; an almost perfect Parliamentary Private Secretary; a wonderful Whip; and my dear friend, the Solicitor General.
It would be both unwise and ungenerous not to pay tribute to the Opposition on the Committee who have been remarkable for their diligence, their reasonableness and their good humour, and for the way in which they have gone about the business of trying to perfect the Bill. I pay tribute to the hon. and learned Member for Holborn and St Pancras. I know he does not like my saying this—I have said it twice before and he criticised me both times—but it is the first time that he has done this, despite his long experience of other related things. He has done himself proud, if I might say so. The hon. and learned Member for Edinburgh South West, with just as much diligence, has held the Government to account thoroughly, but always, as I said, in the right spirit.
The Bill leaves Committee in a much better place as a result of the deliberations, our discourse and the scrutiny we have enjoyed. I thank all those I have mentioned and any whom I have forgotten to mention for their help in making that happen.
Before other hon. Members make comments, I would inform them that when the Division bell goes, I will put the Question, whether a Member is in full flow or not, so that we do not have to come back after the vote, which will take up to three-quarters of an hour.
Thank you, Mr Owen. I have been handed a note which says, “Vote shortly”, and I think that is an instruction not to take long, but it would be remiss of me not to pay tribute and to say thank you to so many people who have made this process work as well as it has worked.
I start of course with yourself, Mr Owen, and your co-chair, who have taken us through the proceedings in an efficient and orderly way and allowed the points to be debated in the way they needed to be debated and drawn out where they needed to be drawn out. We are genuinely grateful to you for that.
I also thank the Public Bill Office. This has been a huge exercise and, on occasion, amendments that we thought we had lodged were not lodged where we thought they had been lodged and therefore, at 10 o’clock and 11 o’clock at night, the team upstairs was working to find the amendments, put them back in the proper order and make sure that we had them for the next day’s deliberations. It was not just what we might consider the ordinary working hours.
I think I am right in saying that, for better or worse, more than 1,000 amendments have been tabled by Labour party, Scottish National party and Government Members. That is a pretty record number. I think we have had up to 40 Divisions on the Bill. There has been a huge amount of work over and above, and we are all grateful for it. We are grateful for the work done to ensure that Hansard properly reflects what has gone on in this debate, so that things are put on the record accurately and that others can see what was argued, why it was argued and how it was argued not only when the Bill progresses through the House but also if and when it becomes an Act. We are also grateful to the other staff—the Doorkeepers and so on—who have helped with the process.
May I thank the Home Office team? Although, in a sense, they provide the notes to Government Members, I know how hard they have to work behind the scenes to ensure that what appears, particularly from the Minister and the Solicitor General, is informed, up to the minute and seemly and deals with difficult and probing issues. That is a huge amount of work behind the scenes. They have been helpful to the Opposition as well—
And we finished a day early. I would like to pay tribute to both the Minister and the Solicitor General. There are different ways of doing this. I am not over-experienced in it, but I know that sometimes there can be trench warfare, where both sides simply dig in, fire their ammunition and little is achieved. They have both listened to what we have said by way of our submissions and agreed on a number of occasions to think again in relation to the Bill. That is genuine progress, although it may not be reflected in the number of votes we have won. This is my second Bill Committee, and the number of votes I have won is still a very round number. However, I genuinely think we have achieved through our dialogue and through the approach of both the Opposition and the Government something that will pay dividends and will strengthen the Bill when it becomes an Act.
I also want to pay tribute to the SNP team. As will have been evident, there has been a lot of work behind the scenes to ensure that we are not duplicating one another’s work and that we think through what we do. That has been very helpful.
(8 years, 4 months ago)
Public Bill CommitteesIt is a pleasure to serve under your chairmanship as ever, Mr Owen. It is important, as we consider this part of the Bill, that we test some of its provisions in the way the hon. and learned Gentleman has.
The Government take this part of the Bill very seriously. Along with the safeguards added earlier in the Bill, oversight plays an important part in making sure that we have the checks and balances that we all seek. In that respect, there is space for an informed debate about the balance that we are seeking to achieve, as the hon. and learned Gentleman suggests. The roles of the Executive and of the judiciary, which we have already begun to explore in the brief debate to which my hon. and learned Friend the Solicitor General contributed, are central to those considerations.
I take the point that there is no point in people who have gone through the Judicial Appointments Commission process once going through it again. In fairness, we have put forward several options for the appointment process and, to be clear, I prefer the one in which, having consulted the Judicial Appointments Commission, the Lord Chief Justice, rather than the Lord Chancellor, makes appointments.
That is helpful, because the hon. and learned Gentleman has qualified the point that I was going to come on to make. The amendments could take the Lord Chief Justice out of the process altogether, and I am sure that the hon. and learned Gentleman would not want that—indeed, he has confirmed as much. However, there is also a point to be made about the practicalities and effectiveness of the system, which Lord Judge commented on when I questioned him on 24 March. I asked,
“in terms of the appointment of the judicial commissioners, would the Judicial Appointments Commission be a better place to appoint them, or do you rather like the model we have come up with?”
He said that
“I much prefer the model you have come up with”,
and finished by saying:
“There is no point whatever in involving the Judicial Appointments Commission, ignoring the fact that it has got far too much to do anyway and not enough people to do the work.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 73, Q237.]
I will not comment on the arrangements or resources of that body, but on a different occasion, when speaking in particular about the Prime Minister’s role in the proposals, Lord Judge described that as a “perfectly sensible system.”
It is therefore clear that there is a view that the arrangements being put in place are a reasonable balance between the Executive and the judiciary, and that changing them would not necessarily lead to greater effectiveness or practicality. The people being appointed will already been through Judicial Appointments Commission process, as the hon. and learned Gentleman generously said. It is also important that we are clear about lines of accountability and the character of independence. To an extent, that reflects the broader debate that my hon. and learned Friend the Solicitor General stimulated. It is important that there is separation between the roles of the people involved to avoid any sense of patronage, and that the Prime Minister continues to play a role, to affirm the significance of the Executive’s engagement in everything that we are discussing in the Bill.
That is a much broader point. Although I do not want to go back into all of this, Committee members will be aware that the double lock that we have created is itself a compromise. On one hand, there is the position adopted by those who are sceptical about judicial involvement in the business of issuing warrants—the former Home Secretary Lord Reid, for example, and a number of Members of this House, including some from my own party. On the other, there are the recommendations of David Anderson, who is clear that in order to add more validation to the process and insulate it from challenge, it is important to create a role for the judiciary. Given that balance, which is a pretty finely tuned one, I am reluctant to take the Prime Minister out of the business of appointments.
I hear what the Minister is saying about the Government’s keenness to retain the involvement of the Prime Minister. Could his concerns be met and a compromise reached via amendment 740, which the Scottish National party support? It would retain the Prime Minister’s involvement and provide that he or she would make an appointment only following a recommendation by either the Judicial Appointments Commission, the Judicial Appointments Board for Scotland or the Northern Ireland Judicial Appointments Commission. Of course, as the Minister has reminded us, those bodies would be appointing from an existing pool of appointed judges, so it would not take up too much of their time; they would be considering people with whom they were already familiar. Is that the way forward? It is important to ensure that the Judicial Appointments Board for Scotland is involved, if not the Scottish Ministers, given the Scottish Ministers’ current responsibility for appointments to the Office of Surveillance Commissioners.
The hon. and learned Lady is right to interpellate in that way. There is certainly a good argument to be made for what she has just described, and I am not insensitive to it. However, I challenge more fundamentally the suggestion that the Prime Minister’s engagement—and, further, the Prime Minister’s engagement in the way that we have set out, rather than in the way that she has just described—would in some way be injurious to the independence that is critical for those involved in the oversight process.
It will not be, provided that he or she appoints on the recommendation of the independent bodies. That is what we do at the moment for judges, both north and south of the border. In Scotland, the First Minister appoints judges to the supreme courts of Scotland on the recommendation of the Judicial Appointments Board for Scotland. In England and Wales, as I understand it—I am willing to be corrected—the Prime Minister makes his appointments on the recommendation of the Judicial Appointments Commission and the Lord Chancellor, but presumably they have gone through an independent judicial scrutiny process. Amendment 740 would simply replicate those procedures for the judicial commissioners. I do not understand what possible objection there could be.
The hon. and learned Lady ascribes to me a lack of willingness to hear the argument, which I have made clear is not a feature of my approach to the provisions, and a certain stubbornness. Far be it from anyone to accuse me of that. I am not insensitive to that argument, as I have emphasised.
I will give way to the hon. and learned Gentleman in a second, but I draw attention again to the Joint Committee’s view on the matter, because he quoted it. I think that we are reaching a common view on this; we are certainly journeying towards accord. The Joint Committee said:
“We do not think that appointment by the Prime Minister would in reality have any impact on the independence of the Investigatory Powers Commissioner and Judicial Commissioners. In modern times, our senior judges have had an unimpeachable record of independence from the executive and we believe any senior judge appointed to these roles would make his or her decisions unaffected by the manner of appointment.”
In the witness sessions, former Home Secretaries made it clear that in their direct experience of similar matters, they had seen no sign of the judiciary being intimidated to the point of subservience when faced with the views of the Executive.
There is an argument for fine-tuning, and that is almost where the hon. and learned Member for Edinburgh South West is heading. There are a range of amendments in this group, and in a sense some are more radical than others, as the hon. and learned Member for Holborn and St Pancras has acknowledged. He and the hon. and learned Lady have placed some emphasis on, if I may put it this way, one or two of the more modest changes that have been suggested, and that is not falling on deaf ears on the Government Benches. However, I resist the fundamentalist view—not represented in this case, I think—that somehow the Prime Minister’s involvement is undesirable because it compromises judicial independence.
I will respond in a bipartisan way with an initial confession that I know little about judicial appointments. I wonder whether there are any others that have to go through the Prime Minister’s office. Perhaps the Minister can confirm that.
The appearance of things is perhaps a problem. If the Prime Minister is appointing the Secretary of State—let us say, for example, the Home Secretary—and the judges who comprise the second part of that double lock, it may appear that there is an apex, or apogee, leading to one place, rather than the two locks. It might be better for the process if there were an appearance of independence from those two sides.
Again, that is an argument about fine tuning. I do not say that with any pejorative implication. It is reasonable to say that the Prime Minister’s engagement has to be of a kind that does not either mean, or arguably, perhaps, give the appearance of, a lack of independence—I think that is what the hon. Gentleman is suggesting. Thus we end with the idea of the hon. and learned Member for Edinburgh South West about changing the chronology, or perhaps rather more than that, actually altering the process by which the Prime Minister is involved.
On the factual point that the hon. Gentleman raised about the Prime Minister’s engagement, of course the current commissioners are appointed on that basis, and there is no suggestion that their independence has been compromised.
Then we come to the issue of deployment, and I want to talk about the difference between deployment, in the way that the hon. and learned Lady is no doubt about to prompt me to.
Does the Minister agree that, although there may be no suggestion that the current commissioners’ independence has been compromised, the appearance of independence is important for public confidence?
Imitation is the best form of flattery and I have already said that, so I take that contribution not as mere flattery but as a compliment. As the hon. and learned Lady will know, there is a big difference between being flattered and being complimented.
I do think that appearance matters. I do not want to go too far here, because the Solicitor General will have his views, and he is a man of fiercely independent mind on all these matters and speaks with great authority, which is why I am about to give way to him. However, I am not minded to be dogmatic, notwithstanding some of the fundamentals, which I think are important.
Having had experience of the JAC process myself, albeit for a junior judicial office, I think that the point is well made about the lack of necessity for renewal of approval by the JAC. However, this is not about that; it is about deployment of a judge to a particular office overseeing an Executive function. That is different from the appointment stage. This is deployment, which is why the Prime Minister should be involved.
Yes, and that is the point I was about to come on to: my hon. and learned Friend, with all his usual sharpness of mind, has anticipated what I was going to say about deployment being an organisational issue too, it being about the allocation of resource, and gauging such things as manpower and skills. Those are, in the terms he described, pretty important to the existing arrangements. One would hesitate to drive a coach and horses through that. I am not sure that that is intended, but there are risks associated with excessive radicalism as there are always risks associated with radicalism—I am just as Tory as my hon. and learned Friend.
The Solicitor General actually made a powerful case in favour of the amendments with his intervention, and I am reflecting on that. This is about choosing from a pool of judges who have all the necessary characteristics and competencies and deciding which of them will oversee the Secretary of State. That is a very powerful argument for saying that it should not be the Prime Minister for that deployment. I suppose what I am saying is this: what, over and above the other qualities that they have already proven, is needed in this case? There is the expertise; there is the knowledge of the area. Those are all matters that the Judicial Appointments Commission or the Lord Chief Justice would have strong views on, and probably better views than the Prime Minister, because they are closer to the judges on a day-to-day basis. What is special about this? It is a decision about which of these high-quality judges, with all the competencies, will oversee the Secretary of State. That is why the decision should not be with the Prime Minister.
