Investigatory Powers Bill (Third sitting)

Keir Starmer Excerpts

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

[The Minister for Security (Mr John Hayes)]

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

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

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

Perhaps it would be advisable for me to give a little more detail about what the Bill does in respect of privacy. By underpinning the powers and sensitive capabilities available to law enforcement and security services, the Bill provides—as successive Governments have, by the way—an appropriate degree of oversight of those powers. Furthermore, through the change to authorisation—for the first time and in groundbreaking terms—they answer the call of those who have argued that both the political masters who drive these things and the judiciary should play a part in reinforcing those safeguards, based very much on the core principle of necessity and proportionality which applies to all such powers.

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

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

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

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

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

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

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

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

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

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

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

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

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

The shadow Home Secretary suggests in the letter that

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

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

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

The letter also talks about the

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

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

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

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

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

It states:

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

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

--- Later in debate ---

[Mr Hayes]

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

[Keir Starmer]

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

[Mr Hayes]

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

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

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

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

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

[Keir Starmer]

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

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

[Mr Hayes]

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

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

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

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

[Mr Hayes]

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

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

[Keir Starmer]

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

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

[Mr Hayes]

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

--- Later in debate ---

[Joanna Cherry]

I am grateful to the Solicitor General for his constructive approach. I am happy not to press the new clause at this stage on the basis that the Government will look at it. I am happy to receive any suggestions about the drafting, which is mine. I had some discussions about the terms of the drafting with Michael Clancy of the Law Society of Scotland and James Wolffe, the dean of the Faculty of Advocates, but any infelicities are my fault alone. I would be happy to discuss the drafting with the Government.

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Definition of “interception” etc.

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

[Keir Starmer]

There are no amendments tabled to the clause, which we support, but I say for the record and for clarification that what is welcome in clause 3 is the spelling out in legislation of the extent of an interception—an issue that has bedevilled some recent criminal cases. Importantly, as the explanatory notes make clear, it is now provided in clear terms that voicemails remaining on a system, emails and text messages read but not deleted and draft messages stored on a system will count within the phrase “in the course of transmission” and will therefore be covered by the offence. We welcome that. I wanted to emphasise that point and put it on the record, because a lot of time and effort was spent when that phrase was not so clearly defined.

[The Solicitor General]

I am extremely grateful to the hon. and learned Gentleman. He is right: we have moved a long way from phone tapping, which he, I and many others understood to be clear interception whereas, for example, the recording and monitoring of communications at either end of the process was not interception. As he rightly says, the internet and email have caught up with us, so as part of the Government’s thrust to have greater clarity and simplicity, this essential definition is a welcome part of the statutory framework that now exists.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Clauses 4 and 5 ordered to stand part of the Bill.

Clause 6

Monetary penalties for certain unlawful interceptions

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

[Keir Starmer]

Again no amendments are tabled to the clause, but there are some questions that arise from it. The explanatory notes say, and it is clear in the Bill, that the clause creates a power for the Investigatory Powers Commissioner to impose fines where an interception has been carried out, but there was no intention. It relates to action that might otherwise be an offence, but the intention element is not made out. Against that background, I have some questions for the Solicitor General.

If the power applies where an interception is carried out but there was no intention to do so, it is hardly likely to have a deterrent effect because the person did not intend to do it in the first place, so what is the rationale and purpose of this provision? It is clear in schedule 1, which is related to clause 6, that the commissioner has very wide discretion in relation to the operation of the powers under the clause including, in paragraph 13, powers to require information from individuals

“for the purpose of deciding whether to serve”

an enforcement notice. Thus we have a provision that is premised on a non-intentional interception that then triggers quite extensive powers to require information with penalties for failure to provide that information. Schedule 1 states that guidance will be published on how the powers are to be exercised, but what is the real rationale and purpose? Why are the powers as extensive as they are and will the Minister commit to the guidance envisaged under schedule 1 being made public?

In clause 6(3)(c) there is reference to a consideration by the Commissioner that

“the person was not…making an attempt to act in accordance with an interception warrant”,

which suggests that that is outside the scheme of the provision. We have also noted that the provision relates only to a public telecommunications system. It is in many ways supplementary or complementary and we are not questioning it in that sense, but there is a number of unanswered questions. If we are to scrutinise and probe, it would be helpful to have those answered now if possible, and if it is not answered in writing.

[The Solicitor General]

I am grateful to the hon. and learned Gentleman for his questions. I assure him that there is a very good rationale for the inclusion of these powers. They are a replication of powers that were added to RIPA in 2011. Monetary penalty notices followed a letter of formal notice that was issued by the European Commission setting out its view that the UK had not properly transposed article 5(1) of the e-privacy directive and articles of the data protection directive. In particular, the Commission identified:

“By limiting the offence in Section 1(1) RIPA to intentional interception, the UK had failed to create a sanction for all unlawful interception as required by Article 5(1) of the E-Privacy Directive and Article 24 of the Data Protection Directive.”

The Government rightly conceded the defective transposition that had been identified and therefore the monetary penalty notice regime was established to introduce sanctions for the unintentional and unlawful interception in order to remedy the deficiency.

The hon. and learned Gentleman is quite right that it is a step down from a criminal offence, where intention has to be informed, but as my right hon. Friend the Minister for Security said when opening the debate, underpinning all of this is the importance of privacy, and the right to privacy is demonstrated in practical form by the inclusion of clause 6 and schedule 1. It is important so that we cover all aspects of intrusion because, as the hon. and learned Gentleman will know, privacy is not just about confidentiality. That is often misunderstood, particularly in the light of recent debates about injunctions. It is about intrusion into the lives of individuals, and that intrusion by the authorities in particular should be marked in some way by the imposition of some alternative sanction if it cannot be criminal sanctions. Therefore, there is a very sound rationale for the inclusion of these powers and replicating them from RIPA, and therefore I commend the clause to the Committee.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 7

Restriction on requesting interception by overseas authorities

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

[Keir Starmer]

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

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

[Mr Hayes]

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

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clause 8

Restriction on requesting assistance under mutual assistance agreements etc.

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

[Keir Starmer]

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

[The Solicitor General]

The hon. and learned Gentleman will know that this mutual legal assistance regime definitely benefits from statutory underpinning. It has become increasingly important. Sadly we have all learnt that relying just on good will or informal arrangements is no longer sufficient, which is why the international work that I know hon. Members are aware of, particularly negotiations with the United States, are so important in speeding up the process and making it ever more efficient, particularly in the light of all the political controversies we have been dealing with in recent days. I undertake to deal with the question that he raises, which I think we can deal with in an umbrella form as he suggests.

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Clause 9

Offence of unlawfully obtaining communications data

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

--- Later in debate ---

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

It is, as always, a pleasure to see you in the Chair, Ms Dorries. The Solicitor General has given examples of wide-ranging powers that are available to protect the public. I was grateful to listen to his contribution. However, during Second Reading I queried the Home Secretary’s position on the new offences that are being created. Many of the offences the Bill refers to, particularly in clause 9, relate to the regulation of investigatory powers. My concern is that later the Bill requires internet service providers, for example, to amass a large amount of personal data, and there is a danger that those data may be stolen rather than intercepted. I gave the example of a newspaper perhaps finding a low-grade technical operator in a telecommunications company, passing a brown envelope to them and stealing a celebrity’s internet connection records. I am concerned that the offence in clause 9 of unlawfully obtaining communications data does not go far enough.

I bear in mind the Solicitor General’s comments on other protections that are available, but would he or the Government consider an offence of not just obtaining but being in possession of unlawfully obtained communications data, which would strengthen the protections given to members of the public? We all know that the kind of scenario that I am expressing concern about has not been unknown in the last few years, as various court cases have demonstrated—though I should not discuss their details. Is the Minister satisfied that the protections he has outlined and those raised by the hon. Member for South East Cambridgeshire are sufficient, or should we take this clause a bit further, to give the public broader and wider protection of their privacy and the security of their internet and telecommunications transmissions?

[Keir Starmer]

It is a pleasure to follow my hon. Friend because I want to develop the point. This is a welcome clause, it is right that it is here, and we support it. However, we question whether it goes far enough. It only covers obtaining communications data. We think that serious consideration should be given to an overarching offence of misuse of the powers in the Bill. At the moment, there are specific provisions in relation to intercept which are replicated frim RIPA and we now have this welcome provision, but there is no overarching offence of misuse of the powers in the Bill.

It is all very well to say that there is the tort of misfeasance in public office. That is not the equivalent of a criminal offence. It has all sorts of tricky complications when one tries to apply it in practice. It is fair to say that there are other bits of legislation that might be made to fit in a given case, but it would be preferable and in the spirit of David Anderson’s approach for a comprehensive piece of legislation for an overarching criminal offence to be drafted, either out of clause 9 or in some other way, relating to misuse of powers in the Bill. It has been a source of considerable concern in the past and I ask the Government to think about a wider offence that would cover all the powers, because comms data are only one small subset of the issues and material information we are concerned with.

I have two short supplementary points. In subsection (3) there is a reasonable belief defence. It would be helpful if the Minister said a bit more about that. May I also foreshadow the inconsistency that we will need to pick up as we go along in the way reasonable excuse and reasonable belief are dealt with in the Bill? It is set out in subsection (3), but there is an inconsistency in other provisions that I will point to when we get there.

My other point is to ask the Minister to consider whether obtaining communications data unlawfully is a sufficient definition to make the offence workable in practice. I put my questions in the spirit of supporting the clause, but I also invite Ministers to go further and consider drafting a clause that covers the misuse of powers in the Bill, rather than simply saying that if we fish about in other bits of legislation or common law we might find something that fits on a good day. In my experience, that is not a particularly helpful way of proceeding.

[The Solicitor General]

Thank you, Ms Dorries, for allowing me to reply to a stand part debate on clause 9. I think we have elided the this and the previous clause, but I crave your indulgence to deal with everything in a global way. May I deal properly with clause 9 and set out the Government’s thinking on this?

The measure is all about making sure once again that those who hold office within a public authority are properly held to account for any abuses of power. The clause will make it an offence knowingly or recklessly to obtain communications data from a communications service provider without lawful authority. Somebody found guilty of that offence might receive a custodial sentence or a fine. The maximum punishment will vary according to whether the offence was committed in England and Wales, or in the jurisdiction of Scotland or Northern Ireland.

The hon. and learned Gentleman is right to point out the reasonable belief defence. The offence will not have been committed if it can be demonstrated that a person holding office acted in the reasonable belief that they had lawful authority to obtain the data. Where a communications service provider willingly consents to the disclosure of the data, including by making it publicly or commercially available, that would constitute a lawful authority.

The question about reasonable belief is about making sure that genuine error is not penalised, because there will be occasions when genuine errors are made. In the absence of such a defence, public authorities could be deterred by notifying genuine errors to the IPC. It is important that the Investigatory Powers Commission is an effective body monitoring failure and lack of best practice, and preventing future errors.

I think the hon. and learned Gentleman will agree that we both have fairly considerable criminal litigation experience. In this area, I think a regulatory approach will be just as effective, and in some ways more effective, than a criminal sanction. I am grateful to the hon. Member for City of Chester for reiterating the remarks that I remember him making on Second Reading, when he made some powerful points, but I caution that we are in danger of creating an entirely new criminal framework, catching people further down the line, which ultimately will only lead to more confusion and, I worry, the replication of existing offences.

An unauthorised disclosure by someone in a communications service provider would be covered by the Data Protection Act 1998, because those providers have duties and obligations under that Act just like any other holder of data. I hear what the hon. and learned Gentleman says, and I will consider the matter, but my initial reaction to his question and that of the hon. Member for City of Chester is that the Data Protection Act covers such a disclosure.

--- Later in debate ---

[Joanna Cherry]

I am grateful. So if I withdraw the new clause now, I cannot be prevented from bringing it back later—I will withdraw it in Committee.

Clause 10 ordered to stand part of the Bill.

Schedule 2 agreed to.

Clause 11

Mandatory use of equipment interference warrants

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

[Keir Starmer]

I will be very quick. The clause is welcome and we support it, but again my concern is that there is no enforcement mechanism or sanction. Will the Minister take it under the umbrella of these clauses that are intended to ensure good governance, effectiveness and that the proper routes are used, and look in an overarching way at what their sanction might be? I am asking a similar question to one I made before: what is the sanction if what should happen does not happen?

[The Solicitor General]

Yes, of course, we will do as the hon. and learned Gentleman asks. I welcome his endorsement of the importance of the clause, bearing in mind what it sets out and the clarity we are achieving through its introduction.

Question put and agreed to.

Clause 11 accordingly ordered to stand part of the Bill.

Clause 12

Restriction on use of section 93 of the Police Act 1997

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

[Keir Starmer]

I make the same point again: the clause is a good provision but appears to lack any enforcement mechanism or sanction, so if it could go into the basket of clauses that are being looked at in relation to sanction, I will be grateful.

[The Solicitor General]

The clause confirms that section 93 of the Police Act 1997 may not be used to authorise conduct where the purpose of the proposed interference is to obtain communications, private information or equipment data and the applicant believes the conduct would otherwise constitute an offence under the Computer Misuse Act 1990, and the conduct can be authorised under an equipment interference warrant issued under part 5 of the Bill. So it does not prevent equipment interference being authorised under the Police Act where the purpose of the interference is not to obtain communications and other data—for example, interference might be authorised under the Act if the purpose is to disable a device, rather than to acquire information from it.

That reflects the focus of this Bill. We are trying to bring together existing powers available to obtain communications and communications data. I emphasise that the measure does not prevent law enforcement agencies from using other legislation to authorise interference with equipment that might otherwise constitute an offence under the Computer Misuse Act. For example, law enforcement agencies will continue to exercise powers under the Police and Criminal Evidence Act 1984 to examine equipment that they possess as evidence. The result of this clause is that all relevant activity conducted by law enforcement agencies will need to be authorised by a warrant issued under part 5 of the Bill.

[Keir Starmer]

Based on what the Minister has just said, it may be that it is anticipated that any attempt to use other legislation in breach of this provision would automatically be refused. That is the bit where there might need to be some clarity, because in effect it will not be an application under this legislation; it would be an application under different provisions, so does this operate as a direction to any decision maker that that is an unlawful use of another statute? That is not entirely clear. I think that that is what is intended. If it is, that is a good thing, but I am not entirely sure that a decision maker would say, “I am prohibited by law from exercising powers available to me under other legislation.” I leave that with the Minister because it may be something that can be improved by further drafting.

[The Solicitor General]

I thank the hon. and learned Gentleman for that intervention. While I will answer the specific question, I think it is important that I set out the fact that this provision is not the only means. What we are dealing with here is part 5 and the double lock and the enhanced safeguards. If any agency or authority fails to use new part 5 or PACE, for example, in other circumstances, they will be committing an offence under the Computer Misuse Act. Public authorities are no different from any other individual or body: if they are not complying with the existing legal framework by this or other means, they fall foul of the law themselves. I will endeavour to answer the other points raised about sanction but I urge the Committee to agree that the clause stand part of the Bill.

Question put and agreed to.

Clause 12 accordingly ordered to stand part of the Bill.

Clause 13

Warrants that may be issued under this Chapter

[Keir Starmer]

I beg to move amendment 57, in clause 13, page 10, line 16, after “content”, insert “or secondary data”

This amendment, and others to Clause 13, seek to expand the requirement of targeted examination warrants to cover the examination of all information or material obtained through bulk interception warrant, or bulk equipment interference warrant, irrespective of whether the information is referable to an individual in the British Islands. They would also expand the requirement of targeted examination warrants to cover the examination of “secondary data” obtained through bulk interception warrants and “equipment data” and “information” obtained through bulk equipment interference warrants.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 58, in clause 13, page 10, line 17, leave out from “examination” to end of line 18

Amendment 59, in clause 13, page 10, line 17, leave out from “examination.” to end of line 18 and insert

“of material referable to an individual known to be in the British Islands at that time, or British citizen outside the British Islands at that time.”

Amendment 60, in clause 13, page 10, line 17, leave out from “examination.” to end of line 18 and insert

“of material referable to an individual known to be in the British Islands at that time, or British, Canadian, American, New Zealand or Australian citizen outside the British Islands at that time.”

Amendment 83, in clause 13, page 10, line 22, after “6”, insert—

“In this Part “secondary data” means—

(a) in relation to a communication transmitted by means of a postal service, means any data falling within subsection (5);

(b) in relation to a communication transmitted by means of a telecommunication system, means any data falling within subsection (5) or (6).”

[Keir Starmer]

I rise to speak to amendments 57, 59 and 60. Amendment 57 deals with secondary data; amendments 59 and 60 deal with place and whether someone is in the British Isles. I apologise, Ms Dorries: the provision and the amendment are complicated. With your permission I will take some time to set the context so that the amendment can be understood.

Clause 13 deals with warrants. Subsection (1) deals with targeted interception warrants, targeted examination warrants and mutual assistance warrants. Subsection (2) states:

“A targeted interception warrant is a warrant which authorises or requires the person to whom it is addressed to secure, by any conduct described in the warrant, any one or more of the following”,

and paragraph (a) deals with the interception of communications. That is content; paragraph (b) deals with secondary data from the communication; and paragraph (c) deals with disclosure. For targeted warrants under clause 13 there are specific provisions in relation to the content, secondary data and disclosure.

Secondary data for these purposes is further defined in clause 14, subsection (5) of which states:

“The data falling within this subsection is systems data which is comprised in, included as part of, attached to or logically associated with the communication”,

so it has an integral link to the communication and thus to the content.

[The Chair]

Order. Mr Starmer, if you could keep your comments to clause 13 with just passing reference to clause 14 and further clauses, that would be great.

[Keir Starmer]

I will, but on this particular occasion, I really think it is almost impossible to understand clause 13(3) without going into clause 14 and then, I am afraid, to a further provision, before coming back.

[The Chair]

You can only do so in passing reference.

[Keir Starmer]

In passing, this is just really to explain what the amendment is intended to achieve. In order to understand what is in clause 13(2), we need to look to clause 14(4) to (6), which set out what secondary data means for the purposes of this part and, thus, is to be read into clause 13.

Clause 14(6) states:

“The data falling within this subsection is identifying data which…is comprised in, included as part of, attached to or logically associated with…is capable of being logically separated…and if it were so separated, would not reveal anything of what might reasonably be considered to be the meaning”,

so it is integrally bound up with the content of the communication but capable of being separated from it.

So far as clause 13 is concerned, if there is a targeted interception warrant, the warrant deals specifically with content and secondary data, recognising the integral link between the two. That is right and we do not quarrel with that.

Clause 13(3) is different, providing that:

“A targeted examination warrant is a warrant which authorises the person to whom it is addressed to carry out the selection of relevant content for examination, in breach of the prohibition in section 134(4) (prohibition on seeking to identify communications of individuals in the British Islands).”

The purpose of clause 13(3) is different. We move from the targeted warrant to the bulk warrant—an examination warrant that provides authority to examine the content that would otherwise be in breach of clause 134(4). In order to understand that, I take the Committee to clause 119, to which that relates.

Clause 119 deals with bulk interception warrants, which can be issued if conditions A and B are satisfied. Condition A deals with

“the interception of overseas-related communications”

and with “obtaining…secondary data”. The definition of secondary data is the same in that part of the Bill as it is in the part that we have just looked at. I will not test the Committee’s patience by going to that definition, but it is a consistent definition of secondary data.

Condition B sets out that the bulk warrant authorises “the interception”, which is the content,

“the obtaining of secondary data”,

which is the same as a targeted warrant but in relation to the bulk powers, and

“the selection for examination, in any manner described…of…content or secondary data”

and “disclosure”. The bulk warrant allows the interception of the content and secondary data. In and of itself, it provides for the examination on the face of the same warrant.

For content, it becomes more complicated because there is a safeguard, which is in clause 134(4)—safeguards in relation to examination materials. Having provided a broad examination power, there is then a safeguard for that examination power in clause 134(4). A number of conditions are set for examining material that has been obtained under a bulk interception warrant. They are set out in subsection (3) and the first is that

“the selection of the intercepted content for examination does not reach the prohibition in subsection(4)”

which is that

“intercepted content may not…be selected for examination if— any criteria used for the selection of the intercepted content…are referable to an individual known to be in the British Islands at that time, and the purpose of using those criteria is to identify the content”.

The long and short of it is that, going back to clause 13, a targeted intercept warrant authorises the examination of both content and secondary data.

For a bulk warrant—this is where clause 13(3) kicks in—there is provision for an examination warrant which provides an ability to look at the content, which in all other circumstances would be a breach of the prohibition in clause 134. The content of communications of individuals in the British Isles can be looked at when it has been captured by a bulk provision, but only when there is a targeted examination warrant. That is a good thing.

What the amendment gets at is this. What is not in clause 13(3) is any provision for an examination warrant in relation to secondary data, so for the targeted provisions these two are treated as one: secondary data integral to the content of communication. When it comes to bulk, they are separated and only the content is subject to the further provision in clause 13(3).

That is a material provision and is a big part of the legislation because, unless amendment 57 is accepted, a targeted examination warrant is not required for secondary data, which are capable of being examined simply under the bulk powers. The purpose of the amendment is to align subsections (2) and (3) and ensure that the targeted examination warrant is not required for both content and secondary data in relation to individuals in the British Isles. The result otherwise would be that, for someone in the British Isles, their secondary data could be looked at as long as it was captured under a bulk provision without a targeted warrant. That is a serious drafting issue of substance.

Our approach to some of the wider retention of bulk powers is this. Although we accept that a case can be made for retaining data that will be looked at later, the wide powers of retentional bulk are a cause of concern on both sides of the House. When it comes to examining what has been caught within the wider net, there are specific safeguards. In other words, as long as there is a specific targeted safeguard when someone wants to look at bulk or retained data, that is an important safeguard when they are harvesting wide-ranging data. That is a very important provision in relation to secondary data.

Amendments 59 and 60 go to a different issue. They are separate and I ask the Government to treat them as separate. The first is about content and secondary data as a hom-set and whether they should be protected in the same way throughout the regime of the legislation, however they are initially intercepted. That is an important point of principle that I ask the Government to consider seriously because it goes to the heart of the question of targeted access.

The second amendment relates to individuals in the British Isles. At the moment, clause 13(3) provides specific protection in relation to the content of communications for people in the British Isles. It is clear from clause 134(4) that that means not residing in the British Isles, but actually in the British Isles. Under clause 13(3), once I get to Calais, I fall out of the protection of that provision, as does everybody else in this Committee, because it is a question of whether someone is physically in the British islands. Therefore, a targeted examination warrant for the content of my communications gathered by bulk powers would not be needed once I got halfway across the channel. Until I went through the analysis, I did not fully appreciate that, and serious consideration is required for both content and secondary data. More generally within amendment 59 are provisions relating to individuals not normally in the British islands or within the countries specified in amendment 60.

I am sorry to have referred to other clauses, but I could not work this out until I went through that torturous route. The net result is a disconnect between content and secondary data, which goes to the heart of protection when it comes to bulk powers. Clause 13(3) is really important for bulk powers and is one of the most important provisions in the Bill, so we have to get it right.

The limit of clause 13(3) to individuals in the British islands is unsustainable and needs further thought. Amendments 59 and 60 intend to remedy that defect. If there is an appetite in the Government to look carefully at those provisions, there may be a different way of coming at the problem, but it is a real flaw in the regime as it is currently set out. I apologise for taking so long to get to that, Ms Dorries. It required a cold wet towel on one afternoon last week to work my way through this, but once we go through the exercise, we realise there is a fundamental problem that either has to be fixed or adequately answered.

[Joanna Cherry]

I am 100% with the hon. and learned Gentleman in his description of the clause. Indeed, many clauses of the Bill require the application of a cold wet towel or a bag of ice to the head followed by copious amounts of alcohol later in the evening.

Amendments 57 and 83 bear my name and that of my hon. Friend the Member for Paisley and Renfrewshire North. I wish to emphasise the importance of those amendments, which foreshadow important amendments in respect of bulk powers that the Scottish National party intends to table at a later stage. Our amendments would apply the same processes and safeguards for the examination of information or material obtained through bulk interception warrants and bulk equipment interference warrants, irrespective of whether the information or material pertains to individuals in the British Isles, and to require a targeted examination warrant to be obtained whenever secondary data obtained through bulk interception warrants and equipment data and information obtained through bulk interference warrants are to be examined.

In order to gain an understanding of the background to this amendment, I invite hon. Members to look back at the evidence of Eric King to the Committee on 24 March. He explained to us how GCHQ examines bulk material. The targeted examination warrant available on the face of the Bill fails to cover the aspect of communication that is most used by agencies such as GCHQ: metadata, or secondary data, as it is referred to in the Bill.

--- Later in debate ---

[Mr Hayes]

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

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

[Keir Starmer]

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

Investigatory Powers Bill (Fourth sitting)

Keir Starmer Excerpts

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

[The Minister for Security (Mr John Hayes)]

I am delighted to welcome you to the Chair, Mr Owen. In your absence, under the stewardship of Ms Dorries, we had enlightening and rigorous scrutiny of the early provisions of the Bill and had got to the point of considering the third group of amendments. They are complicated, as illustrated by the shadow Minister’s opening remarks. I was about to go into some detail about the safeguards that we have put in place. So that we are all up to speed, I will mention that I had referred briefly to the recommendations made by the independent reviewer, Mr David Anderson, in his report, “A Question of Trust”, in relation to this area of the Bill—the use of material recovered under bulk warrants. I had reminded the Committee that the provisions before us reflect that advice. The Government have essentially taken the advice of David Anderson and built it into the Bill that we are now considering.

The current bulk access safeguards under the Regulations of Investigatory Powers Act 2000 have, of course, recently been scrutinised by the Investigatory Powers Tribunal. After extensive argument, the tribunal ruled that the current approach fully met the UK’s obligations under the European convention on human rights. In particular, the tribunal ruled that it was not necessary to apply the protections that apply to content to related communications data—the other data associated with a communication but not its content that has been redefined as secondary data in the Bill—to ensure ECHR compliance.

Both targeted and bulk warrants authorise the collection of content and secondary data. That, I think, clears up one of the doubts that some Committee members may have had. A bulk warrant also authorises the circumstances in which content and secondary data can be selected for examination. The Secretary of State and the judicial commissioner, when authorising warrants, agree the operational purposes that determine what content and what secondary data can be examined. In other words, at the point when the warrant is issued, both the judicial commissioner, in the arrangements that we propose, and the Secretary of State, in those arrangements and now, are fully aware of the operational reasons for the request. There is no distinction in those terms—again, I think this addresses some of the points raised by the hon. and learned Member for Holborn and St Pancras—between content and secondary data.

Where the difference comes is in relation to the additional protections for persons in the UK. In fact, the hon. and learned Gentleman made reference to this. The Bill makes it clear that examination of the content, once it has been collected, of data relating to persons in the UK can take place only when an additional warrant has been issued. People should bear it in mind that there will already be a bulk warrant authorising collection; this is a separate process from the collection of data. An additional warrant must be issued that specifically authorises examination. There is a warrant to collect data and another warrant to examine data, and at the point when those warrants are considered by the Secretary of State and, under these new arrangements, by the judicial commissioner, the purposes will be clearly defined. The Secretary of State will be aware of why the request is being made and why it matters.

We talked earlier, in a different part of our consideration, about authorising powers only where they are necessary because nothing else will do the job—the point raised by the hon. and learned Gentleman. I want to emphasise that those considerations, around the broad issues—they are no less important because of their breadth—of proportionality and necessity, will govern all these matters.

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

To clarify, I think I heard the Minister say—if I misheard him, he can ignore this intervention—that two bulk warrants would be put forward at the same time; one for the intercept and one for the examination. However, I am not sure that is right. I had always read this as one warrant within which different types of conduct are authorised. Therefore, the warrant could—I am looking at clause 119(4)—authorise both the interception and the selection for examination. I may be wrong about that, but I had always understood that one warrant would authorise all the conduct in one fell swoop at the beginning, rather than there being two warrants. If I misheard, I apologise.

[Mr Hayes]

Essentially, in order to obtain collection—to have bulk collection and examination—a warrant is required. The Bill makes it clear that the examination of content of persons in the UK requires an additional warrant. That is the point I was making.

Authorisation for persons in the UK does not apply to secondary data, because it is often not possible to determine the location of a person without taking those data. The reason why it looks like there is an inconsistency in respect of a set of data—or it might be perceived that way, without fuller consideration—is that, in relation to secondary data, it is not always possible to determine where someone is until the secondary data have been collected.

The point I made earlier was that it is a well and long-established principle that non-content is less important and less intrusive than content. Content is likely to be more intrusive, so what we are describing in these terms replicates the existing position—the long-established practice—which, as I said, was upheld by the Investigatory Powers Tribunal. This is the existing practice, and it has been examined and found to be appropriate and reasonable. I mentioned ECHR compliance in that respect.

I have described the existing regime and its examination, but the regime proposed under the Bill further enhances the safeguards that the security and intelligence agencies already apply when accessing data obtained under a bulk interception warrant. The access arrangements are set out in part 6 of the Bill: for example, secondary data, as well as content, can be accessed only for one or more of the operational purposes specified on the warrant and approved by the Secretary of State and the judicial commissioner. The Bill also includes a requirement that an analyst must consider the necessity and proportionality of any access to any data obtained under a bulk interception warrant in line with the operational purposes. Without putting words into the mouths of Committee members, it could be argued that it is all very well setting out the operational purposes at the outset and that, further, at that point they might be deemed to legitimise the use of the powers in terms of necessity and proportionality, but that that might not be the case further down the line. It is therefore important that we have introduced further analysis of the data collected under the bulk warrant, rather than just when collection is authorised.

Extending targeted examination warrants to non-content data, including secondary data, which is what the amendments propose, would be disproportionate and impractical. That would radically change the bulk data regime, reduce its efficacy and place a substantial burden on the security and intelligence agencies, requiring them to obtain highest level authorisation for data that would often resemble the kind of information routinely collected under a part 3 authorisation.

--- Later in debate ---

[Christian Matheson]

I am most grateful for that assurance and explanation and, indeed, for the previous explanation. The Minister has gone into considerable depth on the matter and I am most grateful for that.

[Keir Starmer]

I, too, welcome you to the Chair of this Committee, Mr Owen. It is a privilege to serve under your chairmanship.

The assurance that has just been asked for cannot be given because the whole purpose of the provision is to enable the secondary data of any of us in this room that is caught by a bulk interception warrant to be looked at without any further warrant. If my data is swept up in a bulk interception warrant, even though I am not the target it can be examined without a separate warrant. That goes for every member of the Committee, every member of the public and everybody residing in the British Isles. The neat distinction between people here and people abroad breaks down in relation to this clause. I want us to be clear about that. The Minister is making the case that that is perfectly appropriate and necessary and that there are sufficient safeguards in place, but he is not making the case that this would not happen for those in the British Isles. It can and undoubtedly does happen, and it will happen under this regime. That means that all our secondary data are caught by this provision, even where we are not the primary target.

The Minister pointed to the double lock and the roles of the Secretary of State and judicial commissioner. He took an intervention on that, but I want to be absolutely clear on what those roles are and how necessity and proportionality play out. Clause 125 sets out what requirements must be met by a bulk interception warrant. Subsection (3) says:

“A bulk interception warrant must specify the operational purposes for which any intercepted content or secondary data obtained under the warrant may be selected for examination.”

The Minister points to that and says that there has got to be an operational purpose, which is true. However, we then read just how specific that operational purpose is likely to be:

“In specifying any operational purposes, it is not sufficient simply to use the descriptions contained in section 121(1)(b) or (2)”.

Those are just the general descriptions of national security and preventing serious crime, so it is not enough to say that the operational reason is national security or to prevent serious crime. Well, good—that that is all that had to be specified, it would not be very much. However, the purposes may still be general purposes, so the operational purposes are likely to be very broad—necessarily so in practical terms, given that it is a bulk warrant.

The role of the Secretary of State and the judicial commissioner is to decide whether the warrant is necessary and proportionate according to those purposes. We keep using the words “necessary and proportionate”. We have to keep an eye on what the object of the necessity and proportionality is. The question for the Secretary of State and the judicial commissioner is whether it is necessary and proportionate for the very broad operational purposes that are permitted under clause 125. It is not a very detailed, specific examination by the Secretary of State or the judicial commissioner; nor could it be.

At some later date, there is further consideration when it comes to examination. If it was suggested that at the later stage of actual examination, rather than authority for examination, it goes back to the Secretary of State and judicial commissioner, that is just plain wrong. It does not go back at all. All that the judicial commissioner or Secretary of State do is to authorise the general purposes under the warrant. As far as selection is concerned, that is governed by clause 134(1) and (2). Subsection (2) specifies that:

“The selection of intercepted content or secondary data for examination”

—that is at the heart of what we are talking about—

“is carried out only for the specified purposes”.

That relates to back to subsection (1). It continues,

“only so far as is necessary”

—necessary to what? It then refers straight back to the “operational purposes” set out in clause 125. Even at that later stage, the question of necessity and proportionality is against the very broad operational purposes. The Minister has been very clear about this and I am not suggesting otherwise, but the idea that there is some forensic and carefully curtailed exercise that looks in detail at the individual circumstances of the case is pretty far-fetched. In the end, all anyone has to do is ask whether it is necessary or proportionate to the general operational purposes upon which the warrant was issued in the first place. That is very different from the test set out for targeted interception. It is the test that will be applied to all the secondary data of anybody in this room who ever finds themselves caught up in a bulk interception warrant. That is not far-fetched. There will be many bulk intercept warrants, which may well capture the content and secondary data of many members of the public who are not targets in any way.

As a result, although I applaud the Minister for his long and detailed answer, it was not very persuasive regarding the necessity of this scheme or the effectiveness of the safeguards. Simply saying that secondary data may be necessary to determine location is hardly enough to justify the provision. I recognise that secondary data are different to content and that bulk powers are different from targeted powers, but in the end, when this is unravelled, it shows that there is no effective safeguard. In the circumstances we will not divide the Committee on the amendment, but I reserve the right to return to the matter at a later stage. It goes to the heart of the Bill. When properly analysed and understood, the safeguard in this respect is barely a safeguard at all.

[Mr Hayes]

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

--- Later in debate ---

[Joanna Cherry]

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

[Keir Starmer]

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

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

[Simon Hoare (North Dorset) (Con)]

May I put a slightly counter idea to the hon. and learned Gentleman and the hon. and learned Member for Edinburgh South West? I accept the comments of David Anderson and others, but in some instances it will not be terribly wrong to have broad definitions in the Bill. Getting legislation made in this place is a difficult and lengthy process. We must fetter those who wish this country and its citizens ill, so it is potentially a good idea to have some breadth in the definitions.

[Keir Starmer]

I understand the spirit underpinning the hon. Gentleman’s intervention, which is that in certain circumstances a broad power can be helpful because future situations are not known. In this case, the breadth of the provision matters above all else, however, because it concerns the subject matter of the warrant. Lest anyone think otherwise, when one looks at the code of practice, one does not find that it restricts what is in the Bill. Paragraph 5.12 of the draft code says, in stark terms:

“There is not a limit to the number of locations, persons or organisations that can be provided for by a thematic warrant.”

In certain circumstances, the Minister and the Government might be able to point to things that are broad in the Bill but restricted by the code, but that would not be appropriate for the subject matter of a warrant and is not the situation in this case. I am grateful to the hon. Gentleman for the intervention, however, because I need to put my concern on the table, and I invite the Government to take the matter away and have another look at it.

I am concerned that in reality, the broadly drawn warrants will be modified. We will get to the modification procedures later. The broad warrant will be signed off by the Secretary of State and the judicial commissioner, but the modification, which may well add names as they become available, will not. There is therefore the further hidden danger that the provision is so broad that it will require modification procedures to be used more often than they should, in circumstances in which they are not adequate, for reasons that I will come on to.

At the end of the day, if someone with the authority and experience of Lord Judge, Sir Stanley Burnton and David Anderson—who have more authority and experience than anyone in this room—says that they have concerns about the breadth of the warrants, for the Government simply to say, “We’re not going to have another look at it”, runs counter to the spirit in which they have so far approached the scrutiny of the Bill.

[Lucy Frazer]

I wonder whether clause 15(1) is as wide as we think, given that subsection (2) seems to relate to a category of people that is not caught by subsection (1). We would not need subsection (2) unless it referred to a wider group than subsection (1). If that is right, someone must have particular characteristics to be caught under subsection (2), which suggests that subsection (1) is in fact narrow.

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[Keir Starmer]

That is absolutely right. If subsection (1) was wide enough to incorporate subsection (2) we would not need it. Subsection (2) is there to enable a warrant to be granted in circumstances that would be constrained by subsection (1). It is permissive—that is why the word “may” is used.

It is subsection (2) that has been singled out. Sir Stanley Burnton was absolutely clear that the wording of the subsection was wide, and that was what he focused his attention on. If someone with the experience of the experts I have named says that there is a problem because the provision is too broad, I invite the Government, in the spirit of constructing a better Bill, to go away and think about that. Those people have unrivalled experience of seeing warrants in practice.

[Mr Hayes]

I do not want to detain the Committee too long on these amendments, but this is an important debate, because investigation of the kind we are discussing may not at the outset be able to identify particular individuals. The effect of the amendments would be to limit the ability of warrant requesting agencies to apply for a warrant against organisations, and to require the naming of individuals. It is not always possible to do that. That includes individuals using communication devices—it may be known that someone has received a telephone call from a particular number, but not necessarily know who or where they are.

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[Mr Hayes]

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

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

[Keir Starmer]

Will the Minister confirm, just so we are clear what we are talking about, that that process, as envisaged in the code, is by way of modification and does not involve the double lock?

[Mr Hayes]

That is an interesting point. I will take further advice on that in the course of my peroration, which will be marginally longer than it was going to be as a result.

Because we recognise that it is important that these warrants are not open-ended, we have added that important safeguard. The fact that it is in the code of practice and not on the face of the Bill does not weaken its significance. I emphasise that it must have force and will be an obligation, as I have described it.

I will come back to the hon. and learned Gentleman’s point, but first I will deal with amendments 8 and 9, which would remove the warrant requesting agency’s ability to apply for a warrant for testing or training purposes. It is vital that those authorised to undertake interception are able to test new equipment and ensure that those responsible for using it are properly trained in its use. There are, however, strict controls that govern the handling of material obtained during such tests. We believe that it is right that it should be possible for equipment to be tested in scenarios where it can be checked that it is working properly, for example by armed forces on the battlefield. It would have serious consequences for our military if they did not have the ability to test equipment so that risks and mistakes are avoided.

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[Keir Starmer]

We can probably pick up this baton when we get to clause 30, but I think the provision that the Minister has just mentioned comes from the code, rather than the Bill.

[Mr Hayes]

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

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

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

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[Joanna Cherry]

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

Amendment, by leave, withdrawn.

Clause 15 ordered to stand part of the Bill.

Clause 16 ordered to stand part of the Bill.

Clause 17

Power of Secretary of State to issue warrants

[Keir Starmer]

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

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

[The Chair]

With this it will be convenient to discuss the following:

Amendment 12, in clause 17, page 13, line 8, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 13, in clause 17, page 13, line 10, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 14, in clause 17, page 13, line 12, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 15, in clause 17, page 13, line 16, leave out paragraph (1)(d).

Amendment 16, in clause 17, page 13, line 20, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 17, in clause 17, page 13, line 22, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 18, in clause 17, page 13, line 24, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 19, in clause 17, page 13, line 27, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 20, in clause 17, page 13, line 31, leave out paragraph (2)(d).

Amendment 21, in clause 17, page 13, line 35, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 22, in clause 17, page 13, line 37, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 23, in clause 17, page 13, line 39, leave out “Secretary of State” and insert “Judicial Commissioners”

Amendment 24, in clause 17, page 13, line 42, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 25, in clause 17, page 13, line 45, leave out paragraph (3)(d).

Amendment 26, in clause 17, page 14, line 5, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 27, in clause 17, page 14, line 8, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 101, in clause 17, page 14, line 11, leave out “For the power of the Scottish Ministers to issue warrants under this Chapter, see section 19.”

This amendment reflects the removal of the role of the Scottish Ministers in formally issuing interception warrants sought by Amendment 36 (which proposes leaving out section 19).

Amendment 28, in clause 17, page 14, line 13, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 33, in clause 18, page 14, line 30, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 34, in clause 18, page 14, line 31, leave out “Secretary of State” and insert “Judicial Commissioners”.

[Keir Starmer]

To some extent the amendments overlap with the discussions we will no doubt have on clause 21 and new clause 5. The effect of this group of amendments is to replace the Secretary of State with the judicial commissioner as the primary and only decision-maker in relation to these categories of warrants.

This morning, the Minister said that he was surprised that we had tabled these amendments and I will give him three short answers to that. The first is that from the outset the Labour party called for judicial authorisation before the concept of the double lock was introduced. That was our primary and preferred position. Obviously, the introduction of the double lock, which involves a degree of judicial authorisation, is somewhat better than the Secretary of State being the sole determining decision-maker. Therefore the fact that we are supportive of a situation that is better than the current situation is hardly enough to knock us out from our primary position. The third position—and this is why it overlaps with clause 21—is that to some extent this all depends on what role the judges have. If they are nearer to decision-makers under clause 21, the relationship with the Secretary of State is very different from the position if they are simply long-arm reviewers. I will reserve that for the discussion we will have on clause 21.

So far as the principle in favour of these amendments is concerned, I can be clear. They have been drafted to reflect, as far as possible, the detailed proposals of David Anderson in his report. Members of the Committee have probably seen that they are deliberately drafted to reflect the approach that he suggested was right—particularly when one takes into account new clause 5. I will summarise his reasons, rather than reading them verbatim, laid out in paragraphs 14.47 and 14.57 of his report. He indicates four reasons for the proposed structure. The first is the sheer number of warrants that the Home Secretary has to sign per year. As he sets out in paragraph 14.49, there are thousands of warrants per year, details of which are in the footnotes. Dealing with those warrants is a huge imposition on the Secretary of State’s time, and they could be dealt with in a different way.

There is an important sub-issue here. Points have been made, this morning and on other occasions, about the accountability of the Secretary of State in relation to national security and foreign affairs. I understand how and why those points were made. As David Anderson points out, 70% of the warrants that the Secretary of State routinely signs off are in fact police warrants that do not raise issues of national security or matters of foreign affairs. In many respects, they are no different from the sorts of powers that the police exercise when they search and seize, or exercise other powers available to them through the usual routes of going to the Crown court. His starting point is that it is no longer sensible for the Secretary of State to handle these thousands of cases, particularly since 70% are in fact police cases, not involving national security or foreign affairs.

Secondly, in paragraph 14.50 David Anderson deals with improving public confidence. Thirdly, at 14.51 he deals with the position in the US, where there is a growing insistence that if warrants are to be complied with by those in the US, judicial sign-off of the warrant is required. David Anderson’s concern was that, unless we move to a different system, we might find that warrants would not be honoured when we needed them to be honoured in other jurisdictions. That is obviously a serious point that I know the Government have taken into account.

The fourth reason, in paragraph 14.52, is that there is an established and well-functioning system for judicial approval by commissioners in comparably intrusive measures, when applied for by the police. He lists them as property interference, intrusive surveillance and long-term undercover police operations. Other police activities that require to be warranted go straight to the commissioner, not via the Secretary of State. Since 70% of those cases are the police exercising not dissimilar powers of interception under warrant, there is a powerful argument to say that that category of cases, if nothing else, ought to go straight to a judicial commissioner. That would be modelled on David Anderson’s analysis, for the reasons that he has set out in those paragraphs.

I would like to highlight paragraph 14.56(a), because it has been said today and on other occasions that an important political accountability goes with the role of Secretary of State in relation to these warrants. Yes, that is the case to a certain level, but it must not be misunderstood. I have yet to find an example of any Secretary of State from any political party, certainly in recent history, ever accounting to Parliament for an individual warrant.

[Victoria Atkins]

What I genuinely do not understand about this argument is that, given that the Secretary of State is not permitted or authorised to account publicly for a warrant, how on earth will that be any different for a judicial commissioner? The nature of the material is sensitive, regardless of whether it is reviewed by the Secretary of State or by the judicial commissioner.

[Keir Starmer]

The point I am making is not that that judicial commissioner could be more accountable, or that there would be some forum in which the judge could go and explain. I completely accept that that is a limitation. I am meeting the argument against this proposal, which is that at the moment the Secretary of State has some political accountability which would be reduced or taken away if this amendment were accepted.

The point David Anderson makes is that it is of course a criminal offence to disclose that the warrant has been signed, so in fact the Secretary of State could not go to the Dispatch Box even in an extreme case. She would commit an offence if she went to the Dispatch Box to be held accountable for an individual decision. That is exactly why David Anderson writes as he does in paragraph 14.56 of his report. If any other members of the Committee have found an example of a Secretary of State ever actually being held accountable for an individual warrant, I personally would like to see the Hansard report of that taking place.

[Suella Fernandes]

On the question of accountability, there is a clear line of accountability to the Executive in the form of the Intelligence and Security Committee. It is a body of reviewers—elected, accountable and within the parliamentary and democratic process—who have access to this confidential information and can review the actions under this function. That is a clear line of accountability, which exists and is exercised.

[Keir Starmer]

Again—and I will be corrected if I am wrong on this—the statutory prohibition on the Secretary of State ever saying whether or not she signed a warrant applies across the board, whether in a Select Committee or in any other parliamentary proceedings. In other words, first, she could not be asked a question about an individual warrant because there would be no basis on which it could be put and, secondly, even if it were asked she could not answer it. I take the point that is being made but, wherever the accountability is placed, to hold the idea that there is individual accountability for the hugely important decisions that are made on individual warrants is to misunderstand how the regime works.

[Lucy Frazer]

One witness—I forget now who it was, but I think they were on the legal panel—said that there is accountability both ways. If the Secretary of State gets it right and there is no terrorist attack, there is nothing to be accountable for. If she gets it wrong, she is extremely accountable for the consequences of something that happened when she made the wrong judgment call about whether to issue a warrant.

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[Keir Starmer]

I recall that evidence, but it is very difficult to see how that could work in practice, because none of us would ever know—nor could we know—whether a warrant had been put before the Secretary of State and whether she had signed it. That is prohibited for us and for the other oversight mechanisms. That is the problem. I accept the broader political accountability—if something goes horrendously wrong, one would expect the Home Secretary to make a statement about what the Government had been doing. However, the idea that on an individual, warrant by warrant basis there could be anything amounting to accountability is what David Anderson was driving at in his report, and it has never happened. That is the best evidence.

[Mr Hayes]

The hon. and learned Gentleman is so wrong about this that I have an embarrassment of riches on which to draw. He is philosophically, politically and factually wrong, but let me deal first with his factual inaccuracy. The Home Secretary can talk about specific warrants to the ISC. The ISC does conduct detailed investigations into particular cases, as it did into the murder of Lee Rigby, when it scrutinises data in considerable detail. Of course all of that cannot be made public, because of the nature of the investigation, but the hon. and learned Gentleman misunderstands—perhaps because of inexperience—the role of the ISC in those terms. I will deal with his philosophical and political problems later.

[Keir Starmer]

Perhaps the Minister will point me to an example of the ISC ever making public any criticism of or comment about the Secretary of State’s exercise of the powers in a way that could in any way be described seriously as politically accountable.

[Mr Hayes]

With respect to the hon. and learned Gentleman, he can hardly claim that the ISC is a puppet or poodle of Government given its report on the Bill. The ISC is extremely robust in its scrutiny of Ministers. It makes its views known to Ministers and is not frightened to make known to the House its views about the proposals, policies and performance of Government.

[Keir Starmer]

I do not think that the Minister was listening to what I said. I asked if he could point me to a single example of the Intelligence and Security Committee ever commenting publicly—in a way that could be accountable to the public—on the exercise by the Secretary of State of her powers to issue a warrant. It is all very well making generalised points, but I am asking for yes or no—the Minister must know.

[Mr Hayes]

The hon. and learned Gentleman said that the ISC could not ask the Secretary of State about particular warrants, but the ISC can and does ask the Secretary of State about particular warrants in pursuit of its inquiries into specific cases. Of course, because of the character of the ISC, rather like the practice of Ministers, it cannot make all that information publicly available. The whole point about the ISC is that it does not make all that it considers publicly available, but that does not mean that Ministers are not accountable to the Committee, which is made up of Members of this House from many political parties.

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[Keir Starmer]

The answer to my question appears to be no, there has never been an example of the ISC or any Committee ever commenting publicly on the exercise by the Secretary of State of her specific powers to issue warrants or not. That is what leads David Anderson to the view that the political accountability card is overplayed in the discussion.

[The Solicitor General (Robert Buckland)]

This is a very important aspect of the debate. On the last remark made by the hon. and learned Gentleman, about David Anderson’s potential conclusion about political accountability being overplayed, I was interested in the arguments, but the fundamental point is the source of the authority that allows the Secretary of State as a democratically elected politician to make the decisions. Also, in particular in the context of national security, it is well set out in case law, as the hon. and learned Gentleman knows, that proper deference should be paid to the Executive on important decisions of national security. That is at the top end of the scale, then we move down—or across, in a different context—and is that not the issue?

[The Chair]

Interventions from Front and Back Benchers will all be short.

[Keir Starmer]

I have already accepted the general proposition that if some catastrophe occurred, the Secretary of State would be required or expected to make a statement, setting out what in general terms had been done. I accept that level of political accountability. I am talking about the specifics of signing off warrants and, therefore, what would be lost if the Secretary of State’s role were taken over by the judicial commissioner. There is a question of deference on national security and foreign affairs, but we will get to that when we reach clause 21, because that deals with the scope of review by the judicial commissioner. The point I was making before the interventions, however, was drawing attention to David Anderson’s paragraph 14.5, in which he sets out the reasons why the political accountability card is overplayed.

[Victoria Atkins]

The hon. and learned Gentleman may recall that we had the privilege of listening to two Labour Home Secretaries, Lord Reid and Charles Clarke. I asked Mr Clarke about his relationship with the security services and his experience of warrantry in the dreadful hours following the 7/7 bombings. I asked him how useful or important that was in the vital hours thereafter and his answer—I will be quick, Mr Owen—started with the words “critically important”. Does that affect the hon. and learned Gentleman’s view in any way?

[Keir Starmer]

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

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

[Joanna Cherry]

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

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

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

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

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

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

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

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

[Mr Hayes]

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

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

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

[Keir Starmer]

How would a member of the public ever know, and therefore be able to judge, whether a Secretary of State had made a mistake in relation to a specific warrant?

[Mr Hayes]

I am prepared to acknowledge that I may not have made the argument sufficiently clearly, rather than to suggest that the hon. and learned Gentleman did not understand it. I was making the point that those who are missioned to make the decisions are likely to be more in touch with the sentiments, values, views and opinions of the public than those who are not elected, because of who they are and the job they do. That is not a particularly difficult concept to grasp, so I am amazed that he does not grasp it.

[Keir Starmer]

Perhaps the Minister can point me to the provision in the Bill that permits or requires the Secretary of State to take into account the wider public’s views. There are strict legal tests of necessity and proportionality, and the idea that judges could not apply them to specified organisational purposes and so on is to underplay their duty. I have done loads of control order cases and TPIM cases in front of judges and they make such decisions day in, day out.

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[Keir Starmer]

I am not sure I appreciate the tone with which the Minister is now conducting the debate, to be perfectly honest. To some extent, his comments have lost sight of the point I was making and that David Anderson made. The Minister invokes defence of the realm and national security, and so on, and has forgotten that 70% of these interception warrants are warrants for the police to exercise their powers—not particularly different to a lot of the other powers they exercise. They get search and seizure, they go into people’s houses, they get their letters and they read them, so there is nothing special about content in an intercept to say, “It must be the Secretary of State: only she is in touch with real people.” The police can get a warrant from a judge; they do so every day of the week. They go into people’s houses, they get all their documents and they read the lot, so the idea that that is a function that cannot be exercised unless someone is democratically elected is very hard to sustain.

[The Chair]

Before the Minister continues, let me say that the shadow Minister will have an opportunity to respond.

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[Mr Hayes]

For the sake of brevity and to make sure I do not fall out in the future, I am going to say that, yes, I did notice it.

The shadow Home Secretary, speaking of the Home Secretary, went on to say:

“The two-stage process that she advocates seems to have the merits of both arguments: it will provide public and political accountability, and the independence that is needed to build trust in the system.”—[Official Report, 4 November 2015; Vol. 601, c. 974.]

That is exactly the same point that I made to the hon. Member for City of Chester: it has, in the words of the shadow Home Secretary, the “merits of both arguments”.

Perhaps the shadow Minister will forgive me if I sound a little more arch than I normally do, but I feel that this is such a surprising set of amendments, which is so out of keeping with what I hoped was emerging as a settled position on the balance between the Executive and the judiciary. I thought we would end up with a debate on this, but not one between two positions—our measured, compromise position, and a much more extreme position that I did not expect the official Opposition to adopt. I urge him to think about this again, because I think we reached a good settlement in the terms that I described. That is my political point.

Returning to my original point for a moment, given the evidence provided by the former Home Secretaries, John Reid and David Blunkett, and the former Northern Ireland Secretary, my right hon. Friend the Member for North Shropshire (Mr Paterson), I think the balance of opinion lies on our side of the argument. I note the Joint Committee’s report and the fact that the ISC was silent on this issue in its most recent report. I feel that the balance of the argument lies with the proposals in the Bill. Perhaps we can look at the detail—I am happy to do that. Perhaps, in the spirit of trying to make positive progress, we can look at the information is provided to each party under the double-lock or at how the timing works—I do not know. I am not going to make any commitments on that, but I am more than happy to have a measured and reasonable debate about this. However, to take the Executive out of the process is politically very unwise, if I might say so, of the Opposition, and it is certainly not acceptable to the Government.

On the philosophical point, the shadow Minister understands—he is an educated and interesting man—that this strikes at the very heart of the separation of powers. My right hon. Friend the Member for North Shropshire said in evidence that

“these are executive decisions. They are operational decisions and must be made by a democratically elected Minister, accountable to Members of Parliament.”

He did not want the judiciary involved at all. We did not take that route because we listened to David Anderson and others, but I take the former Minister’s point.

Finally, so that we do not have any factual inaccuracies, the ISC made a clear recommendation on warranting in the Lee Rigby report that I mentioned earlier. The ISC does comment on warranting, contrary to what the shadow Minister says. It can both interrogate the Home Secretary on specific warrants and comment on warrants in respect of a particular investigation or inquiry. There is a line of accountability, as well as one to the wider public in the general terms that I described, to a well respected Committee of this House, which was established for exactly that purpose. On that basis, and having heard the argument, I urge Opposition Members to think again about these amendments.

[Keir Starmer]

In the exchanges we have had, I have probably said all I needed to in response to the Minister’s points. David Anderson might be surprised to find out that he is associated with the Bolshevik opposition apparently represented in the amendments. The amendments represent and reflect his thinking, but that is as may be—I will not press the amendments to a vote. I beg to ask leave to withdraw the amendment.

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[The Chair]

Thank you.

Amendment, by leave, withdrawn.

[Keir Starmer]

I beg to move amendment 61, in clause 17, page 14, line 1, leave out subsection (4) and insert—

“(4) No warrant issued under this Part will be proportionate if the information sought could reasonably be obtained by other less intrusive means”.

[The Chair]

With this it will be convenient to discuss amendment 93, in clause 27, page 21, line 6, at end insert—

“(2A) A warrant issued under this Chapter must state the specific purpose that is to be achieved by the warrant.

(2B) A warrant issued under this Chapter must outline the options for obtaining the relevant data and confirm that other less intrusive options have been tried but failed or have not been tried because they were bound to fail and the reasons why.”

This amendment, and others to Clause 27, seek to preserve the capacity of a single warrant to permit the interception of multiple individuals but would require an identifiable subject matter or premises to be provided (in similar vein to the amendments to Clause 15).

[Keir Starmer]

I mentioned amendment 61 this morning. The interception of communications draft code of practice—at paragraph 4.7, as I indicated this morning—states:

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

That is a clear and correct statement of principle.

Subsection (4), as drafted, is not so clear. It simply suggests that, if the information can reasonably be obtained by other, less intrusive means, that is a factor to be taken into account, but is not decisive, as set out in the draft code of practice. In our view, the Government cannot have it both ways: if the code is right, it should be elevated and put on the face of the Bill. That is what the amendment seeks to achieve, replacing subsection (4) and replacing it with what is, in essence, paragraph 4.7 of the draft code of practice, which in our view is the right way to articulate necessity in such circumstances.

[The Chair]

Joanna Cherry, do you wish to speak?

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[The Solicitor General]

My hon. Friend makes a powerful point. There is a danger when dealing with primary legislation of gilding the lily. I mean that in the spirit of co-operation that I know we have managed to engender in these debates, in the main. For those reasons, I respectfully ask the hon. and learned Gentleman to withdraw his amendment.

[Keir Starmer]

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

Amendment, by leave, withdrawn.

Clause 17 ordered to stand part of the Bill.

Clause 18

Grounds on which warrants may be issued by Secretary of State

[Joanna Cherry]

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

--- Later in debate ---

I ask Ministers and Government Members, in the spirit of the Committee’s conduct so far, to consider this carefully and to take away my pleas and those of Opposition Members that sufficient safeguards be written into the Bill to give genuine protection to trade unions that are simply trying to defend the wellbeing of their members and their members’ families. I am grateful for the opportunity to put this case. I remind Members of my declaration of interest, which is my membership of trade unions.

[Keir Starmer]

It is a pleasure to follow my hon. Friend, whose comments I endorse. I saw the Ministers nodding that they will take that away and consider it, and I am grateful for that indication. Rather than the broader points that have been discussed so far, I will concentrate my comments on clause 18(2)(c), which deals with

“the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.

The short point is this: if economic harm to the wellbeing of the United Kingdom is so serious that it amounts to a threat to national security, it is covered within subsection (2)(a). If harm to the economic wellbeing of the United Kingdom is a serious crime, it is already within subsection (2)(b). The Intelligence and Security Committee has made the point that

“if ‘national security’ is sufficient in itself, then ‘economic well-being…so far as [is] relevant to the interests of national security’ is redundant, since it is a subset of the former.”

The ISC went on to say:

“We have questioned both the Agencies and the Home Office on this matter and neither have provided any sensible explanation. In our opinion, this area is already sufficiently complex so drafters should seek to minimise confusion wherever possible. We therefore recommend that ‘economic well-being’ is removed”.

The Committee makes the same point that if economic wellbeing is already subsumed into paragraphs (a) and (b), paragraph (c) is not necessary. The Committee has asked repeatedly what paragraph (c) covers if not what is already within paragraphs (a) and (b), and I ask that question here today. I ask the Minister or anyone else to give me a single example of what it is envisaged paragraph (c) covers that does not fall within paragraphs (a) and (b).

Subsection (4) has been referred to today and on Second Reading as providing some sort of comfort that subsection (2)(c) is not a matter of concern. It says:

“A warrant may be considered necessary as mentioned in subsection (2)(c) only if the information which it is considered necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.”

To be clear, that does not mean the communication itself is outside the British islands, but that the communication relates to acts or intentions of persons outside the British islands. I endorse everything that was said about trade union and other activities that may be outside the British islands, but the suggestion that this provision would only catch communications outside the British islands is a wrong reading, in my submission.

The question on the table for the Minister is whether a single example can be given of something coming within subsection (2)(c) that does not come within subsections 2(a) and (2)(b). If not, how can the clause be justified?

[Mr Hayes]

I start my contribution to this short debate by confessing a pretty profound prejudice, which is that I am committed to and supportive of trade unions. I am a member of a trade union; my father was a shop steward; my grandfather was chairman of his union branch. I come from a long history of trade unionism, and I believe that the trade union movement in Britain has done immense good for the interests of the people. I am a Disraelian Tory, and so I believe in the elevation of the people, in which trade unions have played an important part. I could wax lyrical about one of my heroes, Joseph Chamberlain, in terms of the elevation of the people, but we do not have time for that. When I approach this clause and this subject, I do so with that profound prejudice. By the way, just as an aside, prejudice is immensely underrated in the modern age, but it is important that we balance all that is rational with all that we feel. Feelings matter.

I make it categorically clear that, as the hon. Member for City of Chester generously said, not only individual Ministers in this Government, but the Government as a whole have no intention that these powers should be used for the kind of political purposes he describes. That is not our intention. Actually—it is always good to go further than one’s officials want—I think we might need to be more emphatic about that in some form, because I want to make it crystal clear that the kind of scenario that he describes cannot happen in our country.

Our country is a free and open place where we celebrate the differences between people and the role played by the trade unions. I am prepared to go as far as necessary down the road to make that categorically clear. To that end, I suggest that I meet Frances O’Grady of the TUC to discuss this. I know her well. I went on a joint business-trade union delegation with her to Germany to look at apprenticeships when I was Skills Minister. I am more than happy to engage with the trade union movement to see what more we can do.

However, let us return to the point about economic wellbeing and these amendments. At the outset of his remarks, the hon. Gentleman rightly recognised that threats to economic wellbeing could be immensely damaging and fundamental in their effect and could be the business of a foreign potentate or another source of malevolence. He described a cyber-attack, which might be an attack on our critical infrastructure, on our financial services system or, heaven knows, on Government itself. The age we live in means that cybercrime, perpetrated either locally or internationally, is a threat that we must recognise and have the means to address, so it is right that the law—this Bill, which I hope will become an Act—includes reference to the interests of the economic wellbeing of the UK, but it is equally true, as the Opposition argued on Second Reading and elsewhere, that that interest is closely tied to national security.

One argument that has been made is that if we were to define national security more tightly, we might assuage fears of the kind the hon. Gentleman described. The trouble with defining national security more tightly is that that might of itself create additional rigidity that is unhelpful to the agencies in pursuit of their work. Successive Governments have hesitated to describe national security prescriptively, and having looked at these matters closely I understand why. Successive Governments have affirmed the idea that a small number of law enforcement agencies, the security and intelligence services and the armed forces need to be able to seek and use interception warrants for national security, for preventing and detecting serious crime and in the interests of economic wellbeing. I am reluctant, therefore, either to take economic wellbeing out of that list or to define national security more narrowly. I think that the breadth of those definitions is important for operational effectiveness.

There may none the less be more that we can do to deal with political fears, if I can put it in those terms. The existing law is clear that none of these powers can be used in the interest of a political party or in a particular political interest, but it may be that we can do more to offer reassurance. I am going a little further than we have until now because I want to create a bridge that we can cross. The Security Service Act 1989 and the Intelligence Services Act 1994 provide some protection, because they deal particularly with the issue of the interests of any political party being served by the powers. A case has been made about the Shrewsbury 24. Indeed, there was a debate in Westminster Hall on that very subject—I have the transcript here with me—promoted by the hon. Member for Liverpool, Walton (Steve Rotheram), who is a very good man and a very proud trade unionist; I know him well. The events at that time preceded the legislation that tightened protection. Notwithstanding that, I have heard the argument that has been made today.

The other reason why I do not want to significantly change the language on economic wellbeing, although I understand the argument about ambiguity, is that the phrase “economic wellbeing” reflects the language in domestic legislation—as my hon. and learned Friend the Solicitor General will know—the European convention on human rights and the European Union directive that covers the scope of interception powers. It is difficult to think of a better, more appropriate or more widely recognised term. Substituting another term could be taken to imply that the agencies should not engage in certain activities in the future that they undertake now. One can easily imagine a future judicial commissioner querying why the language has changed from that used in the Regulation of Investigatory Powers Act 2000, and asking whether what the agencies do should change, too.

I am hesitant to make that fundamental change. I am not sure it would do anything for transparency. Indeed, removing economic wellbeing and placing what is done under the broader umbrella of national security might lead to less, rather than more, clarity in the process. As the hon. Member for City of Chester described, some of the events that would be included under the heading “economic wellbeing” could be sudden and of crisis proportions, such as the cyber-attack to which he and I referred, and require prompt and decisive action. Such crises are, by their nature, unpredictable and we must not limit the agencies’ ability to deal with them.

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[Joanna Cherry]

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

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.

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

Clause 21

Approval of warrants by Judicial Commissioners

[Keir Starmer]

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

[The Chair]

With this it will be convenient to discuss amendment 89, in clause 21, page 17, line 10, leave out subsection (2).

[Keir Starmer]

This is where we pick up the discussion about scrutiny. As the amendments to clause 17 were withdrawn, the premise here is that of a dual function, carried out first by the Secretary of State and then by the judicial commissioners. To be clear, we welcome the involvement of judicial commissioners, and the amendments focus on their role in the process. We have had the discussion about whether the judicial commissioners should be the default decision-makers—this is a different exercise.

What is clear in clause 21(1) and (2) is that what is envisaged in the Bill is a review exercise by the commissioners. That is clear from the words “must review”. Subsection (1) states that the judicial commissioner must review the person’s—in this case, the Secretary of State’s—conclusions as to necessity and proportionality, and subsection (2) states that

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

It is therefore a review mechanism, and it is a review according to judicial review principles.

Two problems arise from that. The first is that it is not, therefore, truly a double lock. A double lock denotes a decision by the Secretary of State, which survives in clause 17, and a decision by a judge—a judicial commissioner—under clause 21, but this is not that sort of double lock.

The second problem, the reference to judicial review, is equally profound. Committee members will remember my question to Lord Judge:

“Do you agree with me that as the Bill is currently drafted, it is not clear what Parliament intends”—

in relation to judicial review of warrants—

“and therefore it will fall to the judges? In other words, it is broadly enough drafted to cover a longer-arm review or a closer intense review depending on what judges decide as cases evolve. It could accommodate both approaches.”

That is the problem with judicial review here.

I will quote Lord Judge’s response, because he captures the real cause for concern here:

“I think ‘judicial review’ is a very easy phrase to use. It sounds convincing, but it means different things to different people. People say, ‘Wednesbury unreasonableness’—that was a case decided by the Court of Appeal in 1948 or 1947, and it has evolved. Personally, I think that when Parliament is creating structures such as these, it should define what it means by ‘judicial review’. What test will be applied by the judicial—I call him that—commissioner, so that he knows what his function is, the Secretary of State knows what the areas of responsibility are and the public know exactly who decides what and in what circumstances? I myself do not think that judicial review is a sufficient indication of those matters.”––[ Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 67-68, Q220.]

