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.

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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.

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[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.

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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.

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[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.

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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.

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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.

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[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.

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[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.

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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.

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[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.