I understand the point. The hon. and learned Gentleman will know that the Lord Chief Justice cannot appoint, because of creating what I described as patronage, but the Solicitor General’s point is that it is important that he can be involved, looking at deployment, for the reasons that we have both given.
In truth—I think it is fair to say this—the exact details of the appointment process, which the hon. and learned Gentleman seeks to explore further, are still under consideration. It is very important that all stakeholders are involved in designing an appropriate process. I am not sure that we would want to detail that in a Bill, as the hon. and learned Gentleman will understand, because this is a matter of judicial operational decisions as much as anything else.
I think we are getting to the place—perhaps in a slightly meandering way, but it is fairly late in our consideration of the Bill and a little opportunity to meander is always welcome, or perhaps not, as I can tell from your stern glance, Mr Owen—where we all agree that a balance needs to be struck between Executive involvement and judicial involvement. I think we are now getting to a place, notwithstanding that the amendments do not actually say this in the way they are grouped, where we agree that the Prime Minister needs to be involved to cement or secure that relationship between the Executive and the judiciary, and we are coming to a synthesis about the respective roles of some of the players.
At this juncture, having meandered, I can tell that you want me to draw my remarks to a swift conclusion, Mr Owen.
Will my right hon. Friend the Minister give way?
I have a residual concern, having been through a process, albeit not a judicial one, that was extremely lengthy and costly—appointment as a silk. I am aware of colleagues who are sometimes put off the judicial process for those two reasons, and I am slightly concerned, not necessarily about the appointer but about the process. Will members of the judiciary be willing to put themselves through a lengthy and costly process when they are already in that position?
My hon. and learned Friend makes a very good point and, at an earlier stage of consideration of the Bill, that issue was raised. Will there be enough of these people? Will they want to do the job? This is an important new responsibility. It can hardly be argued, as some outside this place and perhaps even some in this place have tried to do, that the Home Secretary cannot cope with the numbers of warrants, and then simultaneously say that these people will rush forward to consider these matters in the heat of the moment and the dead of night. My hon. and learned Friend is right to say that there is an issue about people being willing to play this part in the double lock, and I would not want in any way to be complacent about that. It is important that the system is sufficiently streamlined, but rigorous, to ensure that people can practically do what we ask of them—she is right to make that point.
The difference between us now seems to be probably a slightly more refined version of what the amendments suggest. The difference now boils down to when and how the Prime Minister is involved, and on what basis he is involved in respect to the advice that he is given. We have already amended the Bill to make it clear that the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland will be consulted, as the hon. and learned Member for Edinburgh South West said. Therefore, there has been some movement in the direction of those who felt that the measure needed to be more balanced; but, the hon. and learned Lady and, I think, the hon. and learned Member for Holborn and St Pancras are now saying that we need to recalibrate it one more time. We will not accept the amendments at this juncture, but I hope that both the content and the tone of what I have said will have suggested to all concerned that we are not unresponsive to these matters of detail and no doubt there will be further opportunity to discuss them.
I think this has been an occasion on which there has been a willingness on both sides to adapt, or look again at, their positions. Having listened to the debate, I think there is a powerful argument for saying that the Judicial Appointments Commission and its full process should not apply. One reason is that a judge has been through it and there is no need to retest their competencies. These are going to be very senior members of the judiciary and, almost certainly, from the smaller group within that who have experience handling the sort of material they need to handle to carry out the function of the judicial commissioner. That is going to be a small group of judges, and probably those who have sat on the Special Immigration Appeals Commission and dealt with other similar types of procedures. This is a question about which of those judges, who have all those competencies and experience, should oversee some of the functions of the Secretary of State. It is troubling, from an appearance point of view if nothing else, if the Prime Minister acts by consulting only the Lord Chief Justice.
In a moment I will, but I shall just finish my point. I know the Lord Chief Justice and I can imagine how that consultation would go. He would make a very powerful case and would not easily be dissuaded from his candidate.
I was going to press the amendment, but I am now not going to because of our discussion. On reflection, I wonder whether a possible approach would be for the Prime Minister to make an appointment only following a recommendation by those listed under subsection (3)(a) to (e). That would mean that the Lord Chief Justice would recommend the judge that they consider to have the skills and experience to do the particular job. The Lord Chief Justice would know about that and, with respect, the Prime Minister would not know about it in the same detail. The Prime Minister would, therefore, not be able to make an appointment that had not been recommended by the Lord Chief Justice and step outside that, but on the other hand, the Prime Minister would not be forced to make an appointment. That is because it is a recommendation, not a requirement, and so in a particularly contentious case the Prime Minister may say no.
There is an issue of appearance. These judges will have made decisions at the highest level, both for and against the Government. I can see how there would then be the temptation for some to look at the track record of a particular judge and say, “I can see why it is them.” Doing things in this way—I readily accept that this suggestion is not one of the amendments—would mean that the Lord Chief Justice had a more powerful role. In the end, it would be a recommendation role and there would be no appointment without a recommendation from the Lord Chief Justice, but they would not mandate the decision maker, which would remain the Prime Minister.
I simply put that idea forward. It is not one of the amendments. I will not press the amendments because at this stage further consideration probably needs to be given to exactly how the process will operate, if it is to be changed at all. I will now give way and I am sorry for not having done so sooner.
The difference between us is becoming even narrower. It seems that we are speaking about what the hon. and learned Gentleman has described as appearance. In saying that, I do not want to minimise the importance of this issue, but he will know that Lord Judge, when challenged on the issue of compromising independence, was clear. He said:
“There is no danger whatever.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 74, Q236.]
The reality is that independence would not be compromised, but I understand the hon. and learned Gentleman’s point on how these things look, and I will consider that in the spirit he suggested it.
I am grateful to the Minister. In the circumstances, I will not press the amendments. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 194 ordered to stand part of the Bill.
Clause 195
Terms and conditions of appointment
I can add little to the contribution of my hon. Friend, who has articulated these things better than I could. Nevertheless, I should emphasise two points. The hon. and learned Member for Edinburgh South West is right to say that the clause provides for IPC oversight of technical capability notices in subsection (1), and it lists the main oversight functions that should be undertaken. I accept that she is making quite a refined case, but my argument is that the clause already provides the oversight she seeks, because the notices are
“of statutory functions relating to”
the activities. That is a wide-ranging role for the commissioner, with absolutely proper capacity to probe, through oversight of public authorities, the necessary powers and an expansive remit to consider all such matters.
Amendment 747 would give the commissioner the function of keeping under review, including by way of audit, inspection and investigation, the exercise of the functions by Ministers. I am still less persuaded of that. It is a less refined and pretty basic argument about the relative functions of the Executive and the commissioner. I do not want to lecture the Committee on the importance of the separation of powers—we have already had an interesting discussion about that—but it is absolutely right that the process of scrutiny and review should be carried out by the legislature, as my hon. Friend the Member for Fareham implied. By the way, that includes the Scottish Parliament, which will of course have a role, alongside the Welsh and Northern Irish Assemblies. I consider that role to be of the utmost importance, and I would not want in any way to limit or inhibit the capacity for reflection and review with such an amendment.
As well as all that, we doubt that the amendment would provide for appropriate allocation of the skill and resources of the commissioner, whose key function is to provide oversight of the powers as defined in the Bill. I can see what the hon. and learned Lady is getting at—as I say, her amendments are at least in part an attempt to refine what is before us—but I do not feel that I am any more persuaded of their virtue than is my hon. Friend. On that basis, I invite her to withdraw the amendment.
To clarify, we are currently dealing just with amendments 752 and 747; I have not yet made my submissions on the other amendments. I am not prepared to withdraw the amendments and would like to press them to a Division.
Question put, That the amendment be made.
Disraeli said that a precedent embalms a principle, and the amendment is certainly not unprecedented, since we are once again considering the issue of economic wellbeing, as we have done with some frequency. Familiarity is almost always desirable, but I am not sure that the same can be said of repetition, which can often lead to tedium, so I will not repeat the argument about that. Let me therefore deal with the other amendments.
Amendment 748 has a probably unintended consequence. At the moment, judicial commissioners must—I use that word advisedly—not act in a way that they consider prejudicial to the public interest. The amendment, perversely, reduces that, so that they should have “due regard” to the public interest. It is a weakening of the public interest. I am not sure that that was the intention, but it is certainly the consequence of the amendment, which can be dismissed accordingly.
That leaves me with the point that the hon. and learned Lady made about privacy and the integrity of personal data. Proust said—he was speaking of prejudices, but this could be applied here—that at their “moment of novelty…fashion” lends things a “fragile grace.” On first acquaintance the amendment has such grace, but on closer examination the fragility becomes evident, because this is not by any means the best place in the Bill to advance that defence of privacy. A better argument, championed by the hon. and learned Member for Holborn and St Pancras, but supported by the hon. and learned Lady, would be to consider privacy at the early part of the Bill, which might then have ramifications for the whole of the rest of the Bill if an appropriate clause were constructed.
I have argued that privacy runs through the Bill and that it is an intrinsic part of the connection—the harmonious union that we seek to create in this legislation—between defence of personal interest and the capabilities of those missioned to keep us safe. The hon. and learned Gentleman put the case, right at the outset, that there was an argument for something more fundamental, which explained that relationship more explicitly through some clause. I put it to the hon. and learned Lady that that would be a much better place.
I am grateful to the Minister for giving way. I remind the Committee that the way I saw it was that there should be some overarching clause that would apply throughout the Bill, and thus to this clause and all others.
I can reassure the Minister that the SNP and the Labour party are jointly working at present to produce an amendment later today with an overarching privacy clause for the Bill, which would be a new clause to be debated next week. However, I have to say that, given the Government’s attitude to date in relation to most of the amendments that we have tabled, I have no confidence that that new clause will be accepted, so I intend to push press this amendment to a Division.
I am a little hurt, frankly. I regard the caricature that the hon. and learned Lady has painted of my approach to all of these considerations as—I would not say insulting—hurtful. Far from the stony-faced zealot that I think she seeks to portray me as, I am the very model of this listening Government.
The Minister demonstrates a listening Government in action by giving way to me and I am extremely grateful to him for doing so. With regard to clause 196(6), which would be removed by the amendment, Sir Stanley Burnton, the expert witness, said:
“We wonder what the function of clause 196(6) is. It is either telling a judge the obvious or it is a big stick to wave at the judge, to say, ‘You have to approve this because if you don’t, you’ll be jeopardising the success of an intelligence operation.’”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 74.]
Would the Minister care to comment on that point?
Now the Committee is getting exciting; it often happens, as one gets deep into consideration. I must say that the hon. Gentleman—unsurprisingly, given his reputation, but in a most welcome way—has illustrated a diligence in the consideration of the detail of this measure, which does him great credit.
However, having been nice about the hon. Gentleman, now let me be less nice. The hon. and learned Lady wants to weaken public interest; he wants to take out a whole chunk of the Bill—
The hon. Gentleman wants to take out a part of the Bill that says that, in the exercise of their function, the judicial commissioner should not
“compromise the safety or security of those involved”.
Well, of course they should not “compromise the safety” of security personnel. The hon. Gentleman may say that that is self-evident, but, my goodness, if we took out everything that was self-evident we would have a Bill half as long as it is. The self-evident is sometimes an important part of guaranteeing all those things that we might, with good will, take for granted. That is the very nature of legislation, as the Solicitor General knows very well indeed.
I take on board what the hon. Member for Hove said, but we are talking about the oversight function. I reassure him that it is not about the exercise of the judicial discretion in approving warrants. It is about the oversight part, and I hope that reassures him.
I may have been judging the hon. Member for Hove harshly. If the Solicitor General is right that that is the misapprehension, I understand why the hon. Gentleman is making the case he is making. It is essential that we clearly set out the expectations for the exercise of the oversight function, as the Bill does.
Returning to the issue of common sense and what is self-evident, I say to the hon. Gentleman for at least the third time, and possibly the fourth, that there is always debate about how much is on the face of a Bill and how much is reserved either for the common sense of those who do what the Bill asks of them or for the supporting documentation, guidance and so on. We have had that debate a number of times. It is often important that what might appear as “self-evident” or common sense is placed on the face of the Bill, as the hon. and learned Member for Holborn and St Pancras has repeatedly asked me to do.
I simply remind the Committee that what my hon. Friend the Member for Hove said was, “This is what Sir Stanley said, would you care to comment on it?” In fairness, there is no criticism of the Minister in any of this. My hon. Friend is simply saying, “This is the witness’s evidence. What do you make of it?”
The hon. Member for Hove quoted exactly what the witness said. The Solicitor General is trying to say that the witness was mistaken, because the clause pertains only to oversight functions and not judicial functions, but does that not illustrate the very difficulty of having the judicial and oversight functions mixed up together? Subsection (5) states:
“In exercising functions under this Act”.