That is one of the most experienced and well-respected judges in the country indicating that in those circumstances judicial review is not a sufficient indication of the test.

Amendment 62 would require the judicial commissioner to decide for him or herself on necessity and proportionality. Amendment 89 would take out the reference to judicial review. The scheme and structure of the Bill would therefore be retained. There would be a double lock. Both the Secretary of State and the judicial commissioner must be satisfied that necessity and proportionality is made out, at which point the warrant would come into effect, unless of course it is an urgent warrant. There would be clarity about the role of the judge.

In previous exchanges, it has been accepted that the judicial commissioner will see the material that is before Secretary of State and therefore can make that decision. The lock therefore becomes what we have termed an equal lock, where both parties make a decision on the substantive merits of the case. That gets rid of the potential ambiguity with which Lord Judge was concerned. It would then be absolutely clear that this is truly a double lock. It is a simple and straightforward amendment that would bring real clarity to the exercise.

[Suella Fernandes]

I am listening to the hon. and learned Gentleman with interest, and I appreciate his exploration of the meaning of this term. What is his opinion of Lord Pannick’s assessment of the insertion of judicial review? He concludes that it is sufficient, flexible but clear and strikes the right balance.

[Keir Starmer]

I know and respect Lord Pannick hugely, but there is no guarantee in the Bill that his preferred way of approaching this under judicial review principles is the one that will be carried out in practice; he has no control over the test that will be applied. Lord Judge’s concern is that some judges may consider that this is an area where they virtually take the decision, which is what they do in certain cases involving particular human rights issues, where they get very close to the decision, while other judges will be much more deferential.

With the best will in the world, Lord Pannick puts forward the view that judicial review will work, but there is no guarantee of that. Unless it is set out in the Bill, the test will be simply left to be applied on a case-by-case basis. Nobody, in this formulation, could argue that a judge who applied long-arm reasonableness was acting in any way other than in accordance with the test.

Obviously, I respect what Lord Pannick says, but Lord Judge was making a different point that goes back to accountability, to some extent. He was alive to the fact that once judges are involved in the decision-making process, a torch will be shone on them in relation to these warrants. There will be inhibitions on what they can say and the circumstances in which anybody could hold them to account. We have rehearsed that. I read into his answer that he wanted absolute clarity and a tightness of test so that the judges knew what they were to do and could operate within those confines, thus protecting themselves from the suggestion that they had applied too close or too loose a test. It is partly about clarity, with one eye on judicial accountability in the longer term for the decisions that have to be made.

[Lucy Frazer]

The hon. and learned Gentleman earlier cited Sir Stanley Burnton and said, pretty much verbatim, that he would encourage Government Members to look carefully at any submissions that Sir Stanley Burnton made, as he was extremely knowledgeable. On this issue, Sir Stanley said that he was happy with the test and that it might be difficult to draft it more tightly. Another experienced member of the panel who gave evidence, Lord Reid, specifically stated that he thought the judges’ role was

“about oversight…and not about decision making.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 84, Q259.]

[Keir Starmer]

Sir Stanley is a friend and colleague, and I have had the privilege of appearing in front of him on a number of occasions in cases involving national security, in particular control order cases. I think that what he was indicating was that, in his experience and on his own approach, as any of the cases will demonstrate, he is in favour of intense review by the judge. He anticipates that the measure allows that intense review. I have no doubt that that is the approach he personally would take, because that would be consistent with the approach that he has always taken in such cases.

--- Later in debate ---

[Suella Fernandes]

It is an important issue. Evidence to the Joint Committee from Sir Stanley Burnton and Lord Judge was unequivocal, in that Wednesbury unreasonableness would have no place in this context. That seems to be maintained by Sir Stanley Burnton in the evidence that we have received more recently. Does the hon. and learned Gentleman agree that Wednesbury unreasonableness has no role in this context, especially by virtue of reference to necessity and proportionality?

[Keir Starmer]

The reference to proportionality and necessity does not help in this context, because the question for the judge on this formula is not, “Is the measure necessary? Is it proportionate?” Judges often make, and are well used to making, that decision. The decision for them on this formula is whether, when the Secretary of State decided that it was necessary and proportionate, she was exercising her powers in a way that cannot be questioned, applying the principles of judicial review. That is the real difference.

Whether I think the long-arm Wednesbury test is appropriate is neither here nor there. So long as we have clause 22(2), it is open to a judge to apply the old-fashioned Wednesbury test, because that is within the principles of judicial review. The case law obviously varies. The closest possible scrutiny is usual in control order or TPIMs cases, but there are many other examples involving national security where the judges have persistently said that long-arm review applies. There are two strong lines of case law, and I am arguing that one is better than the other. The point is whether the Bill is clear enough about the test to be applied.

This is a real opportunity, as much as a challenge, for the Government. The provision is a new one, and it is a double lock if properly applied. It ought to be substantive. The judge ought to decide whether a warrant is necessary or proportionate. As long as he or she does, the warrant comes into existence and can be relied upon. In the 21st century, that is the right approach when such a provision is going into statute for the first time.

[Lucy Frazer]

I think the hon. and learned Gentleman is saying that he favours the same test being applied by both the judge and the Home Secretary. If so, that is in conflict with Sir Stanley’s evidence. He said that he would give significant weight to the view of the Home Secretary. If he gave significant weight to the Home Secretary, necessarily he would be reviewing what the Home Secretary has done. If that is appropriate, the word should be “review”, whether it is judicial review or not. It is a review, not an assessment afresh of the same decision.

[Keir Starmer]

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

[Joanna Cherry]

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

[Keir Starmer]

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

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

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

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

[The Solicitor General]

The debate has been interesting. On a point of order, Mr Owen, I want to ensure that we are dealing with both groups of amendments. The grouping that I have seeks to group new clauses 1 and 5 in one group—

[The Solicitor General]

That is fine. I am grateful to you, Mr Owen. I will address those amendments, rather than the new clauses, which will be dealt with in the usual way, but the purport of the argument is similar.

To summarise, amendment 89 would remove the provision in the Bill that specifies that when reviewing the decision by a Secretary of State or a Scottish Minister to issue a warrant, the judicial commissioner must apply the same principles as would be applied by a court in an application for judicial review. Instead, the amendment would require him or her to determine the necessity and proportionality of a warrant for him or herself.

There has been a lot of debate on the important report by David Anderson and the Royal United Services Institute review. They have played a huge part in bringing the Bill to germination and its current state. There is a danger here. I listened very carefully to the evidence of Lord Judge and, indeed, asked him a number of questions. The dilemma that I put to him still remains. I can see the attractiveness in seeking to narrow or prescribe the particular criteria to be applied by the commissioners in every instance, but there is a danger that, in doing so, we fetter the proper discretion of judges exercising their review function in looking at each case purely on a case-by-case basis.

The hon. and learned Member for Holborn and St Pancras set out his stall very clearly. He prays in aid the equal lock, as he calls it. In essence, he wants a different approach from that which the Government say we should take. We make no apology that the decision made by the Secretary of State is reviewed by the judicial commissioner before coming into force. That is a very simple, staged approach that clearly reflects the way in which case law is going and is also ahead of the curve when it comes to the development of judicial oversight of warrantry in these particular cases.

I will deal with the Anderson carve-out, if I may use that phrase. The problem with the genuine intention of David Anderson in trying to carve out what he recognised to be an important part of the function of Government—namely, national security and foreign affairs, where he recognised that the Executive are the part of our constitution best placed to deal with those matters—and then creating a certification process is that that, in itself, is juridicable. An Executive decision will be made that is, in itself, capable of challenge. My concern is that, however well intentioned attempts to create a hard and fast definition that creates a theoretical space for Ministers to act might be, we will end up with further difficulty, further lack of clarity and, frankly, further litigation that means that the Bill is not future-proof in the way that I want it to be.

[Keir Starmer]

To save time—I probably should have made this clearer an hour ago when we were rowing about other things—I had seen this certification clause, or new clause 1, as going with the amendments to clause 17. In other words, it was my acceptance that, on certain measures, there ought to be a certificate from the Secretary of State for the limited accountability that I accept is there. Therefore, if it is helpful, amendments 62 and 89 are intended to be taken on their own, not cluttered by the certification process, which possibly would have been better discussed under clause 17.

[The Solicitor General]

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

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

--- Later in debate ---

[The Solicitor General]

That is an interesting way of putting it. I want to make it clear that the review is on an appeal. There is a danger that we will end up mistakenly looking at some sort of a de novo application entirely on its merits, not an appeal. There are other mechanisms by which this matter could be taken further up. At this stage, it is part and parcel of the decision being made. That is an important point of clarification.

[Keir Starmer]

Can the Solicitor General point me to the words in clauses 1 and 2 that would make it wrong for a judge to apply long-armed judicial review principles to a decision?

--- Later in debate ---

[Joanna Cherry]

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

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

[Keir Starmer]

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

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

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

Amendment, by leave, withdrawn.

[Mr Hayes]

I beg to move amendment 2, in clause 21, page 17, line 13, leave out from “a” to “grounds” and insert

“decision of the Secretary of State to issue a warrant,”.

This amendment makes a minor drafting change to take account of the fact that Clause 21 may also apply in a case where a warrant has already been issued (see Clause 22).

[Mr Hayes]

These are minor drafting changes, to take account of the fact that clause 21 may also apply in cases where warrants have already been issued by the Secretary of State, and that urgent procedures are covered in clause 22, and that clause 21 may also apply in a case where the warrant has been issued by Scottish Ministers. They are uncontentious changes, and I beg to move the amendment on that basis.

Amendment 2 agreed to.

Amendment made: 3, in clause 21, page 17, line 15, leave out from “a” to “grounds” and insert

“decision of the Scottish Ministers to issue a warrant,”.—(Mr John Hayes.)

This amendment makes a minor drafting change to take account of the fact that Clause 21 may also apply in a case where a warrant has already been issued (see Clause 22).

[Keir Starmer]

I beg to move amendment 102, in clause 21, page 17, line 23, at end insert—

“(6) In consideration of any warrant pursuant to this Part, a Judicial Commissioner may instruct a special advocate to represent the interests of any person or persons subject to the warrant or the wider public interest.

(7) A Judicial Commissioner must instruct a special advocate when considering applications for a warrant—

(a) in the interests of national security; or

(b) involving the consideration of items subject to legal professional privilege.

(8) For the purposes of these proceedings special advocates are persons appointed by the relevant law officer.

(9) The ‘appropriate law officer’ is—

(a) in relation to warrants in England and Wales, the Attorney General,

(b) in relation to warrants in Scotland, in relation to (7)(a), the Advocate General for Scotland, and in relation to (7)(b), the Lord Advocate, and

(c) in relation to warrants in Northern Ireland, the Advocate General for Northern Ireland.

(10) A person may be appointed as a special advocate only if—

(a) in the case of an appointment by the Attorney General, the person has a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990,

(b) in the case of an appointment by the Advocate General for Scotland or the Lord Advocate, the person is an advocate or a solicitor who has rights of audience in the Court of Session or the High Court of Justiciary by virtue of section 25A of the Solicitors (Scotland) Act 1980, and

(c) in the case of an appointment by the Advocate General for Northern Ireland, the person is a member of the Bar of Northern Ireland.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 38, in clause 21, page 17, line 23, at end add—

“(6) In considering a warrant pursuant to this Part, a Judicial Commissioner may instruct a special advocate to represent the interests of any person or persons subject to the warrant or the wider public interest.

(7) In considering a warrant pursuant to this Part which is being sought—

(a) in the interests of national security;

(b) in the interest of the economic well-being of the United Kingdom in so far as those interests are also relevant to the interests of national security; or

(c) involving the consideration of items subject to legal professional privilege,

a Judicial Commissioner must instruct a special advocate to represent the interests of any person or persons subject to the warrant or the wider public interest.

(8) For the purposes of this section a special advocate is a person appointed by the appropriate law officer for the country of the United Kingdom to which the warrant relates or mostly relates—

(a) for England and Wales, the Attorney General,

(b) for Scotland, the Advocate General for Scotland, and

(c) for Northern Ireland, the Advocate General for Northern Ireland.

(9) A person may only be appointed as a special advocate by the—

(a) Attorney General, if the person has a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990,

(b) the Advocate General for Scotland, if the person is an advocate or a solicitor who has rights of audience in the Court of Session or the High Court of Justiciary by virtue of section 25A of the Solicitors (Scotland) Act 1980, and

(c) the Advocate General for Northern Ireland, if the person is a member of the Bar of Northern Ireland.”

Amendment 39, in clause 21, page 17, line 23, at end insert—

“(6) In consideration of any warrant pursuant to this Part, a Judicial Commissioner may instruct a special advocate to represent the interests of any person or persons subject to the warrant or the wider public interest.

(7) For the purposes of this section a special advocate is a person appointed by the appropriate law officer for the country of the United Kingdom to which the warrant relates or mostly relates—

(a) for England and Wales, the Attorney General,

(b) for Scotland, the Advocate General for Scotland, and

(c) for Northern Ireland, the Advocate General for Northern Ireland.

(8) A person may only be appointed as a special advocate by the—

(a) Attorney General, if the person has a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990,

(b) the Advocate General for Scotland, if the person is an advocate or a solicitor who has rights of audience in the Court of Session or the High Court of Justiciary by virtue of section 25A of the Solicitors (Scotland) Act 1980, and

(c) the Advocate General for Northern Ireland, if the person is a member of the Bar of Northern Ireland.”

Amendment 45, in clause 23, page 18, line 22, after “addressed”, insert—

“(c) any Special Advocate appointed.”

Amendment 46, in clause 23, page 18, line 23, after “warrant”, insert

“, or any Special Advocate appointed,”.

[Keir Starmer]

I am very happy to speak, particularly on amendments 38 and 39. May I just be clear with Committee members about the difference between the amendments? They are alternatives. They are provisions that are intended to allow the judicial commissioner to instruct a special advocate to represent the interests of any person or persons subject to the warrant, or the wider public interest.

The difference between the two amendments is that amendment 39 is purely permissive, so that, if a judicial commissioner thinks that he or she wants the assistance of a special advocate, amendment 39 allows that. Amendment 38 is more prescriptive, because it sets out certain circumstances in which a special advocate should be appointed. However, they are deliberately put in alternative form.

I will speak predominantly to amendment 39. There will be circumstances, no doubt, where the judicial commissioner wants assistance from somebody other than the Secretary of State in conducting the exercise that he or she is conducting. If the test remains as set out in clause 21, there may be points that the judicial commissioner wants to hear about, to hear upon and to take into account. This amendment provides a mechanism for him or her to do so.

Experience in the past has shown that, if a clause such as this, or similar to this, is left out, problems arise. Then, there is an attempt, usually by the court, to find its own inherent jurisdiction to allow an amicus or somebody else to be instructed. And it is not straightforward, because some courts and tribunals have inherent jurisdiction and others do not. There are many arguments about that, which we probably do not need to rehearse this afternoon.

This amendment cuts through all that by saying that, if in any given circumstances, a judicial commissioner wants to hear submissions from “A.N. other party”, it allows him or her to have someone make those submissions, either in writing or in person.

I am not personally wedded to the special advocate scheme. If the Solicitor General thinks there is any merit in that argument, I am very happy to work with the Government on a proposal to achieve the same end, but I think that the fall-back of relying on inherent jurisdiction is inherently risky.

--- Later in debate ---

[The Solicitor General]

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

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

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

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

[Keir Starmer]

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

[Joanna Cherry]

I have nothing to add either.

Amendment, by leave, withdrawn.

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

[The Solicitor General]

We have dealt admirably with many of the issues in the clause and I will not speak to the stand part debate.

[Keir Starmer]

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

[Joanna Cherry]

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

Question put and agreed to.

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

Clause 22

Approval of warrants issued in urgent cases

--- Later in debate ---

[Joanna Cherry]

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

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

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

[Keir Starmer]

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

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

--- Later in debate ---

[Joanna Cherry]

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

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.

Clause 24

Members of Parliament etc.

[Keir Starmer]

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

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

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

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

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

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

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

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

(a) a criminal offence has been committed;

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

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

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

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

(ii) importance of the prosecution, and

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

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

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

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

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

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

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

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

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

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

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

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

[The Chair]

With this it will be convenient to discuss the following:

Amendment 92, in clause 24, page 18, line 38, leave out subsections (1) and (2) and insert—

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

(2) Special procedure material under subsection (1) will include—

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

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

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

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

(4) To approve a warrant under subsection (3), a Judicial Commissioner must be satisfied that there are reasonable grounds for believing that—

(a) a criminal offence has been committed,

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

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

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

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

(ii) the importance of the prosecution, and

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

(5) Material subject to legal professional privilege means—

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

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

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

(i) in connection with the giving of legal advice or;

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

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

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

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

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

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

Amendment 63, in clause 24, page 19, line 7, leave out subsection (2).

Amendment 64, in clause 24, page 19, line 8, at end insert—

‘(2A) Where a warrant is likely to cover special procedure material, the procedure set out in subsection (2C) applies.

(2B) Where a warrant is likely to cover excluded procedure material, the procedure set out in subsection (2D) applies.

(2C) Further to requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant likely to cover special procedure material if —

(a) There are reasonable grounds for believing that an indictable offence has been committed,

(b) There are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence at (a),

(c) Other proportionate methods of obtaining the material have been tried without success or have not been tried because it appeared that they were bound to fail,

(d) It is in the public interest having regard to—

(i) the democratic importance of freedom of expression under article 10 ECHR to grant the warrant; or

(ii) the democratic interest in the confidentiality of correspondence with members of a relevant legislature.

(2D) Further to the requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant likely to cover excluded procedure material in accordance with provisions in Schedule 1 of the Police and Criminal Evidence Act 1984 (PACE) and Schedule 5 of the Terrorism Act 2000.

(2E) An application for a warrant under this Part must not be granted where the information could be sought using a warrant under Schedule 1 of PACE, unless seeking this information under PACE would defeat the purpose of the investigation.

(2F) In this section “special procedure material” means—

(a) special material as defined in section 14 of the Police and Criminal Evidence Act 1984; or

(b) correspondence sent by or intended for a member of the relevant legislature.

(2G) In this section “excluded procedure material” has the same meaning as in section 11 of the Police and Criminal Evidence Act 1984.”.

Amendment 80, in clause 225, page 176, line 44, at end insert

“and for the purposes (and only the purposes) of this Act, including the application of paragraphs (a), (b) and (c), a “criminal purpose” includes the purpose of—

(i) doing or facilitating anything involving an imminent threat of death or serious injury or an imminent and serious threat to national security, or

(ii) concealing, or impeding the detection or prevention of, the doing or facilitation of any of those things;”.

[Keir Starmer]

I will speak first to amendment 92, which is on page 18 of the amendment paper. The amendment would introduce additional protection for three special categories: those involving legal professional privilege; that involving journalistic material; and that involving members of a relevant legislature, including MPs. I will also address amendment 63, which is on page 19 of the amendment paper and would remove clause 24(2), to be replaced by amendment 64. For the benefit of the Solicitor General, I indicate that I will address only the principle. Having reviewed the wording, the amendments would not achieve the intended purpose for all the categories I mentioned, and therefore the amendment 104 will not be pressed to a vote. I am therefore speaking to the principles relating to legal professional privilege, journalistic material and members of a relevant legislature.

--- Later in debate ---

[The Solicitor General]

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

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

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

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

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

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

[Keir Starmer]

Can I ask the Minister about journalistic sources? I am concerned that there is nothing about them on the face of the Bill. He will know how anxious journalists are about this. Will he consider whether something should be put on the face of the Bill? There is an inconsistency: in other parts of the Bill, such as clause 68, there is express provision relating to journalists. There is something in the code of practice, but there is nothing on the face of the Bill, which is the problem. Without committing himself to a particular form of words, will he commit to considering one and perhaps liaising with us about what form it could take?

[The Solicitor General]

I am mindful of the fact that my colleague the Security Minister is meeting with the National Union of Journalists. I cannot commit the Government to a particular course of action, but let me put this on record. We are absolutely committed to the preservation and protection of a free press and freedom of expression in our democratic society. That includes the ability of sources to provide anonymous information to journalists, which is absolutely vital if we are to have throughput of important information that needs to be in the public domain.

At the same time, there is a danger. We must not unduly fetter, on the face of the legislation, the important work of our law enforcement, security and intelligence agencies. We live in an age of constant blogging and other social media tools. Journalists themselves do not like being defined as a profession. I have been criticised in the past for using that terminology when talking about journalists, for example in the context of the Leveson process. Now, however, there are increasingly wide and loose definitions of who are journalists and what journalism is, and my worry is that that will, and does, inadvertently prevent legitimate investigation of those who are threatening our national security or who are planning to commit serious crime.

--- Later in debate ---

The Bill strengthens safeguards for journalists because it will require that all interception and equipment interference warrants, including those relating to journalists or their sources, must be approved by a senior judge before coming into force. Warrant applications will make it clear if confidential journalist information is involved. Also, a judicial commissioner will need to be notified if such information is to be obtained. We would not want a situation in which, for example, material relating to the obnoxious and repugnant activities of Daesh somehow fell into a category that we would regard as wholly inappropriate. For those reasons, I invite hon. Members to withdraw the amendment.

[Keir Starmer]

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

[Joanna Cherry]

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

Amendment, by leave, withdrawn.

Clause 24 ordered to stand part of the Bill.

Clause 25

Items subject to legal privilege

[Keir Starmer]

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

[The Chair]

With this it will be convenient to discuss the following:

Amendment 51, in clause 25, page 19, line 31, leave out paragraph (3)(a) and insert—

“(a) that compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise the interception, or (in the case of a targeted examination warrant) selection for examination, of those items, and”.

Amendment 82, in clause 37, page 31, line 7, at end insert—

“(3) But this section does not authorise interception of a communication containing items presumptively subject to legal privilege.”

Amendment 75, in clause 42, page 33, line 30, at end insert—

“(4) But this section, nor section 43 or section 44, do not authorise interception of a communication containing items presumptively subject to legal privilege.”

Amendment 76, in clause 45, page 35, line 9, at end insert—

“(5) But this section does not authorise interception of a communication containing items subject to legal privilege.”

Amendment 81, in clause 225, page 177, line 6, at end insert—

“presumptively subject to legal privilege”, in relation to an item, means that disregarding any question of criminal purpose, the item falls to be treated as subject to legal privilege;”.

New clause 2—Items subject to legal privilege—

“(1) A warrant under this Chapter, or under Chapter 1 of Part 6, may not authorise conduct undertaken for the purpose of doing anything in relation to—

(a) a communication, insofar as the communication consists of matters subject to legal privilege; or

(b) related communications data, insofar as the data relate to the communication of matters subject to legal privilege.

(2) For the purposes of subsection (1), legal privilege means—

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

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

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

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

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

(3) Communications made with the intention of furthering a criminal purpose are not subject to legal privilege.

(4) An application which contains a statement that the purpose of a warrant is to access communications made for the purpose of furthering a criminal purpose, but which would otherwise attract legal privilege must be considered by a Judicial Commissioner.

(5) A Judicial Commissioner may issue a warrant sought under subsection (3), if satisfied that—

(a) there are reasonable grounds to believe that the communications are made with the intent of furthering a criminal purpose;

(b) that the material is likely to be of substantial value to the investigation in connection with which the application is made;

(c) that the material concerned is likely to be relevant evidence;

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

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

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

(ii) the importance of the prosecution, or

(iii) the importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege.

(6) A code of practice issued under Schedule 6 must contain provision about—

(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to a warrant to which this section applies resulting in accidental acquisition of a communication, or communications data, falling within subsection (1); and

(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”

This new clause is intended to replace existing clause 25 and seeks to clarify the approach to legal privilege in line with existing law.

New clause 6—Items subject to legal privilege—

“(1) A warrant under this Chapter, or under Chapter 1 of Part 6, may not authorise conduct undertaken for the purpose of doing anything in relation to—

(a) a communication, insofar as the communication consists of matters subject to legal privilege;

(b) related communications data, insofar as the data relate to the communication of matters subject to legal privilege.

(2) For the purposes of subsection (1), legal privilege means—

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

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

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

(i) in connection with the giving of legal advice; or

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

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

(3) An application which contains a statement that the purpose of a warrant is to access communications made for the purpose of furthering a criminal purpose, but which would otherwise attract legal privilege must be considered by a Judicial Commissioner.

(4) A Judicial Commissioner may issue a warrant sought under subsection (3), if satisfied that—

(a) there are reasonable grounds to believe that the communications are made with the intent of furthering a criminal purpose;

(b) that the material is likely to be of substantial value to the investigation in connection with which the application is made; and

(c) that the material concerned is likely to be relevant evidence;

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

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

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

(ii) the importance of the prosecution; and

(iii) the importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege.

(5) A code of practice issued under Schedule 6 must contain provision about—

(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to a warrant to which this section applies resulting in accidental acquisition of a communication, or communications data, falling within subsection (1);

(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.”

This new clause clarifies the approach to legal professional privilege on the face of the Bill and brings it into line with the spirit of existing case law, the common law and PACE.

[Keir Starmer]

We come to this late, but the provision is an important one. I will try to be brief and to the point. The clause deals with legal privilege. I acknowledge that the Government have responded to the various recommendations so far, setting the provision out in a different form in the Bill.

There are, I am afraid, still problems. I have been discussing those with the Bar Council, which is concerned about the form in which the provision appears in the Bill. I invite the Committee to look at the clause. Subsections (1), (2) and (3) deal with a situation in which the purpose of an intercept warrant is to target material subject to legal privilege and, correspondingly, in relation to targeted examination. Those subsections are relevant to the targeting of material subject to legal privileges. Subsections (4), (5), (6) and (7) serve a slightly different purpose, which is the position if a warrant, although not targeted, may be likely to include items subject to legal privilege.

The difficulty with the first three subsections—this is the strong view of the Bar Council, borne out in the code of practice itself—is that

“Legal privilege does not apply to communications made with the intention of furthering a criminal purpose (whether the lawyer is acting unwittingly or culpably).”

If the communication furthers a criminal purpose, legal privilege simply does not apply. If left unamended, subsections (1), (2) and (3) would allow the targeting of legally privileged material which does not further a criminal purpose, and therefore falls outside the limits of legal privilege itself.

The Bar Council’s point, which is a good one, is that once legal privilege is properly understood it becomes clear that legally privileged material should not be targeted. If the argument is that we may have to target communications between a lawyer and client in which they further a crime—I accept that there have been examples of that—in those circumstances the material has already lost its legal privilege and therefore does not need to be targeted. In fact, something that is not legally privileged is being targeted. It is a very serious point, and new clause 2 was intended to help set out what the Bar Council suggests is a better formulation of clause 25. Subsection (3) of new clause 2 makes it clear that:

“Communications made with the intention of furthering a criminal purpose are not subject to legal privilege.”

It approaches it on that basis in order to meet the argument that you cannot ring-fence something which, under the cloak of legal privilege, is in fact furthering a criminal intent. If that is right, it logically follows that clause 25(1), (2) and (3) should not stand as they are currently drafted. New clause 2 is essentially an alternative provision.

In other words, the test in 25(3) of “exceptional and compelling circumstances” is on the one hand welcome, though it is not welcome in a clause that targets legally privileged material that should not be targeted for the reasons I have outlined.

[Lucy Frazer]

I hope the hon. Gentleman will forgive me for thinking of this as I speak. Is there a risk that we could be unclear as to whether a communication is subject to legal privilege, and think that it is in furtherance of a criminal offence, and then it turns out not to have been? Is there a loophole or lacuna in the legislation that does not cover that eventuality?

[Keir Starmer]

There is. That is a very good point, and it is one that I have discussed with the Bar Council. In those circumstances, what is being targeted is material that is not legally privileged, though there might be something that is legally privileged within it. There should be safeguards put around that, and I readily accept that examples will arise, probably also in the bulk powers, in which, although the intention is not to target legally privileged material, it is very difficult to have a warrant which does not run the risk.

An example would be when there is a suspicion that a lawyer and client may be involved in some activity that would take the communication outside of legal privilege, but it is impossible to say at what point of the conversation or exchange it loses its legal privilege. That is an obvious example. The answer that the Bar Council gives to that, and that I agree with, is that in those circumstances, rather than having a warrant to target the legally privileged material, there is a regime that recognises that it may be that, when targeting what can legitimately be targeted—namely, the part of the communication that has lost its privilege—there is a risk that privileged communications are incidentally picked up. There should be a provision for dealing with that material and its disclosure.

The powerful point about subsections (1), (2) and (3) is that it is wrong, in principle, to target legally privileged material. It is possible to have a warrant that runs the risk, with a separate set of safeguards to ensure that, if the risk materialises—as it will in some cases—there are provisions for ring-fencing, safeguarding, and not disclosing that material. That is the intention behind the Bar Council amendment.

It may be that further tweaks or improvements can be made, but that is an important point of principle that I invite the Solicitor General to take away and consider. A clause that satisfied the Bar Council in terms of the legal protection of this important privilege would be a prize worth having. Although the Bar Council recognises, as I do, the movement that the Government have made here, they simply have not got this right, for the reasons that I have outlined.

Subsections (4), (5), (6) and (7) are focused, in a sense, on communications that are likely to include items of legal privilege, such as a warrant that touches on a solicitor or lawyer communicating with clients, where it is thought that privilege has been lost but also elements where it has not been lost. In those circumstances, the Bar Council’s view and my view is that what is set out is again simply not strong enough, because there is no test or special provision.

New clause 2 is a comprehensive clause that would deal with that issue. In a sense, it goes with amendment 80, which amends a much later provision. It is intended to tidy up and clarify what the Bar Council says properly represents legal privilege and a regime for protecting it.

[Suella Fernandes]

Does the hon. and learned Gentleman not think that there is a special level of safeguard incorporated in the clause? A higher bar needs to be overcome. Only in “exceptional and compelling circumstances” will privilege be circumvented. Is that not a high standard to meet?

[Keir Starmer]

I accept that it is a high standard to meet, but it is focused on the wrong target. If it is wrong in principle to target legally privileged material on the basis that that material might involve communications that further crime, on a proper understanding, that material has already lost its legal privilege. Having a higher test to target something that has not lost its legal privilege is a good thing, but it is not enough. Material that has not lost its legal privilege should not be targeted, because it is in fact not furthering crime. The proper way to deal with it is to recognise that what one really wants to target is communications that have lost their privilege. However, there is a risk of including—unintentionally, because one does not want to target it—other material, and that requires a different approach and a different regime. That is really the point. It is good to have a threshold, but the threshold does not work within the confines of this scheme.

I urge the Solicitor General to view the clause in that light and to reflect again on it. A lot of work has been done to try to get it into a better state, but that has not met with the approval of the Bar Council and, following analysis and discussion with the council, I can see why. New clause 2 is the council’s attempt to get it right. It has spent a lot of time on it and is very concerned about it. I invite the Minister to reflect again and commit to looking again at the clause, perhaps with us and the Bar Council, to try to get a clause that meets with the approval of everyone concerned. If that can be achieved, it will be a prize worth having; if it cannot, it will be a waste of a bit of time on a good cause.

[The Solicitor General]

Although it comes at a late hour, this is an important debate. We have come a long way on this issue. There was silence as to the presence of legal professional privilege in the draft Bill. The Government have rightly listened to the evidence and have now made important amendments to clause 25.

--- Later in debate ---

The difference between us is this: the Government’s fear is that there will be exceptional cases—I do not think there will be many—in which the iniquity rule is not satisfied, where the material will be of relevant interest to the authorities and would be the appropriate subject for a warrant application with the double-lock mechanism. That is why we are using the phrase “exceptional circumstances”.

[Keir Starmer]

I and the Bar Council would like an example of that. If it is being advanced that even where the iniquity exception is not made out—in other words, it is properly legally privileged communications—there none the less may be circumstances in which the privilege yields under the Bill. We need to be clear about the circumstances he envisages. In a sense, he is suggesting that the communications can be targeted once they have lost their quality in cases where the iniquity exception is not made out—in other words, where it is a proper professional exchange between lawyer and client, fully protected until now. We had better have an example. The Bar Council will be very interested, because this issue goes to the heart of the privilege.

[The Solicitor General]

I know that the hon. and learned Gentleman has looked at the code, and the example I will give him is the example in the code under paragraph 8.37. I will read it into the record, because this is an important point. The example is:

“An intelligence agency may need to deliberately target legally privileged communications where the legal consultation might yield intelligence that could prevent harm to a potential victim or victims. For example, if they have intelligence to suggest that an individual is about to conduct a terrorist attack and the consultation may reveal information that could assist in averting the attack (e.g. by revealing details about the location and movements of the individual) then they might want to target the legally privileged communications.”

In other words, that is not the furtherance of a crime, because the legal adviser is not hearing or in any way participating in the outline of a plan. There might be information in there that seems to the adviser to be innocent information about the suspected terrorist living in a particular location or associating with particular individuals, but which, because of the surrounding intelligence in the case, may well give a basis for the intelligence agency to target that individual, because the information means more to the agency.

[Keir Starmer]

The Minister points to an example that I have discussed with the Bar Council. I must put its view on the record, which is that in those circumstances, there would be an offence if someone was not providing the relevant information about that sort of incident to other than the lawyer. We may need to take this discussion forward in an exchange of letters, with the benefit of what the Bar Council has to say, but in its view that is not a good example for what would be an exceptional incursion into legal privilege. That is why I urge the Minister, rather than batting this back at this stage, to take the opportunity to have further discussions with the Bar Council to get this provision into a form that is acceptable to all.

[The Solicitor General]

I am always happy to discuss matters with the Bar Council. As one of the leaders of the Bar, the hon. and learned Gentleman knows that I go to regular Bar Council meetings. I was with it on Saturday, and I listen carefully to what my friends and colleagues at the Bar have to say.

However, the example I am giving explains the situation. There might be information that is entirely innocuous to the lawyer. Let us say that there is a consultation happening. The lawyer might ask a few questions about the address and associates of the person that do not, to him or her, disclose an offence being committed, but which might, in the wider context, provide the security and intelligence authorities with evidential leads that build a wider picture of which the lawyer will be unaware. That is not the furtherance of a crime; it is innocent. What would be innocuous information to the lawyer might mean something more, because a wider context might give the appropriate agency the grounds upon which it could then make its application for warrantry.

There is a distinction. I am not saying that it will be commonplace—far from it. That is why we have worded the terms of the clause very carefully. We talk about “exceptional and compelling circumstances”. I cannot imagine a higher threshold for an applicant to meet than those words.

An additional attraction is that, for the purposes of this legislation, we do not try to define what is meant by legal professional privilege. It is a bit like the argument about parliamentary privilege—the more we try to modernise and define it, the more it ceases to exist as a meaningful concept. One has to be careful about using vehicles like the Bill to define what is a very wide-ranging principle that applies to myriad circumstances involving lawyers and their clients. Although I am in the spirit of dialogue, that is why I would strongly hesitate before adopting the amendments.

[The Solicitor General]

My hon. Friend sums it up admirably. We have taken a different approach from RIPA, and rightly so. We have listened to the concerns expressed by the wider community, not just members of the profession, and are fully cognisant of the importance of legal professional privilege. It was part of my daily professional life for nearly 20 years so, as a Minister and as a lawyer, I fully understand its importance. Therefore, I hope that the example I have given gives an important insight into what we regard as “exceptional and compelling circumstances”. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras to withdraw the amendment.

[Keir Starmer]

I will not take much time. The Solicitor General prays in aid the dangers of over-defining, but the danger of the clause is that it will cut across legal professional privilege. Let us be realistic about what that means: wire taps to listen to privileged legal communications where the iniquity exception does not apply. A lawyer will never again be able to say that a communication—even one within the proper limits of a legal communication—is protected, because there could be no such guarantee. There will always be the possibility that it will not be protected. At the moment, it can be said that as long as it does not fall into the inequity exception, a communication is protected. In the other examples that have been used, it would not be interceptors; it would be bugs in cells. In the end, that is the road that will be opened by this proposal. A lawyer believes that they are having a confidential discussion on proper terms and appropriately with their client, yet that is intercepted. That is why I think the Bar Council feels so strongly about it.

Of course, there is a danger in defining legal professional privilege, but there is a much greater danger in getting to a position where a lawyer can never again say, “I guarantee that, as long as it is within limits, this is a protected communication.” That is at the heart of the Bar Council’s concern. I have said all I need to say. That is the problem.

[The Solicitor General]

We have to be careful about this. We have prison rules, for example. The hon. and learned Gentleman and I know that there are already certain prescribed circumstances and scenarios that exist. I am not advocating a coach-and-horses approach that can be taken by authorities who have a cavalier regard for LPP. This is a very prescribed exception. The words “exceptional and compelling” are strong. He paints a nightmare scenario—I know that he does so with genuine concern for a privilege that he and I hold dear—but I think that we are getting the balance right and that what he envisages will not come to pass.

[Keir Starmer]

I stand only to give way.

[Lucy Frazer]

I am grateful to the hon. and learned Gentleman for standing to give way. I was trying to think of circumstances in which legal professional privilege—the relationship between the lawyer and their client—might not be as sacrosanct as the client might expect. For example, if the lawyer considers that there is a risk that their client is involved in money laundering, even if they are not, there are circumstances in which that right is circumscribed. That might not be a perfect example, but we are in the territory of there being the risk of great harm or wrongdoing and evidence that persists of that.

[Keir Starmer]

I am grateful for the intervention, and I recognise that point. The concern is that, if passed in this form, the Bill will allow interception where there is no question of the inequity exception. Perfectly lawful, proper, appropriate communications between lawyer and client, which are fully protected and recognised in all other circumstances, would come within the scope of an intercept warrant.

At this stage—particularly at this hour—I will not press the point. I urge the Solicitor General to keep at least a residual open mind, so that if a better version of the new clause can be tabled at a later stage, which meets some of the concerns he has outlined, he might look at the proposal again. As I say, this is an issue of real concern to the profession. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 25 agreed to.

Clauses 26 to 29 agreed to.

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

Investigatory Powers Bill (Fifth sitting)

Keir Starmer Excerpts

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

[The Chair]

Before we continue with line-by-line scrutiny of the Bill, I have a number of announcements to make. First, some amendments appear as starred amendments on this morning’s notice of amendments. One group—amendments 252 to 256, concerning clauses 34 to 36—were tabled on time, but there was an error and an oversight. They have been published today, however, and I have decided to use my discretion and select them as a single group this morning.

Amendments 250 and 251 to clause 30 are also starred. They are not new amendments, but have been disaggregated from amendment 94, which has been shortened. They will be marshalled for debate on clause 30, which they seek to amend, and have been selected in the first group of amendments.

New clause 7 is also starred but is not new and was previously tabled as amendment 163. The thrust of the new clause is exactly the same and I have selected the clause for debate as part of the group led by amendment 164.

Finally, I have spoken to the Minister about this, but I want to make it clear to the Committee that he can move that a clause stand part of the Bill formally, but that does not shut down debate. If other members of the Committee wish to debate it, they can do so, whether or not it is moved formally, and the Minister will have the right to reply before I put the question. I hope that is helpful to Members.

Clause 30

Modification of warrants

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

I beg to move amendment 68, in clause 30, page 23, line 41, leave out paragraph (5)(c).

[The Chair]

With this it will be convenient to discuss the following:

Amendment 69, in clause 30, page 24, line 5, leave out paragraphs (6)(d) and (e).

Amendment 94, in clause 30, page 24, line 8, leave out subsection (7)

This amendment, and others to Clause 30, seeks to circumscribe the power to modify warrants without judicial authorisation.

Amendment 70, in clause 30, page 24, line 8, leave out subsections (7) and (8).

Amendment 95, in clause 30, page 24, line 32, after “major”, insert “or minor”.

Amendment 96, in clause 30, page 24, line 32, leave out from “warrant” to end of line 33 and insert—

“pursuant to subsection (5) or (6), if a Judicial Commissioner determines”.

Amendment 71, in clause 30, page 24, line 46, leave out subsection (11) and insert—

“(11) In any case where a major modification of a warrant is sought under paragraph (4)(a), section 21 (Approval of warrant by Judicial Commissioners) applies to the decision to modify a warrant as it applies in relation to a decision to issue a warrant.

(11A) In a case where any modification under subsection (4) is sought to a warrant to which section 24 (Members of Parliament etc.) or section 25 (Items subject to legal privilege) applies, section 21 (Approval of warrant by Judicial Commissioners) applies to the decision to modify the warrant as it applies in relation to a decision to issue the warrant.”

Amendment 250, in clause 30, page 24, line 46, leave out subsection (11)

This amendment, and others to Clause 30, seeks to circumscribe the power to modify warrants without judicial authorisation.

Amendment 72, in clause 30, page 25, line 3, leave out subsection (12).

Amendment 251, in clause 30, page 25, line 7, leave out subsection (13).

This amendment, and others to Clause 30, seeks to circumscribe the power to modify warrants without judicial authorisation.

Amendment 74, in clause 31, page 26, line 13, at end insert—

“(8) Where, by virtue of section 30(11), section 25 (items subject to legal privilege) applies in relation to the making of a major modification of a warrant pursuant to section 30(7), this section applies as if each reference in subsections (2), (5) and (6) to a designated senior official were a reference to a Judicial Commissioner.”

[Keir Starmer]

In the light of the statement you have just made, Mr Owen, I want to thank the Bill Office team for the hard work they have done on tracing down the amendments—particularly amendments 252 to 256—so that they can be starred for today’s purposes. They are working extremely hard and we are all really grateful. I also thank the Government, because although some of these amendments do not add a great deal to other amendments that have been tabled, amendments 252 to 256 are substantive. The Government could have taken the view that they have not had sufficient time to prepare for them, through no fault of their own. I also thank you, Mr Owen, for starring them and allowing us to debate them so that we can move on through the Bill today.

Let me turn to the amendments to clause 30, which deals with modifications. As you will remember, Mr Owen, on Tuesday we debated at some length the necessity and proportionality tests when a warrant is to be issued, as well as the role of the Secretary of State, the scrutiny that the Secretary of State applies to a warrant and the role of the judicial commissioners. Although there was disagreement between us on who should exercise precisely which function, there was agreement that there should be intense scrutiny at all stages to ensure that the warrant is necessary and proportionate and correctly identifies the people, premises and operations to which it relates.

That can be seen in clause 15(1) and (2), which we touched on on Tuesday and which relate to the subject matter of warrants. Clause 15(1) states that a warrant may relate to

“a particular person or organisation”

or

“a single set of premises”.

Then there is the thematic targeted interception warrant in clause 15(2), which sets out the group of persons who could be identified.

Clause 27 complements clause 15 by setting out the requirements that must be met by the warrants. I draw attention to clause 27, because clause 30, dealing with modification procedures, relates back to it. The requirements that must be met under clause 27 are as follows. A warrant that relates to a particular person or organisation must name or describe that person or organisation. A warrant that relates to a group of persons related by a purpose or activity must describe the purpose or activity. A warrant that applies to more than one organisation must describe the investigation and name or describe the persons involved. Therefore, on the face of it, there is scrutiny in the process. Then there is a requirement to set out in some detail on the face of the warrant what it actually relates to—the people, activity and premises, as set out in subsections (3), (4) and (5) of clause 27.

Clause 27(8) sets out that

“Where…a targeted interception warrant or mutual assistance warrant authorises or requires the interception of communications…or…a targeted examination warrant authorises the selection of the content…the warrant must specify the addresses, numbers, apparatus, or other factors, or combination of factors, that are to be used for identifying the communications.”

That is important because it sets out the higher level of protection for content, either under a targeted intercept warrant itself or under an examination warrant on the back of a bulk warrant. The requirements under clause 27 sit with all the scrutiny, checks and safeguards of the double-lock mechanism. They are all additional important safeguards.

We then get to clause 30, which states:

“The provisions of a warrant issued under this Chapter may be modified at any time by an instrument issued by the person making the modification.”

This is to modify any of the warrants I have just described, which will have set out, on the face of the warrant, the details of the application of the warrant. The modifications that can be made are set out under clause 30(2)(a) and (b). Subsection (2)(a) relates to adding, varying or removing names, descriptions and premises. Those are the three subsets under clause 27—in subsections (3), (4) and (5)—which are all required. Clause 30(2)(b) relates to the factors that are relevant to content warrants, either as a targeted content warrant or as an examination warrant following on from a bulk one.

Clause 30(2) states:

“The only modifications that may be made under this section are”,

suggesting that it is rather limiting. However, if we go back to clause 27, I think—I will be corrected if I am wrong—that the only thing that is left out in relation to modification is the testing and training activities. Everything else is up for grabs in relation to modification. It is “only” those provisions, but what is not said is that that is practically everything that will ever be on the face of any warrant, save for a training warrant and a testing warrant. Therefore, the scope of modification is very wide.

Then there is a subdivision in clause 30(4) between “major” modifications and “other” modifications. That does not quite sit with clause 30(2), but a major modification is essentially clause 30(2)(a), but without the removing: if a name is removed, it is not a major modification, but if a name, description, organisation or premises is added or varied, that is a major modification. Everything else, which is what is left in clause (30)(2)(a) and the factors in clause 27(8), is described as “minor”.

I want to trace through the journey of a modification, starting with a major modification. These are considered to be the most important modifications. The first issue that crops up is who can make a modification. Under clause 30(5), it is the Secretary of State, a member of the Scottish Government in certain cases or a senior official. The first, obvious point is that there is no double lock. There is no reference to a judicial commissioner. There is no notification requirement and no requirement for the judicial commissioner to consider the warrant; it simply is the Secretary of State and this additional senior official in certain circumstances.

I should mention in passing that a major modification can even be made in an urgent case by someone described in clause 30(6)(d) and (e) as

“the person to whom the warrant is addressed, or…a person who holds a senior position in the same public authority”.

That is in addition to a senior official. In an urgent case, they can add a name, a premises or an organisation.

We then move on to the purposes. For major modifications, we jump straight to clause 30(9), where I acknowledge there is a necessity and proportionality test—the decision maker has to think about the necessity and proportionality of the amendment. Where the decision is made by a senior official rather than the Secretary of State, there is a duty to notify the Secretary of State. That is it for major modifications. The Secretary of State—there is separate provision for Scotland—or a senior official makes the decision on necessity and proportionality grounds. They can add practically anything that could have been on the face of the warrant, apart from testing and training. I read into the duty to notify the Secretary of State that by implication she must consent to it, because otherwise she would presumably reverse the decision, although that is not expressed on the face of the Bill.

There is no duty to go to a judicial commissioner, no reference to a judicial commissioner and no notification to a judicial commissioner of the modification, which can be very wide. A warrant could be issued on day one to cover a given individual. On day two, three or four, another individual, premises or organisation can be added without the need to go through the double-lock process. That cuts so far through the safeguards as to make them practically meaningless in any case that comes up for modification.

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

The hon. and learned Gentleman will have seen David Anderson’s supplementary written evidence. In relation to clause 30, he wrote:

“New persons, premises or devices…may be added on the say-so of a senior official, without troubling…the Judicial Commissioner…I adhere to my opinion that any such additions should be approved by the Judicial Commissioner.”

Is that the general thrust of the hon. and learned Gentleman’s amendments?

--- Later in debate ---

[Keir Starmer]

It is, and it is why not only David Anderson, but many others have expressed concern about the provision. Stepping back for a minute, even if a sensible case can be made for a modification process, a modification process that allows anything on the face of the warrant to be amended—save for training and testing—without the need for that modification to go through the double lock cuts so far through the whole point of the double lock. Through modification, everything that it was feared would happen without a double lock can take place.

The only other thing relevant to a major modification is subsection (15), which states:

“Nothing in this section applies in relation to modifying the provisions of a warrant in a way which does not affect the conduct authorised”.

That is not a limiting, but an excepting subsection.

I want in particular to highlight clause 30(11). On Tuesday we debated the issue of Members of Parliament and legal privilege. Although there was a difference of approach among members of the Committee, there was a general consensus that special protection is needed when it comes to MPs’ communications and legal professional privilege, yet subsection (11) states:

“Sections 24 (Members of Parliament etc.) and 25…apply in relation to a decision to make a major modification of a warrant by adding a name or description as mentioned in subsection (2)(a) as they apply in relation to a decision to issue a warrant; and accordingly where section 24 applies only the Secretary of State may make the modification.”

Two things are clear from that provision. First, for minor modifications to warrants that touch on MPs’ communications and for minor modifications that deal with legal professional privilege, the decision does not need to be made by the Secretary of State and it does not go to a judicial commissioner. Secondly, clauses 24 and 25, which are specifically referenced in clause 11, do not require the judicial commissioner to be involved.

If I am wrong, I will stand corrected right now, but on any reading of that, I cannot see how a modification to a warrant that brings it within the otherwise special protection for MPs and/or legal professional privilege is required to be put back through the judicial commissioner. I invite the Minister to correct me on this, because otherwise it is a worry that a warrant could be modified and taken into that otherwise protected territory without any notion of a double lock and simply the safeguard of having the Secretary of State making the decision, not a senior official.

[The Solicitor General (Robert Buckland)]

I am sure that in due course we will outline where we are with regard to the role, or lack thereof, of the commissioner. With regard to a warrant involving a Member of Parliament, if that relates to a single individual—let us say a single Member of Parliament—that cannot be modified to have other people added in that category. There would have to be a fresh application relating to separate names. That is an important caveat that deals with a lot of the hon. and learned Gentleman’s genuine concern.

[Keir Starmer]

I am grateful for that intervention; I am happy to be intervened on. I think that comes from paragraph 5.61 of the code, on page 33, which says:

“A targeted warrant that relates to just one specified person, organisation or location, for example, cannot be modified to go beyond the original scope of the warrant.”

Slightly further down it says:

“Whilst this can be subject to modification, it cannot be modified to move beyond or outside of the scope of the original thematic warrant.”

This is an important point. First, something as important as that needs to be in statute—that is critical. In other words, if someone has a warrant for person A on a Monday and they want to add person B on a Tuesday, they must get a new warrant, not modify the existing warrant. That should be in statute, not in a code. There is obviously the question of what goes in the code, but that safeguard is important. If, for an example, a warrant touched on A on a Monday and could be modified in a way that might touch on an MP or go into prohibited legal privilege on a Tuesday, that requires more than a paragraph in a code of practice, because it is really important.

Again, I invite an intervention, but the code says:

“A targeted warrant that relates to just one specified person, organisation or location, for example, cannot be modified to go beyond the original scope of the warrant.”

That is a carefully drafted sentence. What is the position when there is a targeted warrant that relates to two people and the idea is to add one, and that one is an MP or a solicitor? I invite an intervention because that is not covered by the code’s wording.

[The Solicitor General]

I think I can assist. Perhaps there is a bit of a misconception about the current situation. If a warrant says, let us say, person A and others are known, the Regulation of Investigatory Powers Act 2000 does not require an amendment to the warrant even if another person becomes known and therefore becomes a potential target. We are tightening that up and making it a requirement that if person B becomes known, even though the ambit of the warrant at the moment covers others unknown, there has to be an amendment where we know the identity of individuals. The answer to the hon. and learned Gentleman’s question is that it can only be amended if there is an unknown part to the original warrant, as opposed to specific names.

[Keir Starmer]

I am grateful for that intervention. This is an improvement on RIPA, but that is setting the bar pretty low when it comes to modifications.

[The Solicitor General]

Let us not forget that modifications to add MPs can only be authorised by the Secretary of State. That is another important safeguard. I would not pooh-pooh what we are doing by saying that we are improving on RIPA. This is a significant improvement from where we are.

[Keir Starmer]

I look forward, on Report or Third Reading, to somebody informing MPs that a modification of the warrant that includes them can be made by the Secretary of State, without the involvement of a judicial commissioner. Understandably, great play was made of the role of the judicial commissioner when colleagues on both sides of the House were concerned about their communications with constituents. They were assured that there was a double lock and that a modification could not happen without a judge looking at it as well. Somebody has to stand up, be honest with them and say, “Well, it can actually, because it can be modified to bring you within it.” There is nothing on the statute or in the code to prohibit that. That is a very serious proposition because these are not urgent modifications. They are permanent and, in many cases, slower-time modifications.

I understand that, in a fast-moving case, urgent procedures are needed and urgent modification procedures may be needed, but these include slower-time, considered, permanent modifications to a warrant. Somebody needs to tell our colleagues that they can be included in the warrant by modification, and that it starts and ends with the Secretary of State and goes nowhere near a judge. They need to know that.

Somebody also needs to address the legal privilege point because I do not think that is addressed at all on the face of clause 30 or, as far as I can see, in the modifications part of the code of practice. Again, if I am wrong about that I will be corrected. From my reading of the Bill, a modification could be made to allow intercept in the otherwise protected area of legal professional privilege. The Secretary of State has to apply the higher test—I accept that—but it will never go to a judge. A sort of comfort is being held out to lawyers that, even in the extreme case where they will be targeted, it will at least be seen by a judge. That comfort is shot through by this provision. The clause really needs to be taken away and reworked in the light of the significant flaws—that the code is not clear enough and is not the right place for protections for MPs or for legal professional privilege. That should be on the face of the statute through an appropriate amendment.

I turn to the so-called minor amendments. We must remember that although they are called minor amendments, they are not minor. Clause 27(8) is really what comes within the ambit of a minor amendment, and that is all the detail about how the content will be examined. There is a bulk warrant, which, by its very nature, hoovers up a lot of communications. Then there is an examination warrant, which is intended to be a check and balance, and that is why there is a requirement to set out how the examination warrant will work—the address, the numbers, the apparatus, and a combination of other factors and so on. That is the really important safeguard. It is the only safeguard for bulk warrants accessing content, yet all of that is deemed to be a minor amendment. The amendments to the examination warrant—which, in truth, is the most important warrant for the bulk powers after the wide bulk warrant in the first place, as this is where we are actually looking at stuff—are all deemed to be minor.

What is the route for a so-called minor amendment? Let us trace it. Who can make the decision on a minor amendment? Clause 30(6) states that a minor amendment may be made by the Secretary of State, the relevant Scottish Government Minister, a senior official, the person to whom the warrant is addressed or a person who holds a senior position in the same public authority as that person. There is no urgency requirement. Real-time, slow amendments to the way bulk warrants will be subjected to examination can be made in the ordinary, run-of-the-mill case by the person to whom the warrant is addressed—they can modify their own warrant—or by a person who holds a senior position in the same public authority as them. With no disrespect to the individuals in those positions, we have dropped a long way down the ranking when it comes to the authority for sign-off of an amendment to an examination warrant that allows my content or anyone’s content to be looked at where it has been scooped up under a bulk provision.

I am afraid it gets worse. Whereas for a major modification there is a requirement for the decision maker to look at necessity and proportionality, there is no such requirement for minor amendments. That is astonishing and very hard to justify. I will listen carefully in due course to what is said, but why is there no need on the face of the Bill to consider whether a so-called minor modification to an examination warrant in relation to bulk powers is necessary or proportionate? Subsection (9) is clearly drafted only to catch major modifications.

Consider that a minor amendment to a warrant that applies to an MP or that touches on legal professional privilege could be made by the person to whom the warrant is addressed or someone in a senior position in the same public authority. I ask Members to inform their colleagues of that. There is no requirement that a minor amendment even goes to the Secretary of State, and certainly nowhere near a judicial commissioner.

The approval mechanism in clause 31 is only for major modifications. There is a low level of authority for making minor modifications, and there is no test. If I were a senior official in the public authority, I might say, “You just asked me to make a modification. What am I supposed to take into account?” but on the face of the Bill, there is not even a test to be applied. There is no duty—again, I am happy to be corrected—to inform the Secretary of State. For major modifications, there is such a duty, but for minor ones, there is not. Someone in a senior position in a public authority can therefore make the modification and not notify the Secretary of State. There is certainly no double lock. It is no wonder the Joint Committee was so concerned about this provision, and it is no wonder so many others have raised such concerns.

[Matt Warman (Boston and Skegness) (Con)]

In the Joint Committee’s examination of this provision, one crucial point we raised was exactly the one the hon. and learned Gentleman raises. We were told that the crucial phrase is in clause 30(2)(a):

“adding, varying or removing the name or description of a person”.

It is the description of a person, not the person. This is about aliases for individuals; it is not about changing the individuals themselves. I wonder if he has considered that point, which the Joint Committee was assured of in its evidence.

[Keir Starmer]

I would be interested in the Government’s position on that, because it does not sit with what is in the code of practice. If all clause 30 intends is to say, “We thought he was called Keir Starmer; now we know he’s called Steve”—I have always wanted to be called Steve—“but the warrant applies to exactly the same person,” or, “We thought it was 137 Charlton Road; we now realise it’s 172, but it’s the same premises”, I will sit down now and invite an intervention.

[The Solicitor General]

For minor ones.

[Keir Starmer]

No, I think the intervention is suggesting major modifications—subsection (2)(a) only applies to major modifications. That is, apart from the removing, it is the description of a major modification. If a major modification is only intended to allow the name of the same individual to be swapped—where it is appreciated that it is the same person, now called not X, but Y— that is one thing, but the code of practice then does not make much sense, because it is written on the basis that individuals are being added.

I am inviting an intervention, but I am not getting one. I would quite like one, because I would be less concerned. If this is right and that is what the Joint Committee was told—that that was the intention—then the measure clearly needs to be rewritten, which would remove a lot of concern. That is why I invite some clarification. I suspect that the non-intervention is because that understanding is not the right answer.

[The Solicitor General]

rose—

--- Later in debate ---

[The Chair]

For that very reason, Minister—interventions have to be short. The debate is continuing and Keir Starmer has the Floor; then there is the opportunity to respond.

[Keir Starmer]

I am grateful to the Solicitor General. That was helpful, because if the previous intervention is right, a lot of my concern would be focused elsewhere and save a lot of time—but I am afraid it is not. On the face of the Bill, and consistent with the code of practice, named—[Interruption.] I want to be clear, to have clarity about what we are arguing about, because the point is a very serious one. As everyone can see, there is the real potential for all the careful checks and balances devised under the Bill to be shot through by the modification process. That is the real concern, and I think it is a shared concern, certainly in the Joint Committee, but also in other places.

To be clear, I think that the Solicitor General is accepting that the measure is not simply about re-identifying with a different name a person who is already specified on the warrant; he is suggesting that it would be used if a warrant was issued in relation to a gang of some sort, when some members are known and others become known, and a mechanism for adding them is needed. If that is what was intended, why is that not what has been written in the clause?

Clause 30, as drafted, does not limit in that way. If it did, the subheading would be “Modification of thematic warrants”, then it would state that where a thematic warrant has been issued naming a person, an organisation or whatever, and it becomes necessary to amend it, to clarify further the persons within the organisation, and so on, then that would be a much more restricted clause. That would probably have met some of the concerns of the Joint Committee and be a very different proposition, but that is not what has been drafted. In the code of practice, it is true, there are some warm words, but—

[The Solicitor General]

The hon. and learned Gentleman knows that the code of practice is much more than that and makes it clear that the measure is about thematic warrants. The mischief that he is worried about here is cured by the fact that if a sole named person is on the warrant, it cannot be modified to add another name; we would have to apply for a new warrant.

[Keir Starmer]

The question for the Minister is, if that is the purpose, why is the measure not limited to thematic warrants? It is impossible to answer that question unless one wants to keep open the option of modifying non-thematic warrants. It is a simple amendment, that the provisions of a warrant issued under whatever the relevant clause is may be modified by an instrument. In subsection (1), we could achieve exactly what the Solicitor General says is the clause’s purpose by amending it to “themed warrants”, but it has not been done, notwithstanding the concerns of the Joint Committee.

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

I wonder whether the hon. and learned Gentleman’s concerns are addressed by the last five words of subsection (2)(a):

“The only modifications that may be made under this section are adding, varying or removing the name or description of a person, organisation or set of premises to which the warrant relates”.

The Home Secretary, or someone else, will receive a warrant relating to a particular person, course of action or premises, and only if that warrant relates to those things could someone then be added—it must relate to the warrant itself.

[Keir Starmer]

I have considered that, and it is fair to say that subsection (2)(a) would not allow, in essence, a completely fresh warrant to be issued under the modification procedure. There has to be a relationship between the modification and the warrant, so someone could not say, “I want a warrant against X today, and I’ll modify it to include Y, which has nothing to do with X but it is handy to modify this warrant, as we have it before us.” There has to be a relationship, which I accept is the intention and the purpose of clause 30, but the drafting is still far too wide. What if an MP or a solicitor is involved? What if it becomes known that there is a gang and we think that X, Y and Z are involved—we do not know the others—and we then learn that one of them is talking to their solicitor? The solicitor is then related. A modification would allow something to be brought in, and there is nothing to prevent it.

With all due respect to everyone who has worked hard on clause 30, of all the clauses in the Bill it is the one that the further I went through it, the further my jaw dropped because of just how wide and unlimited it is. In an area such as this, where we are talking about safeguards, it is not enough simply to point to what are in fact limited words in the code of practice. I will not invite the Minister to do something now, but I am curious—I may have misunderstood—that paragraph 5.64 of the code says:

“Minor modifications that are made by the warrant requesting agency are valid for five working days following the date of issue unless the modification…is endorsed within that period by a senior official…on behalf of the Secretary of State. Where the modification is endorsed in this way, the modification expires upon the expiry date”.

I cannot find any reference to that anywhere in the Bill. If I am wrong, I will happily be corrected, but I do not know where that comes from. Obviously, my amendments would restructure the clause to try to make it workable, but I do not see paragraph 5.64 anywhere in the clause. It would help to have that clarified.

That brings me to the amendments, which I will address briefly. In the spirit of constructive dialogue, I have tried to propose a restructuring of the clause in a way that would narrow it while leaving a workable modification provision. My amendments are not intended to be unhelpful. Amendment 68 would leave out subsection 5(c) so that the modification for a major case sits with the Secretary of State. Amendment 69 would leave out subsections (6)(d) and (e) to cut out people below senior official level so far as minor modifications are concerned. Amendment 70 would leave out subsections (7) and (8) because they are not necessary. Amendment 71 would make it clear that, in relation to MPs and legal professional privilege, all modifications must go through a judicial commissioner—if a modification goes into a protected area, it would have to go through a judicial commissioner. Amendment 72 would leave out subsection (12) because it would no longer be relevant, as senior officials would be taken out of the equation. Amendment 74 would make it clear that certain modifications have to go through the judicial commissioner. I tabled those amendments as a serious attempt to improve clause 30, which is seriously deficient for all the reasons that I have outlined. For the Government to nod this through at this stage, without standing back and asking if they have got it right, would not be the right approach.

[The Solicitor General]

Although we have only heard one speaker, we have covered the ground on the issues at hand. The hon. and learned Gentleman’s points about the importance of warrantry and the involvement of commissioners are interesting and important. This is all about fine-tuning what I regard to be an important step forward from RIPA in ensuring that we do not end up undermining the vitally important world-leading double-lock system that this Government want to introduce, by allowing the system of modification to be a back-door route. I am absolutely with him on that and know that he and other members of the Committee have advanced these amendments in that spirit.

The hon. and learned Gentleman is absolutely right to set the context of this debate and talk about the three areas of thematic warrantry that we are talking about—targeted interception, targeted assistance and mutual assistance warrants. He made the point about trying to make that clear on the face of the Bill and the code of practice not being enough. I will go away and think about that, because I think it is a reasonable point to make. If it needs to be made clearer, we are only too happy to help. I want to ensure that what I am about to say is underlined and made clear; what I say in Committee will greatly help to inform those who will operate in this area in the future.

We must be clear about what can be achieved by a modification in the first place. I have already said that the introduction of the concept of major modifications is an important new safeguard in the Bill, because of the absence of references to that in RIPA. What we had with the Regulation of Investigatory Powers Act 2000 was the authorisation of warrants on a thematic basis. I have given the example of a kidnap gang; RIPA requires that if, for example, the National Crime Agency wishes to intercept the communications of members of such a gang, their telephone numbers must be added to the warrant as they become known—not their names and identities, just that information. I do not think that is good enough and that is why that particular oversight and anomaly—I will be generous in that respect—needs to be corrected, which is what the Bill does. The code of practice makes it clear that names can only be added to a warrant when they are within the scope of the original warrant. For example, the name of a kidnapper could be added to a warrant that relates to a kidnap gang.

[Keir Starmer]

Is there a reason why paragraph 5.61 states that a

“targeted warrant that relates to just one specified person, organisation… cannot be modified”,

which is pregnant with the idea that there is a different position when it is not just one? Was that a carefully drafted sentence that means exactly what it says, in which case what the hon. and learned Gentleman has just said has limited it, or was a wider application intended?

[The Solicitor General]

I do not think it was. I can give an example; let us say you and I are named on a warrant—God forbid—then that is a restricted warrant. There is no wriggle room. It is a bit like a conspiracy, where we might plead a conspiracy between A and B and others are known, which is perfectly permissible and very often the case in a conspiracy. But if it was a much more limited warrant naming you, me and perhaps one other named person, that does not give space to use the modification procedure to add another name because it has already been limited in its terms of reference.

[Keir Starmer]

I understand the Solicitor General’s point. However, let us say that there was a warrant that named him and me, and a third person was then identified as being in league with us, whatever we were believed to be doing. What provision in the Bill or sentence in the code would actually prevent a modification to add that person? The Bill does not; paragraph 5.61 does not. The scheme that the Solicitor General describes is not the scheme in the Bill and the code. That is the problem.

--- Later in debate ---

[The Solicitor General]

I take issue with the hon. Lady’s assertion that the clause is defective. I do not think it is. There are one or two other points that I was already going to reflect on, and I will come to them later in my speech.

Let us just come back to the point that I know the hon. Lady wanted to make. If we end up with an original application that is too wide, it will not get through the double lock, because the commissioner will say, “Hold on. This is neither necessary nor proportionate. It doesn’t pass the test of review. Sorry, Secretary of State, you’ve got it wrong.” That is the whole thing that we are in danger of forgetting. I can see that the hon. and learned Member for Holborn and St Pancras is desperate to get in, so I will give way.

[Keir Starmer]

I really am desperate, because I want—if possible—to have an answer to the question that I put before, which is this: if what the Solicitor General is now saying is right, why does clause 30 apply to a section 15(1) warrant, because that simply does not come within the formulation?

[The Solicitor General]

What I would say to the hon. and learned Gentleman is that I am afraid we are forgetting the context. The mischief that he wants to deal with is that somehow an applicant for a warrant has got something in through the back door—it is too loose, too wide, and modification therefore becomes, in effect, a way of getting round the whole system. I do not believe, given my understanding of both the code of practice as drafted and of the proposed legislation as drafted, that we will get near to that nightmare scenario.

