Investigatory Powers Bill (Tenth sitting) Debate
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Keir Starmer
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Investigatory Powers Bill (Tenth sitting)
Keir Starmer ExcerptsThursday 21st April 2016
(8 years, 7 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 21 April 2016 - (21 Apr 2016)
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
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
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.
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—
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.
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.
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.
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.
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.