It does not say, “In exercising oversight functions”.
I wish to insist on the amendments.
Question put, That the amendment be made.
(8 years, 4 months ago)
Public Bill CommitteesThe clause deals with additional directed oversight functions. It binds the Investigatory Powers Commissioner to conducting reviews of the work of the intelligence services or the armed forces, subject to the direction of the Prime Minister. While the commissioner may request that the Prime Minister gives such a direction, the Prime Minister will only issue a direction at his or her discretion. The amendments to subsection (1) would make it read as follows: “So far as requested to do so by the Prime Minister and subject to subsection (2), the Investigatory Powers Commissioner may keep under review the carrying out of any aspects of the functions of” the intelligence services and so on.
The amendments to subsection (4) would make it read: “The Prime Minister must publish any direction under this section except so far as it appears to the Prime Minister that such publication would be seriously prejudicial to national security, or the prevention or detection of serious crime”.
The amendments would remove the power to direct that such reviews take place, and replace it with the power to request that the Investigatory Powers Commissioner undertake such a review. At present, the Bill provides that any direction made may be published only in such a form as is deemed appropriate by the Prime Minister, and may be redacted for a number of very broad reasons, including that it may be prejudicial to
“the continued discharge of the functions of any public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner.”
That could include, for example, the Food Standards Agency.
The amendments to subsection (4) would limit the power to keep any request or direction secret. That would increase the effectiveness of the mechanisms for transparency and accountability in public decision making, including in respect of the conduct of the intelligence agencies and the armed forces. The provision in the Bill for the Prime Minister to direct the commissioner to undertake work that is outside the ordinary scope of its statutory duties would undermine the perception that the commissioner is independent, whereas a power to request, with discretion, keeps the perception—and reality—of the independence of the commissioner. The alternative would be to remove the clause from the Bill completely. I hope that the amendments will be acceptable to the Government, and that there will be no need to vote the clause down.
As the hon. and learned Lady says, the clause makes provision for the Prime Minister to direct the Investigatory Powers Commissioner to undertake additional oversight of the security and intelligence agencies. I say “additional” with emphasis, because clause 196 creates a range of oversight functions that are supplemented by clause 197. I think there may be a misapprehension here that the oversight is exclusively at the diktat of the Prime Minister. That is certainly not the case.
The principal oversight functions are given legislative life in clause 196. Clause 197 provides a further opportunity for oversight through investigations, as a result of the direction that the hon. and learned Lady referred to. That has many virtues. It adds alacrity, because of course it would not always be appropriate to wait for the annual report of the commissioner. It means that where matters of imminent concern are drawn to the attention of the Executive through the Prime Minister, or indeed to the attention of the Prime Minister, he can exercise this function with speed and diligence. To take out the whole clause, which would be the effect of the amendment, would take out the additional directed oversight functions that supplement clause 196 in a beneficial way.
Of course, the Prime Minister’s ability to make such directions is subject to the public interest and defined by need. It is important to add that anything the Prime Minister does in this regard cannot be prejudicial to national security, the prevention or detection of serious crime or the economic wellbeing of the UK. Indeed, the opposite is true. He acts in defence and promotion of those things. Once again, I understand that the hon. and learned Lady is probing, and it is right that she does so. However, on careful reflection, she will come to the conclusion that rather than adding to the Bill, this literal subtraction would be unhelpful.
The Joint Committee said nothing about this matter. Although it looked at these things with impressive diligence, it came across no evidence of which I am aware that suggested that such a measure was imperative. The amendment certainly would not enhance oversight. Part of my job here is to protect the hon. and learned Lady. The amendments we debated immediately before our brief lunch would have had the effect of minimising consideration of public interest. In this case, she would be minimising the ability to exercise additional oversight. On that basis, and in defence of the existing provisions, of what is right, and—might I say mildly—of the hon. and learned Lady’s own interests, I invite her to withdraw her amendment.
Well, Mr Owen, I am not going to fall into that trap, just as I did not before lunchtime. I am not sure whether it is flattery or compliment, but whichever it is, I will not fall for it. There is good reason for the amendment, as I have explained, and I wish to press it to a vote.
Question put, That the amendment be made.
Let us think for a moment about reality. I have never regarded myself as a prisoner of reality, for to imagine is to be human, is it not? But every Member of this House is from time to time approached by members of the public and others whose imagination has got the better of them. Among the skills that one develops as a Member of Parliament is the ability to discern the occasions on which that could either become a matter of embarrassment or absorb undue resource.
These amendments, which would create an obligation to send notification to anyone who had a complaint, however realistic or imaginary it might be, would surely not be a helpful addition to the sense of the Bill. I am sure that this is not the hon. and leaned Gentleman’s intention, but if he thinks through the ramifications of shifting the threshold as the amendments would, and requiring individuals to be notified as a matter of course of any error, no matter how small, he will see that the burden placed on those who are determined to deal with significant errors would be significant, undesirable and, in my view, unacceptable.
I think the Minister is making two points. One is on the imagined wrongs of members of the public, and the other is on the burden created if notification is required for all errors. The second point is, of course, a powerful submission. On the first, the imagination of the affected person does not make a material difference. This pertains to errors found by the commissioner, so surely only the second point—that it is an undue burden—is relevant.
Yes indeed. I have not sought to patronise the hon. and leaned Gentleman during the Committee’s proceedings, but there is quite a difference between 19 years’ experience as an MP and rather fewer. If he thinks through what an error of transposition, the mistyping of a digit in a telephone number or a typographical error might lead to in misassumptions on the part of those with vivid imaginations, I think he will understand the point I am trying to make. Notification of those kinds of petty errors, as the amendment would require, is not only unnecessary but would lead to undesirable consequences.
The Minister really does have to give up the habit of suggesting that the way we probe and push the Government on, say, the threshold between serious and ordinary errors has to do with inexperience. Many of us have huge practical experience of the operation of the sorts of powers in the Bill. I dare say I have looked in greater detail at the provisions of the Acts that preceded this Bill than many people on this Committee. I do not say that in self-congratulation; it has been a burden. I have looked at these kinds of provisions in detail over very many years. Part of the purpose of this exercise is to push. The Minister makes a good point on the difference between the thresholds, but if we sit on our hands and never push, this process does not work. That has nothing to do with experience.
The hon. and learned Gentleman is being excessively sensitive. I was not commenting on his experience, expertise or diligence on these matters generally. I was drawing attention to the fact that those of us who have served as Members of Parliament and have dealt with the consequences of the misinterpretation that can unfortunately arise from the most minor of matters—we have all been there in our surgeries, and I think we all know what I mean—have learned that very well intentioned provisions can lead to misassumptions and even fuel vexatious complaint. I am not questioning the hon. and learned Gentleman’s right to probe—indeed, I welcome it, and he has exercised it with diligence and courtesy—but the amendment could have the unintended consequence of fuelling the kind of misassumptions and consequent vexatious complaints that we have to deal with by the nature of our job, and be quite discerning about, too.
I am sure that I do not need to remind the Minister that both my hon. and learned Friend the Member for Holborn and St Pancras and the hon. and learned Member for Edinburgh South West are skilled, high-level criminal prosecution advocates, so they will be well aware of the ability to find fault with legislation. We should be grateful that they will not be the defence barristers finding fault with the legislation.
I agree, and that is precisely why, when members of the Opposition probe, it is important that my hon. and learned Friend the Solicitor General and I explain where that probing leads. The interface between members of this Committee is designed for that exact purpose. It allows us to test the Government’s arguments, to examine the Bill with care and to identify where it can be strengthened, and as part of that to find out where the Opposition, having probed, will ultimately be satisfied that the Government got it right the first time round. I have been on both sides of this process over many years; I have been in the shoes of the hon. and learned Member for Holborn and St Pancras, so I know exactly what that is all about.
In this case, drawing on my experience as a Member of Parliament, I can imagine where the amendment might lead. I do not think it is the intention, but it could well be the result. Furthermore, although certainly not intended, it is possible that the obligation under the amendment to notify a person of minor errors that did not cause significant harm to any individual would not only be burdensome—the hon. and learned Gentleman acknowledged that fact, which has to be taken into consideration—but might discourage the agencies and others from going about their work in the way that they do. If they felt that even the most minor accidental error would be notified to the individual concerned, it could inhibit or change the way that they went about their work.
I can reassure the Minister. If he looks at subsection (9), he will see that “relevant error” in subsection (1) is defined as
“an error…by a public authority in complying with any requirements which are imposed on it by virtue of this Act or any other enactment and which are subject to review by a Judicial Commissioner, and…of a description identified for this purpose in a code of practice under Schedule 7, and the Investigatory Powers Commissioner must keep under review the definition of ‘relevant error’.”
Is he reassured that it is not just any old minor or accidental error, but a relevant error within the description of his own draftsman?
The hon. and learned Lady must recognise that the amendments would reduce the discretion that is already in the Bill. To that end, she is right that there is provision in the Bill for the information to enter the public domain via the report that the commissioner is bound to make on both the number of relevant errors and their seriousness, but the discretion that the Bill provides, which I am defending with some confidence, is important in excluding those purely technical, accidental, petty errors whose notification to those who choose not only to tilt at windmills but to invent the windmills they tilt at would be highly undesirable.
Throughout our line-by-line consideration, the Minister has been very keen on referring us to the terms of the codes of practice. Perhaps the definition of “relevant error” in the codes of practice could be addressed to remove the need to include any “minor” or “accidental” error, depending on what one means by accidental. I suggest that the Minister’s concerns may be ill-placed when we have the definition of a relevant error and should perhaps be looking at that.
I did not expect such a full debate on this matter, but it seems we are going to have one, Mr Owen. Imagine that a minor or technical error was notified to the individual concerned during the course of an active investigation. That has the potential to compromise the way the investigation proceeds. Relevant errors can be minor—I accept the hon. and learned Lady’s point—but the real issue is that the commissioner will have the expertise and independence to assess the relevance of the facts and decide what is in the public interest. If we are to have an oversight arrangement that affords the commissioner that kind of authority, to oblige publication as the amendment proposes would add little and might do much worse, which would be undesirable.
The intention behind amendment 776 is unclear to me. Removing subsection (8)(b) would mean that, contrary to what I just said, the commissioner would not be obliged to publish the number of relevant errors. I think that subsection is important, because we want to know the number. We are all interested in the reporting regime’s transparency and we are having a very informed debate about this part of the Bill. I am sure that that was not the intention, but it might be the effect.
I confess that one reason why I decided not to press amendments 772 and 777 was that when I looked at this group of amendments late last night, I realised that some of them would not have the effect that I intended. This is not a criticism, but for the record and as the Minister knows, the resources and back-up we get our respective positions on the Committee differ markedly. The Opposition work at pace with the resources we have, and occasionally on returning to amendments I have realised that they should not have been proposed.
I can tell that I struck a raw nerve with the hon. and learned Gentleman earlier and I want to try to rebuild the bridge that leads us back to the warm relationship we enjoy. Notwithstanding all that I have said, the clause could be perfected and I would like to look at it in the round to see what more we can do. Both the hon. and learned Lady and hon. and learned Gentleman heard my reservations about the amendments as drafted—indeed, he generously acknowledged that there are some imperfections in the amendments, which is often the way when drawing them up as a shadow Minister, as I know only too well—but they are designed to probe and they have done that successfully.
Notwithstanding my certainty on the point I made about detail, we can look at the clause in the round and make improvements. On that basis—the Bill has a long way to go—I hope that the hon. and learned Gentleman will withdraw his amendment.
I am grateful to the Minister for the content and spirit of his remarks. I was intending to press at least one amendment in the group, but in the circumstances I will not do so. We can all reflect on the wording of the clause, so I beg to ask to leave to withdraw the amendment.
Amendment, by leave, withdrawn.
It is welcome that the Government have accepted and implemented recommendation 67 of the Joint Committee on the draft Bill, which was for the annual report to include information on the use and oversight of investigatory powers. However, it is disappointing that there is no provision to require the number of errors to be included in the annual report. A moment ago, in resisting an amendment to a previous clause, the Minister said that the errors could be included in the report; perhaps that should be a requirement under the clause—just the number of errors, of course, not the details. Similarly, there is no requirement for the number of requested authorisations to be reported. That information is vital in gauging the proportion of requests that are granted; without it, the stringency of the double lock cannot realistically be assessed.
The amendments would require that the report be made directly to Parliament and would tighten up clause 201(7), which is very similar to the clause we were looking at a moment ago. Like previous amendments, amendment 804 would leave out the words
“contrary to the public interest or”
and would tighten the test by replacing “prejudicial” with “seriously prejudicial”. Amendment 805 is consistent with previous amendments in that it would remove our old friend “economic wellbeing” from the clause. Amendment 807 speaks for itself.