A section 15 warrant can be about an organisation. The point that I am seeking to make is that we are already in the realms of thematics, and therefore if someone has a warrant that has been drafted specifically, the process must be started again if they want to include other individuals.

May I deal with the question of the ability to modify warrants themselves? I do not think anybody is saying there should not be an ability to modify warrants; that was not part of the recommendations of any of the Committees that we know about. Also, of course, such a change would be a very significant reduction in the operational effectiveness of the warrantry process. It would mean, for example, that it would be necessary to seek new warrants each and every time it was identified that an intercepted target got a new telephone or a new phone number. I am afraid that would slow down the process, and we think there is a significant danger that investigative and intelligence opportunities would be lost.

I am not accusing anybody on this Committee of wanting to do anything to endanger an investigation or indeed lives, but we have got to think about this issue in that context. Therefore, getting the balance right is quite clearly what we all want to do.

--- Later in debate ---

[The Solicitor General]

My hon. Friend is absolutely right, and to try to manipulate this process to undermine that important procedure would be immediately spotted as a misuse of the processes and the safeguards that we are incorporating into this Bill.

I want to deal with the practicalities because, tempting though it is to impose a requirement on a judicial commissioner to authorise the day-to-day or sometimes minute-by-minute tactical operation of a warrant, it would be unnecessary and operationally damaging. There must be an element of agility when operating the system of investigation and there is real concern that we would fail to do the job of detecting crime and making sure the interests of everyone we represent are protected.

Ordinarily, such modifications will be made by a senior official in the warrant-granting Department, but when, for example, the identity of a gang member becomes apparent only in the middle of the night, it is right that the intercepting agency should be able to make the modification. That deals with the point about the fast-moving threat and the immediacy of the situation.

I will deal with as many as possible of the points the hon. and learned Gentleman raised, starting with the minor rather than major modifications in amendment 69. The amendment would prevent either the head of an agency or a senior official within that agency from making a minor amendment. We are dealing with minor modifications relating to adding a new communication address for warranted targets. An example is MI5 discovering a new mobile telephone number for a warranted target who is plotting to kill someone. The Bill enables the intercepting agency—MI5 in this case—to make the minor modification to the warrant, which will have been through the double-lock procedure, and to add that new mobile number. The danger of the amendment is that it would remove the ability to act swiftly to get coverage of the new subject’s communications. With respect, I do not think it is necessary because the Secretary of State and the judicial commissioner will already have considered the necessity and proportionality of targeting interception against the individual. I will not repeat the point, but it is important for public safety.

On parliamentary and legal privilege, I have already indicated that a major modification would not be sought to a warrant against a Member of Parliament or in relation to any warrant that names a specific individual. The code of practice makes it crystal clear that major modifications can be made only to warrants that apply to a group of persons or an organisation.

[Keir Starmer]

I am grateful for the way the Solicitor General is explaining how the Government intend the modifications to apply. He says they would not be used in that way for legal professional privilege and Members of Parliament, but he cannot say they could not be. If I have missed it, I will sit down sharpish, but I do not think there is anything on legal professional privilege or MPs in the modification parts of the code of practice. It is silent on that. There is no guidance.

[The Solicitor General]

What I am trying to do is to explain that there is no difference for any member of the public. If the warrant is specifically named, it cannot, as I have explained, use the modification procedure to try to catch other people, whether journalists, Members of Parliament or lawyers. Rather than constantly seeking carve-outs, it is far better to have a general principle about specificity and the danger that the hon. Member for Paisley and Renfrewshire North raised.

--- Later in debate ---

[The Solicitor General]

I am very well aware of the evidence of Sir Stanley, which is why I have couched my remarks in the way I have. It is of course important to balance what he said against the view of his predecessor, Sir Anthony May, who in the 2015 annual report said:

“A case could be made however, that it would be appropriate to use thematic warrants more widely against, for example, a well-defined criminal or terrorist group working for a common purpose.”

I have said what I have said: my thoughts today are that the clause is perhaps getting an unfair battering. However, I listen to everything that is being said, including the hon. and learned Lady’s remarks.

Amendment 95 deals with the question of whether the Bill should require necessity and proportionality with respect to the consideration of minor modifications. I am going to think about it. It is a reasonable point and we may be able to return to it on Report.

To conclude, I think that, in the round, the Government have set out our position clearly. We will consider two points that have been raised, in particular, which I have addressed; but in general terms, while I will resist any amendments that are pressed to a vote today, I want more time to reflect. I hope that that will give Members an opportunity to reflect as well. For those reasons, I urge the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I am grateful to the Solicitor General for taking the time to set out how he understands the process will work. As will be clear from our exchanges, my concern is that the comforting way in which he set out how the modifications process is intended to work is not reflected in the drafting of the Bill. Nevertheless, I have listened to what he said about considering the matter further.

At one point during the submissions he just made, he said that the word “thematic” made everything clear. My point is that the word “thematic” is not in the Bill. I would like the Solicitor General to think about whether the provisions could be improved by an amendment that made it crystal clear that the power is intended for modifications to themed warrants and not to other warrants. It may not be quite as simple as that, but that would certainly reflect the gist of what the Solicitor General said.

[The Solicitor General]

As I have said, I will take that away and consider it.

[Keir Starmer]

I am grateful for that. To be clear, I accept that in urgent cases there needs to be a process so that the security services, the police and others are not inhibited from doing what they need to do in real time and fast, but what we are discussing is not an urgent modification process. Again, it is about restricting the scope.

I was going to push the amendment to a vote, but I have been mulling it over in my mind and have decided that I am going to withdraw it in the spirit of the Solicitor General’s approach.

[The Solicitor General]

It is good to remind ourselves that the codes of practice have been published in draft and we have ample opportunity to revisit them to make the language even better. I hope that that helps the hon. and learned Gentleman.

[Keir Starmer]

I am grateful for that intervention. This is one of those matters on which we probably need to do as much of the work now as possible, because when the code finally comes back for a vote one way or the other, if there is a deficiency over an issue such as this, we will be put in the invidious position of voting down the whole code because we cannot change it. I am very happy to work with the Solicitor General to set out our concerns even more clearly and to see whether we can make improvements. I doubt that all my concerns would be met, but we might be able to draft a vastly improved model. With that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[Joanna Cherry]

I was minded to push for a vote on clause stand part, but given what the Solicitor General has said and the very detailed arguments made by the hon. and learned Member for Holborn and St Pancras, I am content not to push the matter to a vote at this stage. Like the hon. and learned Gentleman, I would be very happy to work with the Solicitor General and the Government in looking at this clause.

--- Later in debate ---

[The Solicitor General]

I am obliged to the hon. and learned Lady.

Question put and agreed to.

Clause 31 accordingly ordered to stand part of the Bill.

Clause 32 ordered to stand part of the Bill.

Clause 33

Special rules for certain mutual assistance warrants

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

[Keir Starmer]

No amendments have been tabled, and I do not oppose the clause, but I have a question that I would like the Solicitor General to deal with now, or at some other convenient point. In any event, I understand that these warrants are not particularly common.

Clause 33(1) makes it clear that the provisions apply predominantly where the subject of interception is outside the United Kingdom, and it effectively allows for sign-off at the senior official level. Notwithstanding that the subject is outside the United Kingdom, do the measures permit interception involving individuals in the UK or the British Isles if they are in communication with the subject? I ask for clarification, because I cannot find an answer myself.

[The Solicitor General]

I am happy to clarify that. The position is that if the Secretary of State or a senior official acting on behalf of the Secretary of State believes that a person, organisation or set of premises named or described in the warrant as the subject of the interception is in the United Kingdom, that person must cancel the warrant. I hope that that answers the question.

[Keir Starmer]

It is probably my fault for not putting the question clearly enough. I accept that in relation to the target, but the warrant will cover others than the target. Can the Minister clarify what protection there is under this procedure for people in this country who, although they are not the target, might come within the warrant?

[The Solicitor General]

What I am trying to deal with is anybody within the warrant, whether person, premises or organisation. If they are within that, they will be covered and it will have to be cancelled. I hope that that gives the hon. and learned Gentleman some reassurance.

Question put and agreed to.

Clause 33 accordingly ordered to stand part of the Bill.

Clause 34

Implementation of warrants

[Keir Starmer]

I beg to move amendment 252, in clause 34, page 28, line 37, at end insert—

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

This amendment establishes international mutual assistance agreements—as recommended by Sir Nigel Sheinwald and currently under negotiation between the UK and US—as the primary route by which UK agencies obtain data from overseas CSPs. It would continue to enable the imposition of warrant on CSPs in non-MLA countries.

[The Chair]

With this it will be convenient to discuss the following: Amendment 253, in clause 35, page 29, line 5, at end insert—

“(1A) Where such a warrant is to be given to a person outside the United Kingdom, the warrant shall be served at that person’s principal office outside the United Kingdom where it is established for the provision of services.”

This amendment would make the Home Secretary’s confirmation at Second Reading — that a UK agency would only serve a notice on an overseas entity that is capable of providing assistance under the warrant — clear on the face of the Bill (as well as being in the relevant code of practice) clarifying provisions in the Bill. UK agencies today routinely use secure means of communication to transmit notices directly to the main office of overseas CSPs.

Amendment 254, in clause 35, page 29, line 6, at beginning insert—

“Where it is considered unfeasible or inappropriate in the circumstances,”.

See the explanatory statement for amendment 253.

Amendment 255, in clause 36, page 29, line 44, at end insert—

“which for a relevant operator outside the United Kingdom shall include—

(a) any steps which would cause the operator to act contrary to any laws or restrictions under the law of the country or territory where it has its principal office for the provision of telecommunication services; or

(b) where a warrant could be served pursuant to an international mutual assistance agreement or subject to an EU mutual assistance instrument.”

Amendment 256, in clause 36, page 30, line 1, leave out subsection (5).

This amendment clarifies the reasonableness test for overseas CSPs and establishes that international mutual assistance agreements, where they exist, should be the primary route to obtain data from these CSPs.

[Keir Starmer]

I will be straight and open with the Committee about where the amendments come from. I have been contacted by and have discussed the issues in the Bill with a number of service providers and tech companies in this country and in America. As the Minister will know, they are concerned about how the Bill will operate; no doubt they have been having discussions with the Government as well. They have drafted the amendments and want the Committee to consider them in relation to the operation of the provisions. The amendment have been proposed jointly by Apple, Facebook, Google, Microsoft, Twitter and Yahoo!, as well as techUK, which have clubbed together to raise their concerns through me. It seems to me that their concerns are perfectly legitimate and need serious consideration. That is the context of the amendments.

The first point that the companies make is that companies providing digital services to users are increasingly global in their corporate structure, so it will be rare for the provisions in clauses 34 to 36 to be applied to providers that are completely within the United Kingdom; it is likely that they will touch on others in other jurisdictions. For the record, the companies accept that the current legal framework is fragmented and needs modification. They also say that the mutual legal assistance treaties have not been adapted to handle the huge increase in demand, and that there are already delays and difficulties, particularly in relation to extraterritorial jurisdiction. The background is that various Governments around the world are now aggressively asserting extraterritorial jurisdiction. The word “aggressive” is not intended for this Government, I think, but a number of Governments are going down the road of asserting extraterritorial jurisdiction in different ways over service providers.

In the UK, the Data Retention and Investigatory Powers Act 2014 made explicit extraterritorial powers that the Government said were implicit in the Regulation of Investigatory Powers Act 2000. Those are restated and further extended to the avowed powers. Therefore, the provisions are important for the companies. Their concerns can be set out in the following way. First, they are concerned that if there is a model in this Bill that either does not work or goes further than is appropriate, others will look to it and adopt the same approach. Therefore, other countries and jurisdictions will assert the same extraterritorial jurisdiction, which will create overlapping and conflicting laws. One of the points that they pressed on me—if there is an answer to this, I am all ears—is that if we assert extraterritorial jurisdiction over someone in silicon valley, who is subject to various US laws, and another country does the same, that person’s main headquarters will be subject to a number of different legal regimes, which will create huge problems of conflict for the entities concerned.

--- Later in debate ---

[Victoria Atkins]

This is just a gentle observation to those who have lobbied the hon. and learned Gentleman. It is a very great shame that they did not feel able to give oral evidence to the Joint Committee to explain those points themselves. They declined our invitation, and now they are relying on the hon. and learned Gentleman to make those points for them. Is it not a shame that they declined the opportunity to make those points themselves?

[Keir Starmer]

I am afraid I am not in a position to answer one way or the other. I do not know the background to that. I will make the points to the best of my ability in the time available, but I will also encourage them—

[The Chair]

Order. The hon. and learned Gentleman tabled the amendments in his own name, and they are in order.

[Keir Starmer]

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

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

Amendment 252 states:

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

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

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

[The Minister for Security (Mr John Hayes)]

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Keir Starmer]

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

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

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

because it is only reasonable steps they must take—

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

The concern is about asking for something that is unlawful.

[Mr Hayes]

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

--- Later in debate ---

[Mr Hayes]

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

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

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

[Keir Starmer]

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

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

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

[The Chair]

Mr Starmer has indicated that he wishes to withdraw the amendment. Ms Cherry, did you wish to catch my eye?

Investigatory Powers Bill (Sixth sitting)

Keir Starmer Excerpts

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

[Joanna Cherry]

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

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

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

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

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

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

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

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

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

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

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

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

[Mr Hayes]

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

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

--- Later in debate ---

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

[Keir Starmer]

We do not oppose the clause, but I am duty bound to express the concern that the Joint Committee had—there were Opposition Members on the Joint Committee too—about safeguards in the Bill for the sharing of intelligence with overseas agencies. The Joint Committee was particularly concerned about clause 47 and suggested that safeguards should address concerns about potential human rights violations in other countries with which information might be shared. My question to the Solicitor General is: why did the Government not accept that sensible Joint Committee recommendation in the light of those human rights concerns?

[The Solicitor General (Robert Buckland)]

Regarding the Joint Committee’s recommendation, all I can say at this stage is that my understanding of the clause is that the issuing authority must also ensure that restrictions are in place that would prevent to the extent considered appropriate the material being used in any legal proceedings outside the United Kingdom, which of course would be prohibited by clause 48. There will be other obligations that the agencies will have to follow—for example, consolidated guidance. If the hon. and learned Gentleman would like any further clarification, I would be happy to write to him.

[Keir Starmer]

I am grateful.

Question put and agreed to.

Clause 47 ordered to stand part of the Bill.

Clause 48

Exclusion of matters from legal proceedings

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

[Joanna Cherry]

I oppose the inclusion of the clause in the Bill. Clause 48, with schedule 3, broadly replicates the existing procedure in section 17(1) of the Regulation of Investigatory Powers Act 2000, whereby material obtained by way of an intercept warrant cannot be used as evidence in ordinary criminal proceedings.

Schedule 3 makes a number of exceptions to allow intercept evidence to be considered in civil proceedings where there is a closed material procedure in place—that is where a party and his or her legal team are excluded. Those proceedings would include, for example, proceedings under section 6 of the Justice and Security Act 2013, proceedings in the Special Immigration Appeals Commission or under the Terrorism Prevention and Investigation Measures Act 2011. Schedule 3 makes no exception for criminal proceedings, except in so far as material may be disclosed to the prosecution and to the judge so that the judge might determine whether admissions by the Crown are necessary for the trial to proceed in a manner that is fair. Deleting clause 48 would remove that exclusion, so that there would be an exception for criminal proceedings. It would also permit intercept material to be treated as admissible in both ordinary civil and ordinary criminal proceedings, subject to the ordinary exclusionary rules applicable to other proceedings, including public interest immunity and the provisions of the Justice and Security Act in civil proceedings.

I am indebted to Justice, the human rights group of lawyers that includes members of all parties and none, for its help in formulating my argument for deleting the clause. Justice has long recommended the lifting of the bar on the admission of intercept material as evidence in civil and criminal proceedings. In 2006, it published a document “Intercept Evidence: Lifting the ban”, in which it argued that the statutory bar on the use of intercept as evidence was “archaic, unnecessary and counterproductive”.

The United Kingdom’s ban on intercept evidence in criminal proceedings reflects long-standing Government practice, but it is out of step with the position in many other Commonwealth and European countries, and it has proved increasingly controversial over time. Importantly, the European Court of Human Rights has recognised the value placed on admissible intercept material, in countries where it is available. It has said that admissible intercept material constitutes

“an important safeguard; against arbitrary and unlawful surveillance, as material obtained unlawfully will not be available to found the basis of any prosecution”.

--- Later in debate ---

[Joanna Cherry]

At present, in the United Kingdom intercept evidence is not admissible in criminal trials. My purpose in opposing the clause is to make it admissible in criminal trials and proceedings, but there would have to be very careful rules and procedures, and the nature of our disclosure systems both north and south of the border will need to be taken into account.

I invite Members to consider, on the one hand, how the ban on the use of such material balances the new system that the Bill seeks to introduce of expanded and untargeted access to communications data and whether lifting the ban on the admissibility of intercept evidence in criminal trials would, as the Privy Council has said, increase the likelihood of successful prosecutions and, on the other hand, whether it might also reduce the reliance on administrative alternatives to prosecution, such as terrorism prevention and investigation measures, and on the use of untargeted forms of surveillance. Members will also have to consider whether the Government’s cost base analysis is accurate and sustainable. We cannot say that the ceiling would fall down on the security surveillance system in this country if we removed the ban, because the system operates effectively in other countries.

[Keir Starmer]

It is of course the long-standing practice of all Governments to maintain this exclusion. The current form is effectively to continue the regime as it has operated until now. The regime has been reviewed a number of times, and the last review was probably in 2014. As has already been mentioned, the Privy Council said that the regime’s removal could lead to an increase in the number of successful prosecutions. The exclusion is frustrating, and I was frustrated in a number of cases when I was Director of Public Prosecutions where, had it been possible to deploy such evidence, individuals who could not be convicted and locked up for serious offences might have been successfully charged and prosecuted. So the ban is a source of frustration because the net result is that, where someone cannot be charged because of this rule, there are only two possibilities in serious cases. One is that they continue to be subjected to surveillance, which can be extremely expensive and resource-intensive. The other is that they are put through some preventive measure, which has advantages and disadvantages but also a shelf life, which is normally shorter than the sort of sentence they might have received if the evidence had been admissible and a conviction had been obtained.

--- Later in debate ---

[The Solicitor General]

The hon. and learned Gentleman is right about avowal but, of course, evidence pursuant to equipment interference has always been admissible. It is a bit of a mixed picture when you look at the detail of it.

[Keir Starmer]

I accept that there have been different avowals at different times in the past two years. I was speaking more generally. The argument about techniques is harder to sustain in the current set of circumstances. My view is that if there were a way to get around this exclusion, being able to use the evidence would bring very many benefits. When it comes to those involved in serious crimes, my strong preference is that they should be charged, put before a jury and, if convicted, serve the appropriate sentence, rather than be dealt with in some other way. For reasons that everybody understands, this provision frustrates that process. That is why I think it is time for a review against the current set of circumstances.

[The Solicitor General]

I am grateful to hon. Members for giving us the chance to have this brief but important debate. The hon. and learned Lady is right to characterise the existence of the prohibition, which has been in existence since the Interception of Communications Act 1985, with good reason.

I accept the points made by the hon. and learned Gentleman about evolution of powers and the avowal of particular techniques. Of course, very often we are talking about the protection of individual capabilities and that is a slightly more nuanced argument than the general points he makes. Therefore, ground No. 2 of the objection to the adduction into evidence of intercept material still remains a strong one, and ground No. 1 has to be acknowledged.

My hon. Friend the Member for Louth and Horncastle made the point well about the need to recast disclosure because it is material and relevant to the debate, and about ensuring that what is now intelligence but what would be evidence is in a form that can therefore be handled and admitted by a court. There is a cost to that, and the estimates given in the 2014 report vary between £4.25 billion and £9.25 billion. Those are not insignificant sums and they cannot be ignored or dismissed when balancing out the merits of taking this step.

The Government take the view—this is iterated in the 2014 report—that the problems outweigh, for the present at the very least, the potential benefit. The potential benefit is not clear, save for the points that the hon. and learned Gentleman makes. As a litigator and a prosecutor myself, I share his frustration and have been in those circumstances many times. I will not repeat the points he makes: I will adopt them.

The Government’s position in that report was to say that they will keep under review any changes that might affect the conclusions of their latest review. That remains very much the position. I do not think it is appropriate in this legislation for us to depart, in the absence of any further evidence, from the position that has been iterated in no fewer than eight different reports over the past few years.

Many of us in the room are familiar with this issue. The debate is held regularly and will continue, but in the absence of compelling reasons to depart from the provisions of the 1985 Act I commend the clause to stand part of the Bill.

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

--- Later in debate ---

Duty not to make unauthorised disclosures

[Keir Starmer]

I beg to move amendment 77, in clause 49, page 39, line 2, after “not”, insert “, without reasonable excuse,”

[The Chair]

With this it will be convenient to discuss amendment 78, in clause 49, page 39, line 19, at end insert—

“(3A) For the purposes of subsection (1), it is, in particular, a reasonable excuse if the disclosure is made with the permission of the person issuing the warrant or the person to whom it is issued.”

This provision adds a “reasonable excuse” defence to the “unauthorised disclosure” offence and expressly provides that the defence applies where the permission is given by the person issuing the warrant or the person to whom it is issued, the equivalent of a similar provision in clause 73(2) in relation to communications data authorisations.

[Keir Starmer]

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

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

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

[Mr Hayes]

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

As clause 50 sets out, disclosure is already permitted if

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

I would therefore argue that amendment 78 is not required.

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

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

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

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

[Keir Starmer]

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

Amendment, by leave, withdrawn.

Clause 49 ordered to stand part of the Bill.

Clause 50

Section 49: meaning of “excepted disclosure”

[Keir Starmer]

I beg to move amendment 65, in clause 50, page 40, line 27, leave out paragraph (7)(a).

[The Chair]

With this it will be convenient to discuss amendment 66, in clause 50, page 40, line 35, leave out

“under Chapter 1 of this Part”

and insert

“described in sub-paragraphs (2)(a)(i) and (ii) of section 49.”

[Keir Starmer]

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

[Mr Hayes]

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

[Keir Starmer]

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

[Mr Hayes]

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

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

[Keir Starmer]

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

Amendment, by leave, withdrawn.

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

[Keir Starmer]

I do not oppose clause 50 stand part, but I ask the Minister to clarify how it is anticipated the clause provides for disclosure of the details of a warrant to the Intelligence and Security Committee. On Tuesday, we had a lively debate about the extent to which Committees of this House can question and protest to the Secretary of State on warrants. My understanding is that if that process is to perform the function that was claimed on Tuesday, it must be done under this provision or not at all because there is an absolute prohibition on the disclosure and that covers the existence or content of a warrant, the details and so on. That stops the Secretary of State or anyone else disclosing to the House, a Committee or anyone else, and goes to the heart of the discussion about accountability.

It was argued that the ISC can hold the Secretary of State to account and it is important that, if this Bill passes into law, we understand how that is intended to take place. It would not come under head 1, head 3 does not apply, and head 4 is for a different purpose. Head 2 may be the answer, but to assist all of us in our further scrutiny of the provisions relating to the role of the Secretary of State and the judicial commissioners, it is important to identify the legal route by which the Secretary of State can be held to account and answer questions within the territory demarcated by clause 49(4). At the moment, it would be an offence for her to disclose any of those matters. Unless there is a route that allows her to do so, that seems to be an absolute bar.

[The Solicitor General]

I am grateful to the hon. and learned Gentleman for the question. Our answer is that, looking at clause 150(3), we say that it would come under head 2 and that the Secretary of State would have discretion to disclose—[Interruption.]

[Keir Starmer]

Sorry. Which clause was that?

[The Solicitor General]

Sorry. It is clause 50(3), where we have head 2 and:

“(a) in the case of a warrant under Chapter 1 of this Part, a disclosure made to, or authorised by, a judicial Commissioner;

(b) in the case of a warrant under Chapter 1 of Part 1…a disclosure made to, or authorised by, the Interception of Communications Commissioner or a Judicial Commissioner”.

The disclosure is made by the Secretary of State. That might not be clear on the face of it, but that is the intention as I understand it of the clause.

[Keir Starmer]

I am just not sure. I think the Solicitor General has just quoted clause 152 to me.

[The Chair]

For clarification, will the Minister explain which clause he is referring to?

[The Solicitor General]

May I correct the record? It is my error. I omitted a number. I was talking about clause 150(3). Page 117 of the Bill states:

“For the purposes of subsection (2) something is necessary for the authorised purposes if, and only if”,

and then we have paragraphs (a) to (f). That underpins the discretion of the Secretary of State to make that disclosure.

[Keir Starmer]

I am happy to pursue this matter outside the Committee if it is more convenient, but I think the provisions in clause 150 apply to bulk acquisition warrants rather than all warrants. Clause 150(1) sets out that it is expressly dealing with bulk acquisition warrants, and subsections 150(2) and 150(3) follow on from that. This is not intended as an exercise. Standing back from this, what I am concerned about is that it—

[The Chair]

Order. That was a lengthy intervention to help the Minister, who I now think wants to get back and explain the situation to the Committee.

[The Chair]

I will allow the hon. and learned Gentleman to ask further questions, and then the Minister may come back if he wishes.

[Keir Starmer]

Thank you for your indulgence, Mr Owen. I am grateful to the Solicitor General for indicating that he will write, and I am more than happy to have it in writing. That information is important because it is central to the debate about the roles of the Secretary of State and the judicial commissioner. It is not just me. Other people need to be assured on the role and accountability of the Secretary of State. It is one thing to say, “She can be asked in a Committee about it”, but it is another to point to the legal route by which that can happen in practice in a way that allows a degree of accountability. It is not intended as a trick question, and if it can be dealt with in a letter, I would be grateful.

Question put and agreed to.

Clause 50 accordingly ordered to stand part of the Bill.

Clause 51

Offence of making unauthorised disclosures

[Joanna Cherry]

I beg to move amendment 79, in clause 51, page 41, line 18, at end insert—

“(4) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”

This amendment seeks to provide a public interest defence to the offence of disclosure in relation to a warrant issued under this Part.

The amendment is about whistleblower protection and would provide a defence for the criminal offence of disclosure in relation to a warrant issued under this part of the Bill. The offence as framed in clause 51 includes disclosure of the existence and content of a warrant as well as disclosure of the steps taken to implement a warrant.

The offence is subject to a maximum penalty of five years’ imprisonment. If committed, it is clearly a serious offence—the maximum penalty reflects that—but there are strong arguments that there should be a defence of disclosure in the public interest. By their very nature, surveillance powers are used in secret, with the vast majority of those subject to them never realising that surveillance has taken place. That means it is vital that sufficient checks, balances and safeguards are in place to ensure that the powers are used appropriately. I know that is why we are here, so apologies for stating the obvious. It is part of the checks, balances and safeguards to ensure that those who, in one way or another, witness or have knowledge of abuse or mistakes are able to bring that to the attention of individuals capable of addressing it, which may on occasion include bringing information to public attention. The provisions in clause 51 that criminalise the disclosure of information relating to the use of interception powers risk shutting down a vital route of ensuring accountability for the use of surveillance powers unless there is the defence of disclosure in the public interest.

--- Later in debate ---

Clauses 49 to 51 authorise the disclosure of information relating to certain matters, but it is unclear whether persons disclosing other information will be subject to the offence. It is far from clear where there are similar statements for whistleblowers. My purpose in moving the amendment is to create a safe route for whistleblowers where their disclosure is in the public interest.

[Keir Starmer]

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

[Mr Hayes]

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

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

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

and goes on similarly.

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

--- Later in debate ---

[Keir Starmer]

I beg to move amendment 118, in clause 53, page 42, line 14, leave out subsection (1) and insert—

“(1) A Judicial Commissioner may grant a communications data access warrant where the judicial commissioner considers—

(a) that it is necessary to obtain the data for the purposes of a specific investigation or a specific operation, and

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

(1A) The grant of a warrant is subject to restrictions set out in the rest of this Part.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 125, in clause 53, page 42, line 25, at end insert—

“(1A) The Judicial Commissioner may grant a warrant on application from—

(a) an officer from a relevant public authority involved in the relevant investigation; or,

(b) an individual designated by the relevant public authority to make applications for warrants to the Judicial Commissioner.”

Amendment 126, in clause 53, page 42, line 25, at end insert—

“(1B) A warrant must—

(a) name or otherwise identify the person or persons, organisation, premises, or location to which the warrant relates; and

(b) describe the investigation or operation to which the warrant relates.”

Amendment 229, in clause 53, page 42, line 26, leave out from beginning to end of line and insert—

“A warrant granted by a judicial commissioner may authorise the applicant or a telecommunications operator to”.

Amendment 119, in clause 53, page 42, line 26, leave out “designated senior officer” and insert “warrant”.

Amendment 120, in clause 53, page 42, line 32, leave out subsection (3).

Amendment 121, in clause 53, page 43, line 4, leave out “authorisation” and insert “warrant”.

Amendment 122, in clause 53, page 43, line 14, leave out “authorisation” and insert “warrant”.

Amendment 123, in clause 53, page 43, line 16, leave out “authorisation” and insert “warrant”.

Amendment 124, in clause 53, page 43, line 25, leave out “authorisation” and insert “warrant”.

Amendment 130, in clause 55, page 45, line 15, leave out “authorisation” and insert “warrant”.

Amendment 128, in clause 55, page 45, line 16, leave out subsection (1)(a).

Amendment 132, in clause 55, page 45, leave out line 31.

Amendment 129, in clause 55, page 45, line 37, leave out subsection (4).

Amendment 133, in clause 57, page 46, line 20, leave out “authorisation” and insert “warrant”.

Amendment 134, in clause 57, page 46, line 24, leave out “authorisation” and insert “warrant”.

Amendment 146, in clause 72, page 57, line 27, leave out from “by” to “and” in line 29 and insert “a warrant”.

Amendment 147, in clause 72, page 57, line 30, leave out “authorisation or notice” and insert “warrant”.

[Keir Starmer]

We are now moving to a different part of the Bill and to a very important provision. I apologise if it takes some time, but we are moving to a significant set of matters that need to be considered together. The amendments to clause 53 have to be seen in context, and the context is the retention powers later in the Bill, which I will highlight in a moment.

I want to put the position of the Labour party on this and other provisions clearly on the record. It is accepted that there are circumstances in which it is necessary to retain or obtain the data of individuals who are not necessarily targets themselves, so that at a later stage that data can be accessed for a specific purpose or reason—so we have a broad retention power and then a much more narrowly defined access provision. Clause 53 is the access provision. The retention provision is clause 78 and I direct the Committee’s attention to that clause because that is where this all starts.

Under clause 78 the Secretary of State can require “relevant communications data” to be retained by “any description of operators”, and she can require the retention of

“all data or any description of data”

so long as they come within

“one…of the purposes falling within paragraphs (a) to (j) of section 53(7)”.

The Secretary of State’s very wide retention power is exercised by issuing a notice, the effect of which is to require the retention of potentially wide-ranging and extensive data for 12 months. That is an extensive retention provision. There is some provision for filtering the data, but the power to access the data is in clause 53.

On the face of it, the retention powers are quite wide and will necessarily involve retaining data of individuals who are not targets or subjects, never will be and were never intended to be—in fact, all of our data, in many respects. Our long-standing position is that to justify that potentially very wide power, which is a serious cause for concern to many people, it is critical that at the point of access there is a clearly defined and high threshold and clear safeguards. In other words, if one collects a lot of data, at the point of accessing it one must go through a much more rigorous set of preconditions with effective safeguards. Clause 53 allows such access.

On clause 53(1), the first thing to be observed is the person who is to grant authorisation—the holder of the keys to the gateway—to allow any of the activities in subsection (2), engaging in conduct

“for the purpose of obtaining the data from any person”,

and further action under subsection (4), is not the Secretary of State or a judicial commissioner, but a “designated senior officer” of a relevant public authority. That is an immediate cause for concern. There is a very wide power to retain, so it is necessary to have really strict preconditions before access, and the keys are held by a designated senior officer—nobody of higher rank than that.

To understand what that means, I direct Members’ attention to schedule 4, although I should perhaps go via clauses 61 to 64, which make further provision in relation to relevant public authorities and designated senior officers. The question is: who is a designated senior officer and what are the public authorities concerned? For that, we go to schedule 4 on page 204, where there is a long list of the public authorities and designated officers who can access the relevant data.

There we see some familiar bodies that one would expect to find in such a schedule, but running one’s eye down the list brings one to the Royal Navy Police, the Royal Military Police, and, further down, the Department of Health. Across the page are the Ministry of Justice, the Department for Transport, the Competition and Markets Authority, and the Criminal Cases Review Commission. I will pause there. In the Criminal Cases Review Commission, the person who can authorise access to data is an investigations adviser. With all due respect to the investigations advisers in the CCRC, that is a very low level of authorisation to access or obtain data that has been retained.

There are other examples. In the Financial Conduct Authority, any head of department in the enforcement and market oversight division has authorisation. Over the page, in a fire and rescue authority the watch manager provides authorisation, and in the Food Standards Agency it is a grade 6 employee. The Gambling Commission can access data under this provision, as long as a senior manager says so. These are really worrying levels of authorisation in relation to personal data: a senior manager in the Gambling Commission has the role of deciding whether your data or mine can be accessed. Dropping down the page, in a national health service trust it is the director of operations, or a control and communications manager, or the duty manager in ambulance trust control rooms who can authorise access to the relevant data, and so on and so forth. In the Office of Communications, it is the senior associate.

The first thing that is striking about clause 53 is the insufficiently senior level at which authorisation may be granted. Access may be authorised if

“a designated senior officer of a relevant public authority”

thinks

“that it is necessary to obtain communications data for a purpose falling within subsection (7)”

and that it is relevant for

“a specific investigation or a specific operation or…testing…The designated senior officer may authorise any officer of the authority to engage in any conduct which…is for the purpose of obtaining the data from any person”,

and so on. That is a real concern. Will the Solicitor General explain why it is thought appropriate to drop from what until now have been quite high levels of authorisation and scrutiny, with strict tests, right down to

“a designated senior officer of a relevant public authority”?

I have dealt with who can authorise access; let me turn now to the purpose of gaining access. What is it that the designated senior officer has to be satisfied about? That takes us straight to clause 53(7), which states that

“It is necessary and proportionate to obtain communications data for a purpose falling within this subsection if it is necessary and proportionate to obtain the data—”

Before I go down the list that follows in clause 53(7), I remind the Committee that the case involving David Davis, Tom Watson and others is before the Court of Appeal. We do not know the outcome of that case. Of course, it does not relate to these provisions, because they are not in force, but it relates to provisions that are not dissimilar to these. The question that arises in that case is: what is the true interpretation and effect of the Digital Rights Ireland case, in which it was found that one of the EU directives was invalid? The question before the Court of Appeal, which was critical to the European Court’s analysis in the Digital Rights Ireland case, is whether a regime for retention of data—a regime similar to the regime in the Bill—requires safeguards. The two safeguards in the Digital Rights Ireland case of most relevance to this clause are the safeguard that there must be a serious offence threshold for access and the requirement that there must be prior judicial oversight.

I am aware of the submissions and counter-submissions in that case on how those safeguards apply—whether they apply generally across the piece or whether they are case-specific. I am aware of what the divisional court said and what the Court of Appeal has said so far. In addition, I recognise that it would not be right for me to say that on the analysis of the Court of Appeal so far it is established that it is a precondition that the threshold must be a serious offence or that there must be prior judicial oversight. I do not advance an argument on that basis, because any fair reading of the Court of Appeal does not allow me to do so, and I do not do so. However, what it does is set up a challenge, which is what all of the courts have been concerned with in the Tom Watson and David Davis case, namely whether the safeguards are sufficiently rigorous and strict. The question is whether they have to be those particular safeguards or whether other safeguards could achieve the same balance.

--- Later in debate ---

[Keir Starmer]

I am grateful for that intervention. If the Solicitor General can point to such a provision, I would be interested to see it. On the face of it, the clause allows designated senior officers within a public authority to obtain communications data in the interests of the economic wellbeing of the UK without that further qualification.

Subsection (7) then states that data can be obtained

“in the interests of public safety…for the purpose of protecting public health”

or,

“for the purpose of assessing or collecting any tax”.

We then come to paragraph (g), on which I want to spend some time. It states that data can be obtained

“for the purpose of preventing death”—

that would obviously be a high threshold—

“or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health”.

The threshold is way, way down. There are many ways in which a person’s physical or mental health could be damaged. The Bill, if passed, will authorise access to communications data without any threshold as to the level of damage or injury.

[Suella Fernandes (Fareham) (Con)]

I appreciate the hon. and learned Gentleman’s analysis, but does he agree that obtaining communications data is one of the less intrusive powers contained in the legislation, but such data are very helpful for setting the scene and planting the seed for investigations? That has to be borne in mind when looking at the authorisation regime, because this is different from other powers.

[Keir Starmer]

Let me take that in stages. I accept that accessing communications data is in a different category and order from, say, the interception of the contents of communications. I also accept the proposition that communications data are used in many cases involving serious crime. I will go further than that: it is rarely possible to bring and to conclude cases of serious criminality without reliance on communications data. I have no in-principle objection to communications data being made available and being used. My concern is the very low level of sign-off required to access those data and the lack of any meaningful threshold in subsection (7); there simply is not one. Whether or not a meaningful threshold is achieved by the insertion of the word “serious”, as I propose in my amendment, or some other word, if we simply say that it could be necessary and proportionate to access communications data to prevent any crime or damage, we are proceeding on a basis for which it is very hard to think of any circumstances in which it would be difficult or impossible to justify obtaining communications data. It just is not a set of thresholds.

Dealing with miscarriages of justice and situations in which a person has died and so on, and

“for the purpose of exercising functions”

are listed in the subsequent paragraphs. My central point is obvious but important. I realise how necessity and proportionality apply, but on any reading of subsection (7) there is no threshold. I think there is a risk for the Government here. I appreciate the direction of travel of the Court of Appeal, but does anybody seriously think that the jurisprudence is not going to develop to a point where there is a threshold that is thought to be appropriate? It is one thing to say that we do not necessarily have to have a threshold of serious crime, but to go from that to saying that we do not have to have any threshold at all is to invite problems, if these provisions are passed.

[Suella Fernandes]

It appears that the hon. and learned Gentleman is dismissing the necessary hurdles of necessity and proportionality in satisfying the tests. They are obviously going to relate to and be thresholds, so is it not wrong to say that there is no threshold in the clause?

[Keir Starmer]

I appreciate that the necessity and proportionality test has to be applied—in any given case there will always be an argument about whether it is necessary and proportionate—but as ever with necessity and proportionality the question is: what are we assessing necessity against and how are we arguing that it is proportionate? Is it necessary to do what? We get that only from the face of the statute. In other words, necessity does not give us anything unless we have some subject matter that it bites on, which is why the subject matter that it bites on is so important. Whether it is necessary for serious crime is one question; whether it is necessary for crime is another.

There are many, many things that one could say were necessary to prevent or detect crime. I absolutely accept that in practice those two tests are applied at all times, but the question is: what are they applied to? The question that the designated senior officer has to ask him or herself is: “Am I satisfied that it is necessary to prevent crime?” That would be good enough under the clause. It is, in principle, an inadequate threshold. I also think it will invite challenge in due course, because I do not think for one moment that, in the long run, the European Court and our courts are going to be satisfied with a scheme that does not have any threshold, even though there will be and are arguments about the precise threshold. We can see what the divisional court said in the Tom Watson case, so it is not just counsel’s argument that was never accepted by anybody. In that case in the divisional court, counsel’s argument that the serious crime threshold was an important safeguard was accepted. Thankfully, the writing is therefore on the wall if the clause is not taken back and reconsidered.

I shall move on to the second “who”. The first “who” I focused on was who can issue the necessary authorisation, which is the designated senior officer. Under clause 53(2), that person can

“authorise any officer of the authority to engage in any conduct”.

It goes from a relatively low-level authorisation to somebody even further down in the authority having to get on with the job of obtaining data.

The breadth of what can be done is outlined in clause 53(5), which states:

“An authorisation…may relate to data whether or not in existence at the time…may authorise the obtaining or disclosure of data by a person who is not an authorised officer, or any other conduct by such a person, which enables or facilitates the obtaining of the communications data”—

so it goes beyond the specific authorisation to the facilitation—

“and…may, in particular, require a telecommunications operator who controls or provides a telecommunication system to obtain or disclose data relating to the use of a telecommunications service provided by another telecommunications operator in relation to that system.”

It is a very broad provision.

That enables us to see the amendments in their proper context. There are three categories of amendment. The first category is to be taken as a set and would insert some rigour and independence into the process by requiring judicial commissioners to sign off the necessary authorisations. The second set of amendments, which we will come to in due course, seeks to amend the threshold to provide a meaningful threshold for the judicial commissioner. To call clause 53 as drafted a set of safeguards is to mis-describe the words on the page.

[The Solicitor General]

It is with this amendment, I am afraid, that we have a strong disagreement. To say that there are no thresholds is a misrepresentation of the situation. Putting it bluntly, the Government’s worry is that creating a serious crime threshold will miss a whole panoply of crimes that are extremely serious to victims. I am thinking in particular about crimes relating to harassment, stalking and other types of offences that would not fall within the threshold of serious criminality.

It is important that we couch our remarks carefully—the hon. and learned Gentleman has tried to do that, and I respect him for it. We are not talking about targeted interception here; we are talking about the retention of evidential leads—information that could, not of itself build a case, but which, in combination with other material, could allow investigators to build a case against a suspect. The analogy is with existing comms data, namely telephonic records and mobile phone records—the sort of material that he, I and others on the Committee have regular use and an understanding of, as prescribed by the RIPA regime. We are all familiar with it. The difficulty is that, as the days go by, the reliance by criminals on conventional methods of telecommunication changes.

The old system, where the SMS message would be the way things would be done, is increasingly falling into disuse. WhatsApp, internet chat forums and all sorts of encrypted means of communication are now being used. There is no doubt that the ability of the agencies—the security and intelligence agencies, the police and other agencies—to obtain even those evidential threads is therefore becoming more difficult. We are not talking about content, nor should we be. I draw an analogy with the sort of drugs observance case where the police officers can see people coming and going from a house that is of interest, but cannot see what is going on inside that house. That is what we are talking about here. Adopting these amendments would be entirely the wrong step to take.

--- Later in debate ---

[Keir Starmer]

I want to be clear with the Committee. In fairness to the Solicitor General, I can see the argument that, for harassment, there can be serious consequences for the individual. I had to deal with a number people in that situation and I do not underestimate for a moment the serious consequence that a series of minor actions can have. I do not think that necessarily means that we cannot have a serious crime threshold. I would be willing to work on what that threshold would look like, but I should not be taken as thinking that harassment, for example, cannot have serious consequences.

[The Solicitor General]

I am grateful to the hon. and learned Gentleman for that concession. It is important and it is not straightforward, and that is why I am afraid, as currently constructed, these amendments are deficient.

If I can develop my argument, I would like to give an example from Gwent police—a force that I know very well and have prosecuted on behalf of for the Gwent CPS on many occasions. Last November, a female victim returning home from a night out was approached by an unknown male who proceeded to sexually assault her. As a result of her cries, two witnesses approached and, thankfully, the male fled the scene before the offence was completed, serious though it was. An urgent press release was issued, along with CCTV footage of the offender. As a result, a member of the public called the police stating that she recognised the offender, who had given her his number. Investigators acquired subscriber data on that number and identified a suspect, who was subsequently arrested. In court, the offender pleaded guilty and received a 12-week prison sentence that was suspended for 12 months, and was placed on the sex offenders register for five years. I think we would all agree that that sounds very serious.

[Keir Starmer]

It is.

[The Solicitor General]

But is it? We have got to be absolutely clear. None of us would want that type of offence to fall outwith any of the criteria in these provisions—I am sure that would be the case.

[The Solicitor General]

Of course, there are plenty of offences that do not involve violence or the threat of violence, such as fraud, although I understand that the potential consequences of some fraud can cause stress. May I reassure him that the test of necessity and proportionality in clause 53(7) remains very much at the centre of everything? I would not want him to be misled into thinking, as has perhaps been suggested by some of his Front Bench colleagues, that this is a free-for-all; far from it.

[Keir Starmer]

Will the Minister give way?

[The Solicitor General]

No, because I want to develop the argument. It is vital that we look at the underpinning of all this. None of the three reports that informed the drawing up of the Bill, nor the three reports arising from the pre-legislative scrutiny of the draft Bill, recommended any changes whatever to the authorisation regime for communications data. For example, David Anderson QC recommends authorisation of the acquisition of communications data by a designated person in a public authority. RUSI recommended:

“For the acquisition of communications data otherwise than in bulk, an authorisation by the relevant public authority. Communications data should only be acquired after the authorisation is granted by a designated person.”

Prior to that, the report from the Joint Scrutiny Committee on the draft Communications Data Bill 2012 looked into the authorisation regime in depth and concluded that it was indeed the right model.

I entirely accept that anything that can sensibly be done to improve the already strongly regulated regime should be done. That is precisely why we have, for instance, provided for a new criminal offence that applies to persons in public authorities who knowingly or recklessly obtain communications data from a communications service provider without lawful authority. We have made the highly regarded SPOC—single point of contact—regime, which provides expert advice and guidance to authorising officers, a mandatory requirement in the Bill.

[The Solicitor General]

I am grateful for that powerful example provided by my hon. and learned Friend.

It is important to note that in the report on the draft Bill—I am looking at paragraph 11 of the summary of conclusions and recommendations—the Joint Committee stated:

“We believe that law enforcement should be able to apply for all types of communications data for the purposes of ‘saving life’. We recommend that the Home Office should undertake further consultation with law enforcement to determine”—

the report then makes references to various things in the draft Bill that would not necessarily read over to the Bill that is before the Committee.

The point I am seeking to make, in the round, is that we have a tried and tested system, which is being replicated—indeed, enhanced—by the Bill, that deals with a very large number of applications. According to the latest annual report by the Interception of Communications Commissioner, in 2013 there were 517,236 authorisations and notices for communications data in total. That contrasts that with warrantry and intrusive and limited interception of communications—in the same period, there were 2,795—so we are talking about a very different set of parameters, with a large volume of requests. My worry is that, however well-intentioned the amendment is, it is wholly unrealistic when it comes to fighting crime.

[Keir Starmer]

I rise only because this is an important point about how the powers will come to be exercised. It is of course possible to say that the precise wording of the amendment might not work in certain circumstances—all but sentences of 10 weeks or less are serious cases, and so on—but I do not want us to miss the point. The challenge to the Solicitor General is that there is no threshold. It is perfectly all right to say that the amendment does not necessarily achieve in precise terms the right level of seriousness, but it is not right simply to push back at the notion that there must be some threshold in the measure that is meaningful, which at the moment there is not.

[The Solicitor General]

I hear what the hon. and learned Gentleman says, but I do not agree with him about the threshold. It is set out in subsection (7). I can give another example: what about a missing person inquiry? We would not know whether it was a crime; it might well be a young person who has run away. We all have some direct or indirect experience of that.

I will address the point, but I have to be careful, because the case to which the hon. and learned Gentleman has referred is sub judice. I do not disagree with any of his characterisation, by the way, and of course I have read with care the Court of Appeal judgment of Lord Justice Lloyd Jones, but the hearing in the Court of Justice of the European Union is this week, I think. We will have to see how that develops.

I am very conscious of how case law develops in this area, and I am mindful of it, bearing in mind my duty as a Law Officer to uphold the rule of law. I am sure the hon. and learned Gentleman understands that, but where we are is in a sensible place. My worry is that if we start to get too restrictive, we will in effect end up in a position in which many serious matters—matters that are serious to the victim, but might not be serious according to other criteria—are lost or missed.

I have already mentioned necessity and proportionality. I should also pray in aid the fact that there will have to be compliance with a detailed code of practice and independent oversight and inspection of the regime by a senior judge, currently the Interception of Communications Commissioner. The current internal authorisation regime is working well. No deliberate abuse of it has been identified in any ICC reports, which speaks volumes for the integrity of the current system.

--- Later in debate ---

[The Solicitor General]

I am familiar with what the hon. and learned Lady is talking about, but again, that involves a particular failure by the NCA on warrantry. Here we are talking about various agencies’ abilities. With respect to her, it is not the same. We are discussing a different regime. Tempting though it is to read over, that would be to frustrate the important work of many law, detection and investigative agencies in our country.

I do not see the purposes within the Bill as inconsistent in any way with the purposes set out in the exemptions from and limitations of the right to privacy in article 8.2 of the European convention on human rights. There has never been a serious crime threshold for the acquisition of communications data. No such limit is placed in article 8.2, which is why the Government’s position on this issue—I will not mention the case—is legally respectable and sustainable. That is why the provisions in the clause meet the challenge that faces the agencies in a way that is proportionate and necessary, and that keeps pace with the breathtaking rate of change of technology being taken advantage of by many people of good will, but also by people of less than good will. For that reason, I ask that the amendment be withdrawn.

[Keir Starmer]

I will not repeat the concerns that we raised. Proceeding with a clause that has no seriousness threshold, however expressed, is fraught with difficulties, but the Minister has indicated that he will consider some of the issues and I want to reserve this issue for a later stage, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Joanna Cherry]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

I beg to move amendment 110, in clause 53, page 43, line 39, after “detecting”, insert “serious”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 109, in clause 53, page 43, line 39, leave out “or of preventing disorder”.

Amendment 111, in clause 53, page 43, line 40, at end insert

“which includes to assist in investigations into alleged miscarriages of justice”.

Amendment 112, in clause 53, page 43, line 41, leave out subsections (7)(c) to (f).

Amendment 114, in clause 53, page 44, line 1, after first “or”, insert “serious”.

Amendment 115, in clause 53, page 44, line 1, after “any”, insert “serious”.

Amendment 116, in clause 53, page 44, line 2, after “any”, insert “serious”.

Amendment 117, in clause 53, page 44, line 3, at beginning insert “serious”.

Amendment 113, in clause 53, page 44, line 5, leave out subsections (7)(i) and (j).

[Keir Starmer]

I have covered my concerns that relate to these amendments, and the Solicitor General has dealt with them in his submissions. For the same reasons as on the first group of amendments, I want to take this matter away and I reserve my position. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 53 ordered to stand part of the Bill.

Clause 54

Additional restrictions on grant of authorisations

[Keir Starmer]

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

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

[Mr Hayes]

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

[Keir Starmer]

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

[The Solicitor General]

I am grateful to the hon. and learned Gentleman. It was puzzling me, and he has solved the mystery. The amendment seemed to remove the safeguard, which I am sure he does not want to do.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[Joanna Cherry]

I do not oppose the removal of safeguards from the Bill. However, this is the first time that internet connection records have raised their head in the Bill and I feel compelled to foreshadow the more detailed arguments that will be made when we reach clause 78.

The collection of internet connection records is one of the fundamental changes that the Bill seeks to introduce, and subsections (4), (5) and (6) of the clause contain the first mention in the Bill of such records. I think that I am correct in saying that they are in fact only mentioned in one further clause—clause 78.

Clause 54(6) sets out to define an internet connection record but fails spectacularly to do so because of its widely drawn language, which clearly attempts to cover every imaginable base. The Scottish National party understands that the police and other authorities need powers befitting the digital age but, as legislators, we cannot pass a clause with such a significant impact on civil liberties—on personal privacy—without a clear definition in the Bill.

The industry has made it clear that it is willing to work with the Government to try to help implement ICRs. The trouble is that the industry does not know what ICRs are—and it looks like the Government do not know either. I addressed that point in quite a lot of detail on Second Reading. It is interesting that the Internet Service Providers Association says:

“The Investigatory Powers Bill deals with highly complex technical matters, however, our members do not believe that complexity should lead to a Bill lacking in clarity.”

I very much associate myself with those comments.

We cannot legislate in a vacuum and if the Government cannot provide further detail and clarity so we all know what an internet connection record is and what we are legislating for, we will have no option but to try to remove the collection of such records from the Bill through our amendment to clause 78. But the Scottish National party objects to the inclusion of internet connection records not just because of the difficulty of defining them—in my speech on Second Reading, I suggested that they are not at all a sort of internet replication of a phone record, as the Home Secretary seemed to think they were—but because of their intrusiveness. They would provide a detailed record of every internet connection of every person in the UK over 12 months, with a log of websites visited, communications software used, systems updates downloaded, desktop widgets used and every mobile app used, and logs of any other device connected to the internet, such as games consoles or baby monitors. I said in that speech that that would be “fantastically intrusive” and I stand by that.

Law enforcement bodies can currently obtain similarly extensive internet connection data for specific surveillance targets in several ways. First, they can request that telecommunications operators in the future retain the data of specific targets. Secondly, they can request retrospective internet connection data on specific targets from operators who temporarily store such data for their own business purposes. Thirdly, if they are seeking to prevent or detect serious crime, they can request data or assistance from GCHQ, which has a remit to provide intelligence for those purposes. Intelligence sharing to tackle online child sexual exploitation will be fortified by the establishment in November last year of the National Crime Agency and GCHQ joint operations cell.

The Intelligence and Security Committee noted in recommendation I of its report on the draft Bill that the delivery of ICR proposals

“could be interpreted as being the only way in which Internet Connection Records may be obtained. However, this is misleading: the Agencies have told the Committee that they have a range of other capabilities which enable them to obtain equivalent data.”

The ISC recommended that the Bill be amended in the interests of transparency, but no transparency has been provided.

The Scottish National party believes that the case supporting this huge expansion of data collection by internet service providers and its benefit to law enforcement is deeply flawed and contradicted by the available evidence, and that it has been accurately described as overstated and misunderstood.

I reiterate that there are no other “Five Eyes” countries in which operators are or have been forced to retain similar internet connection data. In Europe, as we heard the Danish tried it and decided that it was not of any utility. They thought about trying it again recently, but decided not to repeat the experiment. David Anderson noted in his report “A Question of Trust”, on page 265, about the collection of that sort of internet connection data that

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

He therefore said that a “high degree of caution” should be in order.

There is also a legal issue with the mooted collection of internet connection records, because in 2014 the Court of Justice of the European Union ruled in the Digital Rights Ireland case that indiscriminate collection and storage of communications data is a disproportionate interference with a citizen’s right to privacy. I therefore argue it is unacceptable that the Government are attempting to bypass that ruling to extend their policy of blanket data retention.

It will no doubt be argued that, provided there are sufficient safeguards, the Court’s concerns from that case do not apply. However, as we just heard, there are not independent safeguards because we do not have judicial authorisation for access to internet connection records. We have instead a long list of public officials who have access to such records through internal procedures. I want to make it clear that I do not seek to impugn the integrity of public officials, but the reality is that their primary concern will relate to the operational capacity of their agency. That is a perfectly understandable matter of organisational culture, but that is also a reality that mitigates in favour of independent third-party authorisation.

If we collect internet connection records, we face falling foul of European Union law. We will also face falling foul of European Union law if we collect them without proper independent authorisation. I oppose clause 54 because it is the first point at which internet connection records rear their head in the Bill and the Scottish National party is not convinced that the Government have made a case for internet connection records. We are not convinced that there are not alternative routes to get at the necessary information and we are concerned that the collection of such records will be in violation of the law and of civil liberties.

[Keir Starmer]

We shall not seek to vote down the clause, but I want to raise some serious concerns about internet connection records because, as has been said, I think this the first time that they appear in the Bill. Subsection (6) is important because that provides the definition that

“‘internet connection record’ means communications data which…may be used to identify, or assist in identifying, a telecommunications service to which a communication is transmitted by means of a telecommunication system for the purpose of obtaining access to, or running, a computer file or computer program, and…comprises data generated or processed by a telecommunications operator in the process of supplying the telecommunications service to the sender of the communication”.

That is a wide definition. I listened carefully to the evidence of senior law enforcement officials about their ask on internet connection records, and they made it clear that they were concerned to have the who, the how, the when and the location.

I appreciate that there are other provisions—in fairness, I will come to those—but my concern is that that definition is much wider than their ask. That is important because subsection (4) deals with the point of access to internet connection records and what the designated senior officer can authorise. I accept that that subsection contains the restriction that internet connection records cannot be obtained or accessed unless one of the purposes identified is complied with—

“which person…which internet communications service…where or when”.

That has a resemblance to what senior law enforcement told us was their ask, but the problem is that the definition in subsection (4) is much wider. It might be asked whether that matters. Well, it does matter because clause 78—the retention clause—as we have observed, provides that the Secretary of State may issue a retention notice in relation to relevant communications data. Clause 78(9) makes it clear that relevant communications data may be used to do a list of things—I will return to the list—and that internet connection records are included. That definition of internet connection records crops up again in clause 78(9). Therefore, anything within that description, so long as it also complies with the other bits of the subsection, may be retained.

--- Later in debate ---

[The Solicitor General]

It is important that we go through this carefully. The shadow Minister talked about browsing history. The full history does not constitute comms data; it is not an ICR for the purposes of this legislation. It is like looking at everything after the forward slash. Let us take the example of a website such as telegraph.co.uk: the fact that a person visited the website may be one thing, but everything after the forward slash—the detail of what the person is doing—is not an internet connection record for the purposes of the Bill.

[Keir Starmer]

I am grateful to the Solicitor General for that reply. The same point was made on Second Reading by the Home Secretary and was also made in Committee, but I have a difficulty with it that is important to put on the record. Where are the words in the Bill that result in what the Solicitor General said? I am concerned, because I cannot see them.

I accept that, when it comes to accessing internet connection records, there is the further test in clause 54(4). At the moment, a constituent might say, “Will my internet connection records and browsing history be kept?” People are concerned about whether there is a record of what they have looked at on the internet. They feel very chilled by that. The Solicitor General says that it goes so far but no further. That is to give people comfort and I understand why it is said. The difficulty I have is finding the precise words in the Bill that give effect to that proposition.

[The Solicitor General]

Is not the real question whether the authorities will have access to that history without due process? Therein lies the rub. As I have said to the hon. and learned Gentleman, the full browsing history will not be capable of being accessed without further warrantry.

[Keir Starmer]

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

[Mr Hayes]

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

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

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

[Keir Starmer]

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

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

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

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

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

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

[The Solicitor General]

As a preface to my remarks, which will have to be succinct, I do not want to stray into the debate on clause 78. I do not want to criticise the hon. and learned Member for Edinburgh South West, but she has made points that will properly be answered when we come to that debate. She is right to raise the point about the Danish experience and, like me, she has read the evidence in the Committees, but there are significant differences between what we are trying to do in the UK and what happened in Denmark. The Danish experience was not a great one. There are significant operational, financial and other differences that mean that the Danish Government are looking carefully and with a great interest at what we are attempting to do in the UK. This is not straightforward and it is not easy, but it is our duty as legislators to get ahead of the curve when it comes to the development of technology and to make sure we are not playing catch-up when it comes to criminals’ increasingly sophisticated use of the digital sphere.

--- Later in debate ---

[Joanna Cherry]

I wish to speak briefly on clause 58. I indicate that I will also cover clauses 59 and 60, which I also oppose. The clauses provide for the establishment and use of a filter to gather and analyse communications data. They provide for a communications data request filter, which was a feature previously proposed in almost identical terms in the rather unpopular draft Communications Data Bill. The only change made is that under clause 58(5), which states that the Secretary of State

“must consult the Investigatory Powers Commissioner about the principles on the basis of which the Secretary of State intends to establish”

the filter.

The request filter essentially is a search mechanism that allows public authorities to conduct simple searches and complex queries of the databases that telecommunications operators will be required to build and hold. The Joint Committee on the Draft Communications Data Bill described the request filter in that Bill as

“a Government owned and operated data mining device”,

which, significantly, positions the Government at the centre of the data retention and disclosure regime. Access to the filter and the data it produces would be subject to the same self-authorisation processes as all communications data. In practice, the request filter would be a search engine over an enormous federated database of each and every citizen’s calls, text records, email records, location data and internet connection records. Those would be made available to hundreds of public authorities.

I am sure the Government will, as they have in the past, be keen to portray the request filter as a safeguard for privacy. However, the processing of such a huge amount of personal data, as permitted by the request filter, is a significant privacy intrusion. It is not only me who thinks that; the Joint Committee on this Bill noted that there were

“privacy risks inherent in any system which facilitates access to large amounts of data in this manner.”

When I asked the Solicitor General why other countries do not do that, he said that the lead must start somewhere, but I do not want my constituents to be guinea pigs for such a system. I can tell from my mailbox that many of my constituents are very concerned about such huge amounts of personal, private data being held and analysed in that way. They want to see serious crime tackled, but not at the expense of their privacy.

A balance has to be struck, and I fear that the request filter is more of an intrusion into privacy than a safeguard for it. It is a portal with the power to put together a comprehensive picture of each of our lives. We should not misunderstand that that is what the filter can do. It raises many of the same concerns as a large and centralised store, with the added security concerns of protecting multiple distributed databases.

Public authorities will have a permanent ability to access the request filter, which will make it an enticing and powerful tool that could be used for a broad range of statutory purposes. The ability to conduct the complex queries that the request filter will allow for could increase the temptation to go on fishing expeditions—that is, to sift data in search of relationships and infer that concurrences are meaningful. That was one of the many concerns expressed by the Joint Committee on the Draft Communications Data Bill about the request filter proposal.

With the request filter power, authorities could use communications data to identify attendees at a demonstration and correlate that with attendance at other public or private locations in a 12-month period, or identify those regularly attending a place of worship and correlate that with access to online radio websites, inferring risk. Those examples show that the new ability risks casting undue suspicion on thousands of innocent citizens and mining their personal contacts for patterns, which is an unacceptable intrusion into the privacy and civil liberties of our constituents and British citizens generally.

[Keir Starmer]

I will not be long, but I want to raise some concerns about the provisions. It is clear—the Minister will correct me if I am wrong—that the arrangements are to assist a designated senior officer who is considering whether to grant an authorisation, and therefore has got to that stage of the exercise, and more broadly to provide for effective ways of obtaining communications long before there is serious consideration of a particular authorisation. Subsection (1)(a) applies in relation to the contemplation of a possible authorisation, whereas subsection (1)(b) is a much wider way of organising the data so that someone can later find what they want more easily.

The arrangements are made by the Secretary of State but then exercised by the designated senior officer, and we have discussed who will be doing that. It is so concerning because the provision allows for the designated senior officer, who in many cases will be not a high-ranking individual in a public authority, to start to organise the data that have been obtained under a retention power. It is therefore a very wide ranging power indeed.

Investigatory Powers Bill (Seventh sitting)

Keir Starmer Excerpts

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

[The Chair]

Thank you very much, Minister.

Clause 61

Relevant public authorities and designated senior officers

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

I beg to move amendment 135, in clause 61, page 49, line 32, leave out subsections (1) and (2) and insert—

“(1) For the purposes of this Part, a relevant public authority is—

(a) a police force maintained under section 2 of the Police Act 1996,

(b) the Metropolitan police force,

(c) the City of London police force,

(d) the Police Service of Scotland,

(e) the Police Service of Northern Ireland,

(f) the British Transport Police Force,

(g) the Ministry of Defence Police,

(h) the Royal Navy Police,

(i) the Royal Military Police,

(j) the Royal Air Force Police,

(k) the Security Service

(l) the Secret Intelligence Service,

(m) the GCHQ,

(n) the National Crime Agency and

(o) the Criminal Cases Review Commission.

(2) For the purposes of authorisations sought pursuant to section 53(7)(g) a relevant public authority also includes—

(a) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 whose functions include the provision of emergency ambulance service,

(b) a fire and rescue authority under the Fire and Rescue Services Act 2004,

(c) the Northern Ireland Ambulance Service Health and Social Care trust,

(d) the Northern Ireland Fire and Rescue Service Board

(e) the Scottish Ambulance Service Board and

(f) the Welsh Ambulance Services National Health Service Trust.

(3) For the purposes of authorisations sought pursuant to Section 53(7)(h), a relevant public authority also includes—

(a) the Criminal Cases Review Commission and

(b) the Scottish Criminal Cases Review Commission”.

[The Chair]

With this it will be convenient to discuss amendment 236, in clause 61, page 49, line 34, leave out subsection (2) and insert—

“(2) For the purposes of this Part, a relevant public authority is—

(a) a police force maintained under section 2 of the Police Act 1996,

(b) the Metropolitan Police Force,

(c) the City of London Police Force,

(d) the Police Service of Scotland,

(e) the Police Service of Northern Ireland,

(f) the British Transport Police Force,

(g) the Ministry of Defence Police,

(h) the Royal Navy Police,

(i) the Royal Military Police,

(j) the Royal Air Force Police,

(k) the Security Service,

(l) the Secret Intelligence Service,

(m) the GCHQ,

(n) the National Crime Agency,

(o) the Criminal Cases Review Commission, or

(p) the Scottish Criminal Cases Review Commission.

(2A) For the purposes of authorisations sought pursuant to 53(7)(g), a relevant public authority also includes—

(a) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 whose functions include the provision of emergency ambulance service,

(b) a fire and rescue authority under the Fire and Rescue Services Act 2004,

(c) the Northern Ireland Ambulance Service Health and Social Care trust,

(d) the Northern Ireland Fire and Rescue Service Board,

(e) the Scottish Ambulance Service Board, and

(f) the Welsh Ambulance Services National Health Service Trust.

(2B) For the purposes of authorisations sought pursuant to Section 57(3)(h), a relevant public authority also includes—

(a) the Criminal Cases Review Commission and

(b) the Scottish Criminal Cases Review Commission.”

This amendment ensures that only police forces and security agencies may request a communications data warrant, except where the warrant is issued for the purpose of preventing death, in which circumstances emergency and rescue services also fall within the definition.

[Keir Starmer]

It is a pleasure to continue to serve under your chairmanship, Ms Dorries.

The clause sets out the relevant public authorities and designated senior officers for the purposes of part 3 of the Bill—in essence, those who may exercise the powers of obtaining communications data throughout this part. Last week, I drew attention to schedule 4 to the Bill and, in particular, to the large number of public authorities listed as “relevant”, including Food Standards Scotland, the Food Standards Agency, the Gambling Commission, the Office of Communications and the Northern Ireland Fire and Rescue Service Board. The list of relevant public authorities in schedule 4 is very long.