The annual reporting provisions are a step in the right direction; we acknowledge that the Government have taken action as a result of the Joint Committee’s recommendations. We have tabled these amendments to suggest that more could be included in the report, that the reporting should be directly to Parliament and that exclusion from publication should be subject to a stricter test than the one currently set out in clause 201.
Let me address a couple of factual issues. Clause 198(8)(a) refers to
“the number of relevant errors of which the Investigatory Powers Commissioner has become aware during the year to which the report relates”.
The number of errors must be published by dint of that requirement. That is what I was referring to.
It is reinforced, for the sake of accuracy, by clause 201(2)(a), which has further details on
“the number of warrants or authorisations issued, given, considered or approved during the year”.
I entirely agree that it is important that scale is dealt with in the way the hon. and learned Gentleman requests.
I am quite sympathetic to the amendment. This is one of those discussions in Committee that boils down to—I have used the phrase “boils down to” once, so for the sake of Hansard, I will change it, because I do not like to repeat myself. This discussion can be reduced to—boiling has the effect of reducing, as all those who are cooks will know—a debate about what it is in the codes and what is in the Bill. As the hon. and learned Gentleman rightly says, the Joint Committee looked at this. I have its recommendation before me. He is right to say that the Committee wanted more information about the records kept in this regard.
In essence, as the hon. and learned Gentleman generously suggested, the Government have responded by publishing the draft codes of practice, which address these matters. The amendment would put these matters in the Bill. My argument for rejecting the amendment is that it is adequate for them to be in the codes. We are back to the debate of what we put in the Bill and what we put in supplementary material.
I am not unsympathetic to the amendment. I have no doubt that the hon. and learned Gentleman will want to continue this discussion. I am not sure I want to vote in favour of the amendment today, but in the spirit that I have tried to adopt throughout the consideration of this part of the Bill, I reassure him that the Government remain open-minded to how we get this right.
This is new territory, but not in the sense that there has not previously been oversight. Rather, the reforms to oversight made by the Bill are of some significance. We are in the business, as a Committee and as a Parliament, of considering exactly how to construct that oversight in an effective way. On that basis, I am prepared to listen to argument. I will not accept the amendment, but I am open to further consideration. I hope, given the tone and content of what I said, that the hon. and learned Gentleman will see fit to withdraw his amendment.
Again, I am grateful to the Minister for his observations. I record my appreciation that on occasions when we have pressed matters, both the Minister for Security and the Solicitor General have indicated a willingness to look again at clauses or provisions with a view to changing or perfecting them. That is a useful part of the process. I gauge that my chances of success in improving the clause are greater through that process than by pressing the amendment to a vote.
Therefore, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The provision deals with funding, staff and facilities. The Solicitor General has mentioned funding already. We agree with the Joint Committee on the Bill that it is wrong for the budget and resources available to the judicial commissioners to be set solely by the Secretary of State when the primary function of the commissioner is reviewing decisions taken by them. The Solicitor General mentioned other arrangements by which budgets are set for independent oversight bodies, but these particular commissioners oversee the Secretary of State’s decisions. That is the whole point of the double lock, and that compromises the situation. The Government’s response to this recommendation indicated that they might be willing to consider a role for the Investigatory Powers Commissioner in helping to set the budget. Will the Solicitor General update us on whether that response is now complete and rejected, or whether it is still a consideration that the Government are dealing with? The Opposition’s amendment is straightforward and would improve matters by putting them entirely in the hands of the Treasury, in consultation with the commissioner.
New clause 17 is the freestanding clause that says the Treasury
“shall make available such remuneration or allowances as necessary to meet the requirements of section 197.”.
It is an in-principle position because of the particular function of the judicial commissioners, which is unlike those of the other oversight bodies. The Government have indicated a willingness to look at a different arrangement involving the Investigatory Powers Commissioner. We think that would be the right way forward, and new clause 17 would provide for that to happen through the involvement of the Treasury.
Given the commitment I made earlier to consider closely the construction of these arrangements and, in particular, to the detailed consideration about the role of the new body and its independence, I fully understand why the hon. and learned Gentlemen has raised this issue. I hesitate to cite my experience again. Last time I did that, I fed the caricature that I have been desperately trying to persuade the hon. and learned Member for Edinburgh South West is just that—a parody—through all my kindness, generosity and sensitivity to her concerns. Notwithstanding that hesitation, I have to say that from all my experience as a Minister, the last people you want to involve in these things is the Treasury.
In my role as Director of Public Prosecutions, I had to engage with the Treasury. I, therefore, do have that experience, so I join the Minister in that sentiment.
I knew we would soon get on to common ground again. It took only a few minutes for the ship to go back on to an even keel. I worry that exposing the IPC to direct negotiation with the Treasury, when I suspect that the Home Office would have a closer relationship and understanding of the IPC and of the Treasury, would serve no good purpose. I can see why in theory it would reinforce independence, and I think that is what the hon. and learned Gentleman was getting at; that it is important that the IPC is not seen as merely the creature of the Home Office, and that funding reflects that independence.
I can see where the genesis of the argument springs from but, in practical terms, it would be much more straightforward for the Home Office to assist the IPC by taking the lead in the negotiations. Treasury involvement will ultimately be necessary in order to get sufficient funding for the IPC. Certainly, in terms of the assessment of resources and so on, the intimacy of the relationship between the Home Secretary, her officials and the IPC will be critical to ensuring that the budget is properly constructed and adequate for the job.
For that reason, and in the interests of brevity, I ask the hon. and learned Gentleman to withdraw his amendment.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment 837, in clause 204, page 159, line 4, at end insert—
‘(3) The staff of the Judicial Commissioners must include independent technical experts.
This amendment would ensure that judicial commissioners have access to technical experts.
The amendment speaks for itself. It is proposed to ensure that technical expertise is available to the judicial commissioners.
Here we can find common ground, in that we entirely agree that it is right that the IPC and the judicial commissioners have access to the right technical expertise. That is essential, certainly on an ongoing basis and, one might argue, particularly at the outset. This is going to be a new process and, while these will be very experienced judges, they will be dealing with matters that they have not had to deal with previously. However, I am not sure that the amendment is necessary to achieve that.
The hon. and learned Gentleman will know that clause 204 provides that the Secretary of State must consult the IPC about staffing, accommodation, equipment and other facilities that are necessary. Of course, that will mean a proper consideration of technical expertise, and I am happy to confirm that now. That process would provide the commissioner with the chance to make it clear if they believe there is a requirement for particular staff and how they want those staff to be employed. It may be that at different points in the work, different levels of technical expertise are necessary. Some of that might require full-time employment of technical experts. On other occasions, I suspect that they would want to consult technical experts on an ad hoc basis. That flexibility would not only add to the official use of resource but add to the effective completion of their functions.
To give one further assurance, I want to be very clear that, should such representations be made to the Secretary of State—we talked in the debate on the previous amendment about the Home Office being the point of contact with our paymasters, the Treasury—it is inconceivable that the Secretary of State would consider that the commissioner did not need the resources requested. While it would not be appropriate to create a statutory obligation in the Bill to provide detail of what staff should, or should not, be employed—because it is important that the commissioner makes that judgment on a discretionary basis—I can give an assurance that the commissioner will be equipped as they need to be.
The matter might also be one that changes over time. What the IPC considers necessary at a given point in time might reflect its caseload or even case history—it might feel that extra expertise needs to be taken on, depending how things change. We have all said that all such matters that we are considering are highly dynamic, so I want to allow that extra discretion, not least for that reason.
On that basis, I hope that the hon. and learned Gentleman will withdraw his amendments, because I think we are again on the same page.
I have listened carefully to what the Minister has said, and it is now on the record, so on that basis I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 204 ordered to stand part of the Bill.
Clause 205
Power to modify functions
Question proposed, That the clause stand part of the Bill.
The amendments are self-explanatory. They require any code of practice, or any proposed revision to a code, to be accompanied by a report by the Investigatory Powers Commissioner. The report would be on the merits of the proposed revision and be required before any revision was laid before Parliament. The report would allow the commissioner to draw to the attention of Parliament any relevant information about the scope of the code or its potential impact, which to my mind is a sensible and reasonable amendment.
Here we are again debating the creative tension between obligation and discretion—how much we oblige bodies to do in the Bill, and how much discretion we afford to those we empower through the Bill. The hon. and learned Lady does the Committee a service in drawing attention to how far we go in that respect. My view is plainly that discretion matters; I am sure she agrees. I emphasise yet again that the published codes of practice are draft codes. We would hope that our work in the coming days and weeks will allow those codes to reflect much of what we have said during our consideration of the Bill.
I am not implying that changes cannot be made to the Bill, but I would hope that they would be considered in concert with changes to the codes. If the Bill becomes an Act, we will soon bring the codes of practice into force, but before doing so, the Secretary of State is required to undertake a consultation process. The Bill specifies that the Secretary of State must consult the Investigatory Powers Commissioner as part of that. The amendment would require the commissioner’s response to consultation on any draft codes of practice, and any views on the content of those codes, to be published alongside the statutory instrument that seeks to bring the codes into force. I recognise the intent; I assume the aim is to increase transparency.
The Minister will have looked at written evidence and have received briefings from various organisations, as all Committee members have, and so will be aware that many bodies have grave concerns about the fact that so much relevant information will be in codes of practice. This minor amendment seeks to address that concern. When the codes of practice are crystallised, proposed revisions will be accompanied by a report from the Investigatory Powers Commissioner that will inform parliamentarians about the utility, and the pros and cons, of proposed revisions. That is the only purpose behind the amendment.
I said that I understood the intent, and I meant it. I do understand that the hon. and learned Lady’s intent is both to inform and to provide transparency, but there is another tension at the heart of our discussion about this part of the Bill, and perhaps more generally: the tension between the independence of the commissioner, and what we oblige him to do. It is not just about obligation and discretion; it is about independence and proper parliamentary engagement, involvement, scrutiny and the power of the Executive.
I suppose the point I am making is that the commissioner may well want to publish information in the way the hon. and learned Lady describes, and there is nothing in the Bill that prevents him from so doing. Indeed, the commissioner may take the view that he wants to publish all kinds of things with both surprising and interesting regularity, but that is very much a matter for the commissioner. Indeed, as the hon. and learned Lady knows, some existing oversight commissioners take that approach; they publish without a statutory requirement to take such action.
If the commissioner is, as we wish him or her to be, an independent assessor of those things, the more discretion we give them over such decisions the better, because that allows them to exercise their judgment and, by so doing, affirm their independence.
I hear what the Minister says, but the commissioner will have many demands on his or her time and, as we know, may have a limited budget. The amendment would require the commissioner to furnish parliamentarians with the benefit of his or her expertise and experience when changes are proposed. Does the Minister not accept that such a requirement would be a good thing?
I accept that this is a matter for debate, and the way I have approached it reflects that, I hope. These tensions, as I have described them, although creative, are the subject of different opinions. As we have navigated our way through this part of the Bill, it has been clear in our discourse that we are all in the business of trying to perfect the legislation, in the words of the hon. and learned Member for Holborn and St Pancras. I do not think there is an open-and-shut case on very much of this, actually, and you will not often hear a Minister say that, Mr Owen. I hope that we can get to a place where we all feel that the Bill is better for the scrutiny.
(8 years, 4 months ago)
Public Bill CommitteesIt is a pleasure to continue to serve under your chairmanship, Ms Dorries. I, too, welcome the right hon. Member for Chelmsford and thank him for helping the Committee with its work.
We turn to clause 138, which deals with the second of the bulk warrants that we are discussing, the bulk acquisition warrants. I will start where I started with the last bulk power by observing the breathtakingly broad nature of this one. The communications data that can be subject to a bulk warrant are the what, where and how of a communication without disclosure of the content, as well as a person’s location, the type of equipment used and the duration of its use. The data can therefore paint a detailed picture of somebody’s life, so accessing it is a significant interference with privacy.
Clause 138 involves the bulk acquisition power that was first avowed in November last year, only about six months ago, making it one of the more recent avowals. At the time, David Anderson told the BBC that
“the law was so broad and the information was so slight that nobody knew it was happening”,
adding that it was
“so vague that anything could be done under it”.
David Anderson and others are concerned about the breadth of the power. For that reason among others, I repeat the call for more work on the operational case. I will not go over the points I made last Thursday in your absence, Ms Dorries, but where a newly avowed power is as broad as this one, the need for an operational case is heightened.
The power is not limited to those overseas, which is a material difference from the bulk power that we considered at the tail end of last week. If there is to be such a bulk power, the safeguards are extremely important, but here we run straight into the same problem as we did with the last bulk power: although clause 138 includes a necessity and proportionality test, it bites on very broad objectives. In clause 138(1)(a), we see that the Secretary of State can issue a bulk warrant if she
“considers that the warrant is necessary—
(i) in the interests of national security, or”,
under subsection (2),
“(a) for the purpose of preventing or detecting serious crime, or
(b) in the interests of the economic well-being of the United Kingdom”.
The same very broad powers apply to the issuing of a very wide bulk warrant.
Last time we considered bulk powers, I was able to go to the code of practice, which gave more detail about the necessity and proportionality test. In this case, paragraph 4.5 of the code of practice does not add much to what is on the face of the Bill. The Government might want to consider whether necessity and proportionality are dealt with consistently in the codes for each of the bulk powers. There is more detail in paragraphs 9.3 and 9.7, the latter of which is telling:
“More than one operational purpose may be specified on a single bulk warrant; this may, where the necessity and proportionality test is satisfied, include all operational purposes currently in use. In the case of bulk acquisition, BCD relevant to a number of operational purposes may be acquired on a single warrant. In the majority of cases, it will therefore be necessary for bulk acquisition warrants to specify the full list of operational purposes.”
This is another case where, in truth, few warrants will cover many operational purposes, yet the constraints of clause 138 are simply by reference to the interests of national security, to preventing or detecting serious crime and to the interests of economic wellbeing so far as they touch on the interests of national security.
I repeat and reassert the points made on the previous bulk warrant measure. Lifting some of the more detailed analysis of the safeguard and test from the code into the Bill is required to make clause 138 meaningful. That is made good in clause 141, which states:
“In specifying any operational purposes, it is not sufficient simply to use the descriptions contained in section 138(1)(a) or (2), but the purposes may still be general purposes.”
The other point made about this warrant is that it applies not only to the retention or obtaining of data but to the examination of those data. I repeat the point I made last week about the Tom Watson and David Davis case, which is currently being heard. The question in that case is whether there are specific safeguards for access when data are retained, and the proposition accepted by the divisional court is that the safeguard should be for serious crime and that there should be a degree of judicial oversight. The Court of Appeal will now form its own view on that, but the Bill’s safeguard for examination is without any teeth, because the test for examination is the test of necessity, as set out in clause 138, coupled with the test of clause 141, which says that simply citing the national interest, preventing crime, et cetera, is not enough, but that general purposes may be sufficient.
Clause 151—I am skipping beyond clause 138, but one has to see these three things together—is shorter than clauses in other parts of the Bill that address bulk powers, and it simply sets out:
“For the purposes of section 150 the requirements of this section are met in relation to the communications…obtained under a warrant if any selection…is carried out…for the specified purposes…and the selection…is necessary and proportionate in all the circumstances.”
Those purposes relate back to clause 141, which says that, although someone seeking a warrant cannot get away with simply citing national security and serious crime, they do not have to go much further. On analysis, the test for examining for selection data that have been obtained under this wide bulk power is, in fact, a necessity and proportionality test that is no different from the test applied to the holding of the data in the first place. In other words, there is no differentiation between the test for holding, retaining or acquiring the data and the test for examining it at some later stage. I made that point last week, and it arises again in relation to this very wide bulk power.
The only other thing I will say at this preliminary stage is that I think I am right in saying that, in relation to this bulk warrant, there are no specific provisions for legal professional privilege, for the correspondence of MPs or for journalistic material. That has cropped up in our previous discussions and I think the Solicitor General is giving further consideration to whether, in some circumstances, the fact that there is a communication with a lawyer, even though the content is not there, may need at least some reconsideration in terms of how it is dealt with in the Bill.
Therefore, I will not go into long submissions on legal professional privilege, but it is essentially the same point, namely the assumption that if it is not pure content no privilege attaches and no concerns arise may be misplaced. I have asked the Solicitor General and the Security Minister, to take this point under the umbrella of consideration when he looks again at legal professional privilege.
Against that background, the amendments really speak for themselves. They are tightening amendments intended to sharpen the test in clause 138, which, as I say, at the moment is breathtakingly wide.
I again welcome you to the Chair, Ms Dorries.
I will start by saying that it is vital that the whole Committee understands two points—I think it does, but I will amplify them for the sake of the record. The first is that access to communications data is vital to securing our safety. Communications data play a critical role in almost all the major investigations in respect of terrorism and a very large part in the work of the law enforcement, security and intelligence services. That much is a given.
The second point is that the powers in the clause are not new; they are routinely used for the purposes that I have described. When you were last in the Chair, Ms Dorries, the shadow Minister said:
“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.”––[Official Report, Investigatory Powers Public Bill Committee, 12 April 2016; c. 92.]
He is right: it is important that, for the first time, these powers are brought together in a single piece of legislation, making them more understandable, more transparent and more comprehensible.
As the hon. and learned Gentleman also said, it is vital that there are appropriate safeguards in place. Consideration of the clause and the amendments this morning enables us to explore the adequacy of the safeguards and, as we have discussed in previous debates, whether what is already in the Bill is sufficient. In that context, he is right to draw attention to the code of practice. Paragraphs 9.7 and 9.8 describe the particular circumstances that might apply in respect of a bulk acquisition. The code of practice emphasises that a test of necessity and proportionality must be applied to all these matters, but also makes it clear that the operational purposes of the warrant are salient, too.
Ms Dorries, we had a debate in your absence about whether the operational case should be explored in more detail at the outset. Like the hon. and learned Gentleman, I will not reprise that debate, but for your benefit I will say that, in essence, the case he made was that there should be some independent means by which we test the validity of that operational case. The hon. and learned Member for Edinburgh South West, who speaks for the Scottish National party, made essentially the same case. My hon. and learned Friend the Solicitor General and I, having listened to what they said last week, reflected upon it and discussed it, can see that there is some merit in that argument. I will not say more than that today, but I thought their case was reasonable and we might want to look at it.
Of course these matters are sensitive, because as soon as we start to explore operational matters related to the security and intelligence services, we get into that area of what we can and cannot put in the public domain. That is a challenging tightrope—I suppose all tightropes are challenging by definition, but to walk the one between protecting the public interest and protecting the capacity and effectiveness of our security services is particularly challenging. Nevertheless, the case that the hon. and learned Gentleman made about the need for greater scrutiny is interesting.
When it comes to the work we are considering today, it will be beneficial for the Committee to look again at the operational case for bulk powers, which sets out how bulk data are used. Not only does paragraph 5.1 clearly make the case that
“The power to acquire and analyse bulk data is crucial to the security and intelligence agencies’ effectiveness”,
but it also says that those powers are used alongside others, and where others are more appropriate, bulk is not used as a default position—an important point to make, because I think there is a misassumption that that may not be the case. It also says that the capabilities are used to deal with
“high-priority and…emerging threats from individuals not previously known to the security and intelligence agencies”
and that they are vital to disrupting threats of that kind. Fundamentally, it says that they are
“often the only means to acquire intelligence about overseas and online threats to the UK.”
The code of practice then sets out the essential character of those powers, which I will sum up by saying that often in dealing with those threats and deciding how best to counter them, the intelligence and security agencies will have mere fragments of information; they will need to search widely to piece together from those fragments sufficient information to clarify the nature of the threat and to put into place the measures to deal with it; and the collection of data in that respect is fundamental to the work of GCHQ in particular. The idea that that is done without specificity, in a capricious way, is completely at odds with the mission of those organisations, with the safeguards in place here and with common sense. It is not in the interests of anyone to collect data beyond the purpose that I have described, to piece together information, to facilitate better investigation of threats to our national security.
I am grateful to the Minister for laying out the background and the way in which the warrants will operate. He makes a powerful case for putting some of that detail in the Bill, because if that is the actual operation, nothing could impede its effectiveness if something more specific is put in the Bill—obviously not the specifics of every operation, but something better than the very general test in the Bill. That would not cut across the operation of the warrants and would be consistent with their use as the Minister describes it.
That is the essence of the case the hon. and learned Gentleman makes in his amendments, but before I come to that I want to take this opportunity to set out some of the broader arguments. I am sure that members of the Committee do not need to be disabused of this, because they are extremely well informed and have read the Bill with a scrupulous diligence that is quite impressive, but the wider public may have a misconception about the nature of the powers and what they are there for. I have already dealt with the misconception that these powers are new; they certainly are not, but let me put that into even sharper focus.
In 2010, a group of terrorists were plotting attacks on the UK, including on the London stock exchange. The use of bulk communications data played a key role in the MI5 investigation, allowing investigators to uncover the terrorists’ network and to understand their plans. That led to the disruption of their activities and successful convictions against all the group’s members. This is not an academic debate; it is not a common room discussion among civilised people who take due care of these matters. This is about the day-to-day threats we face and how we counter them. These powers have been and are used to disrupt threats precisely as I have described.
In a sense, we are on common ground here. Clause 141 adds to clause 138 and, as the Minister says, indicates that what is set out in clause 138(1)(a) and (2) is not sufficient, but if what comes after the comma—
“but the purposes may still be general purposes”—
is the case, there is no indication of the specific matters that must be listed. More is given in the code, and one has to remember that it is against that operational case that the judicial commissioner then conducts his or her analysis of necessity and proportionality. That is why it is so important. The question is really whether some of what is in the code of practice should not be lifted into the provisions of clause 141.
Let me draw my remarks to a conclusion so that we can move on with appropriate alacrity, having set out the broad argument. There are two points. The first is whether more of what is in the code should be put in the Bill and whether that would be helpful. The judgment to be made is whether the Bill is sufficient as it stands. Is the amendment unnecessary because of the requirement that a warrant be issued lawfully and the proper constraint that that places on those who make that decision? Secondly, going back to the hon. and learned Gentleman’s case about the operational case, given that there will be a stringent internal process to ensure that any warrant presented to the Secretary of State is compliant with the statutory requirements, could we say more about the operational purposes?
A combination of those two things would entirely satisfy the hon. and learned Gentleman. The Government are sensitive to all those considerations. Of course we understand the need to balance capability against safeguards, and as I said at the outset, I am mindful of the strength of the argument used when we last met about how we could be clearer about legitimising the operational case. I will leave it at that and invite him to withdraw his amendment.
I am grateful to the Minister for the way that he has set out his case and his indication of the Government’s approach. The question of safeguards is extremely important: it is vital for the Committee and the House to get it right. Rather than press these amendments, I will wait to see what response, if any, the Government make to the general case that I have made on a number of occasions about the balance between the code and the Bill and reserve my position for later stages of the Bill. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
I beg to move amendment 614, in clause 138, page 110, line 8, leave out subsection (4).
This amendment leaves out provision that is not relevant in the context of bulk acquisition warrants.
This is a technical amendment and I do not intend to make a great fuss of it unless anyone wants to ask me for more detail.
Amendment 614 agreed to.
Question proposed, That the clause, as amended, stand part of the Bill.
I wonder whether I might address the Scottish National party’s “leave out” amendments at this stage, Ms Dorries. On Friday, because the SNP had tabled “leave out” amendments to the whole of chapter 1 of part 6, I made some general comments about the overarching clause at the beginning of that chapter. With your forbearance and if it is acceptable to you, as clause 138 is the overarching clause at the beginning of chapter 2, I propose to do the same now.
The hon. and learned Lady, speaking for the SNP, made some important points and I want to pick up on one of them—a nagging concern on which clarification would be helpful. The bulk warrant process under this chapter and others presupposes two stages; first the acquisition of the data and then the examination of the data. I have already made my submission that, broadly speaking, the second stage ought to have a higher threshold than the first stage, for obvious reasons.
It is important to understand that there are actually four steps in a classic case. The first is obtaining data. The second is the first stage of the filtering or triage to deselect or not select all the data that are not needed. Jonathan Evans made a very powerful case on that stage, describing how clearing away all the data that the security and intelligence services do not need to consider, so that they can focus on what they do need to consider, is a major part of the task. The third stage is selecting the data they need to consider. The fourth stage is the examination of that selected material.
It is worrying that there is no reference at all in the Bill or in the code—I will be corrected, if I am wrong about the code, but I have looked—to the middle stage of filtering. We saw earlier that for comms data, when others had obtained them pursuant to a Secretary of State’s retention order, there were specific provisions for filtering. Here, for bulk powers, there are none—there is no mention of filtering in the Bill. Is it intended that the examination provisions serve two purposes—first, the filter purpose and secondly, the more specific access purpose? If so, what is to be specified in the warrant when it comes to operational purposes for examination? Is it the operational case for filter or the operational case for access? I suspect they would be different things. The operational case for filter would be, in the main, to move out of the way data that do not need to be looked at, and I am persuaded of the need for that. That would be one operational case, quite broad in nature; but the operational case for access would necessarily need to be more specific.
I am genuinely concerned that those steps are not apparent in the Bill. If they are implied, it would helpful to have on the record how the Minister sees that the provision covers the various steps. Without making the argument again, this point reinforces my argument that the test for examination of data ought to be higher than the test for acquisition or for filter. This is a very specific issue, but it is nagging because it is not in the Bill, whereas earlier on, there were clear provisions dealing with filter and how the filtering arrangements would work.