I also drew attention to the designated senior officers, who are authorised to obtain communications data. They are listed in the second column in schedule 4. To remind the Committee, if we take the Food Standards Agency, the designated senior officer is a grade 6 officer; if we take the Northern Ireland Fire and Rescue Service Board, the officer is the watch manager of control; and, to take one more example, for the Office of Communications, the officer is a senior associate. The point that I made last week was that, where there are wide powers of retention under the Bill, which we will come to later, the threshold for accessing the data is vital. The number of relevant public authorities is too wide and the level of the designated senior officers too low to provide a proper safeguard.

The amendment is intended to address that defect by setting out in the legislation a narrower set of relevant public authorities, listed in paragraphs (a) to (o) of proposed new subsection (1). It is a shorter and tighter list, but would none the less be a functional and effective one. Proposed new subsections (2) and (3) are an attempt to tie in other relevant public authorities to the particular power that would be appropriate for them to exercise. The relevant public authorities for the purposes of authorisation under clause 53(7)(g) are listed under proposed new subsection (2) and, similarly, those for clause 53(7)(h) are listed under proposed new subsection (3).

The amendment would tighten up the drafting of the Bill to limit the number of relevant public authorities and tie the lists more closely to the particular objectives set out in clause 53. Logically, therefore, it follows from the point that I was making last week and anticipates the one that I will make later this morning about the scope of the retention powers.

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

There is one small difference between amendment 135, which was tabled by the Labour party, and amendment 236, which was tabled by the Scottish National party. Amendment 236 includes, in proposed new subsection (2)(p), the Scottish Criminal Cases Review Commission, which is a separate body. I say that for completeness.

[The Solicitor General (Robert Buckland)]

It is good to serve under your chairmanship once again, Ms Dorries. I welcome the spirit in which the amendments have been tabled. There is a common sense of purpose among Committee members to ensure that the ambit of the authorities that have power to access communications data should always be strictly scrutinised. In that spirit, the Government have progressively reduced the number of such authorities. They have reviewed that number and keep it under review. The list of such authorities in the Bill is not simply a replication of the list in the Regulation of Investigatory Powers Act 2000, but has been the subject of careful consideration.

It has been judged that it is necessary for those public authorities to be allowed to access communications data for a narrow range of purposes. For example, insider trading needs to be investigated, and the Financial Conduct Authority is the body to do that. The Maritime and Coastguard Agency will need access to such information to locate people lost at sea. Bodies such as the Food Standards Agency and the Department for Work and Pensions have been given clear remits by Parliament to investigate certain types of criminality and civil matters, because such investigations often require dedicated resources and specialist knowledge. To unduly restrict those agencies in their work would cause an imbalance.

I know that the hon. and learned Gentleman shares those views, because in his previous incarnation as the Director of Public Prosecutions he made it clear, for example, that communications data should be available to organisations such as the DWP in investigating any abuse of the welfare system or other public funds. I therefore know that he has a common purpose in mind.

The Bill for the first time brings together all the public authorities with access to communications data in primary legislation. That is an important and welcome step up from previous practice. I should be clear that all the authorities listed in the Bill were required to make the case that they needed the power to access communications data. Therefore, as I have outlined, the list in the Bill is not just a blind replication of existing lists. As I have said, we removed 13 public authorities from the list in February last year. Amendments that were tabled by my right hon. Friend the Minister for Security and that we will debate shortly will introduce further restrictions on certain public authorities. That shows that the Government are taking great care in this area.

[Keir Starmer]

I wonder whether the Solicitor General can assist the Committee, either now or at some later stage, by setting out some detail about how the case was made for each of the agencies, and in particular why the designated senior officer grades were chosen. That is quite a complicated question, but it is striking, from the Committee’s point of view, that a watch manager is listed as a designated senior officer when one is talking about accessing communications data. I have already given other examples.

[The Solicitor General]

I shall try to assist the hon. and learned Gentleman. I will not be able to give him an exhaustive list here and now, as he is aware, and I am pretty sure that the information that he seeks is available in some form. We will, of course, help to signpost him to it.

I make the simple case about watch managers that there will be emergency situations, such as missing persons inquiries, in which fleetness of foot is essential. Suggesting that a more senior level of management would be appropriate risks important data being lost or not being available in those emergency situations. There are certain key situations where we are talking about the protection of life in which the balance needs to be struck in the way that we suggest in schedule 4.

With regard to schedule 4, public authorities cannot all acquire communications data for the full range of statutory purposes. Each can acquire data only for the purposes for which it has justified a need for them. That maintains the essential principle of proportionality, so that the public authorities concerned only have the powers for which they have made a compelling case.

To give some examples of the changes from RIPA, ambulance services will no longer be able to acquire communications data for the purposes of preventing and detecting crime, and the Prudential Regulation Authority will no longer be able to acquire communications data in any circumstances. In addition, the Bill allows for the ability of a public authority to access communications data to be removed, should a public authority cease to have a requirement to make those acquisitions. That is a very important check and balance.

To fill in some more detail in respect of the question the hon. and learned Member for Holborn and St Pancras asked about the detailed justification for each public authority, each authority has been required to provide evidence of utility and the need to acquire communications data. That included detailed consideration of the level of authorising officers, so that we got the balance right in terms of appropriateness.

[The Solicitor General]

I am grateful to the hon. and learned Lady and can correct the record in this way. I should have used the phrase “utility and need”. I think that important word, to which she quite rightly draws my attention, answers the point. In one of the examples I have given, where a need was not demonstrated by the PRU, the power was removed entirely.

Among the bodies that the amendment seeks to remove are Her Majesty’s Revenue and Customs and the Ministry of Defence. I am afraid that both bodies are intercepting agencies, and communications data are part of their work in targeting interception so that the powers which we all accept are intrusive are used in as tightly constrained circumstances as possible. My worry is that the amendment, however well intentioned, might well have the contrary effect on that important targeted work and the need for those organisations to target their activities.

I remind the Committee that David Anderson QC concluded in his report:

“It should not be assumed that the public interest is served by reducing the number of bodies with such powers, unless there are bodies which have no use for them.”

The Joint Committee on the Draft Investigatory Powers Bill also recognised communications data as

“an important tool for law enforcement and other public bodies.”

For those reasons, I urge the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I am grateful to the Solicitor General. There is obviously concern about the threshold and safeguards for accessing communications data. That is what the Digital Rights case is all about; it is what the Tom Watson and David Davis case will test. To some extent, until that case is concluded, we will not know in specific terms what the safeguards are, although, as I foreshadowed last week, my view is that the requirements for safeguards will tighten as time goes by. It may not be exactly as the divisional court set out.

The Solicitor General has indicated that he will point me to the material that at least summarises why it was thought that each body should be on list. I am grateful for that and will consider it carefully. Will he also, either in a letter or some other appropriate form, set out the test that was applied in clear terms, so that it can be contrasted with the Digital Rights case and any outcome of the David Davis case in due course? I acknowledge that the hon. and learned Gentleman makes a powerful point about Her Majesty’s Revenue and Customs and, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

We come to the question that clause 61 stand part of the Bill.

--- Later in debate ---

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

[Keir Starmer]

I rise to put on the record a concern about the clause and to remind the Committee that with the wide power of retention, the safeguards on access provisions are critical to the operation of the Bill as a whole. Broadly speaking, the safeguards are: who can authorise access, what the test is, the scope of the conduct authorised and such checks and limits as are otherwise put in the Bill. The clause covers who can authorise access, and my strong feeling is that that should be in the Bill rather than left to regulations, because it is a central safeguard. I will not vote against the clause, but I want to put on the record my view that a provision as important as who can access should be in the Bill and that amendments should be made to legislation rather than through regulation.

--- Later in debate ---

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

[Keir Starmer]

I wish to raise two issues for the Committee’s consideration. The first is that the test in subsection (5) for a judicial authority is very weak. We are talking about restrictions on local authorities and we have moved from a test of reviewing the decision, found in other parts of the clause, to a test whether the judicial authority, in this case a justice of the peace, considers that

“there are reasonable grounds for considering requirements of this Part would be satisfied”.

The second is that the authority in this case is a JP. I accept that this a replication of another scheme in the same words, as the Solicitor General says. I will not oppose the clause, but in a Bill that is tightening safeguards, there is nothing to prevent that test being aligned with the other tests applied when judges, magistrates or other independent judicial figures oversee authorisations by bodies such as local authorities.

In fairness, I think these clauses were put in to tighten the controls on local authorities.

[Mr Hayes]

They were.

[Keir Starmer]

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

[Mr Hayes]

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

[Keir Starmer]

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

[Mr Hayes]

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

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

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Division 19

Ayes: 2

---

Scottish National Party: 2

Noes: 9

---

Conservative: 8

[Keir Starmer]

I beg to move amendment 138, in clause 67, page 53, line 26, at end insert—

‘( ) the public interest in the protection of privacy and the integrity of personal data; and

( ) the public interest in the integrity of communications systems and computer networks.”

[The Chair]

With this it will be convenient to discuss amendment 140, in clause 67, page 53, line 38, at end insert—

‘( ) the public interest in the protection of privacy and the integrity of personal data; and

( ) the public interest in the integrity of communications systems and computer networks.”

[Keir Starmer]

The two amendments can essentially be read together: they bite on clause 67(5) and (6) respectively. The purpose of this clause, as I understand it, is to provide a mandatory consultation exercise for designated senior officers, with a single point of contact. That will be particularly important where the designated senior officer has little if any experience of authorising and will therefore be particular important in some of the smaller relevant public authorities, which may not exercise this power on a regular basis, although I realise it is mandatory in all cases. The point of amendments 138 and 140 is to put in the Bill a requirement that, in the course of that consultation exercise, the single point of contact advises not only on issues such as appropriate methods, costs, resource implications, unintended consequences and so on, but, as set out in amendment 138, on

“the public interest in the protection of privacy and the integrity of personal data; and…the public interest in the integrity of communications systems and computer networks.”

Such an amendment is necessary because there is a lack of an overarching privacy provision that can be read into each of these clauses. When a designated senior officer is being advised, it would be prudent and sensible for them to be advised not only about costs and resources, but about privacy and integrity, which are critical to the operation of the Bill.

[Joanna Cherry]

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

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

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

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

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

While the clauses that these amendments are attached to refer to

“any issues as to the lawfulness”

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

--- Later in debate ---

[Mr Hayes]

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

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

[Keir Starmer]

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

[Mr Hayes]

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

--- Later in debate ---

[Mr Hayes]

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

[Keir Starmer]

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

[Mr Hayes]

It does.

[Keir Starmer]

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

[Mr Hayes]

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

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

[Keir Starmer]

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

[Mr Hayes]

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

[Mr Hayes]

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

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

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

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

[Keir Starmer]

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

[Joanna Cherry]

I hear what the Opposition spokesman says in this regard, and I have much sympathy with it. However, I wish to press the amendment, for the simple reason that if privacy and integrity are as important as the Minister acknowledges, why not have them in the Bill? That would cause no possible detriment; it can only do good. Therefore, I wish to press the amendment to a vote.

Question put, That the amendment be made:—

--- Later in debate ---

Commissioner approval for authorisations to identify or confirm journalistic sources

[Keir Starmer]

I beg to move amendment 141, in clause 68, page 54, leave out lines 3 to 13 and insert—

“( ) An application for an order shall be made on notice to the journalist or journalists affected unless the Judicial Commissioner determines that an application without such notice is required in order to avoid prejudice to the investigation.

( ) Paragraphs 7 – 9 of Schedule 1 to the Police and Criminal Evidence Act 1984 shall apply in relation to the service of a notice of application for an order under subsection (1) as if the application were for an order under Schedule 1 Police and Criminal Evidence Act 1984.

( ) Criminal Procedure Rules may make provision about proceedings under this section where the Judicial Commissioner determines that an application without such notice is required.

( ) A Judicial Commissioner may only make an order if the person making the application has convincingly established that—

(a) the order is directed to one or more of the legitimate aims specified in Article 10.2 of the Convention, and

(b) there is an overriding public interest necessitating the order, and

(c) reasonable alternative measures to the order do not exist or have been exhausted, and

(d) the order is proportionate to the legitimate aim or aims being pursued.

( ) The costs of any application and of anything done or to be done in pursuance of an order made under it shall be in the discretion of the Judicial Commissioner”.

How journalistic material and in particular journalists’ sources are to be protected under part 3 of the Bill is a substantive issue of real importance in a modern democracy.

“Issues surrounding the infringement of the right to freedom of expression may arise where an application is made for the communications data of a journalist. There is a strong public interest in protecting a free press and freedom of expression in a democratic society, including the willingness of sources to provide information to journalists anonymously.”

Those strong statements of principle that underpin our democracy are agreed across this House. I say that with confidence not only because of the strong public interest, but because they are written into the code of practice at paragraph 6.5. That suggests they are shared and important democratic principles. I argue that that expression of principle is not translated into reality in the provisions of the clause or through the Bill, and the clause is of considerable concern.

Let me give the background, as there is a chequered history. It is now clear that, in the case of Tom Newton Dunn, the police used the Regulation of Investigatory Powers Act 2000 to access his phone records in secret in 2014. They did not notify him that they had accessed his material or sources; the Metropolitan police obtained the phone records without notification or consent. In other RIPA cases, no journalists were informed in advance. The Interception of Communications Commissioner highlighted in a report in February 2015 that 19 police forces had accessed the communications data of 82 journalists using RIPA in that way. The point of real importance is that there is no fundamental difference between the authorities asking for a journalist’s physical contact book and footage or for their telephone and communications records; the effect on journalists and sources is exactly the same and the same legal safeguards must apply to both.

The safeguards in the Police and Criminal Evidence Act 1984 set a higher standard than those in the Bill as it stands. Under PACE, journalists are notified when the authorities want to access their material and sources, and they have the ability to defend their sources. Neither RIPA nor the Bill apply the same protections and safeguards. The RIPA interim codes of practice, published in March 2015, stated that the authorities must use the PACE procedures to apply to the court for a production order to obtain data. The Bill fails to meet that test.

--- Later in debate ---

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

I am trying to think how this will work in practice. Under the usual rules for a non-notice application, to show that it will be without notice it would be necessary to highlight a number of factors of history as to why it should be without notice rather than on notice—for example, fraud or historical events. In this case, what would the circumstance be that would make it without notice rather than on notice? There would be a significant risk that any journalist would take action. What evidence could be put to the judicial commissioner to persuade them that this should be a without-notice application? There would be no history on the journalist himself.

[Keir Starmer]

I am grateful to the hon. and learned Lady for that intervention. As she will know, there is a 20 to 25-year history of the evolution of protections for journalists, from the point when they were not put on notice to the point when they are now routinely put on notice. There are exceptions that have been tested in the Court of Appeal, but journalists are pretty well always put on notice and on many occasions will go and argue their corner to protect their source. Over the years, the case law has determined what the proper test is; on some occasions it has protected the source and on others it has allowed access. Under the PACE regime, there is now a clearly established way to proceed in cases in which journalists’ sources are an issue. It is well understood and it works well. It is significant that none of the law enforcement bodies to my knowledge are complaining that the on-notice PACE procedure for obtaining material that relates to journalists’ sources is not working in practice. Having battled it out over 25 years, pretty well all the sides accept that the current arrangement represents and protects their interests.

The amendment would essentially apply the same regime to communications data where communications data has been retained and is now being accessed. In the modern world, as journalists have made absolutely clear, to say that authorities have to go via PACE when they want to get a physical address book with a source in it but not when they want the virtual version through comms data is to cut right through the protection that has been so carefully crafted over the last 20 to 25 years. That does not protect journalists’ sources and is a cause of real concern.

Amendment 141 reflects current practice by providing for exceptional circumstances in which applications do not have to be on notice, whereas the Bill simply does not offer journalists any meaningful protection whatever. It is a carefully thought through, constructive amendment, intended to give journalists the protection they need without thwarting an investigation that needs to be protected. The test in paragraph (b) of the fourth subsection of the amendment puts the code of practice into the Bill. There is then a provision on costs.

The amendment is simple: it preserves PACE protections and extends them to communications data. It sets out the right test for the designated senior official and the judicial commissioner to apply. Nobody can quarrel with the test, because it is taken from the code of practice itself. It is all very well having warm words in the code of practice and warm words, which we have heard many times, about the protection of journalists’ sources, but unless they are translated into something that has real bite and effect, they remain warm words. I do not say that to underplay what the Solicitor General will say. I know that he believes in the underpinning principles I have outlined, but history shows that unless protection for journalists is written into legislation in a meaningful and effective way, it will not apply in practice as it should.

[The Solicitor General]

I thank the hon. and learned Gentleman for clearly outlining the kernel of his concern about the way the clause is drafted. Although in the drafting of the clause we have tried, quite properly, to address what is a sensitive occupation—I hesitate to use the word “profession” because some journalists do not like to be described in that way—we are in danger of moving the focus away from the public interest that journalists serve, which is freedom of expression in a democratic society without fear of intrusion by the authorities and in a way in which sources, and the journalists themselves, can be protected. We have to draw a very important distinction. It is tempting to try to draft amendments dealing with journalists in an ad hominem, or group, way. However, we are not talking about that; we are talking about the source material. Therefore, in a nutshell, I am afraid that the amendment does not really deal with the essential public interest, and that is why I commend the Government’s approach to the Committee.

I will say to the hon. and learned Gentleman, by way of reassurance, that if we can do better in the code of practice, we will. I am certainly open to active consideration of the ways in which we can improve the drafting to make the principles of freedom of expression, and the points that he and I agree on, even clearer to those applying these rules.

[Keir Starmer]

The Solicitor General is resisting this sensible and constructive amendment, which reflects the PACE approach, on the basis that one should not get too specific and one needs to understand the underlying public interest. He must accept that the points he makes apply equally to the PACE test. It does not matter whether someone is physically seizing a document that reveals a source or seizing something that serves virtually the same purpose. He must accept that the test is working well in practice and that all sides are pretty content with the way it works at the moment.

[The Solicitor General]

I am grateful to the hon. and learned Gentleman, but, tempting though it is to draw that comparison, I think that he is mistaken. The PACE code of practice focuses on the person who, as it appears to the judge, is in possession of the material. That is not always the journalist; for example, a journalist’s material in regards to comms data will be held by the communication service providers and not by the journalist. Under PACE, journalists are not notified in such cases.

[Keir Starmer]

Will the Solicitor General give way?

[The Solicitor General]

I will not give way at this stage because I want to explain the position. I have given way repeatedly and I want the chance to make my argument. I am sorry if people think, for some reason, that I am not listening or being reasonable. I need to explain the case because I do not think that it has been fully understood.

The hon. and learned Gentleman is right to talk about the position under PACE whereby journalists are asked to surrender data, such as in notebooks; however, under RIPA and the PACE procedures, applications are already being made to others in possession of material, journalists are not notified and the principles are very clear. I do not think it is right of him to draw such an easy comparison and to say, “It is working for PACE, therefore it should be read across the provisions of the Bill.” That is comparing apples with pears—with respect to him.

[Keir Starmer]

I have obviously looked carefully at what the Government said in the past on this issue and what was said in response to the pre-legislative Committees. The point has been made that, on the one hand, it is seizing from the journalist themselves and on the other hand, it is seizing from the person who holds the data; that is a material difference and we cannot compare the two schemes. I wonder whether that withstands proper scrutiny. The whole point is to give a source confidence that they can come forward and tell a journalist something and they will be protected. Otherwise, all the case law recites the fact that sources will not come forward and wrongdoing will not be exposed, which is unhealthy for democracy.

The argument that, if you seize my name in physical form from a journalist, it is to be protected, but if my name is being held by a data holder it can be given up and does not require protection, defies common sense. For the source, the question is: what is the protection for me if I come forward and try to expose someone? The argument that you are fine if it is written in a notebook and held by the journalist, but you are not protected if it finds its way into a bit of data held by someone else does not hold up.

--- Later in debate ---

[Keir Starmer]

In amendment 141, which the Solicitor General is resisting, we have deliberately and intentionally accommodated the test that notice need not be given where it is necessary

“in order to avoid prejudice to the investigation.”

He has given a powerful example, but we have catered for that by saying that notice does not need to be given in that instance. The norm is that notice is given in the usual way, but the exception is where there is prejudice to the investigation. That absolutely meets his concerns; but it does meet my point that notice should otherwise be given.

[The Solicitor General]

I am glad we both note that we are trying to get to the same objective. I have already said to the hon. and learned Gentleman that the combination of legislation and the code of practice will be the way in which this framework is set out. I have indicated that if we can do better on the code of practice, we will; we will work with him on that. I also reiterate the amount of care that my right hon. Friend the Minister for Security and I are taking on this particular issue. We have met with leading representatives from journalism on three occasions to discuss the Bill. We have written to the National Union of Journalists and the News Media Association about the concerns they have raised. This is part of a dialogue that is very much ongoing about the protections afforded by the Bill to journalistic material. They rightly say to us that it is not about them but about the interests that they serve. I cannot reiterate enough that we must focus on that issue when drafting the legislation.

May I deal with other Members who have considered the issue? The Interception of Communications Commissioner carefully considered it last year. He made it clear in his recommendation that, where communications data are sought that do not relate to investigation to determine the source of journalistic information, then judicial authorisation is not necessary. I know that the hon. and learned Gentleman is trying in effect to replicate that carve-out. On the proposed restrictions on the circumstances in which a communications commissioner may approve the obtaining of communications data that are journalistic in nature, where the request is for one of the legitimate aims in article 10.2 of the convention, there is an overriding public interest necessitating the order and the order is proportionate to the legitimate aim or aims being pursued, we already have the concepts of necessity and proportionality under part 3 as spelt out in the draft code of practice—as indeed they are in the code of practice for existing legislation. We already have a tightly constrained framework here, which offers a high degree of reassurance to all of us who care passionately about these issues, as I do. The Investigatory Powers Tribunal has been clear in recent authority, such as the case of News Group Newspapers Ltd and others v. Metropolitan Police Commissioner in December last year, that the 2015 code of practice drafted under the current provisions and replicated in the regime in the Bill meets the standards on freedom of expression set out in article 10.

On the proposed requirement for a judicial commissioner to ensure that all reasonable alternative measures to such an authorisation have been exhausted, I am afraid that in my view, there are problems with its practicability. There are many reasons why a particular approach to an investigation might be selected and the use of a particular power might be called for. Judicial commissioners, with respect to them, are not the experts in this consideration and should not be expected to be. It is for those with expertise in the range of investigative options available in the particular circumstances of the case to decide that. Then, of course, the tests can be applied.

I do not want to take technical points. With regard to the technicalities of the amendment, there are some drafting issues that would need to be worked on, but I accept that it is really about principle and the approach to be taken. At this stage, although I disagree with the means by which the hon. and learned Gentleman seeks to make the change, continuing dialogue on the issue is meaningful. For those reasons and in that context, I respectfully ask him to withdraw the amendment.

[Keir Starmer]

I have listened carefully to the Solicitor General. In the end, it boils down to a matter of principle. I think that he accepts what amendment 141 says in proposed new subsections (a), (b), (c) and (d). He criticises (c), but I will not spend time on that. The most important thing is to establish that the order is directed to one or more of the legitimate aims in article 10.2 and that an overriding public interest makes it necessary. He says that that is the framework within which the decisions should be taken, so there is no disagreement between them.

The difference, then, appears to be simply that I say it should be on the face of the statute and clear to all, and he says, “No, it can be in a code without express reference in statute.” There is a problem in principle with that. Protection of journalists’ sources should be on the face of the Bill. That is important in a modern democracy. For the Bill to be silent about the test, and for only the code of practice to apply it, is wrong in principle.

Secondly, I am afraid that there is a test spelled out in the Bill, and it is inconsistent with that test. The test for the judicial commissioner in the Bill is simply to check that there were reasonable grounds for considering something, but that the other requirements in the provisions were complied with. As a matter of statutory construction, the judicial commissioner is bound to apply the test in the Bill and cannot apply any other test, so it is wrong in principle not to put it in the Bill. It is also problematic, because there is a test in the Bill and it is not a special test. Ultimately, it says that the judicial commissioner must ensure that the other provisions of the Act are complied with. We would expect that; it is hardly an enhanced test by anybody’s standards.

In those circumstances, I am afraid that the Solicitor General’s arguments are wholly unpersuasive. I will withdraw the amendment, partly because I think that there is room for improvement, on which I will certainly work with the Government. To be absolutely clear, partly because I want to reserve my position to propose the amendment at a later stage, as it is of such importance to the Bill, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

I beg to move amendment 142, in clause 68, page 54, line 5, leave out from “data” to “and” on line 7 and insert “further to this Part”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 143, in clause 68, page 54, line 18, leave out “considers” and insert “determines”.

Amendment 144, in clause 68, page 54, line 19, leave out subsections (5) (a) and (b) and insert—

‘( ) that the conduct permitted by the authorisation is necessary for one or more of the purposes in section 53(7); and

( ) that the conduct permitted by the authorisation is proportionate to what is sought to be achieved by that conduct.”

Amendment 145, in clause 68, page 54, line 29, leave out subsection (7) and insert—

‘( ) The Investigatory Powers Commissioner may for the purposes of approving authorisations under this Section appoint Deputy Judicial Commissioners.

( ) A “Deputy Judicial Commissioner” must be—

(a) in relation to England and Wales, a justice of the peace,

(b) in relation to Scotland, a sheriff, and

(c) in relation to Northern Ireland, a district judge (magistrates’ courts) in Northern Ireland.

( ) An authorisation under this Section may not grant authorisation in relation to the obtaining by a relevant public authority of communications data—

(a) insofar as the communication consists of matters subject to legal privilege; or

(b) related communications data, insofar as the data relate to the communication of matters subject to legal privilege.

( ) For the purposes of subsection (1), legal privilege means—

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

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

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

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

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

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

( ) An application which contains a statement that the purpose of a warrant is to access communications data in connection with communications made for the purpose of furthering a criminal purpose, but which would otherwise attract legal privilege must be considered by a Judicial Commissioner.

( ) A Judicial Commissioner may issue an authorisation sought under subsection (3), if satisfied that—

(a) there are reasonable grounds to believe that the communications data relates to communications made with the intent of furthering a criminal purpose;

(b) that the data is likely to be of substantial value to the investigation in connection with which the application is made; and

(c) that the data concerned is likely to be relevant evidence;

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

(e) it is in the public interest that the authorisation is granted, having regard to—

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

(ii) the importance of the prosecution and

(iii) the importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege,

( ) A code of practice issued under Schedule 6 must contain provision about—

(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to a warrant to which this section applies resulting in accidental acquisition of a communication, or communications data, falling within subsection (1);

(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.

( ) Where an authorisation issued under this Part would seek to authorise any activity which may involve access to special procedure material, the following subclauses apply.

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

(a) journalistic material other than material which a person holds in confidence and

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

( ) The special procedure authorisation may only be granted on application to a Judicial Commissioner.

( ) The Judicial Commissioner must be satisfied that there are reasonable grounds to believe that—

(a) a criminal offence has been committed,

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

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

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

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

(ii) the importance of the prosecution,

(iii) the importance of maintaining public confidence in the integrity of journalists’ work product, and/or communications with members of relevant legislatures and

(iv) the public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.

( ) Where data could reasonably be obtained by means of a search and seizure order pursuant to the Police and Criminal Evidence Act 1984, a warrant under this Part will not be in the public interest.

( ) An application for an authorisation concerning journalistic material held in confidence or information for the purpose of identifying or confirming a source of journalistic information, may only be considered by the Investigatory Powers Commissioner, who must be satisfied that there are reasonable grounds to believe—

(a) a criminal offence has been committed,

(b) the communications data is likely to be of substantial value to the investigation of that offence,

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

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

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

(ii) the importance of the prosecution;

(iii) the importance of maintaining public confidence in the integrity of journalists’ work product and

(iv) the public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.

( ) In considering an authorisation concerning journalistic material held in confidence, the Investigatory Powers Commissioner must give notice to the journalist concerned, unless it would not be in the public interest to do so.

( ) If an authorisation is considered without notice, the Investigatory Powers Commissioner must appoint a Special Advocate to represent the interests of the journalist and the person to whom confidence is owed, and the wider public interest in the integrity of journalists sources and freedom of expression, including as protected by Article 10 ECHR.

( ) Journalistic material is held in confidence for the purposes of this section if—

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

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

Amendment 242, in clause 68, page 54, line 29, leave out subsection (7) and insert—

‘( ) The Investigatory Powers Commissioner may for the purposes of approving authorisations under this Section appoint Deputy Judicial Commissioners.

( ) A “Deputy Judicial Commissioner” must be—

(a) in relation to England and Wales, a justice of the peace,

(b) in relation to Scotland, a sheriff, and

(c) in relation to Northern Ireland, a district judge (magistrates’ courts) in Northern Ireland.

( ) An authorisation under this Section may not grant authorisation in relation to the obtaining by a relevant public authority of communications data—

(a) insofar as the communication consists of matters subject to legal privilege; or

(b) related communications data, insofar as the data relate to the communication of matters subject to legal privilege.

( ) For the purposes of subsection (1), legal privilege means—

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

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

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

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

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

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

( ) An application which contains a statement that the purpose of a warrant is to access communications data in connection with communications made for the purpose of furthering a criminal purpose, but which would otherwise attract legal privilege must be considered by a Judicial Commissioner.

( ) A Judicial Commissioner may issue an authorisation sought under subsection (3), if satisfied that—

(a) there are reasonable grounds to believe that the communications data relates to communications made with the intent of furthering a criminal purpose;

(b) that the data is likely to be of substantial value to the investigation in connection with which the application is made;

(c) that the data concerned is likely to be relevant evidence;

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

(e) it is in the public interest that the authorisation is granted, having regard to the—

(i) benefit likely to accrue to the investigation and prosecution if the data is accessed;

(ii) importance of the prosecution; and

(iii) importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege.

( ) A code of practice issued under Schedule 6 must contain provision about—

(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to a warrant to which this section applies resulting in accidental acquisition of a communication, or communications data, falling within subsection (1);

(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.

( ) Where an authorisation issued under this Part would seek to authorise any activity which may involve access to special procedure material, the following subclauses apply.

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

(a) journalistic material other than material which a person holds in confidence;

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

( ) The special procedure authorisation may only be granted on application to a Judicial Commissioner.

( ) The Judicial Commissioner must be satisfied that there are reasonable grounds to believe that—

(a) a criminal offence has been committed;

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

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

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

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

(ii) importance of the prosecution;

(iii) importance of maintaining public confidence in the integrity of journalists’ work product; and

(iv) public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.

( ) In considering an authorisation concerning journalistic material held in confidence, the Investigatory Powers Commissioner must give notice to the journalist concerned, unless it would not be in the public interest to do so.

( ) If an authorisation is considered without notice, the Investigatory Powers Commissioner must appoint a Special Advocate to represent the interests of the journalist and the person to whom confidence is owed, and the wider public interest in the integrity of journalists sources and freedom of expression, including as protected by Article 10 ECHR.

( ) Journalistic material is held in confidence for the purposes of this section if—

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

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

This amendment proposes special procedures for communications data, subject to legal professional privilege, and for the protection of journalistic material and the communications data of politicians. It also provides for the Investigatory Powers Commissioner to appoint Deputy Judicial Commissioners to consider applications for the authorisation of access to Communications Data.

New clause 14—Authorisations in relation to items subject to legal privilege—

‘(1) Subsections (2) and (3) apply if—

(a) an application is made by or on behalf of a relevant public authority for authorisation under this Part, and

(b) the purpose, or one of the purposes, of the authorisation is to obtain communications data which contains, or might tend to reveal the content of, items presumptively subject to legal privilege.

(2) The application must contain a statement that the purpose, or one of the purposes, of the authorisation is to obtain communications data which contains, or might tend to reveal the content of, items presumptively subject to legal privilege.

(3) The person to whom the application is made may grant the authorisation only if the person considers—

(a) that compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise the acquisition of the communications data in question, and

(b) that the relevant public authority has made arrangements of the kind described in section 46 (safeguards relating to retention and disclosure of intercepted material), including specific arrangements for the handling, retention, use and destruction of such items.

(4) Subsections (5) and (6) apply if—

(a) an application is made by or on behalf of a relevant public authority for authorisation under this Part,

(b) the relevant public authority considers that the relevant communications data is likely to include communications data which contains, or might tend to reveal the content of, items subject to legal privilege, and

(c) subsections (2) and (3) do not apply.

(5) The application must contain—

(a) a statement that the relevant public authority considers that the relevant communications data is likely to include communications data which contains, or might tend to reveal the content of, items subject to legal privilege, and

(b) an assessment of how likely it is that the relevant communications data will include communications data which contains, or might tend to reveal the content of, such items.

(6) The person to whom the application is made may grant the authorisation only if the person considers that the relevant public authority has made arrangements of the kind described in section 46 (safeguards relating to retention and disclosure of material), including specific arrangements for the handling, retention, use and destruction of any communications data which contains, or might tend to reveal the content of, items subject to legal privilege.

(7) Subsections (1) to (6) of section 68 (commissioner approval for authorisations in relation to journalistic sources) apply to an authorisation to which this section applies as they apply to an authorisation in relation to the obtaining by a relevant public authority of communications data for the purpose mentioned in subsection (1)(a) of that section.

(8) In this section “relevant communications data” means any communications data the obtaining of which is authorised by the authorisation.”

[Keir Starmer]

Although there are numerous amendments, they will not take as long as the previous amendment, because to some extent they cover the same ground. Amendments 142 to 144 are intended to tighten up the test for journalistic material and apply a stricter test. Amendment 145 is an attempt comprehensively to redraft clause 68 to provide meaningful protection for journalist’s material and the protection of journalist’s sources. It is also an attempt to provide protection for other protected information, namely that which is subject to legal privilege and communications between MPs. This is a form that we have seen on previous occasions.

I invite interventions because I cannot now quite remember, but I do not think that in this part of the Bill there is a self-standing provision for MPs in relation to access to data. I will happily be intervened on if I am wrong, because then this would not apply. My concern when drafting this amendment was that, while in other parts of the Bill there is a specific provision—although we can argue about whether it is strong enough—for MPs’ correspondence in relation to accessing the communications data of MPs, there is no provision at this point in the Bill. That should be a cause of concern to everyone on the Committee, and it will certainly be a cause of concern to others.

[Joanna Cherry]

I am grateful to the hon. and learned Gentleman for the typically clear and concise way in which he has approached these amendments to clause 68, on which I wholeheartedly support him. On the question of protection for parliamentarians, the wording that has been used is a “relevant” parliamentarian. That will cover Members of the Scottish Parliament and the devolved Assemblies as well.

[Keir Starmer]

I am grateful for that. On looking at it, it is clear that clause 94 applies generally across this—actually, I am not sure that it does. I am sorry to pause on this, Ms Dorries.

[Joanna Cherry]

Perhaps I could assist the hon. and learned Gentleman. The phraseology that is used is “a member of a relevant legislature”, which is defined to include the Scottish Parliament and the devolved Assemblies.

[Keir Starmer]

I am grateful for that. The purpose of the amendment is really to cover all three protected areas—legal professional privilege, MPs’ correspondence and journalism—and to set out a comprehensive test for all three. It is similar to a provision that we have already looked at in relation to other parts of the Bill. I commend it as a constructive way to protect the interests that ought properly to be protected on the face of the Bill.

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[Keir Starmer]

I think the guidance that we are given in declaring our interests to the House is that, for legal work, the identity of the person advised is not to be disclosed, because that comes within legal professional privilege. In other words, the fact that somebody has sought advice and who has sought advice are protected by legal professional privilege. I have never known there to be any doubt about that. This is an area where there is a need for special protection; that ought to be in the statute. I think that is common ground. That is how I have always understood it. I am not entitled to say who instructs me without the consent of the client, certainly before the matter comes to court.

[The Solicitor General]

While I agree with the hon. and learned Gentleman on the principle and the absolute nature of the privilege—subject to the iniquity exemption that we all know about and those of us who practise are familiar with—I am talking about a restricted area, in which we are looking at the threads of an investigation as opposed to the actual meat of the subject.

--- Later in debate ---

[The Solicitor General]

I am grateful to my hon. and learned Friend. There might be an earlier stage, for example at a police station in a criminal investigation, when that might not be a matter that is automatically disclosed in that way.

[Keir Starmer]

I absolutely accept that, for litigation in open court, it is pretty clear who everybody is acting for. It is common practice in the commercial world for protection to be put around whether a client is seeking advice and from whom. That is jealously guarded by every law firm that I have ever had anything to do with, for very obvious reasons. People go to lawyers; they do not necessarily want the world at large to know that they have gone and to which lawyer they have gone. I cannot over-emphasise that, in the commercial reality of the real world, that is jealously guarded.

[The Solicitor General]

I am grateful to hon. Members for trying to sift their way through what appears to be something of a labyrinth at times. I do not want to overcomplicate the situation. The Government’s view is that, combined with the code of practice, we have the necessary protections in the Bill that acknowledge that the degree and nature of the interference in an individual’s rights and freedoms will of course be greater in these sort of circumstances, so considerations of the necessity and proportionality become highly germane because they draw attention to any such circumstances that might lead to an unusual degree of intrusion or infringement of rights and freedoms, in particular privacy.

[The Solicitor General]

The hon. and learned Lady makes her point with force. Although the concerns she has about content and the issues that we have debated and will debate in part 5 are understandable, we are talking about a different nature of material and a different regime, where considerations can be distinct from those that apply in other parts of the Bill.

I will deal as quickly as I can with the points that have been made. I would argue that we have, in effect, a particular restriction that I would regard as not striking the right balance with respect to those who need it. We have to think in the context of the operational capability of our security and intelligence services in particular.

If there is a specific requirement for the use of PACE powers in these circumstances, I am worried that the requirements of clarity, consistency and transparency that we have to abide by will be undermined. The Interception of Communications Commissioners Office was clear in its rejection of the claim that public authorities had utilised RIPA to avoid the use of PACE. In fact, under this Bill part 3 authorisations for communications data to identify or confirm a journalistic source are subject to more stringent safeguards than under PACE, because the Bill replicates those procedures but at a higher level of authorisation, with a serving or former High Court judge, as opposed to a circuit judge, making the authorisation.

Making communications data accessible to those who have a lawful need for them at the right level of authorisation is a fine balance, but it is struck most effectively in the Bill as drafted. I am sure that Opposition Members do not intend us to reach a position where communications that have been made for the intent of furthering a criminal purpose are missed or are not accessible as they would want them to be. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras to withdraw the amendment.

[Keir Starmer]

I am afraid I simply do not follow the argument that transparency and accountability are lost if the protection that should properly be accorded to lawyers, journalists and MPs is spelled out in the Bill, with clear guidance to those who operate the authorisations on how to apply them. As I have indicated, these are matters of real concern that go to important issues in the Bill. In order to reserve my rights at a later stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 68 ordered to stand part of the Bill.

Clause 69

Collaboration agreements

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

Investigatory Powers Bill (Eighth sitting)

Keir Starmer Excerpts

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

[Joanna Cherry]

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

Amendment, by leave, withdrawn.

Clause 72 ordered to stand part of the Bill.

Clause 73 ordered to stand part of the Bill.

Clause 74

Certain transfer and agency arrangements with public authorities

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

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

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

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

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

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

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

[Mr Hayes]

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

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

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

[Keir Starmer]

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

[Mr Hayes]

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

[Keir Starmer]

I am grateful.

Question put and agreed to.

Clause 74 accordingly ordered to stand part of the Bill.

Schedule 5 agreed to.

Clause 75 ordered to stand part of the Bill.

Clause 76

Extra-territorial application of Part 3

[Keir Starmer]

I beg to move amendment 150, in clause 76, page 59, line 26, after “Kingdom”, insert

“the notice shall be served at that person’s principal office outside the United Kingdom where it is established for the provision of services. Where it is considered unfeasible or inappropriate in the circumstances,”.

[The Chair]

With this it will be convenient to discuss amendment 151, in clause 76, page 59, line 39, leave out subsection (4) and insert—

“(4) Subsections (1) or (2) of section 57 shall not be applicable where the taking of any steps by a relevant operator outside the United Kingdom—

(a) would cause the operator to act contrary to any laws or restrictions under the law of the country or territory where it is established, for the provision of services, or

(b) could be achieved via a notice served pursuant to an international mutual assistance agreement or subject to an EU mutual assistance instrument.”.

[Keir Starmer]

We return to familiar territory here, in relation to the extraterritorial application of authorisations under part 3. When I made my observations last week, I outlined the concerns that a number of service providers and tech companies have; I do not intend to repeat them.

Amendment 150 would tighten the service provisions in relation to the extraterritorial application of part 3. Amendment 151 would introduce a restriction that had the effect of not requiring a relevant operator outside the UK

“to act contrary to any laws or restrictions under the law of the country or territory where it is established, for the provision of services,”

or to take steps that

“could be achieved via a notice served pursuant to an international mutual assistance agreement or subject to an EU mutual assistance instrument.”

We reached this point last week in relation to provisions that were not dissimilar. The Minister made various points, both about service and about other provisions—particularly those relating to the way international mutual assistance agreements currently work. I will not press these amendments to a vote, for the same reasons as last week, but would indicate that the thrust and purpose of the amendments was to anticipate the agreements on extraterritorial application that it is hoped will be reached—particularly with the US—and that are being negotiated at the moment.

--- Later in debate ---

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

The hon. and learned Gentleman will appreciate I was not chairing the Committee, so this is very much my own impression of what went on. Lord Murphy was, as one would expect, very keen to accommodate the service providers and the Committee Clerks proposed several dates. We were grateful for the written evidence and formed the view we did, but it would have been nice if they could have fitted us into their busy schedules.

[Keir Starmer]

We probably will not gain much by arguing the detail, particularly as I was not there. The point that the service providers wanted to get across was that in principle they did want to give evidence. They gave written evidence. It was simply that the dates would not work for them as a group, rather than any unwillingness to share their concerns.

The Minister for Security raised a point about the Sheinwald arrangements and the progress being made. As I said a moment ago, these amendments are intended to foreshadow the—I hope—new world of working arrangements, which will cover not only evidence for use in prosecutions but the facilitation of the exercise of powers of this Bill in much faster time than some of the current mutual assistance agreements. The Minister made a further point about the differing views of the companies concerned. There are different views about some aspects of the Bill, but on the issues of extraterritorial application they speak with one voice.

There is an important broader issue to put on the table. As we move forward to international agreements, particularly with the US, it is very important that not only our Government but the US Government are comfortable with the arrangements, because whatever arrangements are put in place will be reciprocal.

Finally, may I hand a schedule to you, Ms Dorries, to the Minister and his team and to the hon. and learned Member for Edinburgh South West? I do not intend to speak at great length to this document, which was prepared for me. What it points out is the inconsistency in approach on extraterritorial jurisdiction. It is quite telling in a number of respects. It tracks whether there is extraterritorial jurisdiction, which clauses give rise to it, whether there is a reasonableness test or a reference to conflict of laws built in, whether it is enforced by overseas service providers, whether there is an international mutual assistance framework and whether there is an obligation on the Secretary of State to consult. What struck me when I went through the document was the inconsistencies. If they are intentional inconsistencies that can be defended, all well and good. I am simply bringing it to the Minister’s attention that we have found these apparent inconsistencies. If they are not intentional, it might be a good idea if somebody looked at them to tidy up the provisions and ensure that where they should be consistent, they are.

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

I am looking at the hon. and learned Gentleman’s amendment 150, and of course it is necessary to serve someone so that they get notice. The provisions of service are always about the substance of whether the person gets the notice. It is clear to me from the current drafting that if there were service in accordance with any of clause 76(3), the company would get notice. I have a few concerns about the amendment. I am very wary, because people often take points of service to disrupt a substantive issue. It would be unfortunate if people could take the point that they were not properly served and therefore not comply. Does “principal office” have a meaning in other jurisdictions? If there are different services, will “provision of services” cause confusion? What is the meaning of “unfeasible or inappropriate” and how will it be applied? I believe that the clause will maintain what is desired, which is that it will come to the company’s attention, so I am slightly concerned about the amendment.

[Keir Starmer]

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

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

[Mr Hayes]

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

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

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

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

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

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

[Keir Starmer]

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

Amendment, by leave, withdrawn.

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

[Joanna Cherry]

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

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

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

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

--- Later in debate ---

Powers to require retention of certain data

[Keir Starmer]

I beg to move amendment 164, in clause 78, page 61, line 5, leave out subsection (1) and insert—

“(1) A Judicial Commissioner may issue a data retention warrant under this Part to authorise the retention of relevant communications data if the Judicial Commissioner considers that the authorisation is necessary and proportionate for one or more of the following purposes—

(a) in the interests of national security, or

(b) for the purpose of preventing or detecting serious crime, or

(c) for the purpose of preventing death or serious injury.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 165, in clause 78, page 61, line 10, leave out “A retention notice may” and insert “A data retention warrant must”.

Amendment 154, in clause 78, page 61, line 19, leave out “notice” and insert “warrant”.

Amendment 155, in clause 78, page 61, line 30, leave out “retention notice” and insert “retention warrant”.

Amendment 235, in clause 78, page 61, line 30, leave out second “notice” and insert “warrant”.

Amendment 156, in clause 78, page 61, line 32, leave out “notice” and insert “warrant”.

Amendment 157, in clause 78, page 61, line 33, leave out “notice” and insert “warrant”.

Amendment 158, in clause 78, page 61, line 34, leave out “notice” and insert “warrant”.

Amendment 159, in clause 78, page 61, line 36, leave out “notice” and insert “warrant”.

Amendment 160, in clause 78, page 61, line 37, leave out “notice” and insert “warrant”.

Amendment 161, in clause 78, page 61, line 38, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 162, in clause 78, page 61, line 41, leave out “notice” and insert “warrant”.

Amendment 166, in clause 79, page 62, line 26, leave out “notice” and insert “warrant”.

Amendment 220, in clause 79, page 62, line 26, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 168, in clause 79, page 62, line 28, leave out “notice” and insert “warrant”.

Amendment 169, in clause 79, page 62, line 30, leave out “notice” and insert “warrant”.

Amendment 170, in clause 79, page 62, line 31, leave out “notice” and insert “warrant”.

Amendment 171, in clause 79, page 62, line 32, leave out “notice” and insert “warrant”.

Amendment 172, in clause 79, page 62, line 33, leave out “notice” and insert “warrant”.

Amendment 173, in clause 79, page 62, line 35, leave out “notice” and insert “warrant”.

Amendment 174, in clause 79, page 62, line 35, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 176, in clause 80, page 62, line 38, leave out “notice” and insert “warrant”.

Amendment 198, in clause 80, page 62, line 40, leave out “back to the Secretary of State” and insert “to the Investigatory Powers Commissioner for review”.

Amendment 335, in clause 80, page 62, line 40, leave out “notice” and insert “warrant”.

Amendment 177, in clause 80, page 62, line 41, leave out “notice” and insert “warrant”.

Amendment 178, in clause 80, page 62, line 42, leave out “notice” and insert “warrant”.

Amendment 180, in clause 80, page 63, line 5, leave out “notice” and insert “warrant”.

Amendment 181, in clause 80, page 63, line 6, leave out “notice” and insert “warrant”.

Amendment 199, in clause 80, page 63, line 7, leave out “Secretary of State” and insert “the Investigatory Powers Commissioner”.

Amendment 182, in clause 80, page 63, line 7, leave out “notice” and insert “warrant”.

Amendment 183, in clause 80, page 63, line 8, leave out “notice” and insert “warrant”.

Amendment 200, in clause 80, page 63, line 10, leave out “Secretary of State” and insert “the Investigatory Powers Commissioner”.

Amendment 201, in clause 80, page 63, line 12, leave out subsection (b).

Amendment 184, in clause 80, page 63, line 14, leave out “notice” and insert “warrant”.

Amendment 185, in clause 80, page 63, line 16, leave out “notice” and insert “warrant”.

Amendment 193, in clause 80, page 63, line 19, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 194, in clause 80, page 63, line 24, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 202, in clause 80, page 63, line 25, leave out “Secretary of State” and insert “Investigatory Powers Commissioner”.

Amendment 249, in clause 80, page 63, line 25, leave out “and the Commissioner”.

Amendment 186, in clause 80, page 63, line 27, leave out “notice” and insert “warrant”.

Amendment 187, in clause 80, page 63, line 28, leave out “notice” and insert “warrant”.

Amendment 188, in clause 80, page 63, line 30, leave out “notice” and insert “warrant”.

Amendment 203, in clause 80, page 63, line 31, leave out “Secretary of State” and insert “Investigatory Powers Commissioner”.

Amendment 197, in clause 80, page 63, line 33, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 189, in clause 80, page 63, line 33, leave out “notice” and insert “warrant”.

Amendment 204, in clause 83, page 64, line 13, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 210, in clause 83, page 64, line 13, leave out “notice” and insert “warrant”.

Amendment 205, in clause 83, page 64, line 14, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 206, in clause 83, page 64, line 15, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 211, in clause 83, page 64, line 22, leave out “notice” and insert “warrant”.

Amendment 207, in clause 83, page 64, line 23, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 212, in clause 83, page 64, line 27, leave out “notice” and insert “warrant”.

Amendment 213, in clause 83, page 64, line 28, leave out “notice” and insert “warrant”.

Amendment 214, in clause 83, page 64, line 31, leave out “notice” and insert “warrant”.

Amendment 215, in clause 83, page 64, line 32, leave out “notice” and insert “warrant”.

Amendment 216, in clause 83, page 64, line 34, leave out “notice” and insert “warrant”.

Amendment 217, in clause 83, page 64, line 36, leave out “notice” and insert “warrant”.

Amendment 218, in clause 83, page 64, line 37, leave out “notice” and insert “warrant”.

Amendment 208, in clause 83, page 64, line 38, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 370, in clause 83, page 64, line 39, leave out “notice” and insert “warrant”.

Amendment 372, in clause 83, page 64, line 40, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 209, in clause 83, page 64, line 41, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 219, in clause 83, page 65, line 7, leave out “notice” and insert “warrant”.

Amendment 221, in clause 83, page 65, line 9, leave out “notice” and insert “warrant”.

New clause 7—Persons who may apply for issue of warrant—

“(1) Each of the following organisations may apply for a communications data retention warrant—

(a) a police force maintained under section 2 of the Police Act 1996,

(b) the Metropolitan Police Force,

(c) the City of London Police Force,

(d) the Police Service of Scotland,

(e) the Police Service of Northern Ireland,

(f) the British Transport Police Force,

(g) the Ministry of Defence Police,

(h) the Royal Navy Police,

(i) the Royal Military Police,

(j) the Royal Air Force Police,

(k) the Security Service,

(l) the Secret Intelligence Service,

(m) GCHQ, and

(n) the National Crime Agency.”

New clause 10—Requirements that must be met by warrants—

“(1) A warrant issued under this Part must name or otherwise identify the person or persons, organisation, premises, or location to which the warrant relates.

(2) A warrant issued under this Part must describe the investigation or operation to which the warrant relates.

(3) A warrant issued under this Part must relate to one or more of the following purposes—

(a) in the interests of national security, or

(b) for the purpose of preventing or detecting serious crime, where there is reasonable suspicion that a serious criminal offence has been or is likely to be committed, or

(c) for the purpose of preventing death or injury.

(4) A warrant may only be issued under this Part if there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation or operation to which the warrant relates.”

[Keir Starmer]

I will not say, at this stage, that I am withdrawing all of those amendments.

[The Chair]

That is a joke, right?

[Keir Starmer]

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

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

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

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

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

“for the purpose of preventing or detecting crime”—

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

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

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

it may

“require the retention of all data or any”;

it may

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

it may “contain…restrictions” and

“make different provision for different purposes,”;

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

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

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

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

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

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

That is therefore consistent with the operational case.

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

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

[Mr Hayes]

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

[Keir Starmer]

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

[Mr Hayes]

Yes.

[Keir Starmer]

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

[Joanna Cherry]

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

[Keir Starmer]

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Keir Starmer]

Clause 78 is important for all the reasons that I have set out, but at this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Gavin Newlands]

I beg to move amendment 303, in clause 78, page 61, line 12, leave out—

“of all data or any description of data”

and insert

“of specified relevant communications data”.

--- Later in debate ---

[Gavin Newlands]

I am content to withdraw the amendments at this stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

I rise to speak to amendment 152, in clause 78, page 61, line 36, at end insert “, and

(c) only when approved by the Investigatory Powers Commissioner.

(5A) In deciding whether to approve a notice, the Investigatory Powers Commissioner must determine whether a notice is—

(a) that the conduct required by the notice is necessary for one or more of the purposes in section 53(7); and

(b) that the conduct required by the notice is proportionate to what is sought to be achieved by that conduct.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 153, in clause 78, page 61, line 38, leave out “Secretary of State” and insert “Investigatory Powers Commissioner”.

Amendment 222, in clause 83, page 64, line 21, at end insert “and

( ) the variation has been approved by the Investigatory Powers Commissioner.”

[Keir Starmer]

For better or for worse, I spoke to these amendments during my submission on earlier amendments. I do not have any additional points and I will not press the amendment.

[The Chair]

Amendment not moved.

--- Later in debate ---

Matters to be taken into account before giving retention notices

[Keir Starmer]

I beg to move amendment 175, in clause 79, page 62, line 34, at end insert—

“() the public interest in the protection of privacy and the integrity of personal data; and

() the public interest in the integrity of communications systems and computer networks.”.

Clause 79 sets out those matters to be taken into account before giving a retention notice, as well as likely benefits and the likely number of users. Amendment 175 would add two public interest matters to that list. My argument is similar to the one I made on other provisions. Where matters are to be taken into account, it is important that the protection of privacy and the integrity of personal data and of communications systems are specifically listed. I have moved to a position of thinking that an overarching privacy clause is probably the way to achieve this end; this is therefore a probing amendment and I will not press it to a vote.

[The Solicitor General]

I am grateful for the way in which the hon. and learned Gentleman states his case. To put it extremely simply, we would argue that the public interest in the protection of privacy and in the integrity of personal data are already factored in by the provisions of the Bill.

First, proportionality must include consideration of the protection of privacy. Secondly, the integrity of personal data being such an important public interest is why clause 81 requires any retained communications data to be of at least the same integrity as the business data from which they are derived. A retention notice will therefore not be permitted to do anything that would undermine the integrity of the data that the operator already holds for business purposes. That is all I want to say about the matter, but I assure hon. and learned Gentleman that those important considerations are at the heart of the processes we have followed.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 79 ordered to stand part of the Bill.

Clause 80

Review by the Secretary of State

[Keir Starmer]

I beg to move amendment 179, in clause 80, page 62, line 40, leave out “Secretary of State” and insert “Judicial Commissioner”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 190, in clause 80, page 63, line 7, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 191, in clause 80, page 63, line 8, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 192, in clause 80, page 63, line 10, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 195, in clause 80, page 63, line 25, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 196, in clause 80, page 63, line 31, leave out “Secretary of State” and insert “Judicial Commissioner”.

--- Later in debate ---

[Keir Starmer]

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

[Joanna Cherry]

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

[The Solicitor General]

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

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

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 80 ordered to stand part of the Bill.

Clause 81

Data integrity and security

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

[Christian Matheson]

I seek the Minister’s guidance. Throughout our considerations, I have spoken of my fears whether data held under this Act are held securely. I hope that clause 81 will address many of my fears; I seek the Minister’s advice on whether it lays responsibility on communications providers to maintain those data securely. I simply reiterate my concern that when theft does take place, there has to be a consideration of an offence of unlawful possession of stolen data, on the basis that the communications provider that has suffered the theft would also be legally responsible for that theft when the provider is in fact a victim of the theft itself. Bodies that seek to obtain illicitly a person’s private communications data may try to make financial gain as a result. Is the Minister confident that clause 81 gives me the kind of assurances that I have been looking for on internet security? Is there sufficient deterrent, in terms of possession of unlawfully obtained data, that might be included later in the Bill?

[The Solicitor General]

The hon. Gentleman has been consistent in stating his concerns. I assure him that clause 81 contains the sort of requirements that he would reasonably expect. It sets out the matter clearly. It should be read in conjunction not only with other legislation that I have mentioned, such as the Data Protection Act 1998 and the Privacy in Electronic Communications Regulations 2003, but with clause 210, which provides for the Information Commissioner to audit the security, integrity and destruction of retained data, and the codes of practice to which I referred earlier. The provisions in the communications data draft code of practice go into more detail about the security arrangements.

We had a discussion some days ago about the existence of adequate criminal legislation. The Bill has a number of provisions that relate to those who hold data, and we discussed whether existing legislation could cover those who come into possession of the data unlawfully. I say to the hon. Gentleman that I will take the matter away and consider it, and come up with a proper considered response to his query.

Question put and agreed to.

Clause 81 accordingly ordered to stand part of the Bill.

Clauses 82 and 83 ordered to stand part of the Bill.

Clause 84

Enforcement of notices and certain other requirements and restrictions

[Keir Starmer]

I beg to move amendment 225, in clause 84, page 65, line 20, after “not”, insert “, without reasonable excuse,”.

There are two points to make here. One is to state the principle that reasonable excuse defences are needed to protect those who are exposed in wrongdoing. We had that debate last week and I listened carefully to the response given. The practical reason is the inconsistencies may be intentional, or they may be unintentional. Clause 73(1), under which unlawful disclosure is made an offence under part 3, has a “without reasonable excuse” provision. Clause 84, which is in part 4, does not. There may be a very good reason for that, but it escapes me at the moment. That is either a point that the Solicitor General can deal with now, or I am happy for him to deal with it later on. It may be just one of those things when you draft a long, complicated Bill, but there is an inconsistency of approach here, because reasonable excuse is sometimes written in and other times not, for no apparent reason.

--- Later in debate ---

[Keir Starmer]

Just to be clear, I do not need to be persuaded about the policy objective of a clause that keeps a retention notice safe. It is the policy objective of not having a “reasonable excuse” defence to the provision, which operates as an exclusion to the prohibition, of which I need to be persuaded. I do not need persuading about the prohibition for safety.

[The Solicitor General]

I was coming to that. We are talking about a duty here; the earlier clause the hon. and learned Gentleman referred to is an offence. That will, I think, explain the importantly different context.

To deal with the question of “reasonable excuse”, the problem is that once the information is out in the public domain, it cannot be withdrawn—whether that information has been introduced with good or bad intentions does not matter. It cannot be right for the Bill to allow a person to release sensitive information in that way and then subsequently rely on a “reasonable excuse”.

May I deal with clause 84(4), which is relevant to this provision? It provides an exemption where the Secretary of State has given permission for the existence of the notice to be revealed. The Government intend that such permission would be given, for example, where a provider wishes to discuss the existence of their retention notice with another provider subject to similar requirements. Should the operator wish to reveal the existence of the notice, they should discuss the matter with the Secretary of State, and in such circumstances permission is likely to be given. There will be those sort of scenarios, as I am sure the hon. and learned Gentleman will understand, and they will help improve the operational model.

My concern about using the “reasonable excuse” provision in the context of a duty would be that it would undermine the important policy objective that I have set out. For that reason I would urge the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I will withdraw the amendment. As to the difference between a duty and an offence, I understand that in principle, but I am pretty convinced that elsewhere in the Bill a breach of the duty becomes an offence, as otherwise it is an unenforceable provision, so I am not sure it is a distinction that withstands scrutiny. That being said, I am not going to press this to a vote. It would be helpful and reassuring if the Solicitor General would agree to set out the route by which a whistleblower brings this to attention. I think we have already agreed in general terms and it may come within the umbrella of the undertaking that has been given; if it does, all well and good. That would reassure those that have concerns about exposing wrongdoing. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

I beg to move amendment 223, in clause 84, page 65, line 21, after “person”, insert

“except the Investigatory Powers Commissioner or a Judicial Commissioner”.

[The Chair]

With this it will be convenient to discuss amendment 224, in clause 84, page 65, line 26, leave out “Secretary of State” and insert “Investigatory Powers Commissioner”.

[Keir Starmer]

These amendments were consistent with earlier amendments that have now been withdrawn, the purpose of which was to put the decision-making power in the hands of the Investigatory Powers Commissioner or the judicial commissioner. The other amendments having been withdrawn, I will not press these to a vote; they do not make sense within the unamended Bill as it now stands.

[The Solicitor General]

We have already discussed the importance of protecting the identities of those companies subject to data retention notices, but there are circumstances where a telecommunications operator should be able to disclose the existence of a retention notice. Clause 84 allows the Secretary of State to give them permission to do so. The amendment would ensure that a telecommunications operator could disclose the existence or content of a retention notice to the IPC without the need for permission to be given. I would say the proposal is unnecessary, because it is absolutely the Government’s intention to give telecommunications operators permission to disclose the existence and content of the retention notice to both the relevant oversight bodies—the IPC and the Information Commissioner—at the point at which a notice is given. In any event, clause 203 as drafted would permit the telecommunications operator to disclose a retention notice to the IPC in relation to any of his functions.

Amendment 224 would mean that the IPC, not the Secretary of State, would be granting permission for a telecoms operator to disclose the existence of the notice. In practice the Secretary of State would consider, at the point that a retention notice was issued, to whom the telecommunications operator could disclose the existence of a notice. It would not make any sense for this issue to be considered separately by the commissioner following the issue of a notice by the Secretary of State.

Further requests by a telecommunications operator to disclose a retention notice are likely to cover administrative matters, such as disclosure to a new systems supplier. Such matters should appropriately be considered by the Secretary of State. I think that explanation not only justifies opposition to the amendments, which I know are being withdrawn, but supports clause 84.

[Keir Starmer]

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

Amendment, by leave, withdrawn.

[Keir Starmer]

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

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

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

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

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

[Mr Hayes]

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

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

[Keir Starmer]

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

Amendment, by leave, withdrawn.

Clause 84 ordered to stand part of the Bill.

Clause 85 ordered to stand part of the Bill.

Clause 86

Extra-territorial application of Part 4

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

--- Later in debate ---

Warrants under this Part: general

[Keir Starmer]

I beg to move amendment 381, in clause 88, page 66, line 38, leave out “information” and insert “specified data”.

This amendment seeks to more clearly outline what material may be obtained by hacking.

[The Chair]

With this it will be convenient to discuss amendment 382, in clause 88, page 67, line 40, leave out from “6” to end of line 43.

This amendment requires that an examination warrant is required for the examination of all data, removing the exception of equipment data and the broad category of ‘not private information’ which is collected under bulk warrants.

[Keir Starmer]

We need to spend some time on this clause, because it is the one that deals with equipment interference under part 5. There are real concerns about the breadth of the clause, which provides for two kinds of warrant: a targeted equipment interference warrant and a targeted examination warrant. Those warrants allow interference with equipment, such as remote—not always remote—interference with equipment with your, my and many other people’s equipment, Ms Dorries, to secure any of the purposes under subsection (2).

The warrants allow others to interfere with our communications data equipment to obtain “communications”, “equipment data” or, to draw attention to subsection (2)(c), “any other information”—to hack into or interfere with equipment to obtain unlimited “any other information”. That is why the amendment seeks to limit subsection (2)(c) to “any other specified data”. In other words, the clause as drafted will in effect allow interference for pretty well any purpose, as long as it is to obtain information from your computer, my computer, my laptop, your laptop and so on. The provisions are very wide.

The equipment interference in subsection (4) includes interfering by

“monitoring, observing or listening to a person’s communications or other activities”

or

“recording anything which is monitored, observed or listened to.”

Let us pause there and reflect on how wide the provision is. In terms of invasion of privacy, that will put an incredibly powerful provision in the hands of those who will operate these measures.

[Mr Hayes]

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

[Keir Starmer]

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

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

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

[Mr Hayes]

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

[Keir Starmer]

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

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

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

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

We then get to clause 88(6):

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

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

[Mr Hayes]

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

[Keir Starmer]

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

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

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

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

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

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

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

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

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

[Joanna Cherry]

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

--- Later in debate ---

[Mr Hayes]

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

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

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

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

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

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

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

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

[Keir Starmer]

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

[Mr Hayes]

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

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

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

[Keir Starmer]

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

Question put, That the amendment be made.

--- Later in debate ---

Meaning of “equipment data”

[Keir Starmer]

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

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

This amendment deletes the words

“or from any data relating to that fact”.

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

“(a) systems data;

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

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

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

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

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

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

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

“or from any data relating to that fact”,

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

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

[Joanna Cherry]

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

--- Later in debate ---

[Mr Hayes]

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

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

[Keir Starmer]

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

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

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

[Mr Hayes]

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

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

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

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

[Keir Starmer]

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

[Joanna Cherry]

I have nothing to add in support.

Question put, That the amendment be made.

--- Later in debate ---

Subject-matter of warrants

[Keir Starmer]

I beg to move amendment 385, in clause 90, page 68, line 24, leave out paragraph (b)

This amendment, and others to Clause 90, refine the matters to which targeted equipment interference warrants may relate by removing vague and broad categories including “equipment interference for training purposes”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 386, in clause 90, page 68, line 33, leave out paragraph (f).

Amendment 387, in clause 90, page 68, line 35, leave out paragraph (g).

Amendment 388, in clause 90, page 68, line 38, leave out paragraph (h).

Amendment 456, in clause 90, page 68, line 44, leave out subsection (2)(b).

Amendment 391, in clause 90, page 69, line 1, leave out paragraph (d).

Amendment 392, in clause 90, page 69, line 3, leave out paragraph (e).

Amendment 265, in clause 101, page 78, leave out lines 21 to 27.

Amendment 272, in clause 101, page 79, leave out lines 3 to 7.

Amendment 273, in clause 101, page 79, leave out lines 8 to 12.

Amendment 274, in clause 101, page 79, leave out lines 13 to 18.

Amendment 457, in clause 101, page 79, leave out lines 31 to 36.

Amendment 279, in clause 101, page 80, leave out lines 3 to 7.

Amendment 280, in clause 101, page 80, leave out lines 8 to 12.

[Keir Starmer]

We move to a different topic within the same general subject matter of thematic warrants.

Clause 90(1) sets out that a

“targeted equipment interference warrant may relate to”

and thereafter follows a long list from paragraph (a) to paragraph (h). Paragraph (a) specifies

“equipment belonging to, used by or in the possession of a particular person or organisation”.