We have covered a lot of ground and rightly so, because this is an important part of the Bill and an important clause.
The hon. and learned Member for Holborn and St Pancras is right to say that there are several parts to the process. Paragraph 9.8 of the draft code of practice says:
“As well as being necessary for one of the operational purposes, any selection for examination of BCD must be necessary and proportionate.”
Paragraph 9.9 goes on to talk about the selection of those data, saying:
“In general, automated systems must, where technically possible, be used to effect the selection of BCD in accordance with section 151 of the Act.”
It talks about the filtering system and who should be authorised to be engaged in it, as well as the selection of data being categorised
“under the specified operational purposes”
and that the methodology used should remain
“up to date and effective.”
It then says that that process should be in accordance with the relevant provision of the legislation—clause 138, which is the point we are at in our considerations.
It may be that the code of practice could say something more about the stages the hon. and learned Gentleman described and set out the process slightly more chronologically, as he did, where that chronology is helpful to explanation. I understand that argument, but what is absolutely clear is that the whole of the process must be lawful and reinforced by both the fundamental test of necessity and the clarity provided by the operational purposes. I think that is the assurance that he seeks. I do not want to put words in his mouth, but I suspect that he was alluding to the possibility that the middle process—as he put it—might be less rigorous in respect of its relationship to the operational purpose. Perhaps that is not what he meant—but if it is, I can assure him that that is not the case.
I am grateful for that explanation. I read into the Minister’s observations and the code that triaging or filtering is part of the examination process—it must be, by definition—and is therefore subject to the further requirements of examination. It is helpful to have how it works on the record, but it would be helpful to have that set out in the code, so that it is clear. The remaining concern is that there is a danger that for filtering purposes what is said about the operational case may be fairly general, but for access it may not be. There are two aspects to examination and there is a danger that the warrant either says too little or too much, depending on which purpose one is dealing with. I suspect that that will happen in most cases, because this is going to be a common process.
That is an extremely well made point, because the case made for the warrant has to be sufficient to persuade the Secretary of State that it is right to issue it. The case made out for the warrant has to be sufficiently specific to colour the rest of what occurs, to help to define the process the hon. and learned Gentleman describes. However, to return to the argument I made in the earlier debate, by its very nature the collection of bulk material is about taking fragments of information that one then pieces together through this process. The hon. and learned Gentleman is right that a balance has to be struck between that specificity and the very virtue that comes from broader examination of data. Where we might be able to reach common ground, as he put it, is on the character of the explanation in the draft code of practice. Perhaps we can set down what I have just said and what the hon. and learned Gentleman has requested in a slightly different way, which would help the first examination of the information. I hope that is of assistance.
The hon. and learned Member for Edinburgh South West has again added to our considerations with the thoroughness of her analysis, for which I am grateful. She quoted Burns, to which I shall return later.
Access to bulk communications will be limited to security and intelligence agencies; it must be for an operational purpose specified in the warrant and be necessary and proportionate. As the hon. and learned Gentleman said, it must be for one or more considerations of national security, serious crime or economic wellbeing where it is linked to national security. On that we agree, but the clause makes it crystal clear that the operational purposes must relate to one or more of the grounds for which the warrant is considered necessary. For example, if a bulk acquisition warrant is issued in the interests of national security and for the purposes of preventing or detecting serious crime, every specified operational purpose on that warrant must be necessary for one or both of those two broader purposes. Operational purposes must also include more detail than the statutory grounds, to ensure that the Secretary of State is provided with a granular understanding of the purposes for which the selection examination may take place. If the Secretary of State does not consider every operational purpose to be necessary, the warrant may not be issued. Therefore this is not a permissive process—far from it. It is designed to determine all that happens after the issuing of a warrant.
I read last night very carefully what the Chair of the ISC, the right hon. and learned Member for Beaconsfield (Mr Grieve), said on Second Reading. He had three concerns, which were,
“the authorisation procedures for the examination of communications data… the agencies’ use of equipment interference”
and,
“the process for authorising the obtaining of bulk personal datasets”. —[Official Report, 15 March 2016; Vol. 607, c. 837-8.]
Does the Minister agree with me that a careful reading of the hon. and learned Gentleman’s remarks leads to the conclusion that he had outstanding concerns about the bulk powers?
In your absence, Ms Dorries, I have said that part of my mission was to take the hon. and learned Lady from the fog of doubt to the light of understanding, and earlier she herself described a chink of light. I am happy to consider what more we might do on the operational case. I do not want to go too far on that, because I have to look closely at walking the tightrope between what we can and cannot say publicly about the work of our intelligence and security services. Nonetheless, a powerful case was made on that subject and it is a matter of continuing interest to us.
The hon. and learned Lady quoted at length the evidence from America, but she will know that, in fact, the evidence from America is extremely mixed. A series of pieces of work has been done on these matters. In July 2014, the US Privacy and Civil Liberties Oversight Board said on bulk data collection that:
“Overall, the Board has found that the information the program collects has been valuable and effective in protecting the nation’s security and producing useful foreign intelligence…The program has proven valuable in the Government’s efforts to combat terrorism as well as in other areas of foreign intelligence…the program has led the Government to identify previously unknown individuals who are involved in international terrorism, and it has played a key role in discovering and disrupting specific terrorist plots”.
That builds on earlier work done in the United States to examine the powers. In 2012, the Senate looked at these matters and came to similar conclusions. It is not fair to say that international experience is at odds with what we are doing and with what we are cementing in the Bill. I know that the hon. and learned Lady, being scrupulously fair and reasonable, would want to put a balanced position on the American experience.
I am grateful to the Minister for giving way so that I can put a balanced position. The Privacy and Civil Liberties Oversight Board’s report of January 2014 talks at page 11 specifically about the bulk telephone records programme, saying that:
“Based on the information provided to the Board, including classified briefings and documentation, we have not identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack”.
That is what the board concluded about the bulk telephone records programme in the United States of America, which is closest to what we are discussing at present in chapter 2.
Ms Dorries, I am sure that you will not permit me to stray too far into a detailed consideration of how the United States has viewed these matters, but I simply say to the hon. and learned Lady that the Senate Committee that I mentioned in 2012 described the,
“ability to collect information and act quickly against important foreign intelligence targets”,
as significant. The US National Academy of Sciences report, “Bulk Collection of Signals Intelligence: Technical Options”, said that:
“For investigations that have little or no prior targeting history, bulk collection may be the only source of useful information”.
I could go on and on, but to do so would tire the Committee and no doubt put me on the wrong side of the Chair, so I will not.
To conclude, we have had a long but important debate about this issue. The use of the powers under the Bill is subject to oversight by independent judges, the Interception of Communications Commissioner and the Intelligence and Security Committee, and none of them has raised concerns about the lawfulness of the powers. The hon. and learned Member for Holborn and St Pancras rightly said that, for the first time, we are considering these matters in a single piece of legislation and enjoying this debate. It is right that we should do so and that we should put safeguards into place, but it is just as right that we should maintain the capabilities necessary to deal with threats to our national security. I say without equivocation or hesitation that the powers are critical to that purpose and must continue to be used in our national interest.
Question put, That the clause, as amended, stand part of the Bill.
(8 years, 4 months ago)
Public Bill CommitteesI, too, welcome you back to the chair, Mr Owen. This bulk power is, like the others, very wide. Equipment interference includes what is commonly known as hacking, which can be done remotely or by attaching monitoring devices to computers or communications equipment. As has been mentioned, equipment is defined very broadly, covering anything that produces electromagnetic or other emissions. The power is therefore very wide.
It is unsurprising that the ISC was initially sceptical and that David Anderson has raised a number of concerns. I will not repeat the points made by the hon. and learned Member for Edinburgh South West, who spoke for the SNP, but I want to draw attention to the relationship between this bulk power and thematic warrants, which was one of the concerns raised by David Anderson.
If one looks at the structure of clause 154(1), skipping for the moment subsections (2) and (3), and lays it alongside clause 88, the similarities in the description of the warrant are apparent. Part 5 deals with equipment interference and targeted warrants; chapter 3 of part 6 deals with bulk equipment interference warrants. Clauses 154 and 88 are very similar in structure and scope—the difference is that clause 90 qualifies clause 88. The difference we are discussing is that we have, in essence, the same power for equipment interference, but we do not have the qualification of the subject matter that is clause 90. We have already discussed clause 90 at some length and, for a targeted power, it is itself extremely wide.
On the specific point made by the hon. and learned Gentleman in relation to the connection between clauses 90 and 88, in contrast with the matters we are now discussing, the whole point about clause 90 is that it deals with the particularity associated with warrants that are by their nature targeted, whether individually or thematically as a group some of which are known to the intelligence services. Bulk matters are by their nature less particular, so could not be subject to the same qualification.
I am not making the argument that those warrants should be subject to the same qualification. I am drawing attention to the fact that clause 90 is what, in essence, turns clause 88 into a targeted or thematic warrant, rather than a bulk warrant. The qualification is left out in connection with clause 154, which deals with a bulk power. I am not suggesting that one borrows clause 90 into this chapter, because otherwise we would simply be rewriting the same provision.
The point I am making is that the concern about clause 90 in relation to themed warrants was that it was a very wide provision in its own right. I think David Anderson went as far as to say that it was hard to see what could not, in truth, be caught within a thematic warrant under clause 90. We have a very wide power there, drawing attention to the breadth of the power under clause 154, which is everything over and above what is already a thematic warrant power under clause 90. That indicates why an operational case is so important in relation to the bulk power. One has a very wide bulk power that is distinguished from what is already a very wide thematic power. That reinforces the need for an independent evaluation of an operational purpose that makes the case for this even wider power.
As far as the safeguards are concerned, clause 156 is, in familiar terms, referencing necessity and proportionality, but to the wide national security grounds falling under subsection (2)—the familiar phrasing. It is the same scheme for these warrants. Then, skipping forward to clause 161, there are the same limits on operational cases, so one has a very wide necessity and proportionality test for the warrant in the first place, then a reference back, in essence, to the same test when getting to the requirements that must be met by warrants. I have made this case this morning and, I think, last Thursday, so I will not repeat it further.
I want to draw attention to the breadth of the power and to underscore why a better and evaluated operational case is needed when one is going on beyond what is already a very wide thematic warrant.
We had a lengthy debate on these matters this morning, but it is worth repeating. It was Proust who said:
“A powerful idea communicates some of its strength to him who challenges it.”
On that basis, I am hoping to communicate still more of the strength of my argument as a result of amplifying it, but with appropriate brevity, I hope. Let us be clear: bulk powers matter. They matter for the reasons I set out earlier, and that case is made—convincingly, in my judgment—in “Operational Case for Bulk Powers”, which was published by the Government in response to the criticisms of those who considered these matters early on and felt there was a need for greater explanation of the case for them.
Bulk equipment interference is particularly addressed on page 6 of that document. It says:
“This involves the acquisition of communications and equipment data directly from computer equipment overseas. Historically, this data may have been available during its transmission through bulk interception”.
This is the key point:
“The growing use of encryption has made this more difficult and, in some cases, equipment interference may be the only option for obtaining crucial intelligence. As with bulk interception this is an overseas collection capability.”
We are here talking about a power that is used at present, and is of growing significance to our agencies in combating the threat that they face.
The Investigatory Powers Tribunal, has made clear that
“the requirement for a balance to be drawn between the urgent need of the Intelligence Agencies to safeguard the public and the protection of an individual’s privacy and/or freedom of expression”
matters. It also stated:
“We are satisfied that with the new E I Code, and whatever the outcome of Parliamentary consideration of the IP Bill, a proper balance is being struck in regard to the matters we have been asked to consider.”
The evidence that we have before us suggests, and I use that judgment as an example, that those who oversee these matters gauge what is already happening, and what is proposed, to be appropriate. Having said that, it is important that we test those arguments closely in this Committee—that is part of the Committee’s purpose, after all.
The hon. and learned Gentleman and the hon. and learned Lady drew attention to David Anderson’s remarks. David Anderson asked why equipment interference warrants were required, given the possible breadth of targeted thematic warrants of the kind that have been discussed. I say this: clear and important distinctions between bulk equipment interference and targeted thematic operations are set out in paragraph 4.38 of the draft equipment interference of the code of practice.
Members will be able to study that code in detail, but for their convenience, bulk equipment interference includes the additional safeguards of the bulk regime and is an important capability in its own right. Both bulk equipment interference and targeted thematic equipment interference operations can take place at scale if the relevant criteria are met. However, targeted equipment interference warrants are limited by the need to assess proportionality at the outset. A bulk equipment interference warrant is likely to be required in circumstances where the Secretary of State is not able to assess the extent of every interference to a sufficient degree at the time of issuing the warrant. The additional access controls at the examination stage are required to ensure the necessity and proportionality of any interferences that cannot be assessed fully at the outset.
It seems to me that that is the essence of this argument. Both have their place, and both are subject to checks and balances, and to safeguards and protections. In terms of the effect of those safeguards, I think we can all conclude, based on the evidence before us and what we know is already happening and is proposed in the Bill, not only that what is happening now is proportionate and reasonable, but that the Bill goes even further in adding to those safeguards.
In essence, my argument is pentadactyl—it has five fingers. First, this power is necessary; secondly, it is already in existence; thirdly, those who oversee these things have gauged it to be necessary and proportionate; fourthly, the Government have responded to early scrutiny by tightening safeguards through the codes of practice and explaining them more fully; and fifthly, the Bill goes still further than all the existing good practice. That seems to me to be a persuasive argument.
My purpose is not to explain why it is not. That is not always the purpose of these interventions. We are probing the adequacy of the safeguards, which is the proper role of the Committee.
I had marked up that paragraph in the operational case, because, as the Minister has said, it makes the case that, at the outset, certain assessments of necessity and proportionality cannot be made. It says in terms:
“The additional access controls at the examination stage are required to ensure the necessity and proportionality of any interference that cannot be assessed fully at the outset.”
I know that I have said this before, but I really want to make it clear. At the outset, the test of necessity and proportionality is against the operational case and the operational case is specified in the terms in clause 161(5), which takes a familiar form: the operational case cannot be so general that it is merely national security, but it can be general. We have been around that circle, but that is the test at the outset and I have made my comments about that.
The problem is that the test is the same when it comes to examination. Under clause 170, which deals with the safeguards in relation to examination, selection is defined as proportional and necessary so far as it is in accordance with the test in clause 161. This point is central to what is said in the operational case. If the test were different at each stage, I would accept that the argument was logically right, but the test is in fact the same. I see that as a deficiency and I am probing for clarity.
I acknowledge that it is certainly true that much rests on the operational case. In all our sermocinations, it has been clear to me that the hon. and learned Gentleman has identified that as crucial in advancing his argument that we need to provide still more transparency. He has done so in a reasonable way, because he acknowledges that there is a line to be drawn between the explanation of that case and revealing what cannot reasonably be said publicly because it would compromise the work of the agencies. I acknowledge that.
Of course, what the hon. and learned Gentleman did not say, although he knows it—perhaps he felt that there was no need to say it—is that the warrant must be deemed to be necessary for one of the core reasons: national security, serious crime or, where it is linked to national security, economic wellbeing. Access to the data must be deemed to be necessary on the grounds of the operational purposes. There is a test at each stage of the process and, in my judgment, that test is robust, but I again acknowledge that there may be a virtue in being clearer about the operational case. I was making a point about existing power—that power is currently available through the Intelligence Services Act 1994. Therefore, it is not new, but the safeguards are. Drawing those together in a single place, and therefore allowing the more straightforward exploration of both their purpose and their effect, is certainly new.
Above and beyond that, the oversight that is given additional strength in the later part of the Bill is there to ensure that all that is done meets the test that we have set, in terms of protecting private interests and so on. I acknowledge the argument about the operational case being a powerful one, but I think the structure of what we have put together stands scrutiny.
There is another argument that has not been used much in the Committee. In a sense, I hesitate to explore it now because in doing so I may be opening a hornets’ nest, but I am not a timid Minister, so why would I not want to face the stings that I might unleash? It is necessary to make the language future-proof, as far as one reasonably can. One of the criticisms of what we are doing—bringing the powers together in a single Bill, creating safeguards of the type we are building, trying to be as comprehensive as we can in this legislation—is that, because of the rapidly changing character of technology and the resultant effect that that has on both the threat and our ability to counter it, this legislation may be relatively short-lived.
If we look, albeit with the benefit of hindsight, at what has happened previously, we see that the legislation that the Bill replaces has, for the most part, been iterative—it has been a response to that dynamism. The language in the Bill is designed to be as carefully constructed as possible to allow the Bill to stand the test of time. Central to that is the advent of the double-lock mechanism, which should ensure that the powers are not misused by a future Government. That relates to something the hon. and learned Member for Edinburgh South West said in a previous sitting of the Committee. I think she argued that I cannot bind the future, and I said, with some reluctance, that that was true.
Jo Cavan from IOCCO—the Interception of Communications Commissioner’s Office—told us on 24 March that the double lock and warrantry applies to only 2% of authorisations under the Bill. Does the Minister agree that he should be very cautious praying in aid the double lock as a safeguard when it applies only to such a small percentage of authorisations?
Yes, but the hon. and learned Lady knows well that the double lock applies to some of the most contentious parts of the process and, at the end of the day, is the involvement of the judiciary in a process that has been exercised at the sole discretion of the Executive up until now. The significance of that marriage between Executive authority and judicial involvement is considerable. All but the most mean-spirited of critics would want to warmly acknowledge that, and I see the warmth emanating from the hon. and learned Lady as she rises.
I am not going to be mean-spirited. I acknowledge that the Government have made a significant step in the right direction by introducing judges into the warrantry process. I have my reservations about the degree of the introduction—I would like to see full-blown judicial warrantry—but my point is about how far that double-lock process can be seen as a safeguard when it applies to only 2% of the authorisations under the Bill. My point is not that it is not a safeguard but that it applies to only 2% of authorisations.
The double lock applies to all the most intrusive powers. We can have a debate about whether—I do not want to put words into the hon. and learned Lady’s mouth—she wanted to rob the Executive, rob the people’s representatives, of all their authority. She may have felt that it was unnecessary for those accountable to the people—the personification, as I hope I am, of the people’s will—to have any involvement in these matters, but I do not take that view. I believe in representative government and I think we have got absolutely right the marriage between Parliament and the judiciary—but we stray, I sense, from the precise detail of this part of the Bill.
My judgment is that we have reached the place that we need to get to in order to get the marriage between safeguard and effectiveness right, with the caveat that I have already introduced on the operational case, and in the knowledge that a bulk equipment interference warrant can be used to authorise the selection and examination of material obtained by the warrant and does not require a separate examination warrant and permits the disclosure of material acquired in the manner described in the warrant. I think that this is an important additional power and on that basis I hope that the Committee will agree to this part of the Bill.
Question put, That the clause stand part of the Bill.
These amendments are intended to tighten up clause 156. I will not take up a great deal of time on them. These amendments go to the intervention that I was making which was too lengthy to do justice to the point, but it was such an important point that I want to go through it one more time. If I am right about it, I hope that others will listen and take this away. If I am wrong about it, I will not repeat the argument. The proposition about which I am concerned is as follows. If one looks at subsection 156(1) then, as set out in the “Operational Case for Bulk Powers”, the test that the Secretary of State is applying at the outset will be applied in some,
“circumstances where the Secretary of State or Judicial Commissioner is not able to assess the necessity and proportionality to a sufficient degree at the time of issuing the warrant.”
So that is the test. To issue a bulk equipment interference warrant, the Secretary of State must be satisfied that it is to “obtain overseas-related communications”, as set out in clause 156(1)(a); that it is necessary on the broad grounds—of which the Minister just reminded me—of national security, preventing crime and promoting economic wellbeing, as set out in paragraph (b); and, as paragraph (c) sets out, that it is proportionate. Clause 156(1)(d) continues the stages that the Secretary of State must carry out, and requires that the Secretary of State considers that,
“(i) each of the specified operational purposes (see section 161) is a purpose for which the examination of material obtained under the warrant is or may be necessary, and
(ii) the examination of such material for each such purpose is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary”.
So at the outset the Secretary of State is considering necessity against the broad canvas of national security. She is also considering the operational purposes and asking herself whether such a warrant is necessary against those operational purposes, and going on to the examination of whether it is necessary on any of the grounds on which the Secretary of State considers the warrants to be necessary. The Secretary of State is taking into account the operational purposes and applying a necessity test to this. That is the test applied at the outset, and that is the test that the operational case understandably says may be difficult to apply in certain circumstances. I do not quarrel with that, and I understand why that might be the case.
Going on to clause 161, what are the operational purposes which the Secretary of State is to take into account and test necessity against? There the operational purposes are requirements of the warrant, and they go beyond the provisions in clause 156(1)(b) or (2) and may be general. So the Secretary of State has in mind a very broad national security issue, and then the operational purposes, and asks herself whether it comes under both of those heads. The second head can be a general one. We have quarrelled about that—or argued about it or made points about it—but those points remain as good or as bad as they were the last time they were made. The point I am seeking to make is that the “Operational Case” suggests—and this may indeed be the case in practice—that at the examination stage some higher or different test is applied, and that that adds a safeguard. Again, if there is something in that then I hope that somebody will take this away and think about it, and if there is not then I will not repeat it. My concern is that clause 170(1), on the safeguards relating to examination of materials, states:
“For the purposes of section 168, the requirements of this section are met in relation to the material obtained under a warrant if—”
which is followed by a number of requirements, including:
“(b) the selection of any of the material for examination is necessary and proportionate in all the circumstances”.
Clause 170(2) states:
“The selection of material obtained under the warrant is carried out only for the specified purposes if the material is selected for examination only so far as is necessary for the operational purposes specified in the warrant in accordance with section 161”.
So the test for selection for examination is curtailed by the provision in sub-paragraph (ii) that it is only so far as is necessary for the operational purposes specified in the warrant, as set out in clause 161. I accept that “specified” means the warrant at the time of selection of material, as set out underneath. For the record, I therefore acknowledge the possibility that the operational case may be differently described at the time of the second test. However, on the face of it, the same test is being applied at the examination stage as was applied by the Secretary of State. That is the cause of my concern and the reason why, in my argument, some further thought must be given to strengthening the threshold when it comes to the access provision. Because the only way that the operational case can be different at the point of selection of material from the point at which the Secretary of State is involved, is if it has been modified, which means it has not gone through the same procedure as the warrant in the first place. That is the real cause of concern. I have labelled it that but I do not think that on the intervention I made it as clear as I should have done.
If there is a material difference in the test, that ought to be spelled out in the Bill and it is not. The amendments are intended to tighten up the specifics in clause 156. I will not press them to a vote but I have read this into the record because it is a matter of concern. There is either an answer, which means I am wrong about this and should stop repeating my submission, or it is something that others need to take away and have a serious look at in terms of the test.
I am not sure that we need to rehearse the general arguments in respect of bulk again—they have been well covered in earlier considerations—except to say this. It is critically important that the agencies maintain the ability to use these powers for economic wellbeing, where, according to the Bill, these are tied to national security. That was a point that was made by my hon. and learned Friend the Member for South East Cambridgeshire at a very early stage on Second Reading.
On that basis alone, one would want to resist the proposed amendment. However, the hon. and learned Gentleman has made some more tailored arguments that deserve an answer. Let us just deal with the tests. There are two tests. There is the test contained in clause 158, where the Secretary of State and the commissioner must be satisfied that it is necessary for data required under the warrant to be examined for specific and specified operational purposes.
In clause 170, the analyst examining the data must be satisfied that the examination of a particular piece of data is necessary for a particular operational purpose. So there are two tests that are designed to be appropriate at different points in the process. That is why the list is written as it is. Does that satisfy the hon and learned Gentleman?
I hear what the Minister says and I will be brief. The only reference to operational purposes in clause 170 is to the operational purposes on the warrant. Therefore, they will be the same operational purposes as were before the Secretary of State, unless the warrant has been modified. Maybe I should just have said that in the first place and made it a lot shorter, but that is the nub of the problem as I see it.
Yes, the point of that further analysis is that the analyst must be confident that the particular work relates to those specified operational purposes. The reason that that further work is done down the line, as it were, is to ensure that there is no digression from the stated operational purposes, and that in that sense this is an important further safeguard.
Let me give an example to illustrate. The Secretary of State may consider that it is necessary for the data required under the warrant to be examined for two or three purposes. The analyst needs to say which particular purposes relate to a particular search. Therefore this is a refinement of the work of the analyst to ensure that it is true to the intention of the Secretary of State in authorising the process. This is an illustration of Committees of this House at their best: we are digging deep down, in very fine-grained detail. With those assurances, I hope that the hon. and learned Gentleman will be convinced by what we are trying to achieve.
These minor drafting amendments are self-explanatory.
Amendment 624 agreed to.
Amendment made: 625, in clause 170, page 132, line 14, after “warrant”, insert “for examination”—(Mr John Hayes.)
This amendment makes a minor drafting correction.
Question put, That the clause, as amended, stand part of the Bill.
I am grateful for that intervention. I am concerned about that issue; that is why we need to give particular care and attention to the operation of these bulk powers in relation to sensitive personal data—and mental health data are among the most sensitive. In a sense, the second set of modifications that we will come to later is aimed at putting in the Bill what is in fact current practice. Therefore it would not inhibit what the security and intelligence services are doing, but would make it clear to citizens that a safeguard is in place and reduce their anxiety about the extent of the use of these bulk powers.