Paragraph (b) deals with groups or those

“who share a common purpose or who carry on…a particular activity”.

Paragraph (c) deals with equipment

“in the possession of more than one person or organisation, where the interference is for the purpose of a single investigation or operation”.

Paragraph (d) deals with

“equipment in a particular location”.

And on it goes. In other words, the clause allows a very broad range of matters to be included in what is intended to be a targeted equipment interference warrant.

The evidence from the independent reviewer, David Anderson, was, in essence, that clause 90, or its forerunner, was so wide that he thought it was difficult to suggest anything that could not be included in a thematic targeted interference warrant. That gives rise to the suggestion that, in truth, this is a disguised bulk power. It is called a targeted equipment interference warrant, but it is so wide as to be tantamount to a bulk power. In so far as this sort of interference has been carried out in the past, it has been carried out under provisions of this sort rather than any bulk provision. It is an extremely wide and permissive thematic warrant that allows interference with equipment in a very wide range of circumstances, which of course includes monitoring, observing, listening to and so on. It is far too wide.

Amendments 385 and 386 are intended to cut out part of the wide thematic approach in subsection (1). Subsection (2) deals with a targeted examination warrant, and again there is a wide range of matters that the warrant may relate to, including

“a particular person or organisation…a group of persons”

and so on. As far as subsection (2) is concerned, the examination warrant is to operate in conjunction with or following on from a bulk warrant, so subsection (2) indicates the matters to which such a targeted warrant may relate, notwithstanding the wide breadth of the bulk warrant.

The powers are far too wide and they need to be better specified. The amendments are intended to draw in and narrow the scope of the thematic warrants, because otherwise it is hard to resist David Anderson’s conclusion that it is hard to think what would not be included in one or other of the descriptions I have outlined.

--- Later in debate ---

[Mr Hayes]

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

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

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

[Keir Starmer]

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

[Mr Hayes]

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

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

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

[Keir Starmer]

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

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

Amendment, by leave, withdrawn.

[Keir Starmer]

I beg to move amendment 389, in clause 90, page 68, line 40, at end insert—

“(1A) A targeted equipment interference warrant may only be issued in relation to any of the matters that fall under subsection (1) if the persons, organisations or location to which the warrant relates are named or otherwise identified.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 458, in clause 90, page 69, line 4, at end insert—

“(2A) A targeted examination warrant may only be issued in relation to any of the matters that fall under subsection (2) if the persons, organisations or location to which the warrant relates are named or otherwise identified.”

Amendment 266, in clause 101, page 78, line 18, leave out

“or a description of the person or organisation”

and insert

“or another identifier of the person or organisation”.

Amendment 474, in clause 101, page 78, line 27, leave out

“or a description of, as many of the persons or organisations as it is reasonably practicable to name or describe”

and insert

“or another identifier of, each person or organisation”.

Amendment 473, in clause 101, page 78, line 28, at beginning insert “The name and”.

Amendment 268, in clause 101, page 78, line 31, leave out

“or a description of, as many of the persons or organisations as it is reasonably practicable to name or describe”

and insert

“or another identifier of, each person or organisation”.

Amendment 269, in clause 101, page 78, line 36, leave out “description” and insert “specification”.

Amendment 270, in clause 101, page 78, line 38, at beginning insert “The name and”.

Amendment 271, in clause 101, page 78, line 40, leave out

“a description of as many of the locations as it is reasonably practicable to describe”

and insert “specification of each location”.

Amendment 276, in clause 101, page 79, line 29, leave out

“or a description of the person or organisation”

and insert

“or another identifier of the person or organisation”.

Amendment 278, in clause 101, page 79, line 40, leave out

“or a description of, as many of the persons or organisations as it is reasonably practicable to name or describe”

and insert

“or another identifier of, each person or organisation”.

[Keir Starmer]

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

[Mr Hayes]

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

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 90 ordered to stand part of the Bill.

Clause 91

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

[Keir Starmer]

I rise to speak to amendment 395.

[The Chair]

With this it will be convenient to discuss amendments 396, 397, 398, 399, 400, 401, 402, 468, 469, 470, 403, 404, 407, 410, 411, 412, 413, 414, 283, 284, 285, 286, 287, 288, 289, 290, 291 and 292.

[Keir Starmer]

The clause deals with the power to issue warrants to the intelligence services. Subsections (1) and (2) deal with targeted equipment interference warrants, and subsections (3) and (4) deal with targeted examination warrants.

We have two concerns. First, although the test of necessity and proportionality is spelled out in the clause—in particular, in subsections (1)(a) and (b) and (3)(a) and (b)—the objective and aims to which the test of necessity and proportionality are attached, which are set out in subsection (5), are broad in the extreme. They are

“national security…preventing or detecting serious crime”

and our old friend,

“the economic well-being of the United Kingdom”.

We have concerns about the breadth of those powers. Examination warrants obviously allow the examination of the material as well as its interception, and they go with the bulk power.

The first batch of amendments is intended to put some rigour and independence into the scheme by replacing the Secretary of State with the judicial commissioner. We have been over this territory in depth once and in summary form at least once again. I am not sure anybody is going to benefit, and they certainly will not welcome, my going over it at great length again—[Hon. Members: “Hear, hear!”] The amendments would replace the Secretary of State with the judicial commissioner for the same reasons that I advanced a week ago today at a not dissimilar hour. I will not say more than that. In light of our discussion last week and the fact that I withdrew my amendments in relation to the scheme, I will not move these amendments; they are probing.

[The Chair]

Amendment not moved.

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

Investigatory Powers Bill (Ninth sitting)

Keir Starmer Excerpts

Committee Debate: 9th sitting: House of Commons
Thursday 21st April 2016 Public Bill Committees

[Joanna Cherry]

The amendments, which were tabled by the Scottish National party and the Labour party, are part of the broad objective of altering clause 91 so that authorisation of warrants is carried out by judicial commissioners rather than the Secretary of State. There has already been quite lengthy argument about the general principle so I will not go into that in great detail. The amendments also deal with the grounds and circumstances in which warrants may be issued and attempt to tighten the safeguards in the clause.

Amendment 405 would amend the grounds on which warrants may be issued, adding at the end of subsection (5)(b) a reference to reasonable suspicion of serious crime taking place. That pertains to an argument I made in relation to part 2 of the Bill, which is that the grounds for issuance of a warrant should require reasonable suspicion. It will also be recalled that I argued that the economic wellbeing grounds should be removed from the Bill in relation to part 2, and I renew that argument in relation to this clause for the same reasons. There seems to be some tautology. As either the Joint Committee on the draft Bill or the Intelligence and Security Committee commented, it is difficult to see how

“the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”

can really mean anything above and beyond the interests of national security. Amendment 406 would therefore remove subsection (5)(c).

Amendment 463 would remove subsection (6), while amendment 465 would include a requirement of proportionality and a technical assessment in the consideration that is given to the issuance of a warrant. Amendment 465 would require that less intrusive methods have been used or considered and a technical assessment of proportionality accounting for the risks of the conduct proposed. Those requirements would apply when applications from the intelligence service, the Chief of Defence Intelligence and law enforcement are considered. In order to consider whether a warrant is necessary and proportionate, not only the intrusion but the methods will need to be assessed. The amendment would require the judicial commissioner, supported by independent technical expertise, to assess the proportionality of the conduct proposed in targeted equipment interference applications.

There is good reason behind the amendment. Again, I hark back to some of the more general concerns that were expressed by myself and the hon. and learned Member for Holborn and St Pancras. When malware is deployed there is often a risk of contagion, at home as well as overseas. We have had a recent and dramatic demonstration of that: the Stuxnet virus was believed to be an American-Israeli cyber-weapon intended to hack a single Iranian uranium enrichment facility. What happened instead was that it infected Chevron, the energy giant, and many other companies, as well as Microsoft PCs around the world.

That is a good illustration of how hacks intended for what we might call “good purposes”—to protect the public—can have unintended consequences. I believe that the phrase used by those in the know is the risk of hacks spreading into the wild. Technical experts have explained to me that the risk of hacks spreading into the wild cannot be overstated. In fact, a professor of security engineering at Cambridge University, Ross Anderson, wrote to the Science and Technology Committee about this very issue, saying—he did not mince his words— that

“It is only a matter of time before interference with a safety-critical system kills someone”.

The amendment would address these serious issues by making sure that we do not take the potentially dangerous and counterproductive step of hacking where other less intrusive and safer methods have been used, and that a technical assessment of proportionality accounting for the risks of the hack being proposed is carried out in advance.

The practice of equipment interference leads to the stockpiling of software vulnerabilities, which in turn puts millions of users of software at risk, and those millions of users of software are our constituents, the citizens of the United Kingdom, people who use these sorts of devices day in and day out for all sorts of aspects of their personal and professional lives. These hacks, if not used only where strictly necessary, and if there is not a proper technical assessment in advance, risk opening up the equipment of ordinary members of the public to criminals and fraudsters rather than just the intelligence agencies. Underlying the amendment is the idea that it is vital that when deciding whether to grant a warrant, the judicial commissioner should understand and account for the proportionality of the proposed interference methods before authorising them.

There is also the risk that hacks can malfunction, with severe consequences for critical infrastructures and even international relations. Whatever one thinks of Edward Snowden’s revelations and the propriety of them, the fact is that he put a lot of material into the public domain and we would be remiss if we did not consider that. He has revealed that malfunctions of hacking by the National Security Agency in America were responsible for the outage of the entire internet in Syria in 2012, which may have caused simultaneous flight-tracking issues and led Government and opposition forces erroneously to blame each other for the incident. That sort of thing could be a danger to our forces.

I went to a fascinating briefing yesterday morning about photonics. Before I went into the briefing, I did not really know what photonics was, because I am not a scientist by background, but I went along because there is a lot of research into photonics development going on in Scotland, particularly at Heriot-Watt University, which is in my constituency. One of the fascinating things that I learned at this briefing on photonics from a speaker from BAE Systems was how photonics—in layperson’s terms, laser technology—can now “zap” on to the visor of fighter pilots the information they need vis-à-vis radar and the like, so that they do not have to look down at a screen when they are looking for a target. If hacking goes wrong, those sophisticated technologies, which are needed for the defence of this country, may themselves go wrong and that may lead to the deaths of innocent civilians, which we all, regardless of which side we took in the vote last December, want to avoid in any bombing in Syria.

There is a high degree of public interest in the proportionality of hacking methods, and the security of data and the safety of citizens both at home and abroad are very real issues. The debate surrounding the Apple against the FBI case in America centred on whether the methods required to hack one particular device were proportionate, given the security consequences for all owners of iPhones. In the United States, the decision in that case was rightly entrusted to an independent judge.

Amendment 465 is crucial because of the potential damage to computer security and the corresponding vulnerability to criminal elements that results from hacking, as well as the potential dangers for our forces fighting abroad and for civilians. The use of various hacking technologies poses clear risks to those they are used against and to the wider public, which requires the addition of a technical proportionality test. I hope the Government are prepared to consider the amendment seriously.

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

It is a pleasure to continue to serve under your chairmanship, Mr Owen. I echo your sentiments in relation to Her Majesty the Queen. [Hon. Members: “Hear, hear!”]

I have little to add to the hon. and learned Lady’s comments in support of the amendments, other then to outline why they were tabled. Clause 91(1) sets out the power to issue warrants, and paragraphs (a) and (b) outline the familiar necessity and proportionality tests, which bite on the very wide provisions of subsection (5). The Secretary of State therefore has to consider whether issuing a warrant is necessary for one of those broad purposes—

“national security…preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom”.

That is obviously a broad necessity test, and proportionality is assessed by reference to the same grounds. The provision is over-broad, which matters because the double lock works only if a judicial commissioner has scrutiny of the Secretary of State’s decision. If the Secretary of State’s decision is so wide, the judicial commissioner’s scrutiny will be correspondingly wide. That matters particularly in relation to the targeted examination warrants, which will be used where a wider bulk power has been exercised in the first place. The amendments would tighten the necessity and proportionality tests, giving them real practicality and effect.

[The Minister for Security (Mr John Hayes)]

It is a pleasure to serve under your chairmanship once again, Mr Owen, particularly on the auspicious occasion of Her Majesty’s birthday. The Solicitor General and I are members of a diminishing group who still hold to the spirit, and perhaps even the actuality, of the divine right of kings.

Chivalry forbids me from paying but scant attention to the fact that the hon. and learned Member for Edinburgh South West spoke to amendments not in this group. I will not spend too much time responding to what she said, but I might be able to respond to her a little when we come to the next group.

--- Later in debate ---

[Mr Hayes]

I am happy to draw to the attention of any future Investigatory Powers Commissioner the fact that that is not the case and will not be under the Bill. Of course the hon. and learned Lady is right: whether this is a good or a bad thing I leave it to others to judge, but I cannot bind future Governments. However, we can certainly consider and reconsider ways in which the message can be reinforced during the passage of the Bill. I do not want to go too much further, but I think that the signal I am sending will have been seen by people on this Committee and elsewhere.

[Keir Starmer]

I am grateful to the Minister for putting that on the record, because there is concern. If the intention or purpose is not as has been suggested, will he give consideration to how that fact can find form in the Bill and be clear for all to see, just as the record will be clear?

--- Later in debate ---

[Joanna Cherry]

Before I make my position on the amendments clear, it was remiss of me not to add the sincere good wishes of the Scottish National party to Her Majesty the Queen on the auspicious occasion of her 90th birthday.

When we looked at similar issues under part 2, we did not push the matter to a vote, and that is the course of action I wish to follow at this stage. I will withdraw the amendment now, but no doubt the whole issue of judicial warrantry will be revisited on the Floor of the House. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

I beg to move amendment 465, in clause 91, page 70, line 18, leave out from “include” to end of line 19 and insert—

“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and

(b) the requirement that a risk assessment has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—

(i) the risk of collateral interference and intrusion, and

(ii) the risk to the integrity of communications systems and computer networks, and

(iii) the risk to public cybersecurity.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 415, in clause 93, page 71, line 35, leave out from “include” to end of line 36 and insert—

“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and

(b) the requirement that a risk assessment has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—

(i) the risk of collateral interference and intrusion, and

(ii) the risk to the integrity of communications systems and computer networks, and

(iii) the risk to public cybersecurity.”

Amendment 435, in clause 96, page 74, line 13, leave out

“whether what is sought to be achieved by the warrant could reasonably be achieved by other means”

and insert—

“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and

(b) the requirement that a risk assessment has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—

(i) the risk of collateral interference and intrusion, and

(ii) the risk to the integrity of communications systems and computer networks, and

(iii) the risk to public cybersecurity.”

[Keir Starmer]

One of the advantages of us all—me included—straying beyond the strict limits of the previous set of amendments is that there is nothing I can meaningfully or helpfully add on amendment 465, which would tighten the necessity and proportionality test for the reasons already articulated. I will say no more other than to indicate that I do not intend to press the amendment to a vote.

[Mr Hayes]

As the hon. and learned Gentleman says, we have covered the ground pretty exhaustively. Essentially, the amendments would change the language of the safeguard, requiring that alternatives must either be tried or be discounted because they were “bound to fail”. In the end, “bound to fail” is clearly too high a hurdle. Investigating agencies would have to waste time and resources, and interfere unnecessarily with people’s equipment trying out alternative ways to gather intelligence that they thought were likely to be successful and not bound to fail.

The amendments would require that in deciding to issue an order the Secretary of State or law enforcement chief must take into account the technical cyber risk assessment by the Investigatory Powers Commissioner. Given GCHQ’s track record of dealing with cyber-vulnerabilities of the kind that I described earlier—I will not go into further detail about that—and given that the code of practice requires that

“Any application for an equipment interference warrant should contain an assessment of any risk to the security or integrity of systems or networks that the proposed activity may involve including the steps taken to appropriately minimise such risk”,

and that

“The issuing authority should consider any such assessment when considering whether the proposed activity is proportionate”,

I believe that these amendments are unnecessary. Accordingly, I invite the hon. and leaned Gentleman to withdraw them.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Joanna Cherry]

I beg to move amendment 408, in clause 91, page 70, line 25, at end insert—

‘(10) Targeted equipment interference is only lawful if authorised under this Act.”

The amendment would require that targeted equipment interference cease to be conducted under the Intelligence Services Act 1994, the Police Act 1997 or indeed any other prior legislation, and instead be conducted under the provisions of the Bill. The Bill is a consolidated piece of legislation, and we tabled this amendment in the spirit of the Government’s laudable attempt to consolidate the legislation in this area. The amendment would ensure that equipment interference always benefits from the safeguards and oversight in the Bill. As we just set out, the Opposition parties want the safeguards to go further, but even if they remain as they are we would like them to apply to all targeted equipment interference. That would improve public accountability and clarify the state’s powers.

The Intelligence and Security Committee’s report on the draft Bill expressed concern about the fact that agencies conduct several forms of equipment interference that are not provided for in the Bill, so it is not just Opposition Members who are concerned. The ISC said that

“certain IT operations will require a different standard of authorisation…than Computer Network Exploitation and that similar activities undertaken by the Agencies will be authorised under different pieces of legislation.”

It concluded that, if that remains the case, the Bill will have failed to achieve transparency; operations will remain secret and thus not be subject to clear safeguards. It recommended that

“all IT operations are brought under the provisions of the new legislation…with the same authorisation process and the same safeguards.”

The amendment reflects the Intelligence and Security Committee’s recommendation that all types of equipment interference should be governed under one clear piece of legislation. I will be grateful if the Government take it on board in the spirit in which it is intended.

--- Later in debate ---

[Keir Starmer]

Clause 93 is similar in many respects to clause 91, but obviously relates to the Chief of Defence Intelligence and is therefore shorter. It follows that the concerns that have been expressed by the Labour party, which I suspect the Scottish National party share, apply equally to the relevant parts of clause 93. I make that clear for the record, but it will not assist anyone to repeat them under the guise of clause 93.

[Mr Hayes]

I have nothing to add to what I said on clause 91.

Question put and agreed to.

Clause 93 accordingly ordered to stand part of the Bill.

Clause 94

Members of Parliament etc.

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

[The Chair]

With this it will be convenient to consider new clause 11—Confidential and privileged material—

‘(1) Where any conduct under this Part will cover or is likely to cover special procedure material, or relates to individuals handling special procedure material, the application must contain—

(a) a statement that the conduct will cover or is likely to cover special procedure material, or relates to individuals handling special procedure material, and

(b) an assessment of how likely it is that the material is likely to cover special procedure material.

(2) Where any conduct under this Part is likely to cover excluded procedure material, or relates to individuals handling excluded procedure material, the application must contain—

(a) a statement that the conduct will cover or is likely to cover excluded procedure material, or relates to individuals handling excluded procedure material, and

(b) an assessment of how likely it is that the material is likely to cover excluded procedure material.

(3) Where a warrant issued under this Part will cover or is likely to cover special procedure material, or relates to individuals handling special procedure material, the procedure set out at section 5 below must be followed.

(4) Where a warrant issued under this Part will cover or is likely to cover excluded procedure material, or relates to individuals handling excluded procedure material, the procedure set out at section 6 below must be followed.

(5) Further to the requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant if—

(a) there are reasonable grounds for believing that an indictable offence has been committed, and

(b) there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence at (a), and

(c) other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and

(d) it is in the public interest having regard to—

(i) the public interest in the protection of privacy and the integrity of personal data, and

(ii) the public interest in the integrity of communications systems and computer networks, and

(iii) the democratic importance of freedom of expression under article 10 ECHR to grant the warrant; or

(iv) the democratic interest in the confidentiality of correspondence with members of a relevant legislature; or

(v) the importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege.

(6) Further to the requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant in accordance with provisions made in Schedule 1 of the Police and Criminal Evidence Act and Schedule 5 of the Terrorism Act.

(7) An application for a warrant under this Part must not be granted where the information could be sought using a warrant under schedule 1 PACE, unless seeking this information under PACE would defeat the purpose of the investigation.

(8) Special procedure material means—

(a) special material as defined in section 14 of the Police and Criminal Evidence Act 1984;

(b) correspondence sent by or intended for a member of the relevant legislature.

(9) Excluded material procedure has the same meaning as in section 11 of the Police and Criminal Evidence Act 1984.

(10) A warrant under this Part may not authorise any conduct undertaken for the purpose of accessing any material relating to matters subject to legal privilege.

(11) For the purposes of subsection (10), “legal privilege” means—

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

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

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

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

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

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

(12) Where the purpose of the warrant is to conduct interference to obtain material that would normally be subject to legal privilege but that falls within subsection (11)(d), the interference and examination conduct authorised must relate—

(a) to the offence as specified under subsection (5)(a), or

(b) to some other indictable offence which is connected with or similar to the offence as specified under subsection (5)(a).”

[Keir Starmer]

I want to make some observations about this clause. I know that the Minister is looking at the way Members of Parliament are dealt with, but I want to put on the record what I see as the major limitations. The clause is intended to be additional protection when the purpose of a warrant for equipment interference is to obtain a communication sent by or intended for a member of a relevant legislature—so all our communication.

The first concern is that a warrant for equipment interference permits the obtaining of communications equipment data and other information, so the first observation about the clause is that there is no special provision for a warrant to interfere with an MP’s laptop to get secondary data or any other information. That applies to all of us. If a warrant were issued that touched on my equipment, as long as it dealt with equipment data and other information, there would be no need to consult the Prime Minister. I am not sure whether colleagues have appreciated that they could effectively be hacked without additional safeguard.

The second concern is that the added safeguard is when the purpose of the warrant is to obtain a communication. That is because communications are especially protected, but I remind colleagues that secondary data and equipment data may include the details of who has contacted whom, so if someone contacts an MP, the fact that they made that contact and who did so would not be protected. Here, the purpose is just to get a communication.

If the purpose was to achieve some other objective, but it was inevitable that communications between an MP and a constituent would be affected, clause 94 would not apply. I just wonder whether that needs a little further consideration because the protection for MPs’ communications ought to cover deliberate attempts to intercept a communication and also when it is likely to happen although the purpose is perhaps to intercept the communication of someone else. Those are real issues that I want to put on the record.

The other issue, which may be straightforward, is that clause 94 comes after the two powers we have seen in clauses 91 and 93, which deal with the Secretary of State’s warrants. It makes sense in that context, because it is the Secretary of State who consults the Prime Minister before acting. We will come on to equipment interference warrants that can be authorised by law enforcement officers. Those warrants will not go through the Secretary of State. It may be that clause 94 applies equally to those, and I suspect that it is intended to, because otherwise there would be another type of warrant that could touch on an MP’s unprotected correspondence; I cannot see that that is the intention.

If there is an easy an answer to this, I am happy to sit down and be corrected, but it seems that there are a number of ways in which the clause could be toughened up to achieve its desired objective.

[Mr Hayes]

The hon. and learned Gentleman does a service to the Committee by raising this, because it is a matter of continuing discussion. I think the Committee recognises that there are particular groups of people—lawyers, journalists, Members—who, because of the character, particularity and importance of the work that they do, need to be dealt with in an appropriate and sensitive way. We are talking not only about those people but about the people who are in contact with them. In a journalist’s case it would be sources; in a Member’s case it would be constituents and others. He is right, too, to suggest that we need to ensure that we have a consistent approach across the Bill.

It is true that there is a level of intrusion associated with content that is not shared in other areas. Equipment data are less intrusive than content, and we have already considered why they are necessarily subject to less stringent safeguards. Nevertheless, I think that the hon. and learned Gentleman is right that close examination of consistency in the Bill, in terms of how we deal with Members, is important. To that end, I hear what he says and will look at this again.

The conversation on this, in the Committee and more widely, needs to take full account of the proper assumption on the part of those who contact their Member of Parliament that any material they provide will be handled with appropriate confidentiality and sensitivity. The hon. and learned Gentleman makes that point well. It is a point that I have heard and will consider further.

[Keir Starmer]

I intervene to make sure that I have been clear enough on the second point, which is when law enforcement officers are issuing targeted equipment interference warrants. On my reading, the safeguard is the judicial commissioner, which is understandable. Clause 94 makes it clear that:

“Before deciding whether to issue the warrant, the Secretary of State must consult the Prime Minister.”

It is the consultation of the Prime Minister that is the added safeguard; I understand that. The problem with a clause 96 warrant is that it is not required to go to the Secretary of State. In other words, it goes from the law enforcement officer to the judicial commissioner, not via the Secretary of State.

One reading of clause 94 may be that it applies only to a clause 91 or clause 93 warrant. If that is right, there is no provision for consulting the Prime Minister if a clause 96 warrant is intended to obtain the communications of a Member of Parliament. There may be a simple explanation, but on the face of it that is a warrant that does not go via the Secretary of State, so clause 94 cannot operate in its intended way.

[Mr Hayes]

One of the most important things about the function of a Committee such as this is that we deal with minutiae, and rightly so. A bonus for this Committee is that, as its members know, I never feel entirely constrained by my notes. To that end, I want to emphasise that the Wilson doctrine of course applies to warrants issued by the Secretary of State. The hon. and learned Gentleman may well come back to me and say that greater clarity about the application of the Wilson doctrine in relation to the Bill is an important part of his argument, so for the record, and to make progress, I repeat that these are matters of ongoing consideration. I want to make absolutely sure that we get consistency, because the important thing about delivering certainty—I have argued throughout our proceedings that the Bill is about clarity and certainty—is that it is underpinned by consistency. In terms of the Wilson doctrine and the role of the Prime Minister in all these matters, I want to be absolutely confident that the measure can be and is applied to all the provisions we are considering.

Question put and agreed to.

Clause 94 accordingly ordered to stand part of the Bill.

Clause 95

Decision to issue warrants under sections 91 to 93 to be taken personally by Ministers

Amendment made: 257, in clause 95, page 72, line 33, leave out “the Scottish Ministers have” and insert

“a member of the Scottish Government has”.—(Mr John Hayes.)

Clause 95(2) provides that a decision to issue a warrant under Clause 92 must be taken personally by a member of the Scottish Government. This amendment corrects Clause 95(5)(b) so that it also refers to a member of the Scottish Government.

Clause 95, as amended, ordered to stand part of the Bill.

Clause 96

Power to issue warrants to law enforcement officers

[Keir Starmer]

I beg to move amendment 419, in clause 96, page 72, line 36, leave out

“law enforcement chief described in Part 1 or 2 of the table in Schedule 6”

and insert “Judicial Commissioner”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 420, in clause 96, page 72, line 37, leave out

“person who is an appropriate law enforcement officer in relation to the chief”

and insert

“law enforcement chief described in Part 1 of the table in Schedule 6”.

Amendment 421, in clause 96, page 72, line 40, leave out “law enforcement chief” and insert “Judicial Commissioner”.

Amendment 422, in clause 96, page 72, line 42, leave out “law enforcement chief” and insert “Judicial Commissioner”.

Amendment 423, in clause 96, page 73, line 1, leave out “law enforcement chief” and insert “Judicial Commissioner”.

Amendment 424, in clause 96, page 73, line 4, leave out paragraph (d).

Amendment 425, in clause 96, page 73, line 7, leave out

“law enforcement chief described in Part 1 of the table in Schedule 6”

and insert “Judicial Commissioner”.

Amendment 426, in clause 96, page 73, line 8, leave out

“person who is an appropriate law enforcement officer in relation to the chief”

and insert

“law enforcement chief described in Part 1 of the table in Schedule 6”.

Amendment 427, in clause 96, page 73, line 10, leave out “law enforcement chief” and insert “Judicial Commissioner”.

Amendment 428, in clause 96, page 73, line 14, leave out “law enforcement chief” and insert “Judicial Commissioner”.

Amendment 429, in clause 96, page 73, line 17, leave out “law enforcement chief” and insert “Judicial Commissioner”.

Amendment 430, in clause 96, page 73, line 20, leave out paragraph (d).

Amendment 431, in clause 96, page 73, line 23, leave out subsection (3).

Amendment 432, in clause 96, page 73, line 29, leave out paragraphs (b) and (c).

Amendment 433, in clause 96, page 73, line 35, after “Where”, insert

“an application for an equipment interference warrant is made by a law enforcement chief and”.

Amendment 434, in clause 96, page 73, line 39, leave out subsections (6) to (10).

Amendment 436, in clause 96, page 74, line 16, leave out subsections (12) and (13).

Amendment 437, in schedule 6, page 213, line 15, leave out Part 2.

Amendment 460, in clause 101, page 78, line 2, after “service”, insert

“or to a law enforcement chief”.

Amendment 461, in clause 101, page 78, line 6, leave out subsection (2)(c)

[Keir Starmer]

The clause contains a power for law enforcement officers to authorise equipment interference warrants. That would be a significant power for the law enforcement chief and those officers to exercise. I have two observations to start with. First, the law enforcement chief authorises the warrant on an application from a person

“who is an appropriate law enforcement officer in relation to the chief”.

That is all set out in schedule 6, to which we will come shortly.

There is a big distinction between clause 96(1) and (2). Subsection (1) states:

“A law enforcement chief described in Part 1 or 2 of the table in Schedule 6 may…issue a targeted equipment interference warrant”

in the circumstances set out in the subsection relating to a serious crime. Subsection (2) applies to a law enforcement chief described in part 1 of the table in schedule 6, and provides for a targeted equipment interference warrant to be authorised if it is

“necessary for the purpose of preventing death or any injury or damage to a person’s physical or mental health”.

We have rehearsed some of this before, in the sense of whether there should be a threshold higher than simply “any” injury or damage, because that is on the face of it a very low threshold, given, on this occasion, to law enforcement officers. That is a real cause for concern.

--- Later in debate ---

[Mr Hayes]

There were many other opportunities to consider the judicial review point that the hon. and learned Lady makes. In fairness, she has been consistent in having doubts about whether those are the appropriate terms on which a judicial commissioner should consider these matters. There has been much discussion about that, including in some of the Committees that I referred to earlier. Regardless of the terms—you will not allow us to explore those in any great detail, Mr Owen, because they are not strictly pertinent to the clause or the amendment—the process whereby a law enforcement chief, supported by a judicial commissioner, obtains a warrant is, in my judgment, sufficient to guarantee proper practice. It is certainly in line with what we know currently works. I would have to be pretty convinced at this juncture to make such a radical change to the Bill, and frankly, I am not.

[Keir Starmer]

I am grateful to the Minister. I do not intend to vote against the clause, but I have a nagging concern, which I will try to articulate. A communication in the course of its transmission is highly protected—the Secretary of State must sign off a warrant. The Secretary of State individually considers those warrants and we know the numbers. That is an understandably high level of protection for a communication in the course of its transmission.

--- Later in debate ---

[Mr Hayes]

These are fairly straightforward amendments. Like all the Government amendments so far considered, they are minor and technical. They do not serve to change the scope of the warrant approval process, but make clear that judicial commissioner approval will apply to all equipment interference warrants—in that sense, they are relevant to the debate we have just been having. They replace the phrase “warrant to be issued” in subsection (3) with “decision to issue a warrant”, to reflect more clearly that in urgent cases the warrant would already have been issued by the Secretary of State or a law enforcement chief.

Amendment 258 agreed to.

Amendments made: 259, in clause 97, page 75, line 6, leave out from “a” to “under” and insert

“decision to issue a warrant”.

See the note to amendment 258.

Amendment 260, in clause 97, page 75, line 8, leave out from “a” to “under” and insert

“decision to issue a warrant”.

See the note to amendment 258.

Amendment 261, in clause 97, page 75, line 10, leave out from “a” to “under” and insert

“decision to issue a warrant”.

See the note to amendment 258.

Amendment 262, in clause 97, page 75, line 12, leave out from “a” to “under” and insert

“decision to issue a warrant”.—(Mr John Hayes.)

See the note to amendment 258.

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

[Keir Starmer]

We have been over the territory of the judicial test, and I do not intend to rehearse the arguments again, other than to say that in circumstances where an equipment interference warrant has been issued by a law enforcement chief—it has not gone through the Secretary of State—it is particularly important for the review by the judicial commissioner to be tight. All the arguments made earlier about the test are reinforced in cases that do not go to the level of the Secretary of State. Any arguments about deference are unpersuasive. There is a particularly powerful argument for tightening up the judicial test throughout the Bill, and I have raised that topic on a number of occasions. There is a particular need for that where a warrant has come about by a different route, without receiving the scrutiny that a warrant signed by the Secretary of State would have.

[The Solicitor General (Robert Buckland)]

I am grateful to the hon. and learned Gentleman. We need not rehearse the arguments that we looked at in some detail a few days ago, but I will say what I said then: although the Bill covers those points, there is merit in considering the matter carefully, and I shall continue to give it anxious consideration.

The sliding scale approach, to coin a phrase, is clearly relevant. We must remember that the absence of the Secretary of State in the case of the other agencies is not a problem, because we want them to have integrity and operational independence. We must always remember that underlying principle. I am not criticising anyone, but that sometimes gets a bit lost in the debate.

Having said that, the hon. and learned Gentleman’s point is well made about the different considerations that would present themselves to the mind of a commissioner, bearing in mind that the Secretary of State and national security and all those factors are not involved. I need not, perhaps, add more to the debate on that; I simply commend yet another clause that covers the double-lock authorisation process and applies it for the first time to the area of warrantry in question.

--- Later in debate ---

[Joanna Cherry]

Amendment 439 pertains to the approval of warrants issued in urgent cases. Simply, the amendment would provide that an urgent warrant can be issued only where there is a reasonable belief that it is necessary to do so for the purpose of protecting life or preventing serious injury. That is a recurrent theme, which I have addressed previously, and I will not repeat the arguments.

[Keir Starmer]

Our amendment 440 is modest and would insert the word “immediately”. I need say no more than that.

[The Solicitor General]

May I deal with the amendments in reverse order? On amendment 440, I am happy to consider amending the relevant draft codes to make it clear that the notification of judicial commissioners should happen as soon as is reasonably practical. That wording is more appropriate than “immediately”, given that it may take some small period of time to draw together the materials that the commissioner would want to review when considering whether to approve the issue of a warrant. On the basis that we might return to this issue at a future date, I invite the hon. and learned Gentleman not to press his amendment.

The amendment tabled by the hon. and learned Member for Edinburgh South West, to which she spoke with admirable brevity, is well understood by the Government, and the arguments remain as they did in our debate on clause 22. We want to create a workable framework, and if we limit the grounds, my concern is that the scenarios and case studies I set out in that debate—the drugs case and the Daesh case—would not be caught. We have a clear definition of “urgency” in paragraphs 41 to 44 of the draft code. The draft code also has a helpful flowchart that clearly sets out the parameters within which those seeking such warrants should operate. For those reasons, I respectfully urge her to withdraw her amendment.

[Joanna Cherry]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 98 ordered to stand part of the Bill.

Clause 99

Failure to approve warrant issued in urgent case

[Keir Starmer]

I beg to move amendment 441, in clause 99, page 76, line 10, leave out paragraph (b).

[The Chair]

With this it will be convenient to discuss amendment 442, in clause 99, page 76, line 12, leave out subsection (4) and insert—

‘(4A) Where the judicial commissioner refuses to approve an urgent warrant, they must direct that all of the material obtained under the warrant is destroyed, unless there are exceptional circumstances.”.

[Keir Starmer]

The amendment is minor, in keeping with the amendments that we have already debated on material obtained under warrants that are later cancelled or not authorised. The amendment would tighten the requirements in cases where a judicial commissioner refuses to approve a warrant; the reason for that is self-evident. We have rehearsed this territory to some extent.

[The Solicitor General]

I resist the amendment. The hon. and learned Gentleman is right that we have considered similar amendments in relation to clause 23 in part 2 of the Bill. With respect, it is not right to fetter the discretion of the judicial commissioners, who are experienced and senior members of the judiciary. They should be allowed to decide such matters on a case-by-case basis. The amendment prompts the questions of what might be meant by “exceptional circumstances” and of who would determine whether the threshold had been met in a given instance. I worry that that would just complicate the process. We are all agreed that commissioners will give each case proper consideration, and the commissioners will seek to serve the clear public interest in ensuring that material that should not be retained is destroyed. Well intentioned though this amendment is, it would add undue complication, and we oppose it for that reason.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 99 ordered to stand part of the Bill.

Clause 100

Items subject to legal privilege

[Keir Starmer]

I beg to move amendment 499, in clause 100, page 77, line 3, after “items”, insert “presumptively”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 500, in clause 100, page 77, line 8, after “items”, insert “presumptively”.

Amendment 501, in clause 100, page 77, line 13, leave out paragraph (a) and insert—

“(a) that compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise or require interference with equipment for the purpose of obtaining or (in the case of a targeted examination warrant) the selection for examination of those items, and”.

[Keir Starmer]

We again return to familiar territory. The amendment would provide an additional safeguard in relation to items subject to legal privilege. The structure of clause 100 is precisely the same as the structure of similar clauses addressing legal privilege that we have debated at some length. As I indicated last time we spoke on this subject, amendments 499 to 501 are those that the Bar Council suggests are appropriate to align the safeguard with its understanding of legal professional privilege. We have gone over this ground already. The clause and amendments have the same structure as earlier ones, and I do not think I will assist by repeating what I have said. I stand by the remarks that I made earlier.

[The Solicitor General]

Again, I am grateful to the hon. and learned Gentleman. He is right to say that this is a repeat of arguments we had on another part of the Bill. As he has laid out his arguments by adopting his previous submissions, I do likewise on behalf of the Government. Recalling those briefly, my concerns about the dangers of over-definition remain. However, I do not want material that should not be caught by the Bill to be caught by it in any inadvertent way. We are talking about cases where the purpose of a targeted equipment interference or examination warrant is to acquire or examine items that are subject to legal professional privilege. We have additional protections that are a sufficient safeguard and strike that essential balance. For all the reasons I advanced previously, I urge the hon. and learned Gentleman to withdraw the amendment at this stage.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 100 ordered to stand part of the Bill.

Clause 101

Requirements which must be met by warrants

[Joanna Cherry]

I beg to move amendment 275, in clause 101, page 79, line 19, leave out “describe” and insert “specify”.

--- Later in debate ---

[Joanna Cherry]

I am very grateful to the Solicitor General. I leave the other two amendments to the hon. and learned Member for Holborn and St Pancras.

[Keir Starmer]

Amendments 452 and 453 speak for themselves. Concern has already been expressed about the general nature of the requirements that must be met by warrants; this is a further example under the head of equipment interference warrants. Clause 101(3) sets out in some detail what is required, and the amendments would tighten that up by requiring more precision and more matters to be explicitly stated. They are a version of other amendments tabled to corresponding provisions for other warrants.

[The Solicitor General]

To deal with the thrust of the hon. and learned Gentleman’s argument, we would say that the amendments are unnecessary because the draft statutory code of practice already requires an application for a targeted warrant to set out what the conduct is and how collateral intrusion is being managed, which is the really important public interest here. That should rightly be in the warrant application itself, and the detailed requirements should be in the statutory code; that was recommendation 5 in the report by David Anderson QC, so we are faithfully following his recommendation.

On the code of practice, the hon. and learned Gentleman will find the requirements under the heading “Necessity and proportionality”, particularly in paragraphs 3.26, 3.27 and 4.10, which deals with collateral intrusion.

I note that amendment 453 is part of this group, so I will speak briefly to that. We have concerns that I have expressed before in other contexts about the problem of the police being asked to exhaust alternative methods even where there is unlikely to be any effect. That is not only wasteful and costly, but could unintentionally lead to further undue intrusion into people’s privacy. For those reasons, I have grave concerns about that amendment.

--- Later in debate ---

[Joanna Cherry]

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

Amendment, by leave, withdrawn.

Clause 101 ordered to stand part of the Bill.

Clause 102

Duration of warrants

[Keir Starmer]

I beg to move amendment 635, in clause 102, page 80, line 21, leave out

“ending with the fifth working day after the day on which”

and insert “of 48 hours after”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 636, in clause 102, page 80, line 21, leave out

“ending with the fifth working day after the day on which”

and insert “of 24 hours after”.

Amendment 281, in clause 102, page 80, line 21, leave out “fifth working day” and insert “twenty four hours”.

Amendment 282, in clause 102, page 80, line 23, leave out “6” and insert “1”.

[Keir Starmer]

The clause deals with the duration of warrants, and amendment 635 deals with subsection (2), which is concerned with urgent equipment interference warrants that, because they are urgent, have not been through a judicial commissioner. Under the subsection, warrants cease to have effect at the end of five working days after the day on which they are issued. I have a number of observations on that. We touched on the urgent provision. Up until now in the Bill, the provision has been for urgent warrants to remain valid for three working days. For equipment interference, we leap to five. I would certainly like an explanation why. A warrant that allows interference with computers and laptops for obtaining communications and other information suddenly moves from three days to five—not just five days, but five working days. That means that on occasion it could be seven days, and with a bank holiday it could be eight days, so we are moving well beyond the realms of an urgent warrant.

This amendment is similar to one relating to other urgent provisions that aimed to bring the duration down to 24 hours. There is a real concern about urgent warrants and how long they last. Very strong justification is required for allowing an urgent warrant that has not gone through the double lock to continue for between five and eight days. If the Minister is not about to provide that, I hope he will accept the amendment.

[Mr Hayes]

Let me make a general point about something that has punctuated our discussions; it may to some degree satisfy the hon. and learned Gentleman. The codes of practice are, of course, vitally important. They have metamorphosed over time and continue to do so, partly as a result of the scrutiny the Bill went through before it came to the House. The codes of practice are extremely detailed in respect of interference, as he will know, and on page 21 they deal with the relationship between equipment interference and privacy:

“Equipment interference agencies must not intrude into privacy any more than is necessary to carry out their functions or enable others to do so.”

The process by which an equipment interference warrant is authorised, and the subsequent use of that warrant, are properly constrained by those necessary requirements around intrusion and privacy. Notwithstanding that general point, the purpose of the amendments is twofold. As the hon. and learned Gentleman said, the first deals with the time before the judicial commissioner examines an urgent warrant. The second deals with the length of a warrant per se. Let me, for the sake of excitement, deal with them in reverse order.

The length of time that the initial warrant pertains was not challenged by any of the Committees that looked at the Bill, and there has been no great clamour or call about it, not least because of an understanding that these investigations or cases, as I said in an earlier debate, are often complex and dynamic; as they change rapidly, they require powers to pertain and continue over time. I will deal fairly dismissively—I do not mean that with undue contumely—with the second part of this short discussion.

--- Later in debate ---

The hon. and learned Member for Holborn and St Pancras queried whether it is reasonable for a warrant to be sought, granted and actioned for a longer period before the judicial commissioner looks at it—he mentioned weekends and bank holidays. That has been the subject of considerable debate, but my view is that there has to be sufficient time to put a warrant application to the Secretary of State and in turn to the judicial commissioner. The same individuals in the law enforcement and intelligence agencies who investigated the urgent threat will of course be producing the case for the renewal application. This is really about practical and operational issues, and our judgment is that on that practical and operational basis, we have got the time right.

[Keir Starmer]

I am curious. I understand that material has to be got together and the application made, but for other warrants it is three working days and for these warrants it is five working days. What is it about these warrants that requires the additional two days, which are not needed for other warrants where there is an urgent procedure? I am genuinely curious, because somebody drafted this deliberately.

[Mr Hayes]

Clause 102, on the duration of the equipment interference warrants, is the same as clause 28, on the duration of interception warrants. Urgent warrants must be approved by the judicial commissioner after three working days. The urgent warrant lasts for five working days, at which point it must be renewed or it will expire. My point is that is about practicality, rather than there being anything philosophical about it. It is purely an operational matter.

David Anderson, in his report, to which I drew attention and which am now struggling to find, although the Solicitor General is as ever at my service—[Interruption.] That comes as good news to him. In his report, David Anderson deals particularly with these matters on page 275, paragraph 14.69. Earlier I mentioned recommendation 37, that

“to the effect that serious crime warrants should have the same 6-month duration as national security warrants, responds to the recent comment of the IOCC that ‘there remains a strong practical case for increasing the validity period for serious crime warrants to six months’”.

That is the second of the two points that the hon. and learned Member for Edinburgh South West wanted me to address.

My view is that on duration we are in line with both sensible practice and the recommendations of the independent reviewer. On the time between the application and the engagement, we are simply dealing with practicalities.

[Keir Starmer]

I wish to help the Minister. One of the points I was making does not withstand scrutiny and I will not pursue it or press the amendment. I accept what is being said.

[Mr Hayes]

Good. On that basis I will stop.

[Joanna Cherry]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 102 ordered to stand part of the Bill.

Clause 103 ordered to stand part of the Bill.

Clause 104

Modification of warrants issued by the Secretary of State or Scottish Ministers

[Keir Starmer]

I beg to move amendment 638, in clause 104, page 83, line 17, at end insert—

“(8A) Section 97 (approval of warrants by Judicial Commissioners) applies in relation to a decision to make a modification of a warrant issued under section 96 as it applies in relation to a decision to issue such a warrant, but as if—

(a) the references in subsection (1)(a) and (b) of that section to the warrant were references to the warrant as modified, and

(b) any reference to the person who decided to issue the warrant were a reference to the person who decided to make the modification.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 639, in clause 104, page 83, line 18, leave out “Sections 94” and insert

“Section [NC11 Confidential and privileged material]”.

Amendment 502, in clause 104, page 83, line 22, at end insert—

“( ) Where section 100 (items subject to legal privilege) applies in relation to a decision to make a modification of a warrant as mentioned in subsection (2)(a), (c) or (d), other than a decision to which subsection (7) applies, section 97 (approval of warrants by Judicial Commissioners) applies to the decision as it applies in relation to a decision to issue such a warrant (and accordingly any reference in that section to the person who decided to issue the warrant is to be read as a reference to the person who decided to renew it).”

Amendment 640, in clause 104, page 83, line 23, leave out “Section 100” and insert

“Section [NC2 Items subject to legal privilege]”.

Amendment 641, in clause 104, page 83, line 35, at end insert—

“(14) Any modification which constitutes the adding or varying any matter must be approved by a Judicial Commissioner in accordance with section 97.”

Amendment 642, in clause 105, page 84, line 4, leave out from “period” to “which” in line 5 and insert “48 hours after”.

Amendment 643, in clause 105, page 84, line 4, leave out from “period” to “which” in line 5 and insert “24 hours after”.

Amendment 644, in clause 105, page 84, line 26, at end insert—

“(8A) Section 97 (approval of warrants by Judicial Commissioners) applies in relation to a decision to make a modification of a warrant issued under section 96 as it applies in relation to a decision to issue such a warrant, but as if—

(a) the references in subsection (1)(a) and (b) of that section to the warrant were references to the warrant as modified, and

(b) any reference to the person who decided to issue the warrant were a reference to the person who decided to make the modification.”

Amendment 503, in clause 105, page 84, line 33, at end insert—

“( ) Where, by virtue of section 104(10), section 100 (items subject to legal privilege) applies in relation to the making of a modification of a warrant pursuant to section 104(7), this section applies as if each reference in subsections (2) and (5) to (8) to a designated senior official were a reference to a Judicial Commissioner.”

[Keir Starmer]

The amendment relates to modification provisions similar to those in clause 30, which we discussed at some length last week. I will not go over the territory again, but all the arguments I made in relation to modifications under clause 30 apply equally to modifications under clause 105 and I will not take time by going through all the similar points. It is worth observing, however, that clause 104(2) lists in paragraph (a) to (f),

‘“The only modifications which may be made under this section”,

which cover practically all the matters that appear on the requirements of warrants, so it is an interesting use of the word “only”.

There is a substantive issue on which I would like an answer. When we were debating clause 30, I made the point that the test for a modification set out in clause 30(9) is a test of necessity and proportionality that only applies to major modifications, not minor ones. We have dealt with that and I will not go over it again, but it seems to me that the test for a major modification is, quite sensibly, whether it is necessary and whether the conduct authorised by it is proportionate. I was expecting to see in clause 104(4) a version of clause 30(9) and I did not. Perhaps the Solicitor General will explain why.

[The Solicitor General]

In this context, all modifications are considered major; that is the difference. I hope that helps.

[Keir Starmer]

Well, no. [Laughter.] I do not mean that disrespectfully, but the test in clause 30(9), which is in relation to major modifications, is whether the modification is necessary and whether it is proportionate. That is a sensible test. I accept that the test in clause 104(4) is in relation to all modifications, but one would expect to see the words “that the modification is necessary”, not

“that the warrant as modified continues to be necessary”.

[The Solicitor General]

In the context of EI, we are not making the distinction between major and minor, so the effect is that all modifications will be major. If there is a discrepancy, I am happy to look at the language again to make it absolutely clear. I hope that assists the hon. and learned Gentleman.

[Keir Starmer]

I am grateful for that indication. Otherwise, in relation to modifications, my points are essentially the same as I made on clause 30. I know the Solicitor General has agreed to look at and deal with at least some of the points I made last time; I ask him to take this modifications clause under the same umbrella when he looks at the modification provisions.

[The Solicitor General]

I will try to deal with this in short order. I am grateful to the hon. and learned Gentleman for the way in which he advanced his argument. It is in that spirit that I adopt the arguments I made previously. I simply make the point that under this clause we are dealing with safeguards that in my view do not undermine the important double lock standard.

I have some concerns about the amendments that relate to the judicial commissioner having to approve the decision to make modifications to EI warrants. The decision will already have been subject to the safeguard, so to require the judicial commissioner to authorise tactical operation day by day—indeed, minute by minute—is not necessary; in fact, it could be operationally damaging. The Government believe that the code makes clear, on the basis of the arguments we had before, the way in which the scope of the warrant needs to be addressed. Reading across, I would say that the safeguards in the code are helpful and clear.

[Keir Starmer]

One concern is that under subsections (9) and (10) as they stand there is no requirement for modification that touches on MPs or legal privilege to go to a judicial commissioner, which is at variance with the point that the Solicitor General just made.

[The Solicitor General]

The hon. and learned Gentleman anticipates the point that I was about to make. I am happy to consider whether subsections (9) and (10) need to be strengthened to put it beyond doubt that the double lock will apply in those contexts. I hope that that helps him. I have already made similar points on the thrust of these amendments and there is nothing more that I need to add at this stage other than to respectfully invite him to withdraw his amendment.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 104 ordered to stand part of the Bill.

Clauses 105 to 108 ordered to stand part of the Bill.

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

Investigatory Powers Bill (Tenth sitting)

Keir Starmer Excerpts

Committee Debate: 10th sitting: House of Commons
Thursday 21st April 2016 Public Bill Committees

[Gavin Newlands]

It is a pleasure to serve under your chairmanship, Mr Owen. May I add to your comments that I will miss the exchanges with the hon. Member for North Dorset? I wish his replacement well.

Clauses 109 and 110 deal with issues about compelling a third party to provide assistance in the execution of a warrant and extraterritoriality, which is the subject of amendment 293. In speaking to the amendment, and to the clause more generally, I will unavoidably stray into matters relating to clause 110, as the two are inextricably linked.

Clause 109 provides the UK Government with the power to issue warrants that in turn force third-party organisations or individuals outside the UK to assist in acquiring information for the means of equipment interference. The clause states that

“any person whom the implementing authority considers may be able to provide such assistance”

can be served with a warrant to assist in carrying out a targeted hacking warrant. Under clause 110(2), this warrant may be served at a person’s principal office or specified address in the UK, or by making it available for inspection in the UK after appropriate steps have been taken to bring the contents of the warrant, and its very existence, to the attention of the person.

First, the problem here is the lack of judicial authorisation in this part of the process. Privacy International rightly points out that this compelled assistance will not be subject to judicial authorisation. Although law enforcement and security and intelligence agencies will have to seek a warrant to gain access to people’s devices and computers, it is correct that those authorities are not required to seek judicial approval to compel technology companies to assist in their investigations.

Secondly, we should be mindful of the difficulty that this places on any individuals or organisations who are forced to comply with the Government’s demands. These issues were heard by the Science and Technology Committee, where serious concerns were raised about the security implications of forcing companies to, for example, upload and install malware, as well as the fear that equipment interference could jeopardise their business model. The Science and Technology Committee took note of these issues and concluded that

“the industry case regarding public fear about ‘equipment interference’ is well founded.”

Amnesty International UK is deeply concerned about the dangerous precedent that this broad, aggressive power will set in forcing third-party companies to engage in hacking without any independent provision or scrutiny, and to do so in secret.

Thirdly, the extraterritorial measures in clauses 109 and 110 may cause more problems than they solve. That is why amendment 293, which stands in my name and that of my hon. and learned Friend the Member for Edinburgh South West, seeks to delete subsection (3) entirely, thereby removing the extraterritorial aspect. If we serve hacking warrants on those outside the UK, what sort of message does that send to other countries? We need to be mindful that introducing this type of clause could open the floodgates for other countries to follow suit, which will ultimately have an impact on companies based in the UK. That point was articulated by Yahoo!, which said:

“Extraterritoriality encroaches on the sovereign rights of other governments and risks retaliatory action, including against UK CSPs operating overseas.”

On that point, the Government’s independent reviewer’s report suggests that, when countries seek to extend their legislation extraterritorially, those powers may come into conflict with legal requirements in the country in which companies being asked to comply with a legal request are based. Companies explained to the reviewer that they did not consider it was their role to arbitrate between conflicting legal systems. The protection of vital human rights should not be left to the goodwill and judgment of a company. The concerns of the industry were articulated in this perfect quote. The industry

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

I shall finish with this comment from Yahoo! It states:

“The current legal framework comprises the law in the requesting country, law in the receiving country and the international agreements that connect the two.”

It is additionally possible that the requesting and receiving countries’ laws may be in conflict. For example, the receiving country’s law may outlaw the provision of content data outside their own legal process. It continues:

“Taken as a whole, this framework is fragmented, with gaps and conflicts which have gone unaddressed for many years. In this more global communications environment, this fragmentation has become more and more obvious and creates a patchwork of overlapping and conflicting laws which overseas and domestic UK CSPs must navigate in order to discharge their legal obligations to safeguard users’ privacy and to respond appropriately to valid requests for access to data… It also creates a complex environment for users to navigate and establish their privacy rights.”

This issue is global, and national laws cannot resolve global issues.

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

I will be brief. Members will have observed that the amendments in my name are in keeping with my previous amendments about implementation, service and extraterritoriality in relation to other warrants. I will not repeat the points I made then. The only one that is different is amendment 646, a simple proposed change to clause 109 that would add the provision:

“A warrant may be implemented only to the extent required for the purpose for which the warrant was issued.”

I think that may be implicit. If the Minister could indicate that that is his understanding, that might allay concerns and the amendment would not need to be pressed.

[The Minister for Security (Mr John Hayes)]

As the hon. and learned Gentleman says, we have been down this road before. I well recall discussing similar amendments to the targeted interception provisions in part 2. The Bill maintains the existing position in relation to extraterritorial jurisdiction and those obligations that apply to overseas companies. I am unhesitating in my view that overseas companies, because of their important role in communications, must do their bit to do the right thing, as I said previously and memorably. As a result, I will not tire the Committee by going into that argument in great detail.

Amendment 293 to clause 109 seeks to remove the ability to serve a warrant on an overseas provider and amendment 645 seeks to remove the ability to serve a warrant on an overseas provider when a mutual legal assistance agreement is in place. I draw the Committee’s attention once again to David Anderson’s comments in his report, in paragraph 11.26:

“There is little dispute that the MLAT route is currently ineffective.”

I will not quote it at length but he goes on to say that it is because it is too slow and so on. I do not think that those amendments are in line with either his view or mine.

The effect of accepting the first amendment is evident. It would mean we could serve an equipment interference warrant only on a provider based in the UK. The second amendment seeks to assert mutual legal assistance arrangements as the only route. For the reasons I have already given, that is not appropriate.

The hon. and learned Gentleman asked, in the context of his amendment, whether that matter was implicit. Yes, it is implicit and I can confirm what he thought might be the case.

The arguments have already been made and, on careful reconsideration, the hon. Member for Paisley and Renfrewshire North will realise that his amendment and argument are pseudodox and will withdraw on that basis.

[The Chair]

We now come to amendment 646 to clause 109. I call Keir Starmer.

[Keir Starmer]

I do apologise, Mr Owen; I strayed on to amendment 646 thinking it was part of the last batch, so I have dealt with it and intend to withdraw it. My apologies.

--- Later in debate ---

[Gavin Newlands]

I shall do my best impression of her, Mr Owen, but I fear it will be inadequate.

I beg to move amendment 296, in clause 113, page 91, line 22, at end insert—

“(A1) Material obtained via a warrant under this Part may only be shared with overseas authorities in accordance with the terms of an international information sharing treaty.”

This amendment would require that information obtained via an equipment interference warrant is only shared with overseas authorities where a mutual legal assistance treaty has been put in place for the purpose of doing so.

Clause 113 deals in part with the overriding issue of information obtained through equipment interference being shared with overseas authorities. We should take note of the oral and written evidence submitted by Amnesty International on this point about the lack of any proper controls over intelligence sharing with foreign authorities. The human rights implications may be very serious indeed. For example, there is nothing in the Bill to prevent data being shared with an overseas authority when that might lead to the abuse, or possibly torture, of an individual or group. Surely we should set an example by ensuring that data gathering does not lead to torture; that should be the minimum standard expected of a civilised country such as ours.

However, if the SNP and Amnesty International are a little left-wing for hon. Members’ tastes, I give them the Intelligence and Security Committee, which also criticised the lack of clarity on this point when it noted that the Bill

“does not…meet the recommendations made in the Committee’s Privacy and Security Report that future legislation must set out these arrangements more explicitly, defining the powers and constraints governing such exchanges.”

The written evidence submitted by Yahoo! and others expressed concern that the Government’s apparently unilateral assertions of extraterritorial jurisdiction

“will create conflicting legal obligations for overseas providers who are subject to legal obligations elsewhere.”

David Anderson has also noted the lack of detail in this section of the Bill. He called for information sharing with foreign countries to be subject to strict, clearly defined and published safeguards. His report states:

“The new law should make it clear that neither receipt nor transfer as referred to in Recommendations 76-77…should ever be permitted or practised for the purpose of circumventing safeguards on the use of such material in the UK.”

However, such safeguards and guarantees are notably absent from the Bill. Furthermore, the independent reviewer’s report described the international trade in intelligence between the “Five Eyes” partners—the UK, the USA, Canada, Australia and New Zealand. In so far as material gathered by the British services is shared with other countries, the report explained that the security services take the view that, under their founding statutes, information should be shared only if it

“is necessary for the purpose of the proper discharge of the security and intelligence agencies’ functions.”

When it is considered that the test is met, certain safeguards apply under the Regulation of Investigatory Powers Act 2000. However, the report concluded that

“in practical terms, the safeguards applying to the use of such data are entirely subject to the discretion of the Secretary of State.”

The 2000 Act and the codes of practice are silent on British services receiving or accessing information from foreign services, with security services limited only by the general constraints placed on their actions by various statutes. It was only during Liberty’s legal action against the security services in the Investigatory Powers Tribunal that limited information was revealed about the way in which the security services approach such situations. In its first finding against the agencies, the IPT held that, prior to these disclosures, the framework for information sharing was not sufficiently foreseeable and was not therefore in accordance with law. The tribunal held that, because the litigation had resulted in disclosures of information, the security services were no longer acting unlawfully when accessing information from the US. Based on the concerns that Amnesty International, Liberty and others have raised, the SNP has tabled amendment 296, which would insert a new subsection into clause 113. The language of the amendment is plain.

[Keir Starmer]

I have listened carefully to the hon. Gentleman’s comments. On the sharing of information with authorities that may engage in torture or other serious ill-treatment, can the Minister confirm the long-standing practice that our security and intelligence services do not share information where there is a risk of torture, because of their obligations under other international treaties, and that this provision sits within that framework of assurances?

[Mr Hayes]

I can confirm that, and I can say a little more. My residual generosity is such that I take the view that these amendments are well intentioned, but they are unnecessary. Let me say why.

Clause 113 already provides that the Secretary of State must ensure that satisfactory and equivalent handling arrangements are in place before sharing UK equipment interference material with an overseas authority. The Secretary of State must determine that they provide corresponding satisfactory protections. Furthermore, those obligations sit alongside those in, for example, the consolidated guidance to intelligence officers and service personnel on the detention and interviewing of detainees overseas, and on the passing and receipt of intelligence relating to detainees, as well as the gateway provisions that allow for intelligence sharing in the Intelligence Services Act 1994 and the Security Service Act 1989.

In addition, the overseas security and justice assistance guidance provides an overarching mechanism that sets out which human rights and international humanitarian law risks should be considered prior to providing justice or security sector assistance. This is supplemented by the draft code of practice on equipment interference, which is clear about the safeguards on the handling of information. It seems to me that the protections, absolutely necessary though they are, are comprehensively dealt with by that variety of means, rendering the amendment unnecessary. I invite the hon. Gentleman to withdraw it.

[Gavin Newlands]

I thank the Minister for his comments, and I am somewhat reassured, but I still do not understand the Government’s reticence about putting this in the Bill; it is only a sentence that is required. Nevertheless, we are minded to withdraw the amendment at this time. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 113 ordered to stand part of the Bill.

Clause 114

Duty not to make unauthorised disclosures

[Keir Starmer]

I beg to move amendment 649, in clause 114, page 91, line 42, after “not”, insert “without reasonable excuse”.

[The Chair]

With this it will be convenient to discuss amendment 650, in clause 114, page 91, line 42, at end insert—

‘(1A) For the purposes of subsection (1), it is in particular a reasonable excuse if the disclosure is made with the permission of the person issuing the warrant or the person to whom it is issued.”.

This amendment adds a “reasonable excuse” defence to the unauthorised disclosure offence in relation to equipment interference warrants.

[Keir Starmer]

I will deal with these amendments swiftly. They deal with the reasonable excuse defence and are similar to previous amendments. I foreshadow the amendments to clause 116, which essentially relates to the same issue as clause 114. Those amendments are about a public interest defence, which we have also debated already.

My two points remain. The first is the consistency of the reasonable excuse defence. In some clauses it is there and in others it is not, and I cannot see the logic of when it is in and when it is out. Secondly, the Minister has already agreed that there must be a route for those who want to expose wrongdoing, so that disclosures can be made in the public interest where necessary. I have been pursuing those two points, and they are the same for this provision. I do not need to elaborate further.

[The Solicitor General (Robert Buckland)]

The hon. and learned Gentleman is absolutely right to refer to arguments previously made. For the record, this morning I omitted to pay my own tribute to our sovereign lady on her 90th birthday, and I wish to add it here. I am sure that colleagues will indulge that observation, and hopefully this next observation too. My right hon. Friend the Minister for Security and I agree that the world is divided between cavaliers and roundheads. We know what side we are on: our hearts lie broken on the battlefield of Naseby—but that is perhaps for another day.

We contend that amendment 650 is unnecessary. Clause 115(2)(b) provides that a disclosure is permitted if it is

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

Disclosure can also be authorised by virtue of this clause within the terms of the warrant, which will have been agreed by the person issuing the warrant and by a judicial commissioner. It is much better for an impartial senior judge to take a view on what is reasonable than it is for, say, a junior official or an employee of a telecommunications operator, no matter how diligent they might be; none the less, it is important that such people can raise concerns without fear of prosecution. That is why clause 203, in part 8, provides for an information gateway so that whistleblowers can take their concerns directly to the commissioner without fear of sanction under the Bill.

It is right that the Bill’s provisions reflect the sensitive techniques of the equipment interference agencies and maintain that it will be an offence to disclose the existence of a warrant. It is a well known and well rehearsed argument that the techniques and details of EI capabilities must be protected. The amendments in the round seek to achieve something that I submit is already well catered for in the Bill, and on that basis I ask the hon. and learned Gentleman to withdraw the amendment.

--- Later in debate ---

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 114 ordered to stand part of the Bill.

Clause 115 ordered to stand part of the Bill.

Clause 116

Offence of making unauthorised disclosure

[Keir Starmer]

I beg to move amendment 496, in clause 116, page 93, line 39, leave out subsection (3) and insert—

“(3) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”

[The Chair]

With this it will be convenient to discuss amendment 297, in clause 116, page 93, line 42, at end insert—

“(3A) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”

This amendment would provide a defence to the criminal offence of unauthorised disclosure in relation to a warrant issued under this Part. The offence includes disclosure of the existence and content of a warrant and disclosure of the steps taken to implement a warrant.

[Keir Starmer]

I have said all that I need to say on the amendment. Members of the Committee will appreciate that the amendment has been tabled for each of the offence provisions for the reasons I set out the first time we encountered it. That was dealt with by the Solicitor General, so I shall say no more about it at this stage.

[Gavin Newlands]

I will not detain the Committee long. I hear what the hon. and learned Gentleman says and broadly agree with it. I rise merely to point out the differences between the two amendments before us. The SNP’s amendment would insert an additional subsection that adds the additional defence and leaves subsection (3) in, whereas the Labour amendment removes that.

[The Solicitor General]

I am grateful to the hon. and learned Member for Holborn and St Pancras. We are familiar with the arguments and our response is that the information gateway, which allows people to take concerns directly to the Investigatory Powers Commissioner, caters for the public interest. For that reason I urge him to withdraw the amendment.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 116 ordered to stand part of the Bill.

Clauses 117 and 118 ordered to stand part of the Bill.

Clause 119

Bulk interception warrants

--- Later in debate ---

[The Chair]

With this, it will be convenient to consider new clause 16—Review of Bulk Powers—

“Saving this section, Part 6 shall not come into force until—

(a) the Secretary of State has established an independent review of the operational case for bulk powers contained in sections 119 to 173; and

(b) the review has been published and a copy laid before each House of Parliament.”

[Keir Starmer]

New clause 16 is in my name and those of my colleagues. We come now to part 6 of the Bill; we are examining bulk warrants for the first time, and it is important that we take some time. Different types of bulk warrant are provided for in the Bill, and chapter 1 of part 6 deals with bulk interception warrants. We need to take time with these, because they are intentionally breathtakingly wide.

I remind members of the Committee that, as is set out in the code of practice, in contrast to targeted interception warrants issued under part 2, a bulk interception warrant instrument

“need not name or describe the interception subject or a set of premises in relation to which the interception is to take place”.

Chapter 1 also does not impose a limit on the number of communications that may be intercepted. For example, if the requirements of the chapter are met

“then the interception of all communications transmitted on a particular route or cable, or carried by a particular CSP, could, in principle, be lawfully authorised.”

That is directly from paragraph 6.2 of the code of practice. It gives a sense of how wide these bulk powers in the Bill are. When one has powers of such breathtaking width, there is a requirement for a high level of justification for their use, and I will come back after making some further preliminary points.

First, despite suggestions over the years that no enormous database would come into existence through the use of what, in truth, were bulk intercept warrants, it is now pretty clear that there is an enormous database, which is growing daily. Secondly, although it is right to say that bulk interception warrants are only authorised for overseas-related communications, the comfort we get from that is much more limited than might first appear. That is because, as the Joint Committee observed,

“given the global nature of the internet, the limitation of the bulk powers to “overseas-related” communications may make little difference in practice to the data that could be gathered under these powers.”

The ISC has confirmed that the Government considers that an “external communication” occurs

“every time a UK based person accesses a website located overseas, posts on a social media site overseas such as Facebook, uses overseas cloud storage or uses an overseas email provider such as Hotmail or Gmail—”

or searches on Google. Any communication that involves those external communications comes within the provisions of a bulk interception warrant. I accept that it cannot be targeted at somebody in this jurisdiction, but as I have said, the comfort that that gives is much more limited than might at first appear when one reads the legislation.

Thirdly, the sheer breadth of these warrants, if they are not carefully constrained, is capable of frustrating any meaningful review of necessity and proportionality. Those tests need to bite on something meaningful when one has a warrant as wide as these bulk warrants are potentially and in practice.

It is right to acknowledge that David Anderson, the ISC and the Royal United Services Institute panel all recommended that bulk powers should be set out in legislation, and they now are. They are avowed. The Bill sets them out and puts a framework of safeguards around them. That is welcome; it is as it should be and in accordance with those recommendations. If the Bill passes, it will increase accountability in relation to the exercise of these warrants, which until now have been exercised under implied powers without the safeguards in the Bill. But—and it is a big “but”—this is the first time that Parliament has had the chance to scrutinise those bulk powers. The argument that they already exist and are already in use is no answer to the need for close scrutiny, because until now the House has not had the chance to scrutinise them.

The first step in scrutiny is to consider the operational case, which sets out the overall need for bulk powers. An operational case was published by the Government alongside the Bill, which is welcome, but it is inadequate. It is a 47-page document and much of it is purely introductory. On average, only five pages are allocated to addressing the capabilities for each bulk power. There are four pages for bulk interception, seven pages for bulk equipment interference, six pages for bulk communications data acquisition, and five pages for bulk personal datasets. Each power is supported by a handful of one-paragraph case studies. We understand that further material has been provided to the ISC, but no formal assessment of that material and no report of the ISC has been made available to the Committee, although of course we heard the comments of the Chair of the ISC on Second Reading. Incidentally, we will be writing to him to ask him to outline the general nature of that material and what formal assessment the ISC made.

The operational case that has been published is inadequate, for the reasons that I have set out, and lacking any independent evaluation, which was a recommendation of the Joint Committee. The Labour party has been pushing for that evaluation from the start of the scrutiny of the Bill; it is why we tabled new clause 16. We say to the Government that it is not too late to carry out the evaluation that has been called for for some time. New clause 16 is not intended to delete clause 119 or to suggest that there could be no justification for bulk intercept warrants, particularly since they have been used. The intention is to put down a marker in saying that part 6 will not come into force until the Secretary of State has established an independent review of the operational case for the powers in clauses119 to 173—that is all the bulk powers, which is why it is a new clause rather than an amendment to clause 119—and the review has been published and before each House.

I want to pick up on some of the specifics of the clause. In clause 119(4)(c) and (d) it is clear that a bulk intercept warrant authorises not just interception but examination within the interception. That is extremely important, because one of the arguments that I have sought to make consistently is that the wider the power to gather, harvest or hoover up communications or data, the greater the need for thresholds and careful safeguards when that material is accessed. Under subsection (4)(c) and (d) the bulk intercept warrant provides not only for the interception of communications but for selection for examination—in other words, it deals with part 2 at the same stage as part 1, so it is important to pay careful regard to the safeguards in place. I will make the argument about safeguards when I get to clause 121, which sets out the necessity of the proportionality test; at this stage I am merely flagging up that we are talking about both the wider power and the access power and reminding the Committee that although there are some protections for the communications of those in the British islands, the protection does not extend to secondary data.

The only other point that I wanted to make at this stage relates to the code of practice, paragraph 6.12:

“Where a bulk interception warrant results in the acquisition of large volumes of communications, the intercepting agency will usually apply a filtering process to discard automatically communications that are unlikely to be of intelligence value.”

We saw last week express provisions for filtering arrangements in other parts of the Bill. As far as I can ascertain, there are no express filtering provisions in relation to bulk intercept warrants. For the record, what does the Minister say the power is for that middle exercise of filtering between the acquisition of the information and accessing it?

To be clear about how I think it is intended that that should work, the code of practice suggests later that what will happen in general, accepting that a huge volume of communications is likely to be affected by a bulk warrant, is that automated systems will be in place. On the scope of what we are talking about, paragraph 6.57 of the code of practice makes it clear:

“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 interception, overseas-related communications relevant to multiple operational purposes will necessarily be transmitted and intercepted together under the authority of a bulk interception warrant. In the majority of cases, it will therefore be necessary for bulk interception warrants to specify the full range of operational purposes.”

That makes it clear that under one warrant, there are likely to be numerous operational purposes and a huge amount of data gathered. The idea that there will be one warrant for each operational purpose would be a misunderstanding of how the powers have been and undoubtedly will be used if the Bill is passed. It appears, from paragraph 6.59, that what will then happen is that

“automated systems must, where technically possible, be used to effect the selection in accordance with section 134 of the Act.”

There will be an automated filtering process.

These are very wide powers requiring close scrutiny and high levels of justification. Until there is independent evaluation of an operational case, the clauses should not come into force.

--- Later in debate ---

[Keir Starmer]

I beg to move amendment 651, in clause 121, page 98, line 9, leave out subsection (2)(b).

[The Chair]

With this it will be convenient to discuss the following:

Amendment 652, in clause 121, page 98, line 12, leave out subsection (3).

Amendment 653, in clause 121, page 98, line 26, at end insert—

‘(7) Where an application made by, or on behalf of, the Secretary of State includes the activities set out in section 119(4)(c) or (d), a bulk interception warrant can only be issued if the Secretary of State considers that selection for examination or disclosure is necessary—

(a) for a purpose under subsection (8), and

(b) it is necessary to obtain the data—

(i) for a specific investigation or a specific operation, or

(ii) for the purposes of testing, maintaining or developing equipment, systems or other capabilities relating to the availability or obtaining of data.

(8) The paragraph 7(a) purposes are—

(a) the interests of national security,

(b) preventing or detecting serious crime or preventing serious disorder,

(c) the interests of public safety,

(d) protecting public health,

(e) preventing death or serious injury or any serious damage to one or more person’s physical or mental health,

(f) assisting investigations into alleged miscarriages of justice,

(g) where a person (“P”) has died or is unable to identify themselves because of a physical or mental condition—

(i) to assist in identifying P, or

(ii) to obtain information about P’s next of kin or other persons connected with P or about the reason for P’s death or condition, or

(h) exercising functions relating to—

(i) the regulation of financial services and markets, or

(ii) financial stability.’.

Amendment 674, in clause 138, page 110, line 1, leave out subsection (b).

Amendment 675, in clause 138, page 110, line 4, leave out subsection (3).

Amendment 676, in clause 138, page 110, line 46, at end insert—

‘(11) Where an application made by, or on behalf of, the Secretary of State includes the activities set out in section 138(7)(b) or (c), a bulk acquisition warrant can only be issued if the Secretary of State considers that selection for examination or disclosure is—

(a) necessary for a purpose within subsection (12), or

(b) that it is necessary to obtain the data—

(i) for the purposes of a specific investigation or a specific operation, or

(ii) for the purposes of testing, maintaining or developing equipment, systems or other capabilities relating to the availability or obtaining of data.

(12) A paragraph 11(a) purpose is—

(a) the interests of national security,

(b) preventing or detecting serious crime or of preventing serious disorder,

(c) the interests of public safety,

(d) protecting public health,

(e) preventing death or serious injury or any serious damage to one or more person’s physical or mental health,

(f) assisting investigations into alleged miscarriages of justice,

(g) where a person (“P”) has died or is unable to identify themselves because of a physical or mental condition—

(i) to assist in identifying P, or

(ii) to obtain information about P’s next of kin or other persons connected with P or about the reason for P’s death or condition, or

(h) exercising functions relating to—

(i) the regulation of financial services and markets, or

(ii) financial stability.’.

[Keir Starmer]

We spent some time on clause 119, but it was right to take time on that important provision. We now move to the safeguards. I listened very carefully to what the Minister said a moment ago and to the observations of the hon. and learned Member for Edinburgh South West. As we move forward, there needs to be some clarity on the basis.

In essence, our position is not to seek to reduce the capabilities of the security and intelligence services, which of course currently operate the powers in question under other authorisations. We seek to ensure that there is proper justification for bulk powers—hence new clause 16, which we will vote on at the end, which would delay the provisions from coming into force until an independent evaluation has taken place. I speak only for my party in saying that there is no intention to reduce the capabilities of the security and intelligence services. I am not suggesting for a moment that there is any intention to do that on anybody else’s behalf, but I am simply making my position clear. I am not speaking for anybody else, because I should not.

[Joanna Cherry]

Does the hon. and learned Gentleman agree that the SNP proposal to put the powers to one side while an operational case is produced would not reduce the security services’ powers for the time being, pending the outcome of the court cases? They are already operating them, as we have heard, under section 8(4) of RIPA.

[Keir Starmer]

The hon. and learned Lady should not read into my observations any criticism of the approach that she has taken, or any suggestion that she or her party are seeking to reduce the capabilities of the security and intelligence services. I know her background and the work that she has done, and I know that would not be her position. I do not intend to impute that it is. I am keen to speak only for myself and my party.

The Bill brings a legal framework and definition to the powers, and a set of safeguards to go with the exercise of those powers. I think that is important. If the powers are to be exercised, I would rather they were exercised within a proper legal framework, with more effective safeguards than under the current framework. I think that is the only real difference of approach between us.

What we all have to bear in mind is not whether we personally have been persuaded by the case that the powers are justified, because we all have different experiences and backgrounds—I worked with the security and intelligence services for five years on very serious terrorist cases—but whether members of the public can have confidence that they are. That is why we have been pressing for further consideration and independent assessment of the operational case.

Clause 121 deals with the first part of the safeguards on the exercise of the bulk powers—the test of necessity and proportionality. The clause is in familiar form. Subsection (1) states that the Secretary of State has to consider

“that the main purpose of the warrant is one or more of the following…the interception of overseas-related communications, and…the obtaining of secondary data”

and then that

“the warrant is necessary…in the interests of national security,”

or on

“grounds falling within subsection (2)”

Subsection (2) adds that the warrant can be

“for the purpose of preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom”.

I will not test the Committee’s patience by going over the same ground about the economic wellbeing of the United Kingdom being relevant to the interests of national security. The point that I have made consistently on that applies just as much to clause 121, but I will not repeat it.

It is important to appreciate that the necessity of proportionality test set out in subsections (1)(b) and (2) has very broad criteria. When the Secretary of State is considering a warrant, clause 121(1)(d) requires him or her to consider that

“each of the specified operational purposes…is a purpose for which the examination of intercepted content or secondary data obtained under the warrant is or may be necessary”.

On the face of it, that provides some comfort. That is the examination part of the exercise, and it is important because it recognises the distinction that I have made between collating or bringing together data and accessing it. It relates to accessing, because it involves

“a purpose for which…examination…under the warrant is or may be necessary”,

which brings us into the territory of what the test is for examining the data that has been collected. As I said, the Bill states that the Secretary of State will consider

“each of the specified operational purposes”.

However, in clause 125(4), we get into a circular argument. It states:

“In specifying any operational purposes, it is not sufficient simply to use the descriptions contained in section 121(1)(b) or (2)”,

the two provisions to which I have just referred. It is not enough to say, “It is necessary for the operational purposes of national security or preventing serious crime,” or, “It is in our economic interests.” That is not enough,

“but the purposes may still be general purposes.”

That is all there is on the subject in the Bill. At the vital stage when we move from hoovering up or collecting communications to accessing them, the test of necessity and proportionality bites on something that is not quite as general as national security, which would not be much of a test at all, but could be not much more than that—“general purposes”. That is a cause for concern, which has prompted our amendments to tighten it up.

In crafting the amendments, we have had one eye on the code. I refer to paragraph 6.19, which suggests that some detail should be put in the application, stating:

“Each application, a copy of which must be retained by the applicant, should contain the following information:

Background to the operation in question:

Description of the communications to be intercepted and/or from which secondary data will be obtained, details of any CSP(s) and an assessment of the feasibility of the operation…

Description of the conduct to be authorised, which must be restricted to the interception of overseas-related communications…

The operational purposes for which the content and secondary data may be selected”.

What is envisaged in the code includes:

“An explanation of why the interception is considered to be necessary…A consideration of why the conduct to be authorised by the warrant is proportionate…An assurance that intercepted content and secondary data will be selected for examination only so far as it is necessary”

under section 134. Paragraph 6.26 of the code adds further guidance on necessity and suggests, at the bottom of page 43:

“For example, if a bulk interception warrant is issued in the interests of national security and for the purpose of preventing or detecting serious crime, every specified operational purpose on that warrant must be necessary for one…of these two broader purposes.”

So the code operates on the basis that the detail will be provided in the application, even though it is not necessary under the Bill. I would therefore have thought it would be hard for the Minister and the Government to resist the amendments, which would simply lift the requirement to include the detail in the application from the code and put it into the Bill, so that we and the public could be assured that the test would be stricter than the combined effect of clauses 121 and 125(4).

[The Solicitor General]

I have been considering the hon. and learned Gentleman’s point about clause 125. Let me reassure him that the purpose of subsection (4) is to create, in the modern phrase, a greater granularity of approach when it comes to the basis of the application. That provision is in the Bill to prevent the authorities from just relying on generalities; the point is for them to go into greater specificity. I hope that gives the hon. and learned Gentleman some reassurance.

[Keir Starmer]

I am grateful for that indication, but I suppose it invites the comment that if that is the intention, it would surely be better to amend clause 125(4) to make it clear that the application must be specific, as set out in amendment 653, which would require the specific operation to be referred to. The amendment would take the spirit of the requirement in the code to set out the specific operational purposes and put it into the Bill so that everyone can see it.

Perhaps I am not making my point clearly enough. If in the end the necessity and proportionality requirements in the Bill for the bulk power and for access are no different, then no real distinction is being made between the two. I think a real distinction should be made in the Bill, to make it clear to everyone that at the point when material is to be accessed or examined, there is a higher threshold and a higher requirement to be specific. That would reflect what is in the code, and that is the spirit in which we tabled the amendments.

[Mr Hayes]

The spirit that the hon. and learned Gentleman describes is right. It is important that we specify the reasons for the use of these powers, as well as looking at specific operational cases in the way he set out in an earlier debate. The difference between us boils down to this: should that requirement be in the Bill or in the codes of practice? He has drawn attention to codes of practice, which are clear. He might also want to take a look at the operational case for bulk powers, paragraph 6.13 of which gives examples of operational purposes. They might include counter-terrorism operations to detect and disrupt threats to the UK, counter-terrorism operations to detect and disrupt threats overseas, cyber-defence operations, serious crime, security of agencies’ and allies’ operational capability, or security assurance to provide security awareness to the Government, members of the armed forces, Departments and so on. Therefore, there is more detail about what the purposes might be and why these powers are necessary. The hon. and learned Gentleman is right to say that there is more coverage of that in the draft codes of practice, so the discussion we are having is not about the spirit—I think he is right about that, as I said—but about where the details should be specified.

--- Later in debate ---

However, as I have said repeatedly—I make no apology for amplifying this—the codes are, at this juncture at least, a moveable feast. We have published draft codes with the intention that they should be refined over time on the basis of the arguments we hear here and elsewhere. It may be that we can strengthen the wording in the codes if the hon. and learned Gentleman feels that is the right thing to do. I would have no objection to doing that, but on the basis I have outlined, I will resist his amendment.

[Keir Starmer]

I listened carefully to what the Minister said. In the end, this comes back to a debate we have touched on a number of times in this Committee. I hope we have been clear and consistent in the view that safeguards should be set out in the Bill. The code of practice is the proper place for the detailed implementation and guidance on those safeguards. Therefore, for the same reason as in our previous debate, I wish to press the amendment to a vote.

[Mr Hayes]

Before the hon. and learned Gentleman does so, I might be able to dissuade him. I am not against what he said as a principle. Of course, it has to be gauged on a part-by-part basis, but the principle he has just outlined seems pretty persuasive to me. I will talk about it with my colleagues and my officials. He makes an interesting distinction between safeguards and other technical matters of the kind Anderson describes, and I am not unpersuaded by that.

[Keir Starmer]

I am grateful for that intervention, which was persuasive. Rather than pressing the amendment to a vote that I am not confident we would carry, I would rather continue dialogue that may lead to a changed approach, in whatever form, to how safeguards are dealt with in the Bill and the codes. I will say no more than that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

--- Later in debate ---

Additional requirements in respect of warrants affecting overseas operators

[Keir Starmer]

I beg to move amendment 661, in clause 122, page 98, line 44, at end insert—

‘(4) Material obtained via a warrant under this Part may only be shared with overseas authorities in accordance with the terms of an information sharing treaty”.

I am sure it will be to the relief of many Committee members if I indicate that I anticipate that we will now move at greater speed, because each of the bulk powers sits within a framework of safeguards that is similar throughout the Bill. The amendment deals with warrants affecting overseas operators. We have rehearsed the arguments either way on more than one occasion, so I do not intend to repeat them.

[Mr Hayes]

The hon. and learned Gentleman’s brevity is matched by the Minister’s determination to move with alacrity. I, too, have made my arguments known so, like him, I have no wish to repeat them.

--- Later in debate ---

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

--- Later in debate ---

Approval of warrants by Judicial Commissioners

[Keir Starmer]

I beg to move amendment 662, in clause 123, page 99, line 3, leave out

“review the Secretary of State’s conclusions as to the following matters”

and insert “determine”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 663, in clause 123, page 99, line 18, leave out subsection (2).

Amendment 531, in clause 123, page 99, line 19, at end insert

“but a Judicial Commissioner may not approve a warrant unless he is satisfied that there are reasonable grounds for believing that it is both necessary and proportionate to do so”.

This amendment would clarify the judicial review process by ensuring that both the process and underlying facts of an interception of communications warrant are considered by a Judicial Commissioner.

Amendment 677, in clause 139, page 111, line 3, leave out

“review the Secretary of State’s conclusions as to the following matters”

and insert “determine”.

Amendment 678, in clause 139, page 111, line 15, leave out subsection (2).

Amendment 532, in clause 139, page 111, line 16, at end insert

“but a Judicial Commissioner may not approve a warrant unless he is satisfied that there are reasonable grounds for believing that it is both necessary and proportionate to do so”.

This amendment would clarify the judicial review process by ensuring that both the process and underlying facts of an interception of communications warrant are considered by a Judicial Commissioner.

Amendment 533, in clause 157, page 123, line 16, at end insert

“but a Judicial Commissioner may not approve a warrant unless he is satisfied that there are reasonable grounds for believing that it is both necessary and proportionate to do so”.

This amendment would clarify the judicial review process by ensuring that both the process and underlying facts of an interception of communications warrant are considered by a Judicial Commissioner.

[Keir Starmer]

The amendments are in a familiar form as they are the same as the amendments I have tabled for all the clauses that deal with the approval of warrants by judicial commissioners. The arguments are the same so I shall not rehearse them, save to say that we are moving to a different kind of warrant—a bulk warrant—and where the power is now avowed and the safeguards are being put in place, it is particularly important that the judicial commissioners’ scrutiny is tight. The amendments would provide that tight scrutiny.

Nevertheless, I am not going to persuade anybody who is yet unpersuaded by repeating the arguments. They are essentially the same and they have been consistent throughout the Bill. If there is to be any change on the judicial test, it needs to be consistent throughout the Bill, one way or another.

[Mr Hayes]

We have had this debate before. It is essentially about the authorisation process, the role of the judicial commissioner and the basis on which the judicial commissioner exercises judgment. Should we make further progress on reaching a synthesis on that matter, it will apply across the Bill, as the hon. and learned Gentleman has said. On that basis, I have nothing more to add.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

--- Later in debate ---

Requirements that must be met by warrants

[Keir Starmer]

I beg to move amendment 664, in clause 125, page 99, line 42, leave out

“but the purposes may still be general purposes”

and insert

“and any specification must be described in as much detail as is reasonably practicable”.

[The Chair]

With this it will be convenient to discuss amendment 665, in clause 125, page 100, line 1, leave out “may” and insert “must”.

[Keir Starmer]

Amendment 664 is very simple and straightforward. In the light of our exchange, I would simply like to put it on the table, as it were, to show the spirit in which it has been introduced. I will not press it to a vote, because this is a matter that we may be able to discuss further.

[The Solicitor General]

The hon. and learned Gentleman remembers the intervention I made earlier to help short-circuit it. We think it conveys that granularity, but we are prepared to engage in ongoing dialogue on that issue. I am grateful to him.

Amendment 665 would require that bulk interception warrants “must” specify all operational purposes. In the Government’s drafting, the word is “may”. I am sympathetic to the amendment, but I do not think it is necessary. The purpose of the clause is simply to clarify that a bulk interception warrant may include multiple operational purposes. That is necessary because overseas-related communications, which are relevant to multiple operational purposes, will necessarily be transmitted and intercepted together under the authority of a bulk interception warrant. In the majority of cases, it will therefore be necessary for bulk interception warrants to specify the full range of operational purposes in use at a particular time. I submit that the Bill is sufficiently clear on that point without the amendment. On that basis, I invite the hon. and leaned Gentleman to withdraw it.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

--- Later in debate ---

Duration of warrants

[Keir Starmer]

I beg to move amendment 666, in clause 126, page 100, line 11, leave out “6” and insert “1”.

[The Chair]

With this it will be convenient to discuss amendment 684, in clause 142, page 112, line 7, leave out “6” and insert “1”.

[Keir Starmer]

I will not take time with this amendment. We have been round the block with durational warrants on more than one occasion. It is the same issue of whether the warrants should run for six months or a shorter period. I have made my position clear, as, in fairness, have the Government. I do not intend to press the amendment to a vote.

[Mr Hayes]

I have nothing to add to what the hon. and learned Gentleman has said; I think we have been round the block and the arguments are well rehearsed.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Mr Hayes]

I beg to move amendment 610, in clause 128, page 101, line 24, after “requires” insert “(to the extent that it did so previously)”.

This amendment makes a minor drafting clarification (to address the case where, before its modification by virtue of clause 128(2)(b), a bulk interception warrant authorised or required only one of the activities mentioned in that provision).

This is a technical amendment; it is self-explanatory. Obviously, if any colleague wants me to explain it, I will, but I think that for the sake of brevity I will leave it at that.

Amendment 610 agreed to.

[Keir Starmer]

I beg to move amendment 667, in clause 128, page 101, line 39, at end insert—

“(c) may only be made if the Secretary of State considers that it is proportionate to the operational purposes specified in the warrant.”

[The Chair]

With this, it will be convenient to discuss the following: amendment 668, in clause 128, page 102, line 5, at end insert—

‘(7A) A minor modification—

(a) may be made only if the Secretary of State or a senior official acting on behalf of the Secretary of State considers that it is necessary on any of the grounds on which they consider the warrant to be necessary (see section 121(1)(b)).

(b) may only be made if the Secretary of State considers that it is proportionate to the operational purposes specified in the warrant.

(7B) Except where the Secretary of State considers that there is an urgent need to make the modification, a minor modification has effect only if the decision to make the modification is approved by a Judicial Commissioner.”

Amendment 669, in clause 128, page 102, line 5, at end insert—

‘(7C) In a case where any modification is sought under this section to which section [NC2 Items subject to legal privilege] or section [NC11 Confidential and privileged material] applies, section 97 (approval of warrants by Judicial Commissioners) applies to a decision to modify a warrant as it applies in relation to a decision to issue such a warrant (and accordingly any reference in that section to the person who decided to issue the warrant is to be read as a reference to the person who decided to modify it)”.

Amendment 670, in clause 128, page 102, line 29, at end insert—

‘(14) Any modification which constitutes the adding or varying of any matter must be approved by a Judicial Commissioner in accordance with section 123.”

Amendment 685, in clause 144, page 113, line 32, at end insert—

“(c) may only be made if the Secretary of State considers that it is proportionate to the purposes specified in the warrant.”

Amendment 686, in clause 144, page 114, line 1, at beginning insert—

‘(8A) A minor modification may only be made—

(a) if the Secretary of State or a senior official acting on behalf of the Secretary of State considers that it is necessary on any of the grounds on which they consider the warrant to be necessary (see section 121(1)(b)).

(b) if the Secretary of State considers that it is proportionate to the purposes specified in the warrant.

(8B) Except where the Secretary of State considers that there is an urgent need to make the modification, a minor modification has effect only if the decision to make the modification is approved by a Judicial Commissioner.

(8C) In a case where any modification is sought under this section to which section [NC2 Items subject to legal privilege] or section [NC11 Confidential and privileged material] applies, section 97 (approval of warrants by Judicial Commissioners) applies to a decision to modify a warrant as it applies in relation to a decision to issue such a warrant (and accordingly any reference in that section to the person who decided to issue the warrant is to be read as a reference to the person who decided to modify it).”

Amendment 525, in clause 144, page 114, line 19, at end insert—

‘(13) Any modification which constitutes the adding or varying any matter must be approved by a Judicial Commissioner in accordance with section 139.”

This amendment adds the requirement to obtain approval from a Judicial Commissioner for any modification which constitutes the adding or varying (but not removing) any matter for each type of warrant.

Amendment 526, in clause 164, page 128, line 10, at end insert—

‘(14) Any modification which constitutes the adding or varying any matter must be approved by a Judicial Commissioner in accordance with section 157.”

This amendment adds the requirement to obtain approval from a Judicial Commissioner for any modification which constitutes the adding or varying (but not removing) any matter for each type of warrant.

[Keir Starmer]

These are familiar amendments to the familiar modification clause, which is similar to the other modification clauses. They are intended to serve the same purpose, which is to clarify, tighten, better define and regulate the modification process.

In light of the ongoing discussions about modifications in general, I take it that all the modification provisions come within the same further consideration that I know the Government are giving to modifications, and I will not say anything more about it. However, I cannot resist saying that subsection (6) perhaps gives an example of how one could achieve approval by judicial commissioners of all major modifications.

It is interesting that subsection (6) is markedly different to the provision in clause 30. In other words, some thought has been given by whoever drafted clause 128 to how one gets major modifications back through the judicial commissioner, but that was not a technique deployed in clause 30. I simply point that out because it perhaps gives further strength to my argument that that is the correct way of dealing with these modifications, not only in this clause but in all clauses, and to similar effect. However, as I have said, we have rehearsed these discussions and I will not add to them on modification.

[The Solicitor General]

I listened to the hon. and learned Gentleman’s last point with interest. He is right about our general approach to this area. What I would say in response to his proper analysis is that I think there are some technical deficiencies in the wording of amendments 667 and 685. I am just concerned that there is a lack of clarity, but that is part of what is ongoing. On that basis, I hear what he says and I am grateful to him.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Mr Hayes]

I beg to move amendment 611, in clause 128, page 102, line 16, leave out “(urgent cases)”.

This amendment is consequential on amendment 612.

[Mr Hayes]

The amendments relate to major modifications to bulk interception, acquisition and equipment interference warrants, to add or vary operational purposes. In essence, they provide clarity, enabling an instrument making a major modification to a bulk warrant to be signed by a senior official where it is not reasonably practicable for the Secretary of State to sign it. For example, the Secretary of State might be out of the country, working elsewhere or otherwise unavailable. Such a modification, however, must be personally and expressly authorised by the Secretary of State before the senior official may sign the instrument. We are talking about a practicality, rather than a difference of emphasis or authority. The amendment replicates accepted and understood language used in the Regulation of Investigatory Powers Act 2000. Hon. Members will understand that there may be occasions when the Secretary of State cannot actually sign the warrant and will delegate that to a senior official.

[Keir Starmer]

I do not stand in the way of the amendment, which I fully understand. To be clear, I think that the Minister said that the provision only applies when the Secretary of State has authorised the modification, but for whatever reason cannot actually sign it—being out of the country is an obvious example. Since the modification clauses may receive further attention, this may be dealt with anyway, but in the amendment I cannot see the provision that makes it clear that the Secretary of State will have authorised it, but that is probably my shortcoming rather than anything else. I understand the scheme and how it is supposed to work.

[Mr Hayes]

The principle remains the same—that the authorisation does not change. This is about the practicality of the signing of the warrant.

[Keir Starmer]

I am grateful. It is simply because I think we are in the territory where a senior official can make the modification, and therefore—

[Mr Hayes]

No. If the hon. and learned Gentleman looks at subsection (4)(a)—

“A major modification…must be made by the Secretary of State”—

he will see that the authority still rests with the Secretary of State.

--- Later in debate ---

[Keir Starmer]

That answers the point and I will say no more about it.

Amendment 611 agreed to.

Amendment made: 612, in clause 128, page 102, line 17, leave out from beginning to “the” in line 22 and insert—

“( ) If it is not reasonably practicable for an instrument making a major modification to be signed by the Secretary of State, the instrument may be signed by a senior official designated by the Secretary of State for that purpose.

( ) In such a case, the instrument making the modification must contain a statement that—

(a) it is not reasonably practicable for the instrument to be signed by the Secretary of State, and

(b) ”.—(Mr John Hayes.)

This amendment enables an instrument making a major modification of a bulk interception warrant to be signed by a senior official in any case where it is not reasonably practicable for the Secretary of State to sign it.

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

--- Later in debate ---

Approval of major modifications made in urgent cases

[Keir Starmer]

I beg to move amendment 671, in clause 129, page 102, line 41, leave out

“ending with the fifth working day after the day on which”

and insert “of 48 hours after”.

[The Chair]

With this it will be convenient to discuss amendment 672, in clause 129, page 102, line 41, leave out

“ending with the fifth working day after the day on which”

and insert “of 24 hours after”.

[Keir Starmer]

Again, this is familiar territory. The clause deals with the approval of major modifications in urgent cases and we quarrel over the time that should be allowed for the steps to be taken. We advanced the same arguments earlier today and they have not changed— nor, I think, will the outcome. We advance the principle that five days is too long and it should be a shorter period. The Government do not accept that principle. We advance the same argument about this safeguard as we do throughout about the basket of safeguards.

[The Solicitor General]

As the hon. and learned Gentleman’s arguments are the same, my arguments, as he anticipates, are the same. Bearing in mind the sensitive nature of these matters, we do not want decisions to be rushed and, accordingly, we resist the amendment.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

--- Later in debate ---

Implementation of warrants

[Keir Starmer]

I beg to move amendment 520, in clause 131, page 104, line 9, at end insert—

“(3B) Subsection (3) shall not be applicable where the person outside the United Kingdom has its principal office in a country or territory where it is established, for the provision of services with which the United Kingdom has entered in to an international mutual assistance agreement or is subject to an EU mutual assistance instrument.”

This amendment would exclude the extraterritorial provision in cases where any mutual assistance arrangement exists between the UK and the provider’s jurisdiction. This amendment would continue to enable government to seek voluntary assistance from CSPs in non-MLA countries.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 521, in clause 147, page 115, line 39, at end insert—

“(3B) Subsection (3) shall not be applicable where the person outside the United Kingdom has its principal office in a country or territory where it is established, for the provision of services with which the United Kingdom has entered in to an international mutual assistance agreement or is subject to an EU mutual assistance instrument.”

This amendment would exclude the extraterritorial provision in cases where any mutual assistance arrangement exists between the UK and the provider’s jurisdiction. This amendment would continue to enable government to seek voluntary assistance from CSPs in non-MLA countries.

Amendment 524, in clause 167, page 129, line 39, at end insert—

“(3b) Subsection (3) shall not be applicable where the person outside the United Kingdom has its principal office in a country or territory where it is established, for the provision of services with which the United Kingdom has entered in to an international mutual assistance agreement or is subject to an EU mutual assistance instrument.”

This amendment excludes the extraterritorial provision in cases where any mutual assistance arrangement exists between the UK and the provider’s jurisdiction. This amendment would continue to enable government to seek voluntary assistance from CSPs in non-MLA countries.

[Keir Starmer]

These amendments deal with the implementation of warrants. The implementation scheme is similar to that for other warrants. The amendments, as with previous similar amendments, have been tabled to restrict the arrangements because of concerns raised by those who may be required to assist in the implementation of warrants. As the Committee will have observed, the amendments are of same type and species as those previously discussed in relation to implementation of warrants and, again, I will not repeat the arguments about them.

[Mr Hayes]

The Bill maintains the existing position in relation to extraterritorial jurisdiction and the obligations that apply to overseas companies. I have said before and I happily repeat that it is right that companies providing communications services to customers in the UK should comply with UK law. That remains our position. On that basis, I resist the amendments and invite their withdrawal.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

I beg to move amendment 528, in clause 131, page 104, line 23, at end insert—

“(7) A warrant may be implemented only to the extent required for the purpose for which the warrant was issued.”

This amendment would bring the implementation of warrants into line with section 16(8) of PACE 1984.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 529, in clause 147, page 116, line 6, at end insert—

“(6) A warrant may be implemented only to the extent required for the purpose for which the warrant was issued.”

This amendment would bring the implementation of warrants into line with section 16(8) of PACE 1984.

Amendment 530, in clause 167, page 130, line 12, at end insert—

“(7) A warrant may be implemented only to the extent required for the purpose for which the warrant was issued.”

This amendment would bring the implementation of warrants into line with section 16(8) of PACE 1984.

[Keir Starmer]

These amendments are of the same type and advanced for the same reason.

[The Solicitor General]

Again, we note that the amendments are similar to previous amendments. We still say that they are unnecessary. The clauses already provide safeguards so that any bulk warrant may be implemented only to the extent required for the purpose for which the warrant was issued. For example, in relation to bulk interception in clause 119(4) and (5), a warrant may only authorise conduct that is described in the warrant or conduct that

“it is necessary to undertake in order to do what is expressly authorised or required by the warrant”.

That clearly sets out the scope of the authorised conduct. Well intentioned though the amendments are, we submit that they are unnecessary.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

--- Later in debate ---

Additional safeguards for items subject to legal privilege

[Keir Starmer]

I beg to move amendment 504, in clause 135, page 108, line 12, after “items”, insert “presumptively”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 505, in clause 135, page 108, line 14, at end insert “and

(c) where paragraph (b)(i) applies, compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise or require the selection for examination of those items.”

Amendment 509, in clause 135, page 108, line 22, leave out from “privilege” to end of line 25

Amendment 510, in clause 135, page 108, line 26, after “item”, insert “presumptively”.

Amendment 511, in clause 136, page 108, line 40, at end insert—

‘(3) Section 25 (items subject to legal privilege) applies in relation to an application for a bulk interception warrant as it applies in relation to an application for a targeted interception warrant.”

Amendment 512, in clause 171, page 133, line 38, after “items”, insert “presumptively”

Amendment 513, in clause 171, page 133, line 40, at end insert “and

(c) where paragraph (b)(i) applies, compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise or require the selection for examination of those items.”

Amendment 517, in clause 171, page 134, line 2, leave out from “privilege” to end of line 5

Amendment 518, in clause 171, page 134, line 6, after “item”, insert “presumptively”

Amendment 519, in clause 172, page 134, line 17, at end insert—

‘(2) Section 100 (items subject to legal privilege) applies in relation to an application for a bulk equipment interference warrant as it applies in relation to an application for a targeted equipment interference.”

[Keir Starmer]

These provisions deal with legal privilege, which we have dealt with on a number of occasions. I will not repeat the points I have made, but one concern I had about the previous clauses that dealt with legal privilege, among others, was that they distinguished between a situation in which the purpose was to obtain the legally privileged material and a situation in which the relevant communication likely to be included was subject to legal privilege. In other words, there was a situation in which the legally privileged material was deliberately targeted and a situation in which there was no intention deliberately to target legally privileged material, but it was accepted that what was targeted was likely to include such material.

In clause 25, the first time we looked at the matter, the distinction was important because the higher test in the Bill—exceptional and compelling circumstances—applied only to the situation in which legally privileged material was purposely targeted, and that test did not apply where it was not being targeted, but it might none the less be picked up because the items targeted would be likely to include material subject to legal privilege. I was uncomfortable with that distinction and I made my submissions at the time.

Curiously—this is understandable; it is not a criticism of different drafting hands in different parts of the Bill—when we get to clause 135, we have a version of the legal privilege provision that sets out in subsection (1)(b)(i) and (ii) both the purpose being to intercept or to obtain legally privileged material and the situation in which the use of the relevant criteria is likely to identify such items, so it sweeps up the targeted and the incidental, and then subjects both to the higher test.

For all the reasons I have set out, I do not think even that is enough, but when the Solicitor General looks again at all the provisions on legal privilege, I ask him to note that there is not even consistency through the statute, perhaps because it was differently drafted at different times. I cannot work out why under clause 25 incidental legally privileged material is not subject to the special test, but under clause 135 it is. I want to put that on the table and invite the Solicitor General to bear it in mind if he gives further consideration to how legally privileged material will be dealt with consistently through the Bill.

[The Solicitor General]

I thank the hon. and learned Gentleman for his remarks. First, we have the exceptional and compelling circumstances test in subsection (3)(b), which is consistent. Also, I think there is a slight misunderstanding about what we are dealing with, because the amendments seem to be predicated on the basis that targeted interception and equipment interference and then their bulk equivalents can be directly equated, but they cannot.

We have safeguards in place that we would say are strong. We are having a debate about that; I entirely concede that point. We are having a debate about items subject to legal profession privileges in circumstances where content collected under a bulk interception or equipment interference warrant is being selected for examination. That is the key stage. Before that, we are dealing with the stage of acquisition, not examination.

[Keir Starmer]

I am not sure that the Solicitor General is right; if he is, I apologise. This is a safeguard for a bulk warrant that allows for both gathering and access. In other words, the whole point—I go back to the beginning of part 6 of the Bill—is for a scheme that provides for the obtaining of interceptions on a bulk basis and their examination. They are dealt with in part 6. The warrants that are referred to would include an examination warrant.

[The Solicitor General]

May I correct myself? The hon. and learned Gentleman is right. I think I used the word “acquisition”. What I meant is that we are talking about when content collected under the terms of part 6, through an interception or equipment interference warrant, is being selected. The stage point about selection for examination is still important.

When content is being selected for examination for the purpose of identifying items subject to legal privilege, or selections such as under the distinction that we have discussed, clause 135, relating to the bulk interception provisions, is the relevant clause, together with clause 171, which deals with equipment interference provisions. That action requires approval from a senior official in the warrant granting department, only on the basis that they are satisfied that there are specific safeguards in place for the handling, retention, use and destruction of items that are subject to legal privilege. In addition, in circumstances when selection for examination is taking place for the purpose of identifying items subject to legal privilege, the senior official must be satisfied that the exceptional and compelling circumstances test that we have discussed is applicable. Furthermore, when an item that is subject to legal privilege is intercepted under a bulk interception warrant and is then retained following its examination, the investigatory powers commissioner must be informed of course.

My point about collection, and I think the hon. and learned Gentleman gets it, is that meaningful safeguards must be applied at that key point, because one does not know what one is getting. That is the wording, and that is why there is that difference in clause 135.

[Keir Starmer]

I intervene only to say that I accept that it is a necessary evil of bulk powers that otherwise protected information will come within the bulk power at the point of retention, for want of a better word. Safeguards for MPs, for journalists and their sources, for constituents and for clients bite at the later examination or access point.

[The Solicitor General]

I am extremely grateful to the hon. and learned Gentleman. A lot of the material that is collected will never be examined. The key point is the next stage.

Briefly, the other amendments relate to the arguments about legal professional privilege, and the question whether there are circumstances in which material would not be covered by the iniquity exemption but would be of interest. We have discussed that point before, and I draw my remarks to a close on the same terms that we have discussed previously.

[Keir Starmer]

In the circumstances, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

Investigatory Powers Bill (Eleventh sitting)

Keir Starmer Excerpts

Committee Debate: 11th sitting: House of Commons
Tuesday 26th April 2016 Public Bill Committees

[The Chair]

Before we start, I advise Members wishing to table amendments for consideration during next week’s sittings to do so by rise of House on Thursday. Before we get into business, I would also like to welcome Sir Simon Burns to the Committee. He has been a good egg and stepped in for the hon. Member for North Dorset (Simon Hoare), who unfortunately is poorly.

Clause 138

Power to issue bulk acquisition warrants

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

I beg to move amendment 673, in clause 138, page 109, line 30, leave out paragraph (c) and insert—

“(c) the Secretary of State considers the requirements of section 141 are met by the warrant,”.

[The Chair]

With this it will be convenient to discuss amendment 688, in clause 156, page 122, line 17, leave out paragraph (d) and insert—

“(d) the Secretary of State considers the requirements of section 161 are met by the warrant,”.

[Keir Starmer]

It 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.

[The Minister for Security (Mr John Hayes)]

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.

[Keir Starmer]

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.

[Mr Hayes]

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.

--- Later in debate ---

The issuing of the warrant must specify in sufficient detail the purposes for which it was issued, and those purposes must go beyond the general provisions set out in the Bill. That seems to me to be quite particular in providing the reassurance that members of the Committee and the wider public may seek.

[Keir Starmer]

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.

[Mr Hayes]

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.

--- Later in debate ---

[Keir Starmer]

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.

[Mr Hayes]

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.

--- Later in debate ---

There is concern that in chapter 2, which opens with clause 138, the Government are flying in the face of the American experience. I see a chink of light this morning, but so far the Home Office has resisted commissioning an independent review similar to those conducted in the United States of America to evaluate the efficacy of the programme. Unless and until the Government are prepared to commission such an independent review and we have had time to consider its proposals, we cannot support clause 138 or any of the other clauses in chapter 2 of part 6. That is the reason for our opposition.

[Keir Starmer]

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.

[Mr Hayes]

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.

[Keir Starmer]

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.

[Mr Hayes]

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.

[Keir Starmer]

I am grateful.

[Mr Hayes]

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.

--- Later in debate ---

[Keir Starmer]

I beg to move amendment 680, in clause 141, page 111, line 35, after “specify”, insert—

“by name or description the person, persons or single set of premises to which it relates and”.

[The Chair]

With this, it will be convenient to discuss the following:

Amendment 681, in clause 141, page 111, line 39, leave out—

“but the purposes may still be general purposes”

and insert—

“and any specification must be described in as much detail as is reasonably practicable”.

Amendment 682, in clause 141, page 111, line 39, leave out “but the purposes may still be general purposes” and insert—

“The descriptions must specify—

(a) a basis for the reasonable suspicion that the target is connected to a serious crime or a specific threat to national security,

(b) a high probability that evidence of the serious crime or specific threat to national security will be obtained by the conduct authorised, and

(c) the manner in which all less intrusive methods of obtaining the information sought have been exhausted or can be shown to be futile.”

Amendment 683, in clause 141, page 111, line 41, leave out “may” and insert “must”.

[Keir Starmer]

Ms Dorries, you permitted me to stray into discussion of clause 141 and therefore I will be brief on this amendment, because the point that I was making was that the specific operational purposes required under subsection (4) of the clause are still general, and the purpose of these amendments is to rectify that position. The best example of that is amendment 681.

The point that I made last week is that if there is to be movement on clause 141, as I suggest there should be, what we should try to do is to draft a clause that would be workable in practice and that I hope would reflect practice as it is.

I will say no more about it, because, as I say, I strayed into discussing these amendments when I was dealing with clause 138.

[The Solicitor General (Robert Buckland)]

It is a pleasure, Ms Dorries, to serve once again under your chairmanship.

As the hon. and learned Gentleman says, we echoed some of these arguments last week in relation to bulk interception warrants. I will say two things. First, we respectfully submit that the amendments are unnecessary. There are also some technical deficiencies within them, and I have some concerns about those.

As we know, what we are talking about—this is perhaps my first opportunity to say this—is fragments of initial intelligence. That is what bulk acquisition is all about. It is about taking those fragments and then being able to identify potential subjects of interest that might pose a threat to the UK.

Limiting the examination of data collected under a bulk warrant to circumstances in which an operation or investigation is already under way, or tying a warrant to individual persons or premises, would mean that a bulk acquisition warrant just could not be used in that way, and it almost goes without saying that it would then severely limit the capabilities of the security and intelligence agencies to keep us safe.

Clause 151—helpfully, we have already jumped to clause 141—is also an important clause. It makes it clear that selection for examination may take place only for one or more of the operational purposes specified in the warrant.

[Keir Starmer]

I, too, went to clause 151, expecting a further safeguard, but all one gets in subsection (2) is the repetition and reference back to clause 141. That is the point that I hope I am consistently making. We do not get a graded safeguard that ups the threshold at each stage; we get a threshold that refers back to the previous threshold.

[The Solicitor General]

I take the hon. and learned Gentleman’s point; it is one that we understand. Again, however, I must make the point that at the point at which warrants are served in this context, it is not possible to know what part of the data that is being collected will be examined and for what purpose. Therefore, the question of detail is not a question of reluctance on the part of the authorities—it is just about practicability. It is not possible, of course, to anticipate that.

May I just deal with amendment 683? Under the Bill, a warrant will only include the operational purposes for which it may be necessary to examine the data. The Bill makes it clear that that may include all of the possible operational purposes for which data may be selected for examination. The effect of the amendment would be to require all possible operational purposes to be specified on a warrant, regardless of whether they were necessary. I am sure that that is not the intention of the hon. and learned Gentleman, but that was the point that I was making about the amendment perhaps not quite achieving the purpose for which it was tabled.

Having said that, I would argue that in clause 141, in combination with clause 151, we have an adequate and sufficient safeguard to ensure sufficient granularity when applications are made. It will not be good enough for the authorities simply blithely to quote “national security”; there will have to be greater granularity in applications. I would say that that is clear from the Bill, and combined with the code of practice I think there is enough here for hon. Members to be reassured that this process is not a mere rubber-stamp exercise and is a proper and effective safeguard.

The hon. and learned Member for Edinburgh South West made remarks in her interesting speech about the United States experience. It is important that I briefly put on record the important distinction between the United States regime of collecting domestic telephone records, which was pursuant to the Patriot Act—that has now been repealed by Congress—and the particular powers under section 702 of the Foreign Intelligence Surveillance Act 1978, as amended. Those powers are what the US Privacy and Civil Liberties Oversight Board addressed in its reports in July 2014 and more latterly this year.

Those powers to collect the content of electronic communications from targets outside the US are germane to the questions in this debate. As my right hon. Friend the Minister for Security said, the American board clearly found that there was value in and an important role for that particular programme. It is important that we take care to draw distinctions between different functions.

[The Solicitor General]

I share that anxious concern, which is why I think we not only have avowal here, but an enhancement of safeguards. There is no doubt about it: the Bill represents a dramatic improvement on blithe reliance on the 1984 Act, to which the hon. and learned Lady correctly referred, and then nothing ever being said or debated in this House or the other place about the extent of those powers and the important judicial safeguards we have here.

Underpinning all that—this is within the code of practice—is the oversight of the commissioner, who will be able to inspect and review and ensure that the powers are not being abused in a way that the hon. and learned Lady and I would find abhorrent. It is always a pleasure to hear a Scot quote the great Unionist Robbie Burns—[Laughter.] As a great patriot, he would have shared the Government’s anxiety to ensure that the security of our citizens is protected in a proportionate and necessary way. I therefore think that the clause strikes the right balance.

[Keir Starmer]

Granularity is a great word, and increasingly popular. It implies something crunchy and grain-like. I have made this point, but though clause 141(4) says that it is not sufficient to simply say “national security”, it does not say much else, and therein is the nub of the problem that the amendments are intended to correct.

I have made my submissions. I heard what the Minister said and I have listened carefully to the Solicitor General. We have been over the territory. I will not press the amendments at this stage, but I may be minded to at a later stage, because getting this issue right is critically important. It may be better if we try to get it right before that stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

--- Later in debate ---

Service of warrants outside the United Kingdom

[Keir Starmer]

I rise to speak to amendment 522, in clause 148, page 116, line 10, at beginning insert—

“Where such a warrant is to be given to a person outside the United Kingdom, the warrant shall be served at that person’s principal office outside the United Kingdom where it is established, for the provision of services. Where it is considered unfeasible or inappropriate in the circumstances,”.

The Home Secretary confirmed at second reading that a UK agency would only serve a notice on an overseas entity that is capable of providing assistance under the warrant. UK agencies today routinely use secure means of communication to transmit notices directly to the main office of overseas CSPs.

This amendment and amendment 523 to the next clause are similar to amendments I tabled to other clauses dealing with overseas service and implementation of warrants, including bulk warrants. I have already outlined our concerns and will not repeat them. I will not press the amendments as I have previously withdrawn similar versions. We may revisit this issue when we get to the overarching matter of the oversight provisions that may address some of the concerns of some of the companies that will be affected by these wide powers.

[The Chair]

Amendment not moved.

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

--- Later in debate ---

Duty of operators to assist with implementation

[Keir Starmer]

I rise to speak to amendment 523, in clause 149, page 116, line 43, at end insert “which for a relevant operator outside the United Kingdom shall include—

(a) any steps which would cause the operator to act contrary to any laws or restrictions under the law of the country or territory where it is established, for the provision of services, or

(b) where a warrant could be served pursuant to an international mutual assistance agreement or subject to an EU mutual assistance instrument.”

This amendment clarifies the reasonableness test for overseas CSPs.

The amendment deals with conflict of law in similar provisions to the previous amendments, and for the same reasons I do not intend to press it.

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss:

New clause 15—Safeguards relating to items subject to legal privilege—

‘(1) Section [Authorisations in relation to items subject to legal privilege] applies, with the necessary modifications, in relation to an application for a bulk acquisition warrant as it applies in relation to an application for an authorisation under Part 3.

(2) Section 135 [additional safeguards for items subject to legal privilege] applies, with the necessary modifications, to the selection for examination of communications data obtained under a bulk acquisition warrant as it applies to the selection for examination of intercepted content obtained under a bulk interception warrant.”

[Keir Starmer]

I have raised this issue before so I will not take much time on it now. I said previously and heard no contrary position put in the debate that in this chapter dealing with bulk acquisition warrants there is no specific provision for legal professional privilege for journalistic material or for communications with MPs. The Bill contains no guidance on how those categories of material are to be protected, if at all. New clause 15 deals with legal privilege. I have previously made points on the subject and I know the Solicitor General is looking at legal privilege generally. I simply ask that this be taken under the umbrella of consideration of privilege, so that however it is applied throughout the Bill there is consistency of approach that safeguards privilege properly. I do not intend to push the amendment to a vote at this stage.

[The Solicitor General]

I will briefly reiterate the Government’s position. We believe there is a logical basis for the differentiation at this point, before the examination stage, as it is at the examination stage that the particular sensitivities of the occupations of journalist, lawyer or parliamentarian come into play. We are dealing with an earlier stage.

--- Later in debate ---

[Keir Starmer]

My concern is that acquisition and examination are dealt with in the same warrant, so I think we are dealing with access. It probably does not affect the second point about how it is dealt with generally. The point is that these warrants do provide for examination.

[The Solicitor General]

There are, in fact, two stages. The code deals with sensitive professions at the examination stage. There are those two important stages, to which I have referred. The other aspect of the debate is when an obviously sensitive piece of information, namely a fact that a person has communicated with a lawyer, becomes privileged is a subject of ongoing discussion. It is more than an interesting point; it is an important point. There is a very respectable argument for saying that although the data might be sensitive, it might not attract LPP, but we need to discuss it further.

I can reassure Members at this stage that the protections for legal professional privilege in the draft bulk communications data code of practice mirror the protections that the divisional court deems appropriate. We are clear that the application of protections at the point of selection for examination is the correct approach. In the context of bulk communications data, we do not think that applying additional safeguards at that stage would be effective or necessary.

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

--- Later in debate ---

Offence of making unauthorised disclosure

[Keir Starmer]

I rise to speak to amendment 687, in clause 152, page 119, line 17, at end insert—

‘(2A) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”

Again, I can be brief. The framework of safeguards and provisions relating to offences are pretty well the same throughout the bulk powers, and we have been across this territory before. The purpose of the amendment is to provide for a defence for whistleblowing activities. We have discussed it in Committee and I do not intend to press the matter to a vote. It is the subject of ongoing discussions and will need to be dealt with in an overarching and consistent way throughout the Bill.

[The Chair]

Amendment not moved.

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

--- Later in debate ---

[The Chair]

I have had no indication that anybody is speaking to this clause.

[Keir Starmer]

I am sorry, Mr Dorries. It is my fault. We had a very late night last night on other matters. I should have notified you this morning about who is to be leading on each of these provisions, and I did not do that. If it helps the Committee, I can indicate that when we get to each of the bulk powers, the clause that introduces the bulk power will be subject to considerable debate for obvious reasons. I anticipate, although I cannot say with certainly, that the pattern will be pretty similar to the one we have just seen, and that as we go through the following clauses we will go at much greater speed.

I have been trying to divide the work between me and the hon. and learned Member for Edinburgh South West. We had agreed that she would lead on this clause, and she was just checking with me that that was my understanding. I apologise. We were tied up in another debate yesterday and I did not give you notice as I should have done, Ms Dorries.

[Joanna Cherry]

I can confirm that that is what the hon. and leaned Gentleman and I agreed. I apologise for any inconvenience caused by my momentary inadvertence, Ms Dorries.

The Scottish National party’s approach to chapter 3 of part 6, which deals with bulk equipment interference and is introduced by clause 154, is to oppose the inclusion of bulk equipment interference warrants in the Bill until such time as a proper and adequate operational case has been produced. I will speak at some length on this matter because it is of great importance.

I remind hon. Members that when I spoke earlier this morning I said that David Anderson had reached

“no independent conclusions on the necessity for or proportionality of…bulk equipment interference”.

In paragraph 8d of his supplementary written evidence to the Joint Committee in January—he reminded us in his supplementary written evidence to this Committee in April that he still holds this view—he said that he reached no independent view

“on the necessity for or proportionality of…bulk equipment interference…which in view of pending IPT litigation and the limited nature of my remit…I touched upon only briefly in my report…The remarkable potential for this capability is evident from the Snowden allegations relating to the hacking of and implantation of malware into systems operated by persons not themselves suspected of wrongdoing”.

Hon. Members will recall that last Thursday I addressed the issue of how bulk equipment hacking could cause severe problems for our security services. I gave examples of how in the past it has led to the outage of the internet in Syria. I also referred to modern defence systems and said that it could disrupt the radar and photonic systems of our fighter pilots in Syria, which could result in danger not only to them but, perhaps more importantly, to civilians on the ground. All of us, no matter which side of the debate on bombing Syria we were on, want to avoid that.

Similarly to chapter 2 powers, the use of targeted hacking by the agencies was only very recently acknowledged by the Government through the Home Office’s publication of an equipment interference code of practice, although it made no mention of bulk hacking capabilities, which are now to be put on a statutory footing by part 2 of the Bill. The scope of a bulk equipment interference warrant, as outlined in clause 154, is astonishingly broad and will pave the way for intrusions over and above those revealed by Edward Snowden, pinpointing hacking as the modus operandi of surveillance. As with bulk interception, clause 154—particularly subsection (1)(c)—and the clauses that follow provide that the main but not sole aim of the warrant must be to facilitate the obtaining of overseas data, but that does not prevent data on UK residents being collected as a subsidiary objective or in pursuit of the main aim. I addressed that issue at some length on Thursday last week, so I do not wish to take up the Committee’s time by unnecessarily addressing it again.

The bulk hacking warrants under clause 154 will authorise interference with any equipment whatever, because of the definition of equipment in clause 156. The provisions will afford interference with any equipment whatever for the purposes of obtaining communications equipment data or information. They will enable bulk warrants to be issued in the interests of national security or economic wellbeing, or for the prevention and detection of serious crime. The hon. and learned Member for Holborn and St Pancras and I have already spoken at some length about those grounds, so I will not reiterate those points. I shall simply repeat what I have said before: I am concerned about the economic wellbeing ground and that the prevention and detection of serious crime ground is not rooted in reasonable suspicion.

The Home Office has told us that, as bulk equipment interference has previously been practised under the Intelligence Services Act 1994, which it says allows for interference with property or wireless telegraphy, the powers in the Bill are not entirely new. The Home Office also says that the intelligence services can acquire a warrant under the 1994 Act to search a property or intercept a person’s phone calls. There is, though, no mention in that Act of bulk or mass equipment interference.

Chapter 3 of the Bill, which begins with clause 154, is therefore very much an innovation on the outdated Acts, such as the 1994 Act. There is a significant expansion of such powers as already exist. Indeed, the Snowden documents revealed that even British intelligence agencies expressed concern that such mass hacking practices as had taken place to date, purportedly under the 1994 Act, might be illegal. If the British intelligences agencies are themselves concerned about the legality of the powers under which they are currently operating, that is all the more reason for us to scrutinise carefully the legality of the powers set out in chapter 3.

Having looked at the clock, Ms Dorries, I am mindful of the fact that the Committee rises at 11.25 am. I have to be in the Chamber soon for Justice questions, so I wonder whether this might be an appropriate point at which to pause. I will perhaps have a little more to say when the Committee sits again this afternoon.

Investigatory Powers Bill (Twelfth sitting)

Keir Starmer Excerpts

Committee Debate: 12th sitting: House of Commons
Tuesday 26th April 2016 Public Bill Committees

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

It is a pleasure to welcome you back to the Chair, Mr Owen. Before the Committee adjourned for lunch, I was addressing clause 154, which is the opening clause of chapter 3 of part 6 of the Bill and deals with bulk equipment interference warrants. I explained that the Scottish National party wishes to see these provisions removed until such a time as the Government have produced what we consider to be an adequate operational case.

Bulk equipment interference is often described colloquially as hacking or bulk hacking. The guide to powers that accompanied the draft Bill made it clear that bulk hacking is a significant step beyond conventional surveillance powers, and remarked that bulk equipment interference is

“used increasingly to mitigate the inability to acquire intelligence through conventional bulk interception and to access data from computers which may never otherwise have been obtainable.”

Labelling mass interception powers as conventional is a bit odd when the Bill avows them for the very first time. The quote I just read out also underlines the fact that the Bill makes a considerable demand for unbridled access to all information. That is particularly worrying in the light of the very broad definition of “equipment” that is found in this part of the Bill. I am sure you will forgive me for skipping forward slightly, Mr Owen, but this does relate to clause 154. Clause 173 defines equipment as

“equipment producing electromagnetic, acoustic or other emissions or any device capable of being used in connection with such equipment”.

That is very open-ended and could even include cars and aircraft, which relates to the analogy with fighter aircraft that I made earlier. We are concerned that the power is open to potential abuse—not necessarily, as I have said before, by the current Government, but possibly by future UK Governments, as well as by other states that will follow our lead in legislation—because there is such loose language.

Following scrutiny of the draft Bill, the Intelligence and Security Committee reported that

“the Committee has not been provided with sufficiently compelling evidence as to why the Agencies require Bulk Equipment Interference warrants”

and

“therefore recommends that Bulk Equipment Interference warrants are removed from the new legislation.”

Before we adjourned this morning, I alluded to the fact that David Anderson QC had expressed concern about bulk equipment interference and said that he had not addressed the necessity and proportionality of such a power.

Despite what the ISC said, the power for bulk equipment interference warrants remains in the Bill. My argument is that that is rather concerning because bulk hacking, as I will call it, is by its very nature indiscriminate, as acknowledged in the draft Bill’s explanatory notes, which state that

“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”.

Instead, systems, services and software that have been carefully constructed to provide security are intentionally corrupted by bulk hacking to impose the eyes and ears of the intelligence agencies on every phone call, text message and web click.

To use an analogy from the offline world, granting this power would be equivalent to allowing the secret services to break into an innocent person’s house, bug it and leave broken windows for anyone else to get in, without the person knowing it has happened. The problem with the digital world is that the data can be rich and revealing, as I said this morning on communications data. Most of us put everything online nowadays, and our equipment will therefore be like a filing cabinet, with diaries, calendars, video archives, photo albums, bookshelves, address books and correspondence files.

Digital forced entry entails not only intrusion into highly personal spaces but control over those spaces. The individual who has hacked into a piece of equipment can not only access what is stored on it but add or delete files, send messages from it masquerading as the person to whom it belongs, turn it on or off and covertly activate cameras and microphones. It really is quite extraordinarily intrusive.

We heard about that in evidence on 24 March, when Eric King referred to GCHQ’s Optic Nerve programme, which involved hacking into webcams. Whatever one might think of it, many people use webcams for sex chat online. I am not talking about people who abuse children, which is obviously utterly reprehensible. Many consenting adults send indecent images to one another online using webcams. If they are doing that in the privacy of their own homes, and it is not illegal or hurting a child, I do not see any problem with it.

GCHQ’s Optic Nerve programme broke into individuals’ privacy. Such extraordinary power over the private lives of citizens fundamentally alters the relationship between citizen and state. If we allow this to go ahead without a proper operational case, it could breed distrust in law enforcement, which could have significant repercussions for the rule of law.

The equipment interference and bulk hacking envisaged in clause 154 have security repercussions. I alluded to those last week, so I will not go into detail. However, if we create a weakness in a piece of equipment in order to let the good guys—the security services—in, that weakness exists as a portal for the bad guys, as in criminals and terrorists, to get into the same equipment.

There are serious security concerns about bulk interference. This power is especially excessive, dangerous and potentially destructive. It is one of the most intrusive powers in the Bill, and it jeopardises the privacy of ordinary, innocent people who live in these islands. SNP Members urge fellow members of this Committee and parliamentarians to follow the Intelligence and Security Committee’s advice and remove these bulk equipment interference powers from the Bill until a convincing case has been made for not only their utility but their necessity and proportionality.

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

I, 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.

[The Minister for Security (Mr John Hayes)]

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.

[Keir Starmer]

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.

[Mr Hayes]

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.

[Keir Starmer]

rose—

[Mr Hayes]

I give way to the hon. and learned Gentleman to explain why it is not.

[Keir Starmer]

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.

[Mr Hayes]

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.

--- Later in debate ---

Power to issue bulk equipment interference warrants

[Keir Starmer]

I beg to move amendment 695, in clause 156, page 122, line 34, leave out subsection (2)(b).

[The Chair]

With this it will be convenient to discuss the following:

Amendment 696, in clause 156, page 122, line 37, leave out subsection (3)

Amendment 697, in clause 156, page 122, line 47, at end insert—

“(6) Where an application for the issue of a bulk equipment interference warrant includes the activities set out in section 154(4)(b) it may only be issued if the Secretary of State considers that selection for examination or disclosure is necessary for the purposes of—

(a) a specific investigation or a specific operation, or

(b) testing, maintaining or developing equipment, systems or other capabilities relating to the availability or obtaining of data.”

[Keir Starmer]

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.

[Mr Hayes]

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?

[Keir Starmer]

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.

[Mr Hayes]

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.

[Keir Starmer]

I will reflect on what the Minister has said and in the meantime will not press the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

--- Later in debate ---

Approval of warrants by Judicial Commissioners

[Keir Starmer]

I beg to move amendment 698, in clause 157, page 123, line 3, leave out from “must” to end of line and insert “determine”.

[The Chair]

With this it will be convenient to discuss amendment 699, in clause 157, page 123, line 15, leave out subsection (2).

[Keir Starmer]

Having tested the patience of the Committee on the point I was labouring on the last amendment—which I think is important, even if I am alone in that—I can indicate that these and the other amendments following in this chapter are all similar to previous amendments. I will deal with them quickly.

Amendments 698 and 699 deal with the test for the judicial commissioner. If it is helpful, I can indicate to the Solicitor General in advance that, having been round the track on this issue, I am not going to repeat the arguments or press them to a vote, because of the discussions we have been having.

[The Solicitor General (Robert Buckland)]

I have nothing to add.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

--- Later in debate ---

approval of warrants issued in urgent cases

[Keir Starmer]

I rise to speak to amendment 700, in clause 158, page 123, line 35, leave out from second “period” to second “the” in line 36 and insert “of 48 hours after”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 701, in clause 158, page 123, line 35, leave out from second “period” to second “the” in line 36 and insert “of 24 hours after”.

Amendment 704, in clause 162, page 125, line 32, leave out from “period” to third “the” in line 33 and insert “of 48 hours after”.

Amendment 705, in clause 162, page 125, line 32, leave out from “period” to third “the” in line 33 and insert “of 24 hours after”.

Amendment 706, in clause 162, page 125, line 35, leave out “6 months” and insert “1 month”.

Amendment 710, in clause 165, page 128, line 24, leave out “ending with the fifth working day after the day on which” and insert “of 48 hours after”.

Amendment 711, in clause 165, page 128, line 24, leave out “ending with the fifth working day after the day on which” and insert “of 24 hours after”.

[Keir Starmer]

The amendments deal with the periods during which an urgent warrant is valid. They are serial in the sense that they are the same as the provisions I tabled for approval warrants in urgent cases for other bulk powers. I will not press the amendment.

[The Chair]

Amendment not moved.

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

--- Later in debate ---

Requirements that must be met by warrants

[Keir Starmer]

I rise to speak to amendment 689, in clause 161, page 125, line 9, after “describe”, insert “precisely and explicitly”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 690, in clause 161, page 125, line 10, at end insert “including the method and extent of the proposed intrusion and the measures taken to minimise access to irrelevant and immaterial information.”

Amendment 691, in clause 161, page 125, line 11, after “specify”, insert “by name or description the person, persons or single set of premises to which it relates and”.

Amendment 702, in clause 161, page 125, line 15, leave out from “(2)” to end of subsection and insert

“and any specification must be in as much detail as is reasonably practicable”.

Amendment 692, in clause 161, page 125, line 15, leave out

“but the purposes may still be general purposes”

and insert

“; the descriptions must specify—

(a) the basis for the reasonable suspicion that the target is connected to a serious crime or a specific threat to national security,

(b) the manner in which all less intrusive methods of obtaining the information sought have been exhausted or can be shown to be futile.”