I will say more about that when I get to the amendments, but they are issues that go to the breadth of the bulk personal datasets that we are now dealing with.
On the issue of medical records and the very sensitive data associated with them, and mindful of the remarks of the hon. and learned Lady and the hon. and learned Gentleman, we will be dealing with that issue when we discuss amendment 715. I do not want to spend too much time on it now, except to say that I, too, am aware of the obvious and profound issues associated with intrusion in that area. We will discuss them at greater length when we discuss the amendment, but I hear what is said. It is important that we study those matters with appropriate care, given that they are of such profound sensitivity.
Moving to the thrust of the argument and the content of the debate, the thrust of the argument is in two parts. First, why do we have this power and how is it used? Secondly, what are the safeguards—the measures in the Bill and those that already exist—that constrain the exercise of those powers, in the ways we all want, in the interests of good practice, privacy and so on? Let us deal with those in turn.
To deal with the first, it might be appropriate to start with the ISC, because it has been cited. It said in its privacy and security report that the powers in part 7 of the Bill are an
“increasingly important investigative tool for the Agencies”.
It is important to point out that this part of the Bill does not provide any powers to the security and intelligence agencies. Bulk personal datasets may be acquired through investigatory powers such as interception and they may be shared by Government Departments or industry. The only purpose of part 7 is to ensure that where agencies hold bulk personal datasets, the data are subject to robust privacy safeguards as information acquired under the bulk powers in the Bill. That is an important new step and an important safeguard.
It is probably fair to say that, in that sense, this is not a power at all but a process. The powers are about the safeguards. The Bill introduces important new requirements in that sense, but it would be more accurate to describe bulk personal datasets as a matter of process and a matter of practice rather than as a power.
The reason that that information is stored in such a way is pretty clear. It can help to identify individuals who threaten our national security or may be of other intelligence interest and, significantly, to eliminate suspicion of the innocent without using more intrusive techniques. As with so many of the bulk issues that we have debated, that is often about the use of techniques that are, by their nature, subject to stringent safeguards and that obviate the need to use more intrusive methods to reach the same destination. Of course, that can establish links between subjects of interest to better understand a subject of interest’s behaviour and, in the course of an investigation, we can verify facts that lead us to identify those who seek to do us harm.
It is simply the case that the security and intelligence agencies would not be able to keep pace with the scale of events that are occurring in an increasingly interconnected world if we did not have access to those datasets. It would take longer to exploit lead intelligence and increase the risk of something being missed or misunderstood. It would lead to intelligence failures and, in the worst cases, to the loss of life.
It is unquestionably the case that curbing the use of bulk personal datasets would hinder the agencies, but I would go further. I think it is fair to say that doing so would endanger this country and its people. I know that that is not the intention of anyone on this Committee or anyone considering the Bill, but it is important to emphasise that these are powers for a purpose, and that purpose is the safety of the British people through the effectiveness of those missioned to keep them secure.
Does my right hon. Friend think that sometimes putting tests in very specific terms in primary legislation gives a certain rigidity, whereas greater flexibility would be possible if they were in a code of practice? As we heard—as the hon. and learned Member for Holborn and St Pancras said—the test is already being carried out in practice. Does my right hon. Friend agree that to create additional rigidity by putting the test in primary legislation might hamper the security services in due course?
With a certain power of prophecy, I made it known at the beginning of our considerations that it was likely that there would be a continuing debate that would have at its heart, considerations about what should be on the face of the Bill and what should be in supporting documentation. I did so perhaps not so much as a prophet as an experienced Member of this House, because I have never served, either as a shadow Minister or as a Minister, on any Bill Committee where that has not been a matter of debate. How far one goes in putting specific matters on the face of legislation is always a matter of fine judgment. Hon. Members know the argument very well.
My right hon. Friend raises a very important point. All too often, too many people have a tendency to put things on the faces of Bills that are not altogether relevant and which could be done by secondary legislation. His point, therefore, is extremely valid.
My right hon. Friend, who is a distinguished Member of this House, a former Minister of note, a sagacious figure now on the Back Benches, bringing that experience and quality to our considerations—what a delight it is to have him join us on this Committee—is right.
I was responding to my hon. and learned Friend the Member for South East Cambridgeshire accordingly that the debate about whether material is put in the Bill or in supporting documentation comes down to this point: those who wish to place things in the Bill do so because they want to firm them up, to make them more sure and certain. Of course, for much of what we wish to do it is vital that we pursue that course. Those who argue for material in supporting documentation do so on the basis exactly as my right hon. Friend says: that it allows greater flexibility. In an area as dynamic as this—I hinted at this earlier, but will make the point once more—I would have thought the argument for flexibility holds a great deal of water.
The last thing I want is to pass the Bill into law and for it to become an Act of which we can all be justly proud—every member of the Committee will deserve a certain credit—only to find that events have moved on and we are stuck with an excessively rigid Act incapable of being changed easily as needed.
Just to put this in context, when we talk about legal professional privilege, journalistic material and MPs’ correspondence, it is absolutely clear the Government have thought this through and put it on the face of the Bill, where they think it is relevant. We cannot get away with it—nobody can backslide into an argument that, in other areas, it is more flexible to put the measures in statutory instruments. Things like legal professional privilege have been thought through. Moves have been made by the Government—and I have acknowledged them—and it should be on the face of the Bill. I think the Minister knows that, because he has put it in the Bill in other areas and that is the right way to deal with that sort of material. Of course, it is more flexible, but in the end we would have a very thin, short, one section Act if we really wanted full flexibility. That is not the way forward.
The hon. and learned Gentleman is right. I do not want to be patronising in any way. I think for a beginner he has made a very promising start. That has been in part characterised by the consistency of his argument. One of the arguments he has used since we began this consideration is that the Bill needs, throughout its clauses, to be consistent. He is right in saying that, while we have made considerable progress in considering and dealing with the issue of the legal profession, there may be more work to do in respect of journalists and Members of Parliament.
With that thought—I do not want to exhaust the patience of the Committee any longer—I will sit down.
Question put, that the clause stand part of the Bill.
I foreshadowed these amendments when we were discussing clause 174. The way we have sought to deal with records—“patient information”, as it is defined under the National Health Service Act 2006—is to take them out of consideration altogether, which would prevent a warrant that would cover those records being issued. Amendment 721 simply leaves out subsection (3)(a)(iii) and amendment 722 removes the corresponding subsection in clause 178. There is very little I can add to the argument that I put before in relation to those. I will say more when we get to the second group of amendments about the test that is to be applied.
The hon. and learned Gentleman may take it, in the spirit that I made my earlier remarks, that the Government are always happy to consider these matters carefully. All of this section of the Bill requires us to be mindful of the sensitivity of the material with which we are dealing, and I think the purpose of the amendment is to explore that sensitivity—I understand that. While I am not minded to accept the amendments, I am clear that in gauging all of those things, we are open to argument, willing to listen and determined to frame a Bill that reflects the considerations of the Committee, that is capable of uniting this House in a shared purpose, that is credible with the wider public, and that provides those missioned to keep us safe with the powers they need. With that reassurance, I hope the hon. and learned Gentleman will withdraw his amendment.
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
These amendments are on material relating to patient information as defined in section 251(10) of the National Health Service Act 2006 or to mental health, adult social care, child social care or health services as defined by the Health and Social Care Act 2012. They would subject material in those categories to the higher test set out in amendment 718. We have had interventions on what the test should be, why people should be concerned and so on.
A number of Committee members will have had the opportunity—I have, in my work—to see mental health records, adult social care records, child social care records and health service records. Those records often contain highly confidential material and information. I will take an example from child social care. A child may be reporting and having recorded some of the most grotesque offences that have happened to them, in an environment where it is hoped that the right relationship will be built up through the process of child social care—in other circumstances, adult social care—so that they obtain the best care possible. Persuading people into that sort of relationship, so that they can get the support they need, is not easy, as anyone who has experience in this area will know.
Unless those who are most vulnerable see protection for them on the face of the Bill, there is a real likelihood that they will not feel sufficiently protected to even come forward. Getting children to engage with child social care is the devil’s own business in many difficult cases. There are many reasons why children do not engage. If children, vulnerable adults and those with mental health problems cannot see clear protection on the face of the Bill that applies to them—not in a flexible way—it would be a retrograde step in relation to all the good work going on in other parts of the forest on offences such as child sexual exploitation.
To be clear, the amendments are not intended to prevent the security and intelligence services from accessing those records if, in certain circumstances, they are needed. The amendments require that a higher threshold is applied and that a better case is made for the circumstances being exceptional and compelling. As I am sure the Minister for Security and Solicitor General have observed, the language in the amendments is borrowed from the protection in the Bill elsewhere for legally privileged material. I therefore hope the test is workable and applicable to this sensitive information.
I stress just how sensitive the material within some of these records will be and how important it is that people see on the face of the Bill protection for them. I have heard the way the Minister for Security and Solicitor General have dealt with this, and I will listen to what they say now, but I do not think that what is said about this protection in the code of practice is either in the right place or sufficient. Paragraph 4.11 is very general in its guidance, even in the code of practice. In my argument, the test should be set out in the Bill and then the code of practice would give guidance as to how the test is to be applied on a day-to-day basis as and when it arises.
The amendments relate to the question of whether warrants under this part of the Bill should ever allow the retention or examination of bulk personal datasets relating to various forms of medical information. The hon. and learned Gentleman qualified that to some degree by saying that he could see how there might be occasions on which health data were relevant to an investigation, but he rightly asked whether the safeguards were adequate and whether constraints on storage and use of that kind of information were in place.
Let us look first at the safeguards that are already contained in the Bill. These safeguards already ensure that no bulk personal datasets would be retained or examined unless it was appropriate to do so. Specifically, under the Bill, the security and intelligence agencies may retain and examine a bulk personal dataset only for the statutory purposes outlined in the Bill. Each warrant is subject to the double lock, and so must be approved by both a Secretary of State and a judicial commissioner. Each retention of a bulk personal dataset by the intelligence agencies is considered individually based on a strict consideration of necessity and proportionality. The Investigatory Powers Commissioner will also oversee the acquisition, retention, use or disclosure of bulk personal datasets by the agencies. The draft code of practice, as the hon. and learned Gentleman has said, makes clear that, when considering whether to retain and examine bulk personal datasets, the agencies will assess the degree or extent of the intrusiveness which retaining and examining the datasets would involve—that is to say, the degree or extent of interference with individuals’ right to privacy.
The draft code says more than that, though. It also makes clear that when considering whether to apply for a warrant in this class, agencies must consider factors such as whether the nature or the provenance of the dataset raises particularly novel or contentious issues, or whether it contains a significant component of intrusive data—I mentioned this in an earlier discussion. An agency would need to apply for a specific bulk personal dataset warrant if it sought to retain such a dataset comprised of medical records. None the less, notwithstanding those safeguards, which I felt it was important to outline, I can see why this matter warrants careful consideration. Before I go into that consideration, however, I want to say the following. I am prepared in this specific instance to confirm that the security and intelligence agencies do not hold a bulk personal dataset of medical records. Furthermore, I cannot currently conceive of a situation where, for example, obtaining all NHS records would be either necessary or proportionate.
That is where my note so far prepared ends, but I want to go further. Before I do, in order to build anticipation and excitement, I give way to the hon. and learned Lady.
The Minister may be about to answer this question, but I am very interested, as I am sure all hon. members of the Committee and people outwith this room will be very interested, in what he has just said—that the security agencies do not currently hold a bulk personal dataset in relation to medical information. As the Bill stands, unamended, does he not agree that there is nothing in it to prevent them acquiring such a bulk personal dataset in future, if they were able to make a case for it?
I may fall foul of my officials, which I would never choose or seek to do, except where I felt that it was right in the national interest, with the benefit of the wisdom of the Committee—enhanced, as I have said it is, with the addition of my right hon. Friend the Member for Chelmsford—and where I feel that the public expect us to go further. The hon. and learned Lady is right that we need to go further. Let me rehearse some of the ways in which we might do that—I will commit to none today, but I offer them to the Committee for further thought.
I am grateful to the Minister and glad he finds the amendment persuasive, although I suspect not persuasive enough to vote for it. I will therefore withdraw it, but I appreciate the spirit in which he makes his submissions in this important and sensitive area. I will withdraw it with a view to working with the Minister to see whether—
I think the hon. and learned Gentleman has said this, but just for the record, I think he agrees with me—I am delighted he is going to withdraw his amendment—that it is conceivable that there are circumstances in which access to some health data might be helpful to the agencies. We can agree that as a baseline against which we can chart the rest of this process.
From memory, the services could not at the moment envisage a circumstance in which they would need it, but they would not want to rule out the possibility that it might arise at a future date.