Amendment 703, in clause 161, page 125, line 17, leave out “may” and insert “must”.

[Keir Starmer]

I have already drawn considerable attention to clause 161(5), to which these amendments pertain. I have made my submissions. In the same manner in which I did not press earlier amendments and notwithstanding the importance I attach to these issues, I will not press the amendment.

[The Chair]

Amendment not moved.

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

--- Later in debate ---

Modification of warrants

[Keir Starmer]

I rise to speak to amendment 707, in clause 164, page 127, line 20, at end insert—

“(c) may only be made if the Secretary of State considers it proportionate to the operational purposes specified in the warrant.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 708, in clause 164, page 127, line 34, at end insert—

‘(8A) A minor modification—

(a) may be made only if the Secretary of State or a senior official acting on behalf of the Secretary of State considers that it is necessary on any of the grounds on which they consider the warrant to be necessary (see section 121(1)(b));

(b) may only be made if the Secretary of State considers that it is proportionate to the operational purposes specified in the warrant.

(8B) Except where the Secretary of State considers that there is an urgent need to make the modification, a minor modification has effect only if the decision to make the modification is approved by a Judicial Commissioner.”

Amendment 709, in clause 164, page 127, line 34, at end insert—

‘(8C) In a case where any modification is sought under this section to which Clause [NC2 Items subject to legal privilege] or Clause [NC11 Confidential and privileged material] applies section 97 (approval of warrants by Judicial Commissioners) applies to a decision to modify a warrant as it applies in relation to a decision to issue warrant (and accordingly any reference in that section to the person who decided to issue the warrant is to be read as a reference to the person who decided to modify it).”

[Keir Starmer]

I have tabled a number of amendments to modification provisions throughout the Bill. The Minister has indicated that the Government are considering how the modification provisions will work throughout the Bill. In the circumstances, I will not press the amendment.

--- Later in debate ---

Safeguards relating to disclosure of material or data overseas

[Keir Starmer]

I rise to speak to amendment 712, in clause 169, page 132, line 3, at end insert—

‘(3A) Material obtained via a warrant under this Part may only be shared with overseas authorities in accordance with the terms of an international information sharing treaty.”

This familiar amendment would ensure that data can be shared with overseas authorities only in accordance with the terms of an international information-sharing treaty. It is the same as an amendment I tabled to a similar clause, so I will not rehearse the arguments in favour of it. I will not press the amendment.

[The Chair]

Amendment not moved.

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

--- Later in debate ---

That was his position, so his report cannot be prayed in aid of a strengthened operational case. At present, I would argue that there is no operational case to justify such incredibly intrusive powers.

[Keir Starmer]

I endorse much of what the hon. and learned Lady said, and I will not repeat it. These are very wide powers. As she pointed out, they are probably the widest of the bulk powers, because the Bill makes it clear that the nature of the set is such that the majority of individuals are unlikely to become of interest to the intelligence service in the exercise of its functions. So we are talking about some of the widest powers. I acknowledge that this legislation would put existing powers on to a clear statutory footing, and that is welcome for the same reasons that I have outlined on other occasions. However, scrutiny is needed when powers that were not avowed in the past are first avowed and then put on to a statutory footing.

Clause 174(2) says:

“‘personal data’ has the same meaning as in the Data Protection Act 1998”.

In that sense, it is consistent with the way in which personal data are dealt with in other legislation. The Information Commissioner’s Office provides guidance on the meaning of personal data. Just so that this can be clear for all Committee Members and for the record, according to the guidance issued by the Information Commissioner’s Office:

“Personal data means data which relate to a living individual who can be identified—

(a) from those data, or

(b) from those data and other information which is in the possession of, or is likely to come into the possession of, the data controller,

and includes any expression of opinion about the individual and any indication of the intentions of the data controller or any other person in respect of the individual”.

So it is the data themselves, and it is a wide range of data. It is any expression of opinion about that individual, and any indication of the intentions of the data controller.

One of the examples that the Information Commissioner gives is:

“A manager’s assessment or opinion of an employee’s performance during their initial probationary period will, if held as data, be personal data about that individual. Similarly, if a manager notes that an employee must do remedial training, that note will, if held as data, be personal data.”

That is very wide-ranging. There is a tendency in these debates to think that data are simply numbers or locations—specific hard pieces of data—but here we are talking about opinions about individuals.

--- Later in debate ---

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

I am conscious of people’s sensitivity about their personal data, particularly sensitive data, but does the hon. and learned Gentleman think that we ought to consider this issue in the context of the legislation? These data are there to be used for a specific investigatory purpose, and only that purpose. They are not meant to be used for any other purpose. Indeed, if they are used and disclosed, there are very many provisions about unlawful disclosure and the serious criminal penalties for that, which we examined at the beginning. Is that not the safeguard for people that we need to distinguish the use and abuse of material that is collected?

[Keir Starmer]

I am grateful for that intervention. There is a particular sensitivity about health and mental health records. The very fact of their being retained, examined and filtered—because that is what will happen—is of huge concern to many people. That is why the amendments suggest that they be either excluded or subject to a higher test to prove that it is really necessary. Although it was not formal evidence, the Committee had a briefing session with the security and intelligence services where the question arose whether they do in fact access health records. In those exchanges, the answer was, “No we don’t, at the moment.” When I asked why, in those circumstances, it was necessary to have this power, the answer was: “Because we can’t rule out that at some future date it might be necessary to get these records, in circumstances that we cannot foresee at the moment—so we would not want to restrict the ability to get them.”

That was an honest answer about the way that these records are dealt with. In formal evidence, the answer was that the internal guidance does subject accessing mental health records to a higher threshold. In a sense, the agencies have thought this through for themselves. They have recognised the extra sensitivity of such records and have their own internal processes to make sure that they are applying a higher test. That is a good approach.

[Joanna Cherry]

I remember the evidence that the shadow Minister alluded to. Does he agree with me that, notwithstanding the fact that agencies are telling us that they take steps to be more sensitive in relation to mental health data, the very fact that mental health data are going to be scooped up and available to others may act as a disincentive to certain members of the public to seek assistance with their mental health problems?

[Keir Starmer]

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.

[Mr Hayes]

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.

--- Later in debate ---

[Mr Hayes]

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.

[Keir Starmer]

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.

[Mr Hayes]

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.

--- Later in debate ---

Class BPD warrants

[Keir Starmer]

I beg to move amendment 721, in clause 177, page 136, line 21, leave out subsection (3)(a)(iii).

[The Chair]

With this it will be convenient to discuss amendment 722, in clause 178, page 137, line 25, leave out subsection (5)(a)(iii).

[Keir Starmer]

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.

[Mr Hayes]

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.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

I beg to move amendment 715, in clause 177, page 136, line 43, at end insert—

“(5) No warrant shall be issued under this section for material relating to “patient information” as defined in section 251(10) of the National Health Service Act 2006, or relating to “mental health”, “adult social care”, “child social care”, or “health services” as defined by the Health and Social Care Act 2012.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 718, in clause 177, page 136, line 43, at end insert—

“(5) Subsection (6) applies where a warrant application under this section relates to ‘patient information’ as defined in section 251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012.

(6) The Secretary of State may issue the warrant only if they consider that—

(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of material referred to in subsection (5); and

(b) specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material.”

Amendment 716, in clause 178, page 138, line 2, at end insert—

“(8) No warrant shall be issued under this section for material relating to “patient information” as defined in section 251(10) of the National Health Service Act 2006, or relating to “mental health”, “adult social care”, “child social care”, or “health services” as defined by the Health and Social Care Act 2012.”

Amendment 719, in clause 178, page 138, line 2, at end insert—

“(8) Subsection (6) applies where a warrant application under this section relates to ‘patient information’ as defined in section 251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012.

(9) The Secretary of State may issue the warrant only if they consider that—

(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of material referred to in subsection (5); and

(b) specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material.”

Amendment 717, in clause 192, page 147, line 36, at end insert—

“(5A) A direction under subsection (3) may not be made for material relating to ‘patient information’ as defined in section 251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012.”

Amendment 720, in clause 192, page 147, line 36, at end insert—

“(5A) A direction under subsection (3) may only be made for material relating to ‘patient information’ as defined in s.251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012 if the Secretary of State considers that—

(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of such material; and

(b) that specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material.”

[Keir Starmer]

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.

[Mr Hayes]

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.

--- Later in debate ---

In essence, what I am saying is that we can go further. I am prepared to go further than the advice that I have so far received. I invite Members of both the Opposition parties present to reflect on that, to see if as a Committee we can over the course of the passage of the Bill—perhaps during its later stages—agree on the appropriate tests to guarantee the protection of personal privacy, while not ruling out, as the hon. and learned Gentleman said, the possibility that some kinds of health data might be helpful or even essential in the investigative process. If we can get to that point, we may be able to move forward with a measure of agreement that was unexpected by Opposition Members before I rose and unexpected by many in the Home Office who advise me.

[Keir Starmer]

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—

[Mr Hayes]

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.

[Keir Starmer]

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.

[The Solicitor General]

An example could be a group of terrorists who are involved in an explosion and sustain burns. Medical evidence about where they attended—the fact that they had attended a local A&E—could be relevant to that particular operation. That is the sort of category that we are thinking of.

[Keir Starmer]

That may well be. I listened carefully to the answer that was given—

[Joanna Cherry]

On the example that the Solicitor General has just given, does the hon. and learned Gentleman agree that such information could be obtained with a far more targeted warrant?

[Keir Starmer]

It may well be that it could be dealt with in a more targeted way. As a general proposition, where targeted powers can be used they should be used. That is a theme that goes through the Bill and the code.

[The Solicitor General]

I can clarify: let us imagine a scenario where there is an unidentified individual or we do not know the identities of the people. We know that an atrocity has taken place, but we do not have names, so targeting is more difficult. It is an exceptional case, but there is that possibility.

[Keir Starmer]

These are all hypotheticals. I think the services themselves have said that they have not needed such powers yet, and we can speculate as to what the situation might be. However, I accept as a general proposition that the focus ought to be on the threshold test for accessing information. For the record, in relation to adult and child social care, there would be a concern not only for the vulnerable adult and child but among those providing the care, because they will be expressing their opinions in these reports and they would be concerned that that remained confidential. That highlights why we need to work on this position. However, for the time being, I look forward to that work and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

--- Later in debate ---

Approval of warrants by Judicial Commissioners

[Keir Starmer]

I rise to speak to amendment 723, in clause 179, page 138, line 5, leave out from “must” to “the” in line 6 and insert “determine”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 724, in clause 179, page 138, line 22, leave out subsection (2).

Amendment 534, in clause 179, page 138, line 23, at end insert

“but a Judicial Commissioner may not approve a warrant unless he is satisfied that there are reasonable grounds for believing that it is both necessary and proportionate to do so”.

This amendment would clarify the judicial review process by ensuring that both the process and underlying facts of an interception of communications warrant are considered by a Judicial Commissioner.

[Keir Starmer]

These familiar amendments deal with the judicial test, which crops up on a number of occasions in the Bill. In the light of our ongoing discussion about the test, I do not intend to press the amendments.

[The Chair]

The amendment is not moved.

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

--- Later in debate ---

Approval of specific BPD warrants issued in urgent cases

[Keir Starmer]

I rise to speak to amendment 725, in clause 180, page 138, line 41, leave out from second “period” to second “the” in line 42 and insert “of 48 hours after”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 726, in clause 180, page 138, line 41, leave out from second “period” to second “the” in line 42 and insert “of 24 hours after”.

Amendment 730, in clause 184, page 141, line 10, leave out from “period” to end of line and insert

“of 48 hours after the”.

Amendment 731, in clause 184, page 141, line 10, leave out from “period” to end of line and insert

“of 24 hours after the”.

Amendment 732, in clause 184, page 141, line 12, leave out “6 months” and insert “1 month”.

Amendment 713, in clause 187, page 143, line 29, leave out from second “period” to second “the” in line 30 and insert “of 48 hours after”.

Amendment 714, in clause 187, page 143, line 29, leave out from second “period” to second “the” in line 30 and insert “of 24 hours after”.

[Keir Starmer]

In the light of our discussions about the urgent provisions, which are similar throughout the Bill. I will not press the amendments.

[The Chair]

Amendment not moved.

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

--- Later in debate ---

Failure to approve specific BPD warrant issued in urgent case

[Keir Starmer]

I rise to speak to amendment 727, in clause 181, page 139, line 10, leave out “may” and insert “must”.

Again, I will not press this amendment as it is in a similar form to an amendment to another part of the Bill.

[The Chair]

The amendment is not moved.

Amendment made: 628, in clause 181, page 139, line 32, at end insert—

‘(7A) An intelligence service is not to be regarded as in breach of section 175(1) or (2) where it retains or (as the case may be) examines a bulk personal dataset in accordance with conditions imposed under subsection (3)(b).”—(Mr John Hayes.)

See the explanatory statement for amendment 626.

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

--- Later in debate ---

Requirements that must be met by warrants

[Keir Starmer]

I rise to speak to amendment 728, in clause 183, page 140, line 35, leave out from “178(5)(a)” to end of line and insert

“and the purposes must be specified in as much detail as is reasonably practicable”.

[The Chair]

With this it will be convenient to discuss amendment 729, in clause 183, page 140, line 36, leave out “may” and insert “must”.

[Keir Starmer]

The amendments, like earlier amendments, would require more specific operational purposes. In light of the discussions and exchanges we had earlier, I will not move the amendment.

[The Chair]

Amendment not moved.

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

--- Later in debate ---

Modification of warrants

[Keir Starmer]

I rise to speak to amendment 733, in clause 186, page 142, line 31, at end insert—

“(c) may be made only if the Secretary of State considers that it is necessary for the purposes of the warrant”.

[The Chair]

With this it will be convenient to discuss amendment 527, in clause 186, page 143, line 16, at end insert—

“(12) Any modification which constitutes the adding or varying any matter must be approved by a Judicial Commissioner in accordance with section 179.”.

This amendment adds the requirement to obtain approval from a Judicial Commissioner for any modification which constitutes the adding or varying (but not removing) any matter for each type of warrant.

[Keir Starmer]

We are in the familiar territory of modifications; the provisions of clause 186 are very similar to others that we have covered in great detail. For those reasons, I shall not move the amendment.

[The Chair]

The amendment is not moved.

Investigatory Powers Bill (Thirteenth sitting)

Keir Starmer Excerpts

Committee Debate: 13th sitting: House of Commons
Thursday 28th April 2016 Public Bill Committees

Investigatory Powers Commissioner and other Judicial Commissioners

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

I beg to move amendment 741, in clause 194, page 148, line 36, at beginning 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.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 742, in clause 194, page 148, line 40, 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 sub-paragraph (1) of subsection (2B) 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 (2B)(a) and (b);

(f) human rights as defined in section 9(2) of the Equality Act 2006.”

Amendment 743, in clause 194, page 149, line 23, 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.”

Amendment 744, in clause 194, page 149, line 31, 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.”

Amendment 753, in clause 196, page 150, line 21, leave out “Commissioner” and insert “Commission”.

Amendment 754, in clause 196, page 150, line 38, leave out “Commissioner” and insert “Commission”.

Amendment 755, in clause 196, page 151, line 18, leave out “Commissioner” and insert “Commission”.

Amendment 756, in clause 196, page 151, line 41, at end insert—

“(4A) The powers and functions specified in this Part will be exercised by the Inspectors under the supervision of the Investigatory Powers Commissioner, except in so far as those powers are powers of the Judicial Commissioners specified in Parts 1 to 8 of this Act.”

Amendment 749, in clause 196, page 151, line 43, after “Commissioner”, insert “or Inspector”.

Amendment 757, in clause 197, page 152, line 28, leave out “Commissioner” and insert “Commission”.

Amendment 758, in clause 197, page 152, line 35, leave out “Commissioner” and insert “Commission”.

Amendment 789, in clause 199, page 154, line 11, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.

Amendment 790, in clause 199, page 154, line 18, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.

Amendment 794, in clause 200, page 154, line 34, leave out “Commissioner” and insert “Commission”.

Amendment 795, in clause 200, page 154, line 34, leave out “and the other” and insert “, the”.

Amendment 796, in clause 200, page 154, line 35, after “Commissioners”, insert “and Inspectors”.

Amendment 797, in clause 200, page 154, line 41, leave out “Commissioner” and insert “Commission”.

Amendment 798, in clause 201, page 156, line 38, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.

Amendment 799, in clause 201, page 156, line 41, leave out “Commissioner” and insert “Commission”.

Amendment 800, in clause 201, page 156, line 47, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.

Amendment 802, in clause 201, page 157, line 7, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.

Amendment 803, in clause 201, page 157, line 11, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.

Amendment 816, in clause 202, page 157, line 43, leave out “Judicial Commissioner” and insert “the Investigatory Powers Commission”.

Amendment 817, in clause 202, page 157, line 44, leave out “Commissioner” and insert “Commission”.

Amendment 818, in clause 202, page 157, line 45, leave out “Commissioner’s” and insert “Commission’s”.

Amendment 829, in clause 202, page 158, line 1, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.

Amendment 819, in clause 202, page 158, line 1, after “Commissioner” insert “or Inspector”.

Amendment 820, in clause 202, page 158, line 4, after “Commissioner” insert “or Inspector”.

Amendment 821, in clause 202, page 158, line 8, after “Commissioner” insert “or Inspector”.

Amendment 822, in clause 202, page 158, line 10, leave out “Commissioner’s” and insert “Commission’s”.

Amendment 823, in clause 202, page 158, line 15, leave out “Commissioner” and insert “Commission”.

Amendment 825, in clause 204, page 158, line 39, leave out “Judicial Commissioners” and insert “Investigatory Powers Commission”.

Amendment 826, in clause 204, page 158, line 40, after “such”, insert “funds”.

Amendment 827, in clause 204, page 158, line 40, after “determine”, insert—

“necessary for the purposes of fulfilling the functions of the Investigatory Powers Commission under this Part”

Amendment 828, in clause 204, page 158, line 41, leave out subsection (2) and insert—

“(2) In determining the sums to be paid to the Investigatory Powers Commission pursuant to subsection (1), the Treasury shall consult the Investigatory Powers Commissioner.”

Amendment 830, in clause 204, page 158, line 42, leave out “Commissioner” and insert “Commission”.

Amendment 831, in clause 204, page 158, line 43, leave out “Judicial Commissioners” and insert “Investigatory Powers Commission”.

Amendment 832, in clause 204, page 159, line 3, leave out “Commissioners’” and insert “Commission’s”.

New clause 19—Funding, staff and facilities of Intelligence and Surveillance Commission—

“(1) The Treasury must, after consultation with the Intelligence and Surveillance Commission as to number of staff and in light of the extent of the statutory and other functions of the Commission, provide the Commission with funds to cover—

(a) such staff, and

(b) such accommodation, equipment and other facilities, as necessary for the carrying out of the Commissioners’ functions.

(2) The staff of the Intelligence and Surveillance Commission must include—

(a) independent technical experts, and

(b) independent legal experts.”

This new clause would require the Treasury to provide the ISC with funds to cover its staff, facilities and accommodation. It would also require that the ISC staff include technical and legal experts.

[Keir Starmer]

We come to part 8, “Oversight arrangements”. Clause 194 deals with the appointment of the Investigatory Powers Commissioner. The second set of amendments to the clause deal with appointments; I will deal with them when we come to that group.

There are numerous amendments in the first group, but they all relate to the structure of the oversight mechanism, because the structure set out in the clause is considerably different from that proposed by David Anderson in “A Question of Trust”. His recommendation 82 was that there should be a new independent surveillance and intelligence commission. In its scrutiny, the Joint Committee on the draft Bill asked why that had not been done, because, according to its recommendation 51,

“the work of the oversight body will be significantly enhanced by the creation of a Commission with a clear legal mandate.”

That was the clear view of David Anderson. The Joint Committee asked why that recommendation was not carried out. The Government response, as I understand it, was that it is too costly. At the moment, that is the only basis suggested for not acting on David Anderson’s recommendation, or that of the Joint Committee.

Our view is that such a commission, with a “clear legal mandate”, would be far better. Unless there is some significant difference in costs, there seems to be no good reason for not having it. Will the Minister tell us what calculations lie behind the suggestion that one model would be very costly and the other not so?

This issue was raised by the Interception of Communications Commissioner’s Office when it gave evidence on the structural divide that it thought there should be between the judicial function and the audit function. In its written and oral evidence, it said it would be more appropriate for those functions to be split, so that the same group of individuals did not look at both aspects. The amendment would create a commission with a clear legal mandate. It would split the functions in a way that those who exercise those functions at the moment think is appropriate. It also challenges the suggestion that the only reason not to implement the recommendation is that it is too costly.

I intend to press the matter to a vote. I will press amendment 741, and if I lose that vote, I will take a view on pressing the others, as there are so many of them, but for the record, I stand by all the amendments.

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

I support the amendments.

[The Solicitor General (Robert Buckland)]

I thank the hon. and learned Member for Holborn and St Pancras for setting out his case. He will be glad to know that there is more to this than mere cost. I say “mere”, but Ministers and parliamentarians have a duty to ensure we do not burden the Exchequer with unnecessary cost. My primary argument is focused on that. The amendments would only put us in the same position as we will be in under the Bill, but at greater cost.

The Home Office estimates that at least an extra £500,000 would be needed to staff and finance the proposed body. That is not an insignificant sum, which is why the Government are urging restraint when pursuing what might seem an entirely rational, reasonable and logical conclusion. I accept that a number of the bodies and individuals mentioned by the hon. and learned Gentleman would support the thrust of these amendments.

[Keir Starmer]

Is there a breakdown of the £500,000, given that this is, in broad terms, a structural proposal, rather than a numbers proposal ?

[The Solicitor General]

The impact assessment published alongside the Bill contains the figure. It is supported by that document, so there has been empirical research. I do not have the full figures, but I imagine that the research is based on estimates of staffing levels. The body would also have to deal with new corporate functions, such as human resources, IT, non-executive directors and procurement, as the hon. and learned Gentleman knows well from his experience as Director of Public Prosecutions. This would be a non-departmental public body similar to, say, the Crown Prosecution Service. As an independent body and a key part of our constitutional arrangements for the prosecution of crime, it would obviously need that structure to maintain its independent role.

The amount of money is not insignificant, and the question I must ask is: what would the measure achieve? I remain unconvinced that it would achieve anything more than the current proposal does, because the powers and duties of the proposed body would remain exactly the same as the commissioner’s responsibilities, and the number of inspectors, technical experts and judicial commissioners employed by the organisation would remain exactly the same.

--- Later in debate ---

[The Solicitor General]

I respect the hon. and learned Lady’s point. I answer it by making the important point that we have stronger oversight if the body is able to look at everything from initial authorisation right through to implementation. The dialogue that can occur will therefore be much more immediate and focused, because the body will have a fuller and deeper understanding of the process. We end up with a body that is independent and flexible and will gain the public confidence that she and I want it to.

The worry is that if we pursue the attractive—seductive, almost—course proposed by the hon. and learned Lady and others and separate the powers, we will end up breaking the important links between the executive and judicial functions epitomised by the Bill. I say “links” in a neutral sense, and not in the sense that one can unduly influence the other—far from it. Rather, the Bill allows for the check-and-balance approach that epitomises the British constitution and its organic development over the centuries in a modern and relevant way. As a Tory, I am proud to stand here and argue for those values.

I want to deal with the Investigatory Powers Commissioner’s functions and the amendments seeking direct negotiation with the Treasury, rather than the Secretary of State, on the resources necessary for the commissioner to fulfil their functions. I think I am on safe ground in saying that my right hon. Friend the Home Secretary would warmly welcome not having to be involved in negotiations with the Treasury wherever possible, but I believe that removing his or her function from this negotiation would be an error.

There will be much more familiarity with the work of the IPC at the Home Office than at the Treasury, so the Home Office can make a far more accurate assessment of the resources that the IPC will need. That is important in ensuring that the IPC is properly resourced. Importantly, there can be meaningful challenge by the Home Secretary if they believe that the IPC is asking for too big a budget and is not providing proper value for money.

I do not think it is right or fair to say that the independence of the new IPC will be somehow compromised if it receives funding through a Secretary of State, because plenty of other non-departmental public bodies receive funding via that route, such as the Independent Police Complaints Commission and Her Majesty’s inspectorate of prisons. It is not an unusual or uncommon position, and we would have heard about it if there was an issue with the compromising of those bodies’ ability to act.

The Treasury has made clear in its guidance, “Managing public money”, that

“Functional independence is compatible with financial oversight”.

I am glad to say that the current oversight commissioners have repeatedly made clear in their annual reports that they have always been provided with enough money to undertake their functions. The same route of complaint will be available to the IPC, and I know that Parliament would take a keen interest if there was any suggestion by the new commissioner that the IPC was under-resourced. For those reasons, I respectfully ask Members to withdraw their amendments.

[Keir Starmer]

I intend to deal with funding under clause 208. I appreciate that new clause 19 is in this group, but that is probably only because it contains the word “commission”, so I will deal with it at a later stage. However, I have listened to what the Solicitor General said.

The amendments are supported by the Interception of Communications Commissioner, who was most concerned about the structural division of the two functions. The Solicitor General says that there are advantages in being able to do an end-to-end review, and that it brings focus; I can see that. If it were an end-to-end review of someone else’s work, that would be a good thing. The structural problem is that, within that end-to-end process, the same team takes the steps and does the overseeing. That is more than just a philosophical issue. It is a practical issue with how oversight works. I am therefore unpersuaded.

[Joanna Cherry]

The hon. and learned Gentleman will recall that Jo Cavan, the head of the Interception of Communications Commissioner’s Office, not only covered that in her written evidence, but was asked about it by me in her oral evidence to the Committee. She reiterated the position that we set out very strongly.

[Keir Starmer]

I know that the Interception of Communications Commissioner feels very strongly on this point. I think that he raised it in evidence, and he has certainly raised it with me. For that reason, I will press amendment 741 to a vote. I will review my position on the remaining amendments, depending on how that vote goes.

[The Chair]

For clarity, we will divide on amendment 741 now. We will then go on to amendments 735, 736, 740, 737, 738 and 739, which the hon. and learned Gentleman may wish to discuss. If he feels like moving the others, he may do so at that time.

[Keir Starmer]

I am happy to do it in whichever way suits the Committee and the Chair.

[The Solicitor General]

We have prayed in aid Jo Cavan’s comments quite a lot, and I think it is interesting that she said:

“It is really important for the commissioners to work very closely with the inspectors and technical engineers and so on who will carry out the post facto audits.”

I am arguing that this is supervision of the agencies’ work, and that the hon. and learned Gentleman’s point would be stronger if it were purely about the commission itself.

[Keir Starmer]

I am grateful to have been reminded of Jo Cavan’s evidence. The Solicitor General is right: there is a mixture of functions, and the oversight has to operate in quite a flexible way in relation to the different functions. However, this is a structural issue, and I therefore press amendment 741 to a vote.

Question put, That the amendment be made.

Division 109

Ayes: 7

---

Labour: 5
Scottish National Party: 2

Noes: 10

---

Conservative: 8

[Keir Starmer]

I beg to move amendment 735, in clause 194, page 148, line 36, leave out “Prime Minister” and insert “Lord Chancellor”.

Amendments 735 to 739 would require that Judicial Commissioners are appointed by the Lord Chancellor on the recommendation of the Judicial Appointments Commission under the Constitutional Reform Act 2003.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 736, in clause 194, page 148, line 36, after “appoint”, insert

“in accordance with the procedure set out in the Constitutional Reform Act 2003”.

See the explanatory statement for amendment 735.

Amendment 740, in clause 194, page 149, line 4, at end insert—

“(2A) 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.”

Amendment 737, in clause 194, page 149, line 5, leave out subsection (3).

See the explanatory statement for amendment 735.

Amendment 738, in clause 194, page 149, line 12, leave out subsection (4).

See the explanatory statement for amendment 735.

Amendment 739, in clause 194, page 149, line 14, leave out subsection (5).

See the explanatory statement for amendment 735.

[Keir Starmer]

The amendments are fundamental and important, because one of the main features of the Bill is the role of the judicial commissioners and the role, therefore, of judges in the double lock. The Home Secretary made a great deal of introducing that judicial element when the Bill was published in draft form, and again when it came back before the House in its current form. The Government have repeatedly and understandably emphasised that point throughout the scrutiny process. The amendments are focused on the appointment of the judicial commissioners. The way in which senior judges are appointed in this country has evolved over time, but we now have a clear and agreed way that has gone through numerous processes and consultations, with numerous recommendations on how it should properly be done.

We welcome the fact that, following the pre-legislative scrutiny, the provisions in clause 194 have been amended, but it remains the case that the Prime Minister will appoint the judicial commissioners, which is most unusual. The change from the draft Bill is that the Prime Minister must now consult the Lord Chief Justice. That is a step in the right direction, but it is fundamental, under our unwritten constitution, that judges are appointed independently of the Executive and those in political positions, and are not appointed by the Prime Minister.

The step of requiring the Lord Chief Justice to be consulted does not go as far as the Joint Committee on the draft Bill wanted. It recommended that the Lord Chief Justice be responsible for appointing the commissioners, to “ensure public confidence”. It was clear about how the separation of powers should operate in this important field. The Joint Committee also recommended:

“The Judicial Appointments Commission must also be consulted to ensure that the appointments procedure is fair and transparent.”

It wanted a move away from the Prime Minister making the appointments to the Lord Chief Justice doing so, drawing on the Judicial Appointments Commission, which was set up to ensure the transparency and independence of the appointments regime.

In short, the Prime Minister should not be involved. The Interception of Communications Commissioner’s Office agrees, stating in its evidence to the Joint Committee:

“It is inappropriate for the Judicial Commissioners to be appointed by the Prime Minister”.

It, too, said there should be a role for the Judicial Appointments Commission. As I said, the Judicial Appointments Commission has evolved over time. It was set up to ensure the independence of the judiciary, by requiring vacancies to be advertised and published, with the criteria for appointment and so on.

The changes proposed in the amendments are ones of principle that are rooted in the separation of powers and in line with the view of Lords Constitution Committee on judicial appointments. That Committee has affirmed that judicial independence is a basic constitutional principle, and it found wide agreement among those that gave evidence to it that the appointments process must be designed in such a way as to reinforce judicial independence and that judges should not be appointed through a political process.

The amendments are fundamental to the how the judicial commissioners are to be appointed. If there is to be public confidence in the double lock, judicial commissioners should be appointed independently, in accordance with the understanding and arrangements under our unwritten constitution.

[Joanna Cherry]

I support the amendments.

--- Later in debate ---

The amendments would remove the Prime Minister’s involvement in the appointment process and substitute it with a process by which the Lord Chancellor makes the appointments, following recommendations by the Judicial Appointments Commission. There are several problems with that. First, It would involve a different member of the Executive, and to involve the Lord Chancellor and not the Prime Minister raises questions of hierarchy—I put it no more strongly than that, but that is certainly of questionable merit. More importantly, I remind the Committee that in order for an individual to qualify as a judicial commissioner, they will have to be, or have been, a High Court judge, so they will have gone through the Judicial Appointments Commission process. I am not sure that they need to be put through it again. Hon. Members will remember that during the evidence session on 24 March I asked Lord Judge about that point specifically, because I was mindful that it was a matter of debate and mindful of what the Joint Committee had said about it. Lord Judge was very clear about.

[Keir Starmer]

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.

[Mr Hayes]

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.

--- Later in debate ---

[Mr Hayes]

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.

[Keir Starmer]

rose—

[Mr Hayes]

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.

--- Later in debate ---

[Keir Starmer]

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.

[Mr Hayes]

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.

--- Later in debate ---

[Mr Hayes]

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.

[Keir Starmer]

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.

[Mr Hayes]

Will the hon. and learned Gentleman give way?

[Keir Starmer]

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.

[Mr Hayes]

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.

[Keir Starmer]

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

[Joanna Cherry]

I beg to move amendment 745, in clause 195, page 149, line 34, leave out “three” and insert “six”.

--- Later in debate ---

[Mr Hayes]

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.

[Keir Starmer]

rose—

[Mr Hayes]

I will give way to the hon. and learned Gentleman, because I have cited him and courtesy obliges me to give way.

[Keir Starmer]

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.

[Mr Hayes]

That is exactly the point I was making. Again, I have no doubts about the hon. and learned Lady’s noble intentions, but I do not think that this is a good place to do what she seeks to do.

--- Later in debate ---

[Mr Hayes]

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.

[Keir Starmer]

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?”

[Mr Hayes]

I was, by proxy, making that clear, and I will leave it at that.

Investigatory Powers Bill (Fourteenth sitting)

Keir Starmer Excerpts

Committee Debate: 14th sitting: House of Commons
Thursday 28th April 2016 Public Bill Committees

Error reporting

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

I beg to move amendment 773, in clause 198, page 153, line 6, leave out from “aware” to the end of line 9.

[The Chair]

With this it will be convenient to discuss the following: Amendment 765, in clause 198, page 153, line 6, leave out

“if the Commissioner considers that—”.

Amendment 766, in clause 198, page 153, line 8, leave out subsection (1)(a).

Amendment 767, in clause 198, page 153, line 10, leave out subsection (2).

Amendment 774, in clause 198, page 153, line 10, 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.

(3) Exceptional circumstances under subsection (2) 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.”

Amendment 778, in clause 198, page 153, line 11, leave out “may not” and insert “must”.

Amendment 779, in clause 198, page 153, line 12, after “has”, insert “not”.

Amendment 780, in clause 198, page 153, line 12, leave out “significant”.

Amendment 768, in clause 198, page 153, line 14, leave out subsection (3).

Amendment 781, in clause 198, page 153, line 14, leave out “has” and insert “may have”.

Amendment 782, in clause 198, page 153, line 15, leave out “not”.

Amendment 769, in clause 198, page 153, line 19, leave out subsection (4)(a).

Amendment 783, in clause 198, page 153, line 19, leave out

“and its effect on the person concerned”.

Amendment 784, in clause 198, page 153, line 20, leave out

“contrary to the public interest or”

and insert “seriously”.

Amendment 770, in clause 198, page 153, line 24, leave out subsection (4)(b)(iii).

Amendment 771, in clause 198, page 153, line 25, leave out subsection (4)(b)(iv).

Amendment 785, in clause 198, page 153, line 26, at end insert—

‘(4A) In subsection (4) any publication will be considered “seriously prejudicial” where it would involve a significant risk to the life or of serious physical injury of any person.”

Amendment 788, in clause 198, page 153, line 39, leave out subsection (7).

Amendment 776, in clause 198, page 153, line 45, leave out paragraph (b).

Amendment 772, in clause 198, page 154, line 3, after “public authority”, insert

“or a telecommunications operator”.

Amendment 777, in clause 198, page 154, line 6, leave out paragraph (b).

[Keir Starmer]

We deal here with error reporting. The structure and arrangement of the clause distinguishes between serious and other errors. There is a definition of “serious” in subsection (2), and a provision in subsection (3) indicating that a breach of the European convention on human rights

“(within the meaning of the Human Rights Act 1998) is not sufficient by itself for an error to be a serious error.”

The Joint Committee considered the measures and recommended that the Government review the error reporting threshold. The Government said that they accepted that recommendation, but for my part, I have not seen anything further to that acceptance. In other words, I am not sure that anything about the review has been set out. If I am wrong, I will not pursue the point, but although the Government have accepted the principle of a review, I have not seen the outcome of that review.

In relation to the threshold, the amendments are intended to achieve a number of things. One is to make it clear that a breach of a convention right should be regarded as a serious error, irrespective of what follows from it. We obviously welcome the fact that in clause 198, the Government have responded to recommendation 57 by the Joint Committee, so that commissioners are now capable of exercising the function of error notification without the involvement of the Investigatory Powers Tribunal. That is a response to the Joint Committee, I think, and it is welcome.

However, the Joint Committee suggested that as well as informing those affected by the errors and providing them with adequate information, there should be an ability to refer matters directly to the IPT where unlawful conduct has been identified. In other words, there should also be a power to go to the IPT directly. That was recommendation 66, and it is not reflected in any revision to the clause. It would be an important means of pursuing and preventing further violations involving errors about which it was not in the public interest to inform individuals, but which none the less ought to be brought to the attention of the IPT. We notice that the Government have not made that change, and I would be interested to hear the reasons. David Anderson also supported the ability of an independent oversight body to refer cases to the Crown Prosecution Service or lodge a claim directly with the IPT, again as a way of ensuring an element of direct access. Those issues relate to the first few subsections of clause 198.

--- Later in debate ---

[Mr Hayes]

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.

[Keir Starmer]

rose—

[Mr Hayes]

The hon. and leaned Gentleman is about to intervene to qualify that point.

[Keir Starmer]

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.

[Mr Hayes]

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.

[Keir Starmer]

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.

[Mr Hayes]

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.

--- Later in debate ---

[Mr Hayes]

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.

[Keir Starmer]

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.

[Mr Hayes]

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.

[Keir Starmer]

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.

[Keir Starmer]

I beg to move amendment 775, in clause 198, page 153, line 38, at end insert—

“(c) provide the person with such details of the submissions made by the public authority on the error and the matters concerned pursuant to subsection 198(5) as are necessary to inform a complaint to the Investigatory Powers Tribunal.”

[The Chair]

With this it will be convenient to discuss amendment 791, in clause 199, page 154, line 21, 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.”

[Keir Starmer]

I can be brief. The short amendments would provide that when a person is notified so that they can pursue a remedy if so minded or advised, they are given sufficient detail to do so. I think they are self-explanatory.

[The Solicitor General (Robert Buckland)]

It is a pleasure to reply on these amendments. In the spirit of the hon. and learned Gentleman’s remarks, I will deal with them as quickly as I can.

The amendments are about a submission prepared by a public authority for the commissioner that relates to an error being shown to an individual affected. With respect, I do not think that is necessary or desirable and I will set out three reasons for that. First, the IPC is already required to provide to the person such details of the error as the commissioner considers necessary. If that test is met by any information provided to the IPC in the course of the submissions made pursuant to clause 198(5), the Bill already requires that the judicial commissioner provide those details to the person. The amendment is therefore unnecessary.

Secondly, I am concerned that the amendment might inhibit disclosure to the commissioner. The submission is intended to assist the commissioner in deciding the seriousness of the error and the impact of disclosure; as such, it will contain a full and frank admission of how the error occurred and what measures have been put in place to prevent it from happening again. If the public authority knows that any submission it makes will be provided to an individual, out of necessity, to preserve the secrecy of its operating systems and methods, it may need to be less candid in its submission to the commissioner. That will force the commissioner to take a decision on whether it is in the public interest for an individual to be informed without, regrettably, knowing the full facts behind the matter.

Finally, if a case is brought to the Investigatory Powers Tribunal, disclosure of the relevant material will occur during the proceedings in the normal way. If the IPT thinks that any part of the submission should have been disclosed, it can order that to be so disclosed. The tribunal is best placed to rule on what should or should not be disclosed as the case progresses, rather than what I would regard as inappropriate disclosure before the initiation of proceedings.

Amendment 791 would remove the requirement for judicial commissioners to consult the Secretary of State before releasing information to any public authority or other person. I have made the point before and make no apology for repeating it that, given the responsibility of the Executive for the protection of the public, it is right that the Executive be given the opportunity to express an opinion on where the public interest lies. For those reasons, I respectfully invite the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 198 ordered to stand part of the Bill.

Clause 199

Additional functions under this Part

[Joanna Cherry]

I beg to move amendment 792, in clause 199, page 154, line 17, 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.”.

This amendment would give the Judicial Commissioners power to refer issues of concern to the IPT without having to rely on a complaint being made.

The amendment, which would insert a new subsection in clause 199, was proposed by the Equality and Human Rights Commission and is jointly tabled by the Scottish National party and the Labour party. It would give the judicial commissioners power to refer issues of concern—matters that came to their notice and about which they were concerned—to the Investigatory Powers Tribunal without having to rely on a complaint being made.

Under the Bill as drafted the unlawful use of investigatory powers may not receive sufficient scrutiny, because often the subjects of surveillance will be unaware of it and so not in a position to make a complaint. The amendment would improve the safeguards in the Bill by addressing that problem so that where judicial commissioners are aware of a concern, they can refer it to the Investigatory Powers Tribunal. The judicial commissioners decide whether to approve the issue of warrants and are well placed to identify issues of systemic concern and of law requiring resolution by the tribunal. They are, in fact, much better placed to do so than those subject to surveillance, because they have an overview of the whole picture. It is therefore sensible to permit them to refer matters of concern to the tribunal.

The amendment is in line with a number of recommendations made during prelegislative scrutiny. Recommendation 66 of the Joint Committee on the Draft Investigatory Powers Bill was that

“The Judicial Commissioners should be able to make a direct reference to the Investigatory Powers Tribunal where they have identified unlawful conduct following an inspection, audit, investigation or complaint.”

Recommendation 16 of the Royal United Service Institute’s report, “A Democratic Licence to Operate”, says:

“The judicial commissioners should have a statutory right to refer cases to the IPT where they find a material error or arguable illegality or disproportionate conduct.”

The Interception of Communications Commissioner’s Office, in written evidence to the Draft Bill Committee, made similar recommendations.

In their response to prelegislative scrutiny, the Government did not accept those recommendations, but they appear to have agreed that judicial commissioners should have this power, as it is referred to in the draft codes of practice. For example, the draft code of practice on interception of communications states:

“The Commissioner may, if they believe it to be unlawful, refer any issue relating to the use of investigatory powers to the Investigatory Powers Tribunal”.

However, there is no express power to do this in the Bill. We argue that the referral power needs to be set out clearly in the Bill for two reasons.

First, such an important power should be in primary legislation, rather than in a draft code of practice that may be subject to revision after the passage of the Bill through Parliament. If it is in the Bill, any change to the power in future would be subject to greater parliamentary scrutiny, requiring the amendment of primary legislation rather than the mere revision of codes of practice. Secondly, providing for the power in codes of practice but not in the Bill creates uncertainty, which the amendment would resolve. Without the amendment, there may be a lack of certainty about whether the judicial commissioners have what would be a crucial power, and it could be argued that the codes of practice cannot create such a power without it being in the Bill.

The confusion over those issues could be resolved in a straightforward manner by the Government accepting the amendment. Their general response to prelegislative scrutiny referred to the fact that courts and tribunals do not usually have the power to carry out investigations on their own initiative, but the amendment would not give the tribunal that power; rather, it would give the judicial commissioners the power to refer an issue to the tribunal, which the tribunal would then investigate on the initiative of the judicial commissioners. In support of that approach, I note that the Investigatory Powers Tribunal explains on its website:

“The Tribunal adopts an inquisitorial process to investigate complaints to get to the truth of what has happened in a particular case, unlike the adversarial approach followed in ordinary court proceedings.”

I suggest that that approach is appropriate in situations such as those envisaged in the Bill, where the victims of the measures will not have knowledge of them but the judicial commissioners will. They may therefore refer to the IPT, and because the IPT is an inquisitorial rather than an adversarial body, it is well placed to investigate a referral from the judicial commissioners. I ask the Government to take on board the amendment in the spirit in which it is intended and indicate that they will agree to it.

--- Later in debate ---

[Joanna Cherry]

I hear what the Minister says. I wonder whether the amendment might benefit from tightening up, perhaps by making the referral body the Investigatory Powers Commissioner. I will give it further consideration, but for the time being I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 199 ordered to stand part of the Bill.

Clause 200 ordered to stand part of the Bill.

Clause 201

Annual and other reports

[Keir Starmer]

I beg to move amendment 808, in clause 201, page 156, line 37, leave out “the Prime Minister” and insert “Parliament”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 801, in clause 201, page 157, line 3, leave out subsection (3).

Amendment 809, in clause 201, page 157, line 6, leave out “the Prime Minister” and insert “Parliament”.

Amendment 810, in clause 201, page 157, line 13, leave out subsection (6) and insert—

“(6) The Investigatory Powers Commissioner must lay a copy of the report before Parliament together with a statement as to whether any part of the report has been excluded from publication under subsection (7).”

Amendment 811, in clause 201, page 157, line 19, leave out “The Prime Minister” and insert “The Investigatory Powers Commissioner”.

Amendment 812, in clause 201, page 157, line 19, leave out “Investigatory Powers Commissioner” and insert “The Prime Minister”.

Amendment 813, in clause 201, page 157, line 22, leave out “Prime Minister” and insert “Investigatory Powers Commissioner”.

Amendment 804, in clause 201, page 157, line 23, leave out

“contrary to the public interest or”

and insert “seriously”.

Amendment 805, in clause 201, page 157, line 27, leave out subsections (7)(c) and (7)(d).

Amendment 815, in clause 201, page 157, line 28, leave out subsection (7)(d).

This amendment would delete “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” as grounds for excluding a part of a report issued under this Part from publication.

Amendment 806, in clause 201, page 157, line 30, at end insert—

“(7A) In subsection (7) any publication will be considered “seriously prejudicial” where it would involve a significant risk to the life or of serious physical injury of any person.”.

Amendment 807, in clause 201, page 157, line 40, leave out

“if requested to do so by the Prime Minister”.

[Keir Starmer]

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.

[Mr Hayes]

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.

[Keir Starmer]

I am grateful.

[Mr Hayes]

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.

[Keir Starmer]

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.

[Mr Hayes]

Got it in one.

[Keir Starmer]

Therefore, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

I rise to speak to amendment 814, in clause 201, page 156, line 42, after “authorisations”, insert “requested and”

This amendment would require the Annual Report to include information on the number of requests for warrants or authorisations made.

I have spoken to this amendment in the round and therefore will not say anything more about it.

[The Chair]

The amendment is not moved.

Clause 201 ordered to stand part of the Bill.

Clause 202 ordered to stand part of the Bill.

Clause 203

Information gateway

--- Later in debate ---

[Joanna Cherry]

I am grateful for that. We have had a lot of debate about these issues already, and I am very grateful to the Solicitor General for indicating that he is going to look at them seriously. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 203 ordered to stand part of the Bill.

Clause 204

Funding, staff and facilities

[Keir Starmer]

I beg to move amendment 833, in clause 204, page 158, line 41, leave out

“The Secretary of State must”

and insert “The Treasury must”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 834, in clause 204, page 158, line 42, leave out

“and subject to the approval of the Treasury”.

Amendment 835, in clause 204, page 158, line 43, after “with”, insert “funds to cover”.

Amendment 836, in clause 204, page 159, line 3, leave out “Secretary of State considers”.

The amendments 833 to 836 would remove the role of the Secretary of State in determining the funding, staff and facilities to be afforded to the Judicial Commissioners, leaving this to the Treasury and the IPC.

New clause 17—Remuneration or allowances for additional directed oversight functions—

“The Treasury shall make available such remuneration or allowances as necessary to meet the requirements of section 197 (Additional directed oversight functions).”.

--- Later in debate ---

[Keir Starmer]

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.

[Mr Hayes]

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.

[Keir Starmer]

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.

[Mr Hayes]

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.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

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.

[Mr Hayes]

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.

[Keir Starmer]

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.

[Joanna Cherry]

I wish to oppose the clause, in relation to submissions I made earlier about clause 196.

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

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Right of appeal from Tribunal

[Keir Starmer]

I beg to move amendment 843, in clause 208, page 160, line 13, after “determination”, insert

“or ruling or decision, including relating to a procedural matter”

and leave out

“of a kind mentioned in section 68(4) or any decision of the tribunal or a kind mentioned in section 68(4C)”

This amendment makes clear that all decisions, determinations and rulings can be appealed on a point of law.

[The Chair]

With this it will be convenient to discuss amendment 841, in clause 208, page 160, line 31, leave out subsection (6).

The Bill provides that an appeal on an error of law will only lie when an appeal raises an important point of principle or practice or there is another compelling reason to grant leave. This amendment would remove this restriction and create a right of appeal against any error in law.

[Keir Starmer]

The amendments relate to the grounds for appeal. The Bill provides that appeal on an error of law will only lie when an appeal raises

“an important point of principle or practice, or…there is another compelling reason to grant leave.”

The two amendments would remove that restriction and create a right of appeal against an error in law.

The history and background of this is that David Anderson raised the issue in his report last year. He suggested that appeals be permitted on an error of law. When it scrutinised the Bill at the tail end of last year and the beginning of this year, the Joint Committee agreed that an appeal should be permitted on any error of law. It is right that appeals should be allowed on errors of law, so that they can be corrected, and so that the right decision is arrived at on the right legal analysis.

The Government have refused to amend the Bill in the light of those recommendations, maintaining that there needs to be an important point of principle or practice or another compelling reason for granting leave. That is unpersuasive. David Anderson and the Joint Committee were absolutely clear—they were right—that an appeal should lie where there is an error of law.

[The Solicitor General]

I am afraid that I am not persuaded by the amendments. I am concerned that within the Bill the IPT and the appellate court already have the significant discretion necessary when granting permission to appeal. I am worried that the amendments will have a detrimental effect. There is a risk that we will end up with appeals in cases where there is no significant point of law, and that is frankly a waste of everyone’s time and resources.

I want to deal with the background to clause 208. The Bill represents a significant step. The only route of appeal currently available to complainants from decisions of the Investigatory Powers Tribunal is by reference directly to the European Court of Human Rights. For the first time, we have established a domestic right of appeal, which will enable parties to seek redress here in the UK court system. That will also enable appeals to be heard more quickly. I think we would all agree that that is a massive step forward. Appeals will be heard by the Court of Appeal of England and Wales, or the Court of Session in Scotland or the Court of Appeal in Northern Ireland, and ultimately it will be possible for appellants to seek permission to appeal from the appellant court to the Supreme Court.

I understand the sentiment behind the amendments, but there has to be balance and I think our approach is right. The Investigatory Powers Tribunal or relevant appellant court will be able to grant permission to appeal if it considers that it would raise

“an important point of principle or practice”,

or additionally, if there are any other compelling reasons to grant leave. That gives the courts an appropriately wide discretion when deciding whether permission should be granted. That makes it possible for any case that raises a significant point of law to be dealt with at appellate level.

As hon. Members are no doubt aware, this type of restriction is not unusual. Our approach in the Bill is directly modelled on restrictions that apply to judicial reviews from decisions of an upper tribunal—that is civil procedure rule 54.7A. I consider that the same restrictions should apply to appeals from the IPT.

It would be helpful for me to take the opportunity to put on record the number of cases that were considered by the IPT in 2015. Two hundred and nineteen cases were considered, of which 47%—nearly half—were deemed to be frivolous or vexatious; 30% were given a “no determination”; 17% were out of the IPT’s jurisdiction, withdrawn or not valid; 3% were out of time; and only 4% were found to have any merit to them.

Therefore, although creating an appeal route is very important—I am proud that we are doing that—not having any limits on that route would mean, I am afraid, a considerable amount of taxpayer money and court and agency time and resources frankly being wasted on continuing to manage and defend cases that, sadly, have no grounding in fact or merit in law. That is why I think the appeal route as currently delineated will still allow important cases that need further judicial scrutiny to progress.

Therefore, to strike the right balance, having broken new ground with the domestic right of appeal, I commend the clauses unamended to the Committee and urge the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

The Solicitor General is right that this is an important step forward, but it also needs to be the right one. I am not convinced that the point about frivolous and vexatious applicants has any bearing or substance, because there has to be an appeal on a point of law and it can be allowed only on a point of law. Therefore, if it is on a point of law, it is difficult to argue that it is frivolous and vexatious. Of course, the amount of those should be reduced—they waste a great deal of time—but this amendment would not increase the number of frivolous and vexatious cases, nor would it give them any grounds for success.

This important point was pressed by David Anderson and the Joint Committee, and I wish to press this amendment to a vote.

Question put, That the amendment be made.

Division 119

Ayes: 7

---

Labour: 5
Scottish National Party: 2

Noes: 10

---

Conservative: 8

[Keir Starmer]

I beg to move amendment 842, in clause 208, page 162, line 22, 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.”’

[The Chair]

With this it will be convenient to discuss the following:

New clause 20—Power to make declaration of incompatibility with a Convention right—

“(1) Section 4 of the Human Rights Act 1998 is amended as follows.

(2) In subsection (5), after paragraph (f), insert—

‘(g) the Investigatory Powers Tribunal.’”

This new clause enables the IPT to make a declaration of incompatibility under the Human Rights Act.

New clause 21—Openness and the Investigatory Powers Tribunal—

“(1) Within 12 months of the coming into force of this Act, the Secretary of State must make arrangements for an independent review of the procedures of the Investigatory Powers Tribunal to be placed before Parliament.

(2) The Treasury will provide such funds, remuneration or allowances as necessary for the Independent Reviewer appointed to produce his report pursuant to section (1).

(3) The Independent Review in section (1) must consider—

(a) the capacity of the Tribunal to afford redress to individuals when compulsory powers are exercised unlawfully, including in a manner incompatible with Convention Rights protected by the Human Rights Act 1998, and

(b) the conduct of Tribunal hearings and the production of Tribunal decisions which are open, transparent and accessible, except in so far as can be justified in light of a serious risk to life or of physical injury of any person, seriously prejudicial to—

(i) national security, or

(ii) the prevention and detection of serious crime.”

[Keir Starmer]

We have a long-standing principle of openness and open justice in this country. Case law as long as my arm sets out the importance of open justice. I readily accept that that principle, which we all adhere to, is more difficult to achieve in this field than in other fields, but with these amendments we are really arguing about the default position, not the automatic position.

On page 240 of his report, David Anderson recommended that the IPT be changed—I recognise what the practice is—

“to make open hearings the default and disclose the fact that closed hearings have taken place”.

The Joint Committee on the Draft Investigatory Powers Bill recommendation 74 is that, when making a decision on whether part of a hearing should be open or not, the tribunal should apply a public interest test.

This amendment would make open hearings the default position, which was David Anderson’s preference, but to have a mechanism to change the default position to closed proceedings. It is important that we keep to the principle of open justice. People fought for it for many years, and it is one of the central planks of our justice system. A default position that proceedings are open is in keeping with that principle; the default position set out in the Bill is not. For those reasons, I will press this amendment.

New clause 20 deals with declarations of incompatibility, and speaks for itself. It would amend section 4 of the Human Rights Act 1998 to give the IPT the power to make a declaration of incompatibility. Where there is a problem with legislation and convention rights that cannot be resolved during interpretation, the IPT would have the power to make a declaration of incompatibility, which would then trigger a dialogue with Parliament about what, if any, modifications or alterations to legislation should follow. That has proved worthwhile and effective so far under the Human Rights Act 1998.

[The Solicitor General]

In prefacing my remarks on the hon. and leaned Gentleman’s arguments, I, too, pray in aid my strong and long-held commitment to open justice. Like him, I practiced it for many years, and I believe fundamentally in it. However, as a parliamentarian, I have come to accept that there are occasions, which need to be very carefully prescribed, when that principle has to be departed from, but that must only be in cases where there is a clear public interest and a necessity that everybody would understand. That is why every time these matters arise—whether it was when the Special Immigration Appeals Commission was created nearly 20 years ago, or when the Justice and Security Act 2013 created closed material proceedings three or four years ago—they are the subject of very intense debate and proper scrutiny. I therefore welcome the opportunity to look closely at the position with regard to the new provisions in the Bill.

The amendment seeks to amend section 68 of the Regulation of Investigatory Powers Act 2000 to provide that the Investigatory Powers Tribunal must hold its proceedings in public unless closed proceedings are in the public interest. As has been outlined, the amendment would restrict the circumstances in which that can take place and would require the appointment of special advocates.

First, on the necessity, we are in something of a transitional period, but I will give the Committee some reassurance. Rule 9 of the tribunal rules, pursuant to section 69 of RIPA, currently states that all proceedings, including oral hearings, should be held in private. The problem is that the rules have not been updated to take into account changes that were introduced by the tribunal many years ago. There was a ruling in the 2003 Kennedy case, which is reported at IPT/01/62 and IPT/01/77, that the tribunal has the discretion to order that hearings take place in public. Happily, since then, in practice the IPT has regularly held open hearings, and copies of its judgments delivered in open proceedings are publicly available on its website.

--- Later in debate ---

We are also thinking about what it means for complainants in terms of full and proper redress. Although declarations of incompatibility are important and I do not seek to minimise them, they will not in practice prevent the tribunal from offering full and proper remedy to those who have been wronged as a result of an error or something worse.

[Keir Starmer]

I am not sure that the Solicitor General is right about that. The declaration of incompatibility arises only where the primary legislation requires an outcome that is incompatible with the convention right. By definition, the legislation in place overrides the convention right, which is what bounces it back to Parliament. Technically, he is probably wrong about that. There cannot be a remedy; that is why the amendment is needed.

[The Solicitor General]

I am interested in that argument, although I am not entirely persuaded by it. I am afraid that the amendment would be a problem across the piece. If courts of lower record could issue declarations, obviously I would not be arguing the point. It would be unusual for us to single out the Investigatory Powers Tribunal as sui generis in this instance.

To return to the point that I was developing, under section 68(5) of the Regulation of Investigatory Powers Act 2000, the IPT is required to make a report to the Prime Minister in the event that it makes a determination in favour of a person that arises from any act or omission made by or on behalf of the Secretary of State. In such circumstances—this may be a helpful and practical point—the Government would of course be required to consider whether legislative change was needed. De facto, our position would be very similar to the result of the declaration of incompatibility.

For example, the IPT recently decided in the Belhaj and Saadi cases, both public judgments, that the regime for certain intrusive surveillance of legally privileged material contravened article 8. I know that this is a slightly different point from declarations of incompatibility pursuant to section 19, I think—I am sure Hansard will help me—of the Human Rights Act 1998. The tribunal is already making findings on the compatibility with rights under the convention.

Finally, I will deal with the question of review of the tribunal. As Committee members will know, the use of investigatory powers has been the subject of extensive reviews, to which we have referred repeatedly in this Committee’s deliberations. None of those reports recommended the wholesale change to how the IPT operates that the amendment suggests. Bearing in mind that we have ongoing and detailed scrutiny and important and recent reviews, I do not believe that we will get added value from a further review. The new clause would also require that any independent review must consider two issues.

The IPT can of course make clear any concerns that it might have about the operation of the tribunal. The tribunal published a report only recently, and it did not express any concerns about its effective operation, so I do not think that a further review will add anything. I believe that the key concerns identified in the amended clause have been and are being addressed. On reasons of lack of necessity, I therefore submit that the new clause would not take us any further. On that basis, I invite the hon. and learned Gentleman to withdraw the amendments and new clauses.

[Keir Starmer]

I will not press new clauses 20 and 21, but I will press amendment 842 to a vote on the open justice principle.

Question put, That the amendment be made.

Investigatory Powers Bill (Fifteenth sitting)

Keir Starmer Excerpts

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

[The Chair]

Before we begin, this sitting is officially due to finish at 5.30 pm, but we will continue until 6.30 pm, at which point there will be a break. The Committee will reconvene at 7 o’clock with Mr Owen in the Chair.

Clause 212

Combination of warrants and authorisations

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

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

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

[The Minister for Security (Mr John Hayes)]

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

Question put and agreed to.

Clause 212 accordingly ordered to stand part of the Bill.

Schedule 8 agreed to.

Clause 213

Payments towards certain compliance costs

[Keir Starmer]

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

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

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

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

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

[Mr Hayes]

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

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

He went on to say that

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

And I am clear, quoting the Home Secretary, that

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

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

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

--- Later in debate ---

[Mr Hayes]

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

[Keir Starmer]

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

Amendment, by leave, withdrawn.

Clause 213 ordered to stand part of the Bill.

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

Clause 216

National security notices

[Keir Starmer]

I beg to move amendment 853, in clause 216, page 166, line 36, after “State”, insert

“following approval by a Judicial Commissioner”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 854, in clause 216, page 166, line 41, after “State”, insert “and a Judicial Commissioner”.

Amendments 853 and 854 would require judicial authorisation for national security notices. This would also extend the “double lock” standard that is set in other parts of the Bill.

Amendment 845, in clause 217, page 167, leave out lines 20 and 21 and insert—

“(1) The Secretary of State may, following approval by a Judicial Commissioner that the notice is justified, practicable, necessary and proportionate, give a relevant operator a notice (a ‘technical capability notice’)”.

This amendment would require judicial authorisation for Clause 217 and bring the clause in line with other provisions within the bill that require judicial authorisation.

Amendment 855, in clause 217, page 167, line 20, after “State”, insert

“following approval by a Judicial Commissioner”.

This amendment would require judicial authorisation for technical capability notices. This would also extend the “double lock” standard that is set in other parts of the Bill.

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

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

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

Amendment 859, in clause 220, page 171, line 4, at end insert—

“(9A) Any variation made under subsection (9) must be approved by a Judicial Commissioner.”

This amendment would require judicial authorisation for the variation and revocation of national security and technical capability notices. This would also extend the “double lock” standard that is set in other parts of the Bill.

[Keir Starmer]

The amendments go in pairs: amendments 853 and 854 are to clause 216, amendments 845 and 855 to clause 217 and amendments 852 and 859 to clause 220. They all have the same purpose and intent: to subject the powers in the clauses to the double-lock mechanism—in other words, to involve the judicial commissioners in those powers.

Clause 216 is concerned with national security notices. Subsections (1) and (2) make the power to issue such notices subject only to the test that they be

“necessary in the interests of national security”

and “proportionate”. There is no specific reference to any operational purposes; it is a very broad power. Once a notice is issued, subsection (3) takes effect:

“A national security notice may…require the operator to whom it is given—

(a) to carry out any conduct, including the provision of services or facilities, for the purpose of—

(i) facilitating anything done by an intelligence service under any enactment other than this Act, or

(ii) dealing with an emergency (within the meaning of…the Civil Contingencies Act 2004);

(b) to provide services or facilities for the purpose of assisting an intelligence service to carry out its functions more securely or more effectively.”

The Secretary of State issues a notice; once that notice is issued, the requirement on the operator is very broad. To be fair, subsection (4) makes it clear that a national security notice cannot be used to sideline or cut across a warrant or authorisation that is required under the Act, but the clause does make a very wide-ranging power available to the Secretary of State and it seems subject to pretty well no check, balance or safeguard.

The amendments would subject the procedure to the double-lock mechanism, to ensure that such a notice would go before a judicial commissioner, who would consider whether it was in the interests of national security and proportionate under subsections (1) and (2). The Joint Committee raised concerns about this issue when it looked at the draft Bill, and in particular how the lack of a definition of national security means that the power granted by the clause is very wide indeed.

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

Does the hon. and learned Gentleman agree that, in the absence of a definition of national security, it is difficult to foresee the kinds of activity or intrusion that obligations under the clause could entail? Is it not therefore providing a blank cheque power to the Government?

--- Later in debate ---

[Keir Starmer]

I agree. This is one of the rare occasions on which the Bill does not set out the procedure for what happens before the Secretary of State considers the exercise of her function. In other areas, we have seen particular requirements for what must be set out in the application and in the warrant—there is a bit more detail. Here, the notice procedure does not include any details of the formalities of the Secretary of State’s consideration or what must be set out in a notice; nor does the Bill provide any safeguard through the judicial commissioners, so not having a definition of national security means that the power is extremely wide and unchecked.

My amendments go only to the process and not to the substance of clause 216, but if they were made, at least a separate pair of eyes would look at the notice and consider whether the test of necessity and proportionality was met. That in itself would be an important safeguard in keeping with the model that runs through the Bill.

[The Solicitor General (Robert Buckland)]

It is a pleasure to serve again under your chairmanship, Ms Dorries. I have listened carefully to what the hon. and learned Gentleman and others have said about their concerns regarding the provisions, but may I reassure him and put to bed the notion that somehow this is a back door or a blank cheque to allow the authorities to do what they like when it comes to interference with the privacy of individuals? Far from it. I will explain as far as I can the purpose of the type of warrantry, particularly the national security notice, that we are talking about, and indeed the technical proficiency provisions as well.

An example of the type of support that might be required would be the provision of services or facilities to help the intelligence agencies in safeguarding the security of their personnel and operations. A notice might typically require a communications service provider to provide services to support secure communications by the security and intelligence agencies—for example, by arranging for a communication to travel via a particular route in order to improve security. A notice may additionally require the confidential provision of services to the security and intelligence agencies within the communications service providers, such as by maintaining a pool of trusted staff for the management and maintenance of sensitive communications services. I hope that gives the hon. and learned Gentleman some insight into what we are talking about here.

[Keir Starmer]

I am grateful for that indication, but I am not sure why that is an argument for not subjecting what could be a wide-ranging power to the double-lock mechanism, which has been the preferred safeguard for such powers in the Bill.

[The Solicitor General]

There are clear reasons for not going down that route. We are talking about the preparatory stage as opposed to the stage of interference with privacy. If the Government’s position was that there was a loophole—a gateway—to allow such interference, the hon. and learned Gentleman’s argument would have real strength, but that is far from the case. This is all about the preparatory stages—the necessary stages that need to be taken by communications service providers before we get to the application for what we all accept is an intrusion.

I am afraid I cannot share with hon. Members their analysis that we need a “now and forever” definition of national security in law. There is a good reason why national security is not defined in statute. Any attempt to define it in the Bill runs a real risk of restricting the ability of this country to respond to constantly evolving and unpredictable threats. It is vital that legislation does not, however unintentionally, constrain the ability of our security and intelligence agencies to protect this country. The examples are all around us: who would have imagined a few years ago cyber-attacks of the nature and on the scale that now threaten us? My concern is that if we try to rigidly define what we mean by national security, we run the risk of defeating the means by which we can keep this country safe.

[The Solicitor General]

I have gone as far as I can to explain the types of scenarios that the national security notices would be used for. In essence, they deal with the nuts and bolts rather than the intrusion. If somehow there was a gateway into intrusion, the hon. and learned Lady would be absolutely right, but I assure her that there is not, so the worries that she and other people and organisations have about a blank cheque, while understandable, are unfounded. I can assure her in Committee and I am happy to continue to make the assurance that the function of this type of notice is not intrusion.

Indeed, we have oversight because national security notices will be overseen by the Investigatory Powers Commissioner. The commissioner will have a duty to report at least once a year on what he or she has found and to make recommendations on where improvements can be made. The commissioner will also have the power to report on an ad hoc basis on any issue that he or she considers appropriate.

[Keir Starmer]

I am listening carefully to the Solicitor General. He says that the notices are not a gateway for preparatory steps to become steps that invade privacy, but where in the Bill is the provision that prevents that happening? The only restriction is subsection (4), which does not achieve that end.

[The Solicitor General]

With respect, I do not think that is necessary because any agency that sought to use this type of notice in order to get around the double-lock provisions in the Bill would soon come a cropper with the commissioner. That important oversight means that organisations are not operating in a vacuum; they will be held to account if they try to misuse these notices in the way that the hon. and learned Gentleman and others fear.

As I have said, we have the powers of review by the IPC. We also have the provision, pursuant to clause 220(5)(b) and (7), that the Secretary of State must consult the commissioner if a notice is reviewed, and the commissioner will then consider the proportionality of the matter before reporting conclusions to the Secretary of State. We have the checks and balances that the hon. and learned Gentleman rightly wants within the mechanism.

On amendments 853 and 854, I would say this: the role of the Secretary of State in issuing national security notices rightly reflects the responsibility of the Executive in protecting our national security; conversely, the role of the judicial commissioner in approving the issuing of warrants under the Bill reflects the particular and proper sensitivity regarding interference with private communications. We have got the double lock in place to ensure that, before the fact, a senior judge has to be satisfied that any interference with privacy is justified. The Bill explicitly prohibits—this is an important point—the issuing of national security notices for the primary purpose of obtaining private information, and the double lock then applies to the use of the most sensitive powers. We need to focus on the need for the double lock in relation to applications that result in the acquisition of private information. These types of notices do not permit the authorities to do that, so the amendments are unnecessary.

Amendments 845 and 855 deal with technical capability notices. Clause 217 builds on the current power provided for under the Regulation of Investigatory Powers Act 2000, where a company can be obliged to maintain a permanent interception capability in order to ensure that when a warrant is served, a company has the infrastructure in place to give effect to it securely and quickly. Again, any warrant served will have been reviewed by a judicial commissioner; he or she will play an important part in overseeing the operation of technical capability notices and any appeal that may be lodged against them. The commissioner will also be consulted about the making of regulations that will provide more detail about the operation of these types of notices, and those regulations will be put before Parliament for approval. Plenty of the checks and balances that the hon. and learned Member for Holborn and St Pancras, others interested in Bill and I would expect and want to see are here.

I am not persuaded of the need for amendments 852 and 859, because clause 220 already sets out the role of the IPC in the process of review and the actions that the Secretary of State must take in that process. The IPC will be integral to any review, because the Secretary of State must consult the commissioner, who will then consider whether the notice is proportionate. Inevitably, considerable weight will be afforded to the advice of the commissioner. The role of the commissioner provides an opportunity for the person on whom the notice has been served and for the Secretary of State to present evidence. The conclusions of the commissioner will be reported to the Secretary of State and to the person who has made the reference. After consideration of the conclusions, the Secretary of State may decide to confirm the effect of the notice, to change or vary it, or to withdraw it. Until that decision is made, there is no requirement for the person who has referred the notice to comply with the specific obligations under review.

In a nutshell, there are plenty of adequate safeguards to alleviate the concerns expressed by the hon. and learned Gentleman. I urge him to withdraw his amendments.

--- Later in debate ---

[Keir Starmer]

I listened carefully to the Solicitor General, and I am grateful to him for setting out how he envisages the notices operating. The difficulty is that there is a mismatch between what he says is their intended operation, and the safeguards in the clause. For me, subsection (4) does not do what he contends it does.

I am also concerned about clause 217. We will get on to that in more detail in a moment, but it is a wide-ranging clause on the maintenance of technical capability, which again ought to be subject to the double lock.

I apologise to the Committee, but on this occasion I will press the amendments in the group to a vote. In the past, in relation to a number of clauses, I have tested the Committee on the first one, but on this occasion I am not sure that I can do that. I think this will be the only occasion on which I will test the patience of the Committee, but clauses 216 and 217 are conceptually different and do not seem to be run as a group. I am afraid that I will press for a vote—as I say, I will not make a habit of it, and I have not done so before.

Question put, That the amendment be made.

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Division 126

Ayes: 7

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Labour: 5
Scottish National Party: 2

Noes: 9

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Conservative: 7

[Keir Starmer]

I beg to move amendment 846, in clause 217, page 168, line 8, at end insert—

‘(4A) A notice may not impose upon the relevant operator any obligations relating to the removal of electronic protection applied by or on behalf of that operator to any communications or data unless the relevant operator or a person acting on its behalf retains the technical ability to remove the electronic protection from such communications or data.”

This amendment would provide clarity and legal certainty for industry that the Government will not require back doors to be installed into products and services, is not seeking to weaken or restrict the use of encryption and that companies cannot be required to remove encryption if they do not have the means to do so at their disposal.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 847, in clause 217, page 168, line 16, at end insert—

“(e) persons generally held to be representing users and privacy interests in order to assess the impact of any such Regulations on users.”

This amendment would ensure that privacy protections form an overarching part of the Bill and apply across the full range of investigatory powers afforded to the security services.

Amendment 848, in clause 217, page 168, line 24, leave out subsection (8) and insert—

“(8) A technical capability notice may only be given to persons outside the United Kingdom (and may require things to be done, or not to be done, outside the United Kingdom) where it would not cause the person to act contrary to any laws or restrictions under the law of the country or territory where it is established, for the provision of services.”

This amendment would remove all provisions within the Bill that have extraterritorial reach and undermine the long term objective of creating a long term, international framework for law enforcement to gain access to data held overseas and resolves conflict of laws situations that may otherwise arise by providing the Secretary of State with the power to serve such notices without having to take account of domestic legal obligations to which the recipient is subject.

Amendment 857, in clause 217, page 168, line 30, at end insert—

“(11) A person shall not be liable to have a technical capability notice served on him in accordance with regulations under this section by reason only that he provides, or is proposing to provide, to members of the public a telecommunications service the provision of which is or, as the case may be, will be no more than—

(a) the means by which he provides a service which is not a telecommunications service; or

(b) necessarily incidental to the provision by him of a service which is not a telecommunications service.”

This amendment would exclude (under powers in RIPA section 11(4)) those services that have a communications element, but are primarily not a communication service. This limits the very broad range of “telecommunication services” that could be required to build a technical capability under this Part.

Amendment 849, in clause 218, page 168, leave out lines 37 and 38, and insert—

“(3) Before giving a relevant notice, the Secretary of State must provide evidence that the notice is justified, necessary practicable and proportionate, having, among other matters, taken into account—”

Amendment 850, in clause 218, page 168, line 45, at end insert—

“(f) the effect on the privacy and human rights of people in the United Kingdom and outside the United Kingdom”

Amendments 848 to 850 would make explicit the requirement on the Home Secretary to justify the use of a power as intrusive as a technical capability notice. It will also require the Home Secretary to take account of the full effects of such a notice, particularly on people and companies based overseas.

Amendment 858, in clause 218, page 169, line 7, leave out—

“A technical capability notice may be given to a person outside the United Kingdom”

and insert—

“Where a technical capability notice is to be given to a person outside the United Kingdom, the notice shall be served at that person’s principal office outside the United Kingdom where it is established, for the provision of services. Where it is considered unfeasible or inappropriate in the circumstances”

This amendment would require that a UK agency would only serve a notice on an overseas entity that is capable of providing assistance under the warrant.

[Keir Starmer]

This important clause is causing a great deal of concern to operators that may be called upon to comply with a notice. The clause provides for a power to be vested in the Secretary of State to give a relevant operator a technical capability notice

“imposing on the relevant operator any applicable obligations specified in the notice,”

and

“requiring the person to take all the steps specified in the notice for the purpose of complying with those obligations”.

That is a very wide power, and the concern is about the extent of it. In a moment, I will refer to the code of practice, which sets out some of the capabilities that might be required.

It is clear that the power includes taking steps relating to encryption. I say that for two reasons. Subsection (4) lists in paragraphs (a) to (e) the obligations that may be specified in regulations. They include obligations

“to provide facilities or services of a specified description”

and obligations relating to

“apparatus owned or operated by a relevant operator”

or to

“the removal by a relevant operator of electronic protection applied by or on behalf of that operator to any communications or data”.

That is clearly veering into encryption. Obligations may also relate to

“the security of any postal or telecommunications services provided by a relevant operator”

or

“the handling or disclosure of any information.”

If one reads ahead, clause 218(4) deals with further provisions on notices under clauses 216 and 217, stating:

“Where the relevant notice would impose any obligations relating to the removal by a person of electronic protection applied by or on behalf of that person to any communications or data, in complying with subsection (3) the Secretary of State must in particular take into account the technical feasibility, and likely cost, of complying with those obligations.”

The concern of many who might be called upon to comply with the obligations is about the wide-ranging nature of the power.

This also goes deep into the debate about encryption. It is absolutely clear that a notice could require protection to be removed, and the clause envisages that being the case. That becomes clearer when one reads the “Interception of Communications” draft code of practice from chapter 8 onwards. If one reads paragraphs 8.1 to 8.94, one sees what is in fact a power that allows the Secretary of State, through this mechanism, effectively to take control of a capability of a service provider. Paragraph 8.1 states:

“The purpose of maintaining a technical capability is to ensure that, when a warrant is served, companies can give effect to it securely and quickly. Small companies (with under 10,000 users) will not be obligated to provide a permanent technical capability”.

Paragraph 8.3 then lists the wide range of obligations that can be imposed in a notice under this clause.

Paragraph 8.4 of the draft code states:

“An obligation placed on a CSP to remove encryption only relates to electronic protections that the company has itself applied to the intercepted communications (and secondary data), or where those protections have been placed on behalf of that CSP, and not to encryption applied by any other party.”

That is very important provision, which I think I am right to say was clarified as a result of a recommendation from prelegislative scrutiny. The difficulty—I am anticipating the discussion we are about to have—is that this crucial issue is dealt with in the code of practice and not in the Bill. The concern expressed in the evidence given to the various prelegislative bodies and to the Committee was that companies will be obliged to remove the protections in their own systems. Paragraph 8.4 is of some comfort to them because it makes it clear that the obligation would only relate

“to electronic protections that the company has itself applied”

and not to other encryption—but the real problem is that paragraph 8.4 is in the code of practice and not in the Bill. That needs to be rectified. We cannot leave something as important as that in the code of practice. It goes to the heart of the power in the clause. It is far and away the biggest cause for concern among CSPs, yet it is not dealt with in the Bill. The Bill provides for a permissive, rather than a restrictive, regime—if I am wrong about that, I will happily take an intervention.

Paragraph 8.6 of the code of practice clarifies that:

“While an obligation to remove encryption may only relate to protections applied by or on behalf of the company…there will also be circumstances where a CSP removes encryption from communications for their own business reasons. Where this is the case, an intercepting agency will also require the CSP, where applicable and when served with a warrant, to provide those communications in an intelligible form.”

The code then makes provision for giving a notice, for the disclosure of technical capability notices, and for their review and variation. Paragraph 8.27 and 8.28 are very wide-ranging. Paragraph 8.28 states:

“CSPs subject to a technical capability notice must notify the Government of new products and services in advance of their launch, in order to allow consideration of whether it is necessary and proportionate to require the CSP to provide a technical capability on the new service.”

That goes deep into territory hitherto unregulated in this way; CSPs will be required to give the Government notice of their new products and services, so that the Government can consider whether to vary a notice that already applies to them. We can see why the service providers are so concerned about that capability.

Pressing on through the code of practice, we see that the contribution of costs for the maintenance of a technical capability is dealt with from paragraph 8.43. Again, these provisions give an indication of the breadth of the capability covered by the clauses of the Bill. Paragraph 8.43 states:

“Section 213 of the Act recognises that CSPs incur expenses in complying with requirements in the Act, including notices to maintain permanent interception capabilities under Part 9. The Act, therefore, allows for appropriate payments to be made to them to cover these costs.”

In a sense, the requirement for CSPs to give notice when they have new or different services and to maintain permanent interception capabilities when they would not otherwise do so means the taking control of their services for the purposes of the Act.

--- Later in debate ---

[The Solicitor General]

In arguing in opposition to the amendments, I first want to address the last point that the hon. and learned Member for Holborn and St Pancras made. I can come back to his point about the tests, but in a nutshell, they are inherent to the Bill. The tests of necessity and proportionality are part and parcel of the decision-making process that the authority will be enjoined to carry out.

[Keir Starmer]

It is noticeable that, for obvious reasons, necessity and proportionality have been written into relevant clauses throughout the Bill, but here, I think for the first time, we have a wide-ranging power with no such test—unless I have missed it, in which case I will happily concede the point.

[The Solicitor General]

In strict terms, the hon. and learned Gentleman is right—I am looking at clause 218 in particular. I think that subsection (3) might help him, because although we do not have the words “necessity” and “proportionality” there, the matters to be taken into account lead one to conclusions based on necessity and proportionality, and perhaps do so in a more prescribed way that is more helpful to the decision maker. Subsection (3)(a) to (e) addresses the hon. and learned Gentleman’s point, and I put it clearly on the record that the principles of necessity and proportionality are part and parcel of the tests to be applied.

I also note that necessity is required under clause 217(6), which relates to the steps specified in a technical capability notice. I do not know whether that helps the hon. and learned Gentleman. I will certainly consider the issue carefully, but on the face of it, I do not think there is a worry of the sort that he envisages.

--- Later in debate ---

Clause 217 relates to technical capability notices. Before such a notice is given, the Secretary of State must specifically consider the technical feasibility and likely cost of complying with it. Clause 218(4), which has been the subject of some debate, provides that that consideration must explicitly take into account any obligations to remove encryption applied by, or on behalf of, a communications service provider. In my submission, that deals with the point about third parties that the hon. and learned Member for Holborn and St Pancras raised.

[Keir Starmer]

I looked carefully at that subsection, but perhaps the Minister could explain why it is a limiting provision. It is a requirement provision as far as the notice is concerned, but on the face of it, encryption is not limited to protection applied by, or on behalf of, the person themselves. It tells us how that situation would be dealt with, but it is not limited to that.

[The Solicitor General]

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

[The Solicitor General]

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

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

[Keir Starmer]

I have looked at this issue in the past day or two, and I was concerned about the implication that on the face of it, one could not challenge the provision in court, because there is an absolute bar on disclosure. Am I right in assuming—if I am, it should be on the record—that the Secretary of State will give permission, where appropriate, for a legal challenge to be brought? In other words, there could be disclosure for the purposes of legal proceedings.

[The Solicitor General]

On the face of it, that has to follow. If any clarification is needed on that, I am sure I can assist as I further develop my remarks.

I was dealing with the process of consultation before the giving of a notice, and we have had the Apple example. I would like to develop the importance of the draft codes of practice, which the hon. and learned Gentleman has referred to.

--- Later in debate ---

[The Solicitor General]

That question is about the definition of the provider. I am sure we will be able to provide some clarity on that before I draw my remarks to a conclusion. I am grateful to the hon. and learned Lady for raising that point.

Amendment 850 relates to consideration by the Secretary of State of the effect of a notice on the privacy and human rights of people both here and outside the kingdom. The amendment is unnecessary because of the point I made before, which I will reiterate: the clause is not about notices authorising an interference with privacy. A warrant provided for elsewhere in the Bill is required to do that, and we have already considered the potency of the double lock and the test to be applied. A point that is relevant to all the amendments in this group is the statutory function of the Investigatory Powers Commissioner to oversee the use of notices. I raised that in the context of national security notices, and I pray it in aid here again.

Amendment 857 seeks to narrow the category of operators to whom a technical capability notice can be given. I am worried that that would limit the effects of law enforcement. We know about the diversification of criminality and terrorism in order to find new ways to avoid protection. I am concerned that narrowing the legislation would allow loopholes to get larger. It is therefore important that the obligations relating to the technical capabilities for a range of operators can be imposed by the Government in order to ensure we keep ahead of the curve.

The hon. and learned Lady made the powerful point that the clause does not relate to personally applied encryption. However, measures in part 3 of RIPA 2000 provide for where law enforcement agencies can require an individual to remove encryption that he or she has applied themselves. We know that the Bill generally does not cover all the agencies’ powers. This is perhaps a welcome opportunity to remind ourselves of the existing provisions in part 3, so I am grateful to her.

Of course we accept that it may well be appropriate to exclude certain categories of operator from obligations under the clause—I am thinking, for example, of small businesses; we are always mindful of the burden of regulation on small businesses—but it is our intention to use secondary legislation to achieve that. It would not be appropriate in primary legislation to impose blanket exemptions on services with a communications element that are not primarily communications services. To do so would send a rather alarming and clear message to terrorists and criminals that communications over certain systems will not be monitored. That sort of carve-out recalls the point that I made about the use by criminals of seemingly unrelated or innocuous communications channels in other internet facilities or apps, in order to hide their illicit enterprises.

I know that I have taken up an inordinate amount of the Committee’s time. I am obliged to the Committee and to you, Ms Dorries, for your indulgence. I hope that I have set out the reasons why I urge hon. Members to withdraw the amendment, and I pray in aid my arguments as advancing the case that the clause should stand part of the Bill. I urge the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I have only three issues to address. The first, which requires more attention from the Solicitor General—I say so with no disrespect—is the question of the extent of the prohibition on disclosure and, essentially, access to the courts or appropriate tribunals. On the face of it, clause 218(8) is a prohibition on disclosure, save with the permission of the Secretary of State. With respect to Committee members, I do not think that clause 220 provides the answer, because that deals with the consultation exercise where a notice is being reviewed.

I have no doubt that, if the Secretary of State exercised her power under clause 218(8) to prevent access to the courts, it would run straight into an article 6 access to courts argument that would succeed on judicial review. I had assumed that one could read into the clause by implication that permission would not be refused in a bona fide and proper case where access to court—or the relevant tribunal, which may be a better way of putting it—was an issue. If that were made clear for the record or by some redrafting of the clause, it would help. As I said, I think that, in practice, any court in this jurisdiction would strike down pretty quickly a Secretary of State who sought to prevent access to the court.

[The Solicitor General]

I think that the hon. and learned Gentleman is right about that. On that basis, I will have another look at clause 218(8), to get it absolutely right. I reassure him that it is not the Government’s intention to preclude access to the court.

[Keir Starmer]

I am reassured. I am sure that that would not be the case, but it might be sensible to clarify that rather than relying on clause 220, because I am not sure that that is the right way to do it. However, I will say no more about that.

I was going to press for votes on amendments 846 and 849, but I have listened carefully to what the Solicitor General said and to what the Minister said when he rose to make some observations earlier. They are by far the two most important amendments. Amendment 846 deals with encryption. I think I heard the Solicitor General say that he will look again at the wording of clause 218(4) to see whether it is possible to make clear what is clear in the code of practice, namely, that an obligation placed on a CSP to remove encryption relates only to electronic protections that the company itself has applied to intercepted communications and secondary data. That is clearly the position that the Government adopt, because it is now set out in the code. I think that the Solicitor General might accept that, at the moment, clause 218(4) does not quite achieve that objective. On the basis that he is prepared at least to look at that again, I will not press amendment 846.

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[Mr Hayes]

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

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

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

Amendment 734 agreed to.

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

Clause 220

Review by the Secretary of State

[Keir Starmer]

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

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

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

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

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

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

[Mr Hayes]

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

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

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

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

[Keir Starmer]

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

Amendment, by leave, withdrawn.

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

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

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

Question put, That the amendment be made.

--- Later in debate ---

to prepare the report, rather than it being done by the Secretary of State or persons acting under their auspices. The new clause would also provide that the necessary financial wherewithal was made available to enable that job to be done properly.

[Keir Starmer]

I shall speak briefly in support of new clause 23. The essential difference between this new clause and clause 222 is, of course, that the new clause would provide for a review within an initial period of five years and for subsequent five-yearly reviews, and for the reviews to be carried out by the independent reviewer, which we submit is more appropriate.

I understand why this new clause has been tabled, but it puts me in a bit of a dilemma. Is a review by the Secretary of State a good thing? Yes. I would therefore support clause 222 if I could not get anything better. I would not want to vote against the Secretary of State reviewing the Act if I lost on new clause 23, because it is sensible to have a Secretary of State review it. In other words, clause 222 is good, but new clause 23 is better; that is the way I would put it. I am in a dilemma, because if I vote against clause 222, I am voting against a good clause that I would naturally support in principle, but if the vote on new clause 23 was not carried—and having looked at the voting record so far, I am not confident that it would be—

[The Chair]

Order. Mr Starmer, would it be helpful to say that you could table amendments to clause 222 on Report, if you wished to?

[Keir Starmer]

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

[Mr Hayes]

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

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

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

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

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

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

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

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

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

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

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

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

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

[Keir Starmer]

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

[Mr Hayes]

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

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

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

Investigatory Powers Bill (Sixteenth sitting)

Keir Starmer Excerpts

Committee Debate: 16th sitting: House of Commons
Tuesday 3rd May 2016 Public Bill Committees

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

I beg to move, That the clause be read a Second time.

[The Chair]

With this it will be convenient to discuss the following:

New clause 26—Discharge of the powers, duties and functions: protection of national security—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the public interest in protecting national security.”

New clause 27—Discharge of the powers, duties and functions: prevention and detection of serious crime—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the public interest in the prevention and detection of serious crime.”

New clause 28—Discharge of the powers, duties and functions: protection of the privacy and integrity of personal data—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the public interest in the protection of the privacy and the integrity of personal data.”

New clause 29—Discharge of the powers, duties and functions: security and integrity of communications systems and networks—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the public interest in the security and integrity of communications systems and networks.”

New clause 30—Discharge of the powers, duties and functions: necessity—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the principle of necessity.”

New clause 31—Discharge of the powers, duties and functions: proportionality—

“(1) The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the principle of proportionality.

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

New clause 32—Discharge of the powers, duties and functions: process, accountability and respect for the human rights—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the principle of due process, accountability and respect for the human rights of those affected by the exercise of powers under this Act.”

New clause 33—Discharge of the powers, duties and functions: notification and redress—

“The discharge of the powers, duties and functions under this Act is subject to an obligation to have due regard to the principle of notification and redress.”

[Keir Starmer]

I welcome you back to the Chair, Mr Owen, for what I anticipate will be our last debate in this Bill Committee as we take this clutch of new clauses together. I say it is our last debate, but in some ways new clause 25 concerns an issue that we have been debating throughout Committee, from the very opening sitting and through every sitting we have had since. The discussion has been to-ing and fro-ing over whether there ought to be more specific provision for weight to be given to privacy in each clause or each time a power is set out, or whether there ought to be some overriding clause.

The new clause is an overriding privacy clause that is consistent with the recommendation of the Intelligence and Security Committee. For the Labour party, it is an important provision, upon which we place considerable weight. In other words, somewhere in the Bill, there needs to be a recognition of the real rights and interests that are affected by the powers in the Bill. A clause is needed to ensure consistency through the Bill, as there are examples of different powers being dealt with in slightly different ways. That clause should also act as a reminder to decision makers about the key principles they are applying in pretty well all the decisions they make. Perhaps most importantly, the clause should reassure the public on the key principles that run through the Bill.

I will concentrate on new clause 25. Considerable thought has been given to how an overriding privacy clause could be put together in a way that has meaning—and therefore gives confidence to the public—but is not so detailed as to be impractical to operate as an overriding clause. The way that the new clause has been put together is that four important public interests are recognised in paragraphs (a) to (d).

First is the public interest in protecting national security. That runs through the Bill and is the starting point. The second is the national interest in preventing and detecting serious crime, which also runs through all the powers we have debated. Thirdly, there is the public interest in the protection of privacy and the integrity of personal data. Now and again that crops up in the Bill, although not consistently, but it is an overriding interest. Fourthly, there is the public interest in the security and integrity of communications systems and networks. Those are the four powerful public interests.

Paragraphs (e) to (h) deal with the principles to be applied, including the principle of necessity and the principle of proportionality. As we have heard, there are examples where, although the Minister and the Solicitor General understandably say, “Well, of course that would be the reference point for decision making,” they are not on the face of the Bill. The new clause would provide the reassurance that that was the framework against which decisions were made.

As far as the principle of proportionality is concerned, the second limb of paragraph (f) is taken directly from the code of practice. It has been thought through and put into the code of practice but, for reasons I have argued previously, ought to be on the face of the Bill. Paragraph (g) deals with

“the principle of due process, accountability and respect for the human rights of those affected by the exercise of powers under this Act”,

and paragraph (h) deals with

“the principle of notification and redress.”

Now, they are principles and therefore are not fixed. The principle of accountability does not mean that everything must, necessarily, be transparent in the way it might be for other powers and duties in other Acts. The principle of notification does not mean there must always be notification. These are broad principles to be applied through the Act.

Whenever one tries to devise an overarching clause such as this, it is a careful exercise, or a judgment call, to try to decide what ought to be in and what ought not to be in. That is why the new clauses that follow are in the nature of a menu or suite of options. I am grateful to the Public Bill Office for giving me guidance on how to devise a number of clauses that would allow the Committee as a whole to look at each of these eight provisions and take a view on which ones ought to be included in an overarching privacy clause. My strong preference is not to get to new clause 26 and onwards, because I do not think that would be a particularly satisfactory way of dealing with an overarching privacy clause.

May I indicate, absolutely clearly and transparently, that I will listen carefully to what the Government say? In other words, I do not pretend for a moment that these new clauses could not be improved upon by different drafting. The issue we are probing is whether in principle there ought to be an overarching privacy clause, or an overarching set of public interests and principles, and if so, what broadly speaking would be included in them.

In that sense, new clause 25 can be properly described as a strongly probing clause. In other words, what we want to draw out are the views of the Committee on what an overarching clause ought to have in it; and if it is then necessary to have another joint exercise at drafting such a clause, then so be it.

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

I rise to speak as someone who, as a lawyer, will have interpreted clauses such as this to advance a particular case, giving weight to a particular clause or using it to enhance a case or stress a particular fact. To take paragraphs (g) or (h), for example, when we have already discussed notification perhaps not being necessary, they might be construed as saying that notification was necessary in a particular clause where it has no meaning at all. Will the hon. and learned Gentleman acknowledge that, in inserting in an overarching clause, we might be hostages to fortune, by including intentions that we did not intend in specific provisions?

[Keir Starmer]

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.

[Mr Hayes]

rose—

--- Later in debate ---

[Mr Hayes]

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.

[Keir Starmer]

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.

[Mr Hayes]

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.

[The Chair]

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.

[Keir Starmer]

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—

[Mr Hayes]

And we finished a day early.

[Keir Starmer]

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.

[The Chair]

Order. I think the hon. and learned Gentleman should sit down and allow Ms Cherry to speak for herself, because we are going to a vote.

[Keir Starmer]

I will. I hope that the hon. and learned Lady will mention the non-governmental organisations that have helped us. Thank you.

[Joanna Cherry]

I add my thanks to all those who have been mentioned so far. It has been a true pleasure to work so closely with the hon. and learned Member for Holborn and St Pancras. I pay tribute to the people behind the scenes who have greatly assisted Opposition Members in our preparation for this Committee.

A number of non-governmental organisations have been mentioned. I will not mention any one in particular; they know who they are, and they have been of great assistance to us. I also want to thank my hon. Friend the Member for Paisley and Renfrewshire North. This is my first time on a Bill Committee, and without his assistance, I would have been in even more of a guddle than I was on some occasions. I am very grateful to him for keeping me right.

Investigatory Powers Bill

Keir Starmer Excerpts

Report: 1st sitting: House of Commons
Monday 6th June 2016 Commons Chamber

[Mr Hayes]

The hon. Member for Perth and North Perthshire (Pete Wishart) shakes his head, but given that the SNP had only two Members on the Committee, I cannot describe it as the major contributor. Before he started shaking his head, I was about to say that the SNP made an incredibly helpful contribution, because it tested the Government, held us to account and made a number of useful and thought-through proposals. The Opposition—by the way, I say to the hon. Gentleman that they are Her Majesty’s Opposition—equally added immense value to our consideration by making the proposal for this new clause, among others. In my judgment, it was absolutely clear that the Opposition were determined to improve the legislation, rather than to weaken or dilute it. In that spirit, I am happy to propose the Government new clauses and amendments in this group.

To allow as many colleagues as possible to contribute to this important debate, I will now finish, except to say this: when Bills come before the House and are considered on Second Reading and debated in Committee and on Report, different circumstances apply and different shadow Ministers and Ministers approach the matter in their own style, but I take the view that although circumstances are beyond human control, our conduct, to quote Benjamin Disraeli, “is in our power”, and our conduct in consideration of this Bill, which is in our power, should continue to be as measured, reasonable and moderate as it can be.

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

I thank all Members who have so far been involved in the scrutiny of the Bill, both in its early stages and in the Public Bill Committee. I particularly pay tribute to all members of the Committee from both sides of the House. That of course includes the SNP Members, who worked hard and constructively with us on the Bill. I pay tribute to the hon. and learned Member for Edinburgh South West (Joanna Cherry), who leads for the SNP on this matter.

This group of amendments deals with the general provisions and the overarching privacy clause, so it is important for me to set out Labour’s position before I move on to new clause 5. Safety and security matter. The current threat level for terrorism is severe, which, as we all know, means that an attack is highly likely. We all remember and are deeply conscious of the attacks in Paris and Brussels in the not too distant past, as well as other attacks. However, the Bill deals with not just terrorism, but other serious crimes, such as the threats from people traffickers, including those who traffic children, as well as those who indulge in sexual abuse and those who commit stalking and harassment. The starting position must therefore be that the security and intelligence services, GCHQ, the National Crime Agency and the police should have the powers to deal with these threats.

However, human rights matter, too. That includes the right to privacy, the right to be left alone, the right to have private data protected with security and integrity, and the right to redress when things go wrong, which are important rights. In relation to the issues covered by the Bill, I have seen things from at least two important perspectives. I was a defence human rights advocate for 20 years, taking many cases against some of the law enforcement agencies, and I then had the privilege to be the Director of Public Prosecutions for five years, working with the security and intelligence services and the other law enforcement agencies, so I have seen the threats and how they are dealt with, but also the importance of human rights considerations.

Safety and security and human rights are not mutually exclusive: they are not either/ors and we can have both. That is why Labour has supported the principle of the Bill, but also why we are focused intensely on the necessity of the safeguards for the powers in the Bill. We have supported the principle of the new legislation not only because investigatory powers need updating in a fast-changing world, but, equally importantly, because, after Snowden, it is important that the powers exercised are avowed, that they are placed in statute and that everybody understands the safeguards around them.

In that respect there are two very important reasons why we need new legislation. But some of the proposed powers are very wide—the bulk powers are very wide indeed. That is why Labour’s first and consistent demand of the Government has been for an independent review of the operational case for the bulk powers. The Government published a short operational case alongside the Bill, but we judged that inadequate and have been pressing for a full independent review since.

I am pleased to say that in a letter of 23 May the Home Secretary accepted the case for an independent review of the operational case for the powers. That is a significant and welcome step, and is the right step. I want to strike the right tone here. Labour made very significant demands when the Bill was in Committee. We sought to do so constructively, and there have been significant movement and concessions from the Government; again, that has been constructive. Important moves in the right direction, which will improve the Bill, have been achieved through that dialogue.

Having gone that far it is important now to focus on the task and terms of the review—having the review of bulk powers is one thing, but having the right terms is equally important.

[Mr David Winnick (Walsall North) (Lab)]

I appreciate all that my Front-Bench team has done and is trying to do to minimise the harm, as I see it, to privacy and civil liberties. But my hon. and learned Friend said that Labour accepts the principle, so may I say that some of us—myself, certainly, as I stated on Second Reading—do not accept the principle of the measures, consider the bulk powers unnecessary and will vote against them at every opportunity?

[Keir Starmer]

That intervention gives me the chance to say that by and large—there are some exceptions—the bulk powers are available and being exercised at the moment, under the existing arrangements. The Bill puts them on a statutory footing with proper safeguards. Not to do so would leave the situation as it is now; that is unsatisfactory because the powers are not clear and safeguards are not in place. That is an important reason why, in principle, we support the legislation. From my own perspective, having worked with the security and intelligence services on real cases, in real time, I also appreciate why some of the powers are needed and how they are used. We must never forget that important consideration.

We know that David Anderson QC will conduct the review. We have great faith in him, as I think do most Members of this House. It is important that the task he is performing is clear. We have argued that he should look not at the utility of the bulk powers but at their necessity, that he should be able to choose a suitably qualified security cleared panel himself to help him, that he must have access to all the material necessary to carry out the review effectively, including, of course, the material made available to the Intelligence and Security Committee, and that he must have time to carry out his review; we envisage that he will report in time for the consideration in Committee in the House of Lords of parts 6 and 7 of the Bill, which should be in about three months.

I am pleased to say that as those terms of reference are of considerable importance to Labour I have had the opportunity to discuss them with the Minister, and can tell the House that today we exchanged letters setting out that important framework for the review, namely that it should be a review of the necessity of the powers, that there should be properly cleared panel members chosen by David Anderson, that he should have access to all material and that there should be a report within three months. All those are very important for the conduct of the review.

[Mr David Davis (Haltemprice and Howden) (Con)]

The whole House is glad to hear that there has been constructive engagement on this matter, as it is incredibly important to get it right. Will the hon. and learned Gentleman ensure that those letters are put in the Library today so that the rest of the House is aware of what is going on, as this is fundamental to the Bill?

[Keir Starmer]

I take that point, although obviously one of the letters is not mine—

[Mr John Hayes]

I am more than happy to make my letter to the hon. and learned Gentleman available to the House immediately, and I am sure he will do the same. One important point—I want to prevent the hon. and learned Gentleman from having to deal with this himself—is that the review must be conducted during the period in which the Bill is considered, because a review after the legislation has been passed would not be sufficient. I know that the hon. and learned Gentleman has asked for that, and other hon. Members will also take an interest in it, so I happily make that further commitment on the Floor of the House.

[Keir Starmer]

I was about to say that I will happily publish my letter but that I did not have custody of that of the Minister. I will make my letter available so that all Members can see the exchange and what I asked for in my letter, and the response I received. If we do that straightaway we will have it for the rest of the debate, and certainly tomorrow when we return to bulk powers.

Turning briefly to our other demands, we have consistently asked the Government for an overarching privacy clause, and I will return to that in a moment. As the Minister said, however, new clause 5 is an overarching privacy clause. We have tabled new clause 21, and in a moment I will discuss the differences between the two. We also stated that the Bill must include a provision to make it clear that legitimate trade union activities are not a sufficient reason for powers under the Bill to be exercised—that has been a long-standing concern of the Labour party and the SNP. We have tabled an amendment on that issue and held constructive discussions, and it was the third issue on which we have been constructively engaged. The fourth issue is that there should be a higher threshold for access to an internet connection.

[Simon Hoare (North Dorset) (Con)]

As someone who served on the Bill Committee with the hon. and learned Gentleman, I welcome the approach taken by the Labour Front Bench. May I remind him that the concern to ensure the legal entity and rights of trade unions and trade unionists was shared across the Committee and not just by Labour and the SNP? It was echoed by the Minister when he responded to the debate, and by many members of the Committee.

[Keir Starmer]

I actually said that that issue was being pressed for by Labour and the SNP—I think that is accurate—but of course I accept that in Committee, and outside, there has been constructive engagement by the Government. The Minister was quick to indicate a willingness to consider this issue, and discussions have been ongoing. It is important to have clarity so that legitimate trade union activities are protected. Our new clause is now broader than the one we considered in Committee because it goes to national security as well as economic wellbeing. It therefore covers trade union activities in this country, and not just acts outside the British Isles, as would be the case if it was just about economic wellbeing. Such constructive engagement has pushed the Bill forward.

As I said a moment ago, we have made significant demands—I do not hide that—and the Government have moved significantly in response to those demands. This is not a list of victories, scalps, concessions or U-turns; our demands were significant and we stuck by them, and in fairness the Government have responded in the right spirit—that is for those demands that we know about, although we will come to others during the debate.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I am listening with interest because the question of an overriding privacy clause has concerned a lot of people. I was not involved in the Committee, and I am not a member of any Select Committees. I am waiting to hear whether the hon. and learned Gentleman is satisfied by new clause 5, which he appears to be. The drafting of legislation is always somewhat obscure nowadays, but does he think that the new clause is satisfactory? It says that the public authority should have regard to

“any other aspects of the public interest in the protection of privacy”.

Would he have preferred some reference to the right of a citizen of the United Kingdom to privacy? Does he think that there is a significant difference, or am I simply making a minor drafting point?

[Keir Starmer]

If the House is content, I will deal with that in detail later. I have tabled an alternative in new clause 21 precisely to tighten up the reference to human rights and public law. It might be easier if I deal with that point in a few minutes when I get to that provision.

Labour has asked for a revised test for judicial commissioners. Currently in the Bill, the test is reviewed by reference to judicial review principles. The concern is that the judicial review exercise is a flexible test that, at one end, has close scrutiny, when judges look at the substance as well as the process of the decision. At the other end, there is a light-touch review, when the judges look more at process. We have argued that the review should be towards the upper end of strict scrutiny. I am pleased that the Government this morning tabled a manuscript amendment setting out a test for the judicial commissioners that makes it clear that the review will be an upper-end, stricter one—the close scrutiny that we have argued for. That refers back to the privacy clause, and I will try to make good that link when I get to it.

The manuscript amendment is a constructive move by the Government to meet my concern that review must be real and meaningful, not a long-arm, Wednesbury-unreasonableness review. The manuscript amendment is a significant change.

[Mr Hayes]

The hon. and learned Gentleman draws attention to the manuscript amendment the Government tabled this morning. We did so, as he describes, precisely to deal with the point raised in Committee and by others that the judicial review process might be interpreted in different ways by different commissioners. The amendment is a tighter definition of their role, strengthens the double lock and is very much in response to the Opposition critique and that of Government Members that the new process needs to be as well defined as possible.

[Keir Starmer]

I am grateful to the Minister—that was what the Opposition pressed for.

There have been differences of approach to the test for judicial commissioners. On the one hand, colleagues on both sides of the House have made a powerful argument that the judicial commissioners should retake the decision. On the other hand, others have argued that the decision should be reviewed. The amendment strikes a third route, which is to apply a review test but to confine it to the stricter end of the judicial review principles.

As hon. Members know, I have been a lawyer for many years and have dealt with many public law cases, as other hon. Members have. The difference between strict scrutiny and long-arm judicial review is very real —it is a material difference. That is why the manuscript amendment is highly significant.

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

It has been a pleasure to work with the hon. and learned Gentleman on the Bill. Like me, as a lawyer, he will have advised clients frequently on judicial review. He will no doubt agree that judicial review looks to the reasons given for a decision. There is no duty on the Secretary of State to give reasons for her decision on whether or not to grant a warrant. How can there be judicial review when no reasons are given?

[Keir Starmer]

The hon. and learned Lady made that very important point in the Bill Committee. Normally when decisions are subject to judicial review, there are reasons for the decision. What is envisaged is that the decision itself, plus such material as has been looked at by the Secretary of State, will be put before the judicial commissioner. There will not be reasons, which makes the task more difficult, but what is important about the test set out in the manuscript amendment is that the judicial commissioner must ensure that the duties under the privacy clause are complied with, which means that he or she will have to look at that underlying material. It might well be a good point to say, “If there are reasons, it would be an easier task,” but I do not believe the task cannot be performed without reasons. In due course, the judicial commissioners may say, “We need further help on particular issues.”

[Mr Hayes]

The hon. and learned Gentleman made the point in passing, but it is salient: in reviewing what has happened, the commissioner will receive the same information as the Secretary of State. The review will not, as was feared at one point, merely be a review of process, in which the reviewer would say, “Yes, the Secretary of State has taken the right steps,” rather than looking at the arguments that the Secretary of State had considered. Those are the two points I make on what he and the hon. and learned Member for Edinburgh South West (Joanna Cherry) said.

--- Later in debate ---

[Mr David Davis]

rose—

[Keir Starmer]

I am happy to give way again straight away.

[Mr Davis]

There were two reasons for concern. First, the House should seek certainty in the law, rather than any notion that the law would alter depending on the judge. The Minister is one of those who wants certainty in the law and less law-making by judges, so he should accept that point. Secondly, the Home Secretary reviews approximately 2,500 warrants a year—10 a day. The ability to do so is dependent to a very large extent on the data presented and the time available. The reason we wanted a reasons-based judgment was the feeling that an hour on any given warrant was simply not enough time. At this point, I do not know whether this provision will meet that requirement, but that is the test in my mind.

[Keir Starmer]

I am grateful for that intervention. The certainty point is really important. It is a point that Lord Judge made when he gave evidence to the Public Bill Committee. When I asked him about the reference to judicial review principles, he was concerned that that was not clear enough for the judges to know which particular test they were to apply. Now, with the new text in the manuscript amendment, it is crystal clear to the judges that they review the decision according to judicial review principles, but they must

“consider the matters referred in subsection (1)”—

necessity and proportionality—

“with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by the section”.

That is the privacy clause. The test for the judges is now crystal clear: look at necessity and proportionality, and review the Home Secretary’s decision with a sufficient degree of care to make sure that the judicial commissioner complies with the duties imposed by the general provision in relation to privacy. That deals with the certainty point.

As far as the reasons are concerned, I cannot improve much on my previous answer. What I think is envisaged is that there will be a number of judicial commissioners whose task will be to undertake this review, and to take such time as they need to look at the material and apply this test. They will not necessarily have the constraints that the Home Secretary and the Foreign Secretary have, but obviously a lot of this will happen in real time, so there will be the constraint of time in that sense. As I said, they will not be doing that alongside the other sorts of duties that a Secretary of State has to carry out during the course of a day.

I share the concerns that have been expressed on this matter, but I am clear in my mind that close scrutiny on judicial review principles is markedly different from Wednesbury unreasonableness and makes a real difference in real cases, so long as there is access to all the material, and clarity that the privacy provisions must be complied with. That effectively means that there are factors that it is mandatory for the judicial commissioner to take into account. That makes a material difference. That is why we will support the amendment.

[The Solicitor General (Robert Buckland)]

The hon. and learned Gentleman and I debated this point closely in Committee, and I thank him for the way in which he has approached the matter. With regard to clarity, it is not now beyond any doubt that the test will depend not on the personality of commissioners, but the facts before them? They have a very clear basis on which to make their judgment, looking at the particular degree and seriousness of the case, and balancing the right to privacy with all the qualifications that he, I and others know exist in article 8.

[Keir Starmer]

I am grateful for that intervention. To illustrate why we are satisfied, under the general privacy clause—I have a tighter version of new clause 21, but for this purpose that does not matter—one of the general duties is to have regard to

“whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means”.

Under this test, a judicial commissioner will have access to the material, will obviously know the Secretary of State’s decision, and will have to ask himself or herself that question. That is a long way from simply asking whether a decision was so unreasonable that no reasonable Secretary of State could have taken it, and that is why the new clause makes it clear that it is close-scrutiny review, rather than long-arm review, that is being dealt with.

--- Later in debate ---

[Mr John Hayes]

I note the hon. and learned Gentleman’s comments about the difference between the two new clauses, and the Government are not blind to his argument about ensuring that the connection to human rights is secure. The Bill will clearly continue to enjoy scrutiny over the coming weeks and months, and he needs to know that, as he described earlier, we are always happy to listen and learn. I hope that tonight we can establish that an overarching privacy clause is essential, and can continue to have a discussion about the fine details.

[Keir Starmer]

I am grateful for that indication.

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

Section 6 of the Human Rights Act requires public authorities to have regard to the Act in any event, so I wonder what advantage the hon. and learned Gentleman thinks referring to the Act in the Bill will have.

[Keir Starmer]

I am grateful for that intervention, because it drives us back to the point of the privacy clause, which we debated in Committee and which has been debated elsewhere. It is important for three reasons. First, this is a statement of principle about the important interests and duties running through the Act, and it is important to have that statement in the Act. It avoids inconsistency and reminds decision makers of the importance of taking into account privacy, the integrity of data, human rights and so on in all cases, so this is a matter of principle.

The second reason why our new clause is important is that of practical considerations. I worked with the Police Service of Northern Ireland for five years in relation to its compliance with the Human Rights Act. Having structures and decision making written into everything it did helped it to reach better decisions, and I am sure it is the same for other police forces and for public authorities. Never underestimate the practical application that such a clause has in real time for people in public authorities trying to do their job. The third reason—I will come back to this in a minute—is that our new clause gives real teeth to the test that the judicial commissioners apply, because there would be a link between the privacy clause and the test.

[Mr David Davis]

I thank the hon. and learned Gentleman for his patience in giving way so many times. Frankly, I favour his version and the reason is this. It rather bounces off something he said earlier, when he was talking about the protection of trade unionists. Of course, he is right: historically, there have been cases, 20 years ago or so, of what one might call foolish interference in trade union actions by the agencies. Today, one of the problems is interference in what might be thought of as legitimate demonstrations, by environmental groups and so on, that have become public scandals. When he was talking about trade unionists, I was trying to think how we generalise that. It seems to me that his new clause is the right way to protect those engaged in legitimate democratic activity from improper intervention.

[Keir Starmer]

I am grateful for that intervention. It is the historic trade union cases that have caused so much concern, but our new clause is intended also as a future-proofing exercise to ensure that, whatever human right is at issue and whichever individual or organisation is involved, there is a provision that requires decision makers to take into account the convention rights involved.

[Mr Grieve]

The hon. and learned Gentleman will have seen that the Intelligence and Security Committee has tabled a short amendment that says:

“This Act sets out the extent to which certain investigatory powers may be used to interfere with an individual’s privacy.”

We felt that that, linked to either his or the Government’s amendment, would send out a clear general statement about the state’s requirement to protect privacy. I wonder whether he has a view on that, because it seems to me that our amendment would add something without in any way undermining the ability thereafter in the Bill to undertake those necessary interferences that might be required.

[Keir Starmer]

I am grateful for that intervention, because what amendment 14 makes clear—the point is sometimes missed—is that these, or indeed any, investigatory powers affect an individual’s privacy. We have to be absolutely clear: the right to privacy is fundamental, but it is not absolute. The Bill gives the state a power to interfere with privacy—that is what it is about. The question then becomes: is there a case for the interference in the first place, and if there is, is that interference necessary and proportionate? Obviously it is for the Minister to respond to our amendment, but in a sense it is all of our duties to remind ourselves that this is all about an interference with privacy, and that is why the safeguards are so important.

The third reason the overarching privacy clause is important is that it is now linked to the test for judicial review of the Home Secretary and Foreign Secretary’s decision, so it has real application every day when one of the warrants is applied for.

Finally, let me say a few words about the appointment of judicial commissioners, an issue that has cropped up a number of times. Under clause 194, it is for the Prime Minister to appoint the Investigatory Powers Commissioner and

“such number of other Judicial Commissioners as the Prime Minister considers necessary for the carrying out of the functions of the Judicial Commissioners.”

Before doing that, he must consult the Lord Chief Justice of England and Wales, the Lord President of the Court of Session, the Lord Chief Justice of Northern Ireland, the Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland. Our amendment 298 would ensure that the Prime Minister acted on the recommendation of

“the Lord Chief Justice of England and Wales, in relation to Judicial Commissioners appointed from England and Wales,”

and likewise the recommendation of the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland in relation to Scotland and Northern Ireland.

The reason is that it is envisaged that judicial commissioners will be appointed from among those who are already very experienced judges—High Court and above—either serving or retired. They will obviously have gained the qualifications to be judges and will be appropriately skilled and qualified to take these decisions, so in truth the exercise of appointing a judicial commissioner will be an exercise in deploying, from the pool of available judges, those who will sit as judicial commissioners.

That is an important consideration. Our amendment is tabled on the basis that it is not appropriate for the Prime Minister to decide that sort of deployment—he does not have the skills and experience to do it—nor, in a sense, should it be a political deployment. This is something routinely done by the Lord Chief Justice of England and Wales. Our amendment would ensure that the Lord Chief Justice of England and Wales, the Lord President in Scotland and the Lord Chief Justice of Northern Ireland make a recommendation that binds the Prime Minister. The appointment is, of course, the Prime Minister’s, but that is the right way to carry out the appointment to this important judicial role, rather than the version in the Bill.

[Mr George Howarth (Knowsley) (Lab)]

I am grateful to my hon. and learned Friend for giving way again. If the recommendation should be a judicial one and if, as I think I understood him to say, the Prime Minister would not have the ability to overturn it, I fail to understand what the point would be of involving the Prime Minister at all.

[Keir Starmer]

The answer to that is twofold, although I should say that if the decision was on the recommendation of the Lord Chief Justice and so on, it would not be open to the Prime Minister not to follow that recommendation. We need a slight reality check. At the moment under clause 194, if the Lord Chief Justice of England and Wales—or, I am sure, the equivalent in Scotland—was consulted and made his or her views clear, it would be highly unlikely that any Prime Minister would act in a way that was contrary to the advice they were receiving from the senior judge in those jurisdictions, but our amendment would bind the Prime Minister. The question is: what is the point of involving the Prime Minister? The answer to that—to some extent this is to the Minister—is that there is the question of accountability for making the appointment.

There is also the point, as the Lord Chief Justice has pointed out, that he—or she, as the case may be—is not in the business of making judicial appointments as such, and will therefore be reluctant to have that power. The Minister might want to confirm that, because he has been having those discussions, not me. I think the Lord Chief Justice and others are reasonably happy to help with the deployment exercise, but not with the business of appointing judges.

[Mr John Hayes]

I have no doubt that the Solicitor General will deal with this later, but the point is that the Prime Minister is ultimately responsible for the protection of national security. As the hon. and learned Member for Holborn and St Pancras (Keir Starmer) said, when Lord Judge gave evidence to the Joint Committee, he made exactly the point that the hon. and learned Gentleman has made. Just to affirm the other argument that he advanced, the Prime Minister will of course seek advice on these matters in the way that the hon. and learned Gentleman has described, and I share his view that it is highly unlikely that the Prime Minister would then take a perverse decision.

[Keir Starmer]

I am grateful for that indication.

I have taken longer than I had anticipated. I think I have taken every intervention, because important points were being made—that is in mitigation rather than an excuse, I suppose—but the House will be pleased to know that I have finished, at least on these amendments.

[Mr Grieve]

It is a pleasure to take part in this debate. As will be noted, the Intelligence and Security Committee has tabled a number of amendments to this part of the Bill for the House’s consideration. I want briefly to run through them and explain the Committee’s collective position.

I want to start, however, by commenting on the debate we have just been having about privacy. It seems to me that it is absolutely central to the duty on this House that we should ensure that the principle of the right to privacy against the state is maintained except if there is a good and sufficient reason why that should not happen. In that context, it is extremely important that the Bill should be clear about the right to privacy. I very much welcome new clause 5; indeed, the difference between that and the new clause tabled by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) is, in reality, very slender indeed, as I see he acknowledges.

[Keir Starmer]

indicated assent.

[Mr Grieve]

That said, words sometimes matter, and the clearer the statement, the better. I hope that my right hon. Friends on the Treasury Bench will take that into account.

Investigatory Powers Bill

Keir Starmer Excerpts

Report: 2nd sitting: House of Commons
Tuesday 7th June 2016 Commons Chamber

[Mr Grieve]

Like everything else, I tend usually to say that we give the word its ordinary English meaning. I can accept that one may collect a dataset whose content is entirely innocuous and not really sensitive personal data at all, but which for some reason might contain a nugget of sensitive personal data that has crept in in some strange and perhaps unintended way. I accept that in those circumstances the protections we introduce are unnecessary; indeed, the truth is that the agencies would not even know that that information was there at the time they were acquiring it.

However, if we focus on the points I raised earlier—the Data Protection Act describes sensitive personal data as relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life—we are probably in quite a good place. I do not think a court would have too much difficulty being able to tell what falls one side of the line and what falls the other. However, like everything else, it is all open to a degree of interpretation, so I do not offer that to the hon. Gentleman as 100% perfection, although it is a good way forward and I think most of us would understand what sort of collected bulk data are likely to contain that sort of material.

Amendment 24 concerns specific warrants for bulk personal datasets. We are far less concerned about these, but again this provision would cover data relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life, and would ensure that the Secretary of State authorising the warrant would have the sensitivity of the data highlighted for them as part of their overall consideration of the necessity and proportionality of retaining and examining the dataset. I believe this may well be completely acceptable to the Government. Amendment 24 would mean that if there was an intention, for example, to acquire a dataset that clearly contained a great deal of information about people’s religious or political opinions, that would be specifically drawn to the Secretary of State’s attention in asking her or him to sign off the warrant, so that they were aware that that was being sought.

Finally in this list, I want to mention amendments 22 and 23, which are really carryovers from yesterday and concern the renewal of warrants to prevent two warrants from extending over a 12-month period, which I believe the Government have accepted, although that could not be considered yesterday.

I apologise for taking up so much of the House’s time, but I hope these amendments may help to clarify some of these areas of the Bill.

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

We made good progress in the House yesterday. We now have clarity about the terms of the independent review of bulk powers, which we are looking at today; and we have an overarching privacy clause, a stricter test for the judicial commissioners, protection for trade union activities, and an undertaking from the Solicitor General to consider how to amend the Bill to make it absolutely clear that whistleblowers can make disclosures to the Investigatory Powers Commissioner without fear of prosecution. I hope we can make as good progress today.

One of the amendments made to the Bill yesterday concerned the requirement for judicial commissioners to consider necessity and proportionality with a sufficient degree of care to ensure that they comply with the general duties in relation to privacy—this is the tighter judicial review test. That amendment was made to clause 21, which relates to intercept warrants. Today we are dealing with bulk powers. The judicial commissioners have an important role in relation to bulk powers and are an important safeguard in respect of warrants involving bulk powers. It is therefore important that we have clarity in the House today that the tighter scrutiny that is now in clause 21 applies equally to all other exercises of authorisation or approval carried out by judicial commissioners, including where they are exercising their powers in relation to bulk warrants. I think that otherwise there will be a risk of two tests, one under clause 21 and one under the other clauses applying to bulk powers. There is a real danger relating to combined warrants, in respect of which judicial commissioners would be asked to carry out different tests. It is important for the bulk powers to be scrutinised every bit as closely as the intercept warrants. Perhaps, in his response, the Minister will make it clear that the test applies generally across all the functions of the judicial commissioners, whether in respect of the specific warrants referred to clause 21 or in respect of the warrants relating to bulk powers and other provisions in the Bill. That, I think, would be a helpful extension of the safeguards relating to bulk powers.

--- Later in debate ---

[Mr John Hayes]

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.

[Keir Starmer]

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.

[Mr David Davis (Haltemprice and Howden) (Con)]

rose—

[Mr Davis]

I was not intending to be discourteous, Mr Deputy Speaker.

The hon. and learned Gentleman said that it was not possible to screen out the correspondence of the various privileged groups he described. The issue arose at the Investigatory Powers Tribunal in respect of one of the Wilson doctrine cases, and that was the assertion made by the Government barrister at the time. However, I consulted a number of experts, including Ross Anderson at Cambridge, and they said that it was perfectly possible. A great deal of screening is already done to take out dross—issues such as pornography—and it is perfectly possible to screen out targeted groups as well.

[Keir Starmer]

Obviously, I should be very interested to hear how that could be done at the outset, and I am sure that the Minister would as well.

Let me make two points to emphasise why there is such concern about bulk powers. It may well be possible, depending on the parameters that are set, to reduce the likelihood of obtaining through bulk powers material that is sensitive in one shape or form, but I do not think it is possible to eliminate it. It may well be that most of that is done at the filtering stage, rather than at the stage of the initial exercise of the bulk power. I am not seeking to explain why bulk powers inevitably capture such information, or to justify that; I am simply explaining why I think so many people are concerned about the bulk powers. That is why Labour has made it clear that, given the breadth of the powers, the operational case for them must be properly made and properly reviewed, and that is why the safeguards must be reviewed.

The issue of the safeguards may need to be revisited when the Bill is in the other place. As the right hon. Member for Haltemprice and Howden knows, the Tom Watson and David Davis case is currently midway between the Court of Justice of the European Union and the Court of Appeal. Although it touches on existing legislation and retention powers, it may have implications in relation to the Bill when it is given further consideration, and will certainly be important when it comes to consideration of safeguards. Let me also, in passing, echo the concern expressed by the right hon. and learned Member for Beaconsfield (Mr Grieve) in relation to operational purposes, an issue which also arose in Committee.

As for the review, the first stage is to ask whether the operational case has been made. I referred yesterday to an exchange of letters between the Minister and me. I hope that copies of the letters have been made available; I think that they have been made available to the House, and that every Member has them. However, I want to put on record what was being asked for, and what the response was. Let me say at the outset that this was a constructive exchange, which moved a significant issue significantly further forward.

I wrote to the Minister that the review to be carried out by David Anderson should be

“supported by a security cleared barrister, a technical expert and a person with experience of covert investigations”,

that it should

“Examine the operational case for the bulk powers in the Bill, not merely in respect of the utility of the powers, but also their necessity”,

that it should

“Have access to all necessary information as is needed to undertake the review effectively, including all information provided to the Intelligence and Security Committee”,

and that it should

“Take about three months to complete and…report to the Prime Minister in time for the findings to inform Lords Committee considerations of Parts 6 and 7 of the Bill.”

The Minister’s reply is important, as Members who have had an opportunity to read it will appreciate. He wrote:

“I can confirm that the basic framework for the review will be as set out in your letter…David Anderson has hand-picked this team and we are confident that together they have the range and depth of knowledge needed to undertake a comprehensive review.”

I was very anxious that David Anderson should pick as members of his team people whom he considered to have the necessary competences to help him with the review that he has been asked to carry out independently, and I am pleased that he has done so. I have been assured by him that he is very happy with his choices, and with the skills from which he will benefit as a result of that exercise.

The Minister’s letter continues:

“In relation to your second point”—

this is really important—

“it is absolutely the case that this review will be assessing the specific question of whether the bulk capabilities provided for in the Bill are necessary. The review team will critically appraise the need for bulk capabilities, which will include an assessment of whether the same result could have been achieved through alternative investigative methods.”

That goes to the heart of the issue. If that is the focus of the review, it will give comfort to the Labour team—and, no doubt, to members of the Scottish National party, notwithstanding their concerns—and to all our constituents as well.

[Joanna Cherry]

Does the hon. and learned Gentleman agree that the timetable for this independent review is such that, whereas the House of Lords will have time to scrutinise and debate it, the House of Commons will not? Does he agree that that is not acceptable in a democracy?

--- Later in debate ---

[Keir Starmer]

I am grateful for that intervention. I have been asking for the review for some time and my preference was always that it should have been earlier and available to us now. In fairness, and in keeping with what I said yesterday about the exercise that we have been conducting, I recognise that it was a big ask of the Government at this stage, particularly in light of the pre-legislative scrutiny. I am always inclined to look on the positive side and the fact that there is a review, under the terms for which we asked, is important. Of course, when one looks back at anything, one can always make the argument that it should have been done earlier and, usually, differently. I accept that it would have been good if we had had the review by this stage, which is why I put forward my argument as I did before, but I emphasise just how significant this is and what a significant change of position it is for the Government. It is constructive and positive, for which we are grateful.

[Mr David Davis]

The powers mostly already exist and this is an avowal of existing powers, so in some sense the question of the hon. and learned Member for Edinburgh South West (Joanna Cherry) is different from what it would normally be. We have powers and may not change them as result of the delay, but there is an implication for how soon we review the whole package and how soon we come back and re-legislate. It has long seemed to me that this is a piece of legislation that lends itself to almost annual review, renewal and reform. The way to deal with the problem may be to ensure that we get a relatively rapid review and reform of the legislation in another part of this business.

[Keir Starmer]

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.

[Mr John Hayes]

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.

[Keir Starmer]

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.

[Anne McLaughlin]

If the review comes back and says that the bulk powers are not necessary, what will the Labour party do then?

[Keir Starmer]

I will assess that at the time. It depends on what the report says, because if it calls any of the powers into question or makes any recommendations about their exercise, we would all want to consider that. It would be difficult for anybody in this House or the other place to make a case for a bulk power that an independent review has deemed unnecessary. Let us wait until we get to that stage and let us see what the review actually says.

As for confidence in the review, there is a question of publication. It is important that the review’s report is publicly available. I obviously understand that David Anderson and his team will see highly sensitive material, to which they will have unrestricted access, so the detail that can be put in any public report will inevitably be limited. I think everybody understands that. It is important that the report is published in some form, as most of David Anderson’s report have been, so that they can be read not only by Members of this House and of the other place, but by members of the public seeking assurances about and confidence in the review.

[Fiona Mactaggart (Slough) (Lab)]

This issue goes to the heart of one reason why the Bill is particularly difficult. This House depends on the members of the Intelligence and Security Committee, who find out in private sessions how the powers are being used, to report back to the House, in a way that ends up being redacted, about their confidence in the powers. We have a duty to ensure that the public are as well informed as possible, in concert with our need to protect national security, about how these things work. That is the challenge and is one reason why the House has found the Bill quite difficult to deal with.

[Keir Starmer]

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.

[Mr John Hayes]

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.

[Keir Starmer]

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.

[Alex Chalk (Cheltenham) (Con)]

Does the hon. and learned Gentleman agree that this review on the necessity of bulk powers is welcome, not just to give the public confidence, but to give confidence to the intelligence agencies that must use them? In my experience, they are scrupulous about acting within the law, and we owe it to them to award powers that they can be satisfied are both necessary and enjoy public support.

[Keir Starmer]

I do agree with that, and I have emphasised to the security and intelligence services that there is value in this exercise from their perspective, in making the operational case for the powers that they exercise and wish to continue exercising. That is another good reason for the review.

There has been an ongoing concern, raised first by the Scottish National party and then by Labour in Committee, about access to medical records. The concern for Labour, which I am sure is the shared position, has been about “patient information”, as defined by section 251 of the National Health Service Act 2006. That means information relating to mental health, adult social care, child social care and health services. I do not need to spell out for the House why many members of the public—my constituents and, I am sure, those of many Members—are deeply concerned about the very notion of the security and intelligence services having bulk access to those sorts of sensitive records. We tabled an amendment in Committee proposing a high threshold for the exercise of powers in relation to those records, and this is reflected in amendments 303 to 305 before the House today.

The Government have tabled new clause 14 in response to our demands. Although it does not take the same form as amendments 303 to 305, on my analysis, because of the way subsection (6) is framed, it would cover mental health, adult social care, child social care and health service records. If, either now or at some convenient point, the Minister could indicate that his understanding is that it would cover those records, I will not press amendments 303 to 305 to a vote.

[Simon Hoare]

There is a golden rule in the Hoare household that when in doubt we turn to Kipling—not the exceedingly good baker, but our rather excellent writer. I pray in aid Kipling in order to summarise.

I was not intending to speak on this grouping until I heard the cases deployed by the SNP and by the hon. and learned Member for Holborn and St Pancras (Keir Starmer). On the latter point, I concur and support what he said entirely, but the approach of the SNP, which we have heard since Second Reading—it was certainly a golden thread running through Committee—is one of serious annoyance to me, as I am pretty certain it is to colleagues. I am absolutely certain it is of huge anxiety to our constituents. The hon. Member for Glasgow North East (Anne McLaughlin) obviously has constituents who are very different from mine. She and I served on the Immigration Bill Committee, as did the shadow Minister, some little while ago. According to her, no constituent of hers had ever raised the issue of immigration, yet all constituents have raised with her these huge Glasgow concerns about bulk powers.

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[Keir Starmer]

Let me put it on the record that I and the Minister said at the end of the Bill Committee that the SNP had played a significant role in ensuring that this Bill reached this stage of its proceedings in much better shape than it was when it was in Committee. It was a very constructive exercise by the SNP. SNP Members took different approaches on issues to us, but to suggest that they have not played an important part in this is not to reflect the views at the end of the Committee stage.

[Simon Hoare]

I am inclined to agree with the latter point, but at every step and turn, every SNP amendment, on my reading and on my hearing and my understanding, has been designed to delay and frustrate. We have had the canard that has run through the debate that we have not had adequate time to debate and discuss these issues. I will not rehearse the times, Mr Deputy Speaker, because you know them. You know how many Committees of this House have looked at the matter. The Bill Committee stood for a long period of time. We had a long debate on Second Reading. The Government, and the Ministers in particular, have bent over backwards to ensure that they can land this Bill in a shape and form that is acceptable to the vast majority of Members of this House and, one would hope, of the other place.

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[Gavin Robinson]

Indeed.

I commented in the Tea Room earlier that I probably would not get the opportunity to contribute on Third Reading because the debate yesterday and today has been dominated by heavyweights. When I said that to a Government Member, he looked oddly surprised that I would not satisfy that criterion. I am pleased to have the opportunity not only to speak at this point on consideration, but to make the point that it would have been wholly worthwhile to have had just one Northern Ireland voice on the Bill Committee.

Members will have recognised just how considered and detailed the process has been. On Second Reading I focused my remarks solely on the prison officer, Adrian Ismay, who had been murdered in my constituency and died that very day. I made the point that we cannot continue to have abstract conversations about the impact of terrorism or about the protection that we as a state need on national security grounds, because in the here and now it is a matter of protecting us today, tomorrow and for every day to come.

I pay tribute to the Security Minister, the Solicitor General and all those Members who have so collegiately engaged in making sure that what, in years gone by, was a difficult process with the Draft Communications Data Bill—the snoopers charter—has been set aside during what I believe has been a very encouraging debate and thoughtful consideration of the Bill. Credit is due to the Minister and his team.

A point was made by the shadow Home Affairs Minister in arguing for amendments 303 to 305, and I would be grateful if the hon. and learned Member for Holborn and St Pancras (Keir Starmer) considered this issue. We have had contributions from the right hon. and learned Member for Beaconsfield (Mr Grieve) on new clause 3 and he made the point that it would not be appropriate to retain the datasets—personal data—that engage mental or physical health issues. In the light of that, I would be keen to hear from the shadow Minister on how he believes that deals with amendments 303 to 305. If new clause 3 were passed, would those amendments be necessary?

I understand that it may not be possible for the shadow Minister to respond, although I am happy to give way. It would be useful to know whether those three amendments are likely to be pressed to a Division or whether he believes that new clause 3 deals adequately with the protections for personal health data.

[Keir Starmer]

I hope I made it clear that I will not press those amendments to a vote because of the new clause tabled by the Government in relation to health records, which covers the same categories of data. I am sure that that will be dealt with by the Minister when he responds.

[Gavin Robinson]

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.

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[Mr Hayes]

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.

[Keir Starmer]

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.

[Mr Hayes]

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.