Oral Answers to Questions

Keir Starmer Excerpts

Wednesday 1st February 2023 Commons Chamber

[Mr Speaker]

We now come to the Leader of the Opposition.

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

May I join the Prime Minister in his words about the First Minister of Wales and the sad loss of his wife? Everybody knows just how close they were, and I know he is absolutely devastated by her loss.

When the Prime Minister briefly emerged from his hibernation at the weekend, he raised more questions than he answered, so in the interests of integrity and accountability, can he set the record straight? Did his now former chair, the right hon. Member for Stratford-on-Avon (Nadhim Zahawi), tell Government officials that he was under investigation by the taxman before or after the Prime Minister appointed him?

[The Prime Minister]

I appointed the independent adviser to investigate this matter fully. He set out his findings in detail over the weekend and, on receipt of those findings, I took action. I refer the right hon. and learned Gentleman to the independent adviser’s report.

[Keir Starmer]

Oh, come on! Anybody picking up a newspaper in July last year would have known that Her Majesty’s Revenue and Customs and the National Crime Agency were investigating months before the Prime Minister appointed the right hon. Member for Stratford-on-Avon. The Independent said on 6 July:

“New chancellor’s finances secretly investigated by National Crime Agency.”

The Observer said three days later, on 9 July:

“Revealed: officials raised ‘flag’ over…tax affairs before he was appointed chancellor”.

The Financial Times the next day, 10 July, said:

“Pressure builds…to explain his finances.”

Is the Prime Minister saying that his officials hid this information from him, or was he just too incurious to ask any questions?

[The Prime Minister]

As I have said before at the Dispatch Box, the usual appointments process was followed with respect to the Minister without Portfolio. No issues were raised with me at the time of his appointment, but as the independent adviser’s report makes clear, there was a serious breach of the ministerial code. That is why I took decisive action on receipt of that report.

[Keir Starmer]

So, in relation to his former chair, the Prime Minister’s defence is, “Nobody told me. I didn’t know. I didn’t ask any questions.” Will he now also claim—[Interruption.]

[Mr Speaker]

Order. Mr Gullis, we heard enough last week. I might not be able to hear what you are saying but I can certainly see your mouth moving. It will be moving outside if it continues.

[Keir Starmer]

Is the Prime Minister now going to claim that he is the only person who was completely unaware of serious allegations of bullying against the Deputy Prime Minister before he appointed him?

[The Prime Minister]

The right hon. and learned Gentleman asks what was known. I followed due process. I appointed an independent adviser as soon as I was made aware of new information. The independent adviser has conducted his process. If the right hon. and learned Gentleman is so concerned about what people are saying and about behaviour in public life, recently, one of his own MPs was forced to speak out because being in his party had reminded her of being in an abusive relationship. Then, his own office was caught undermining her. He ought to be supporting her and her colleagues, but if he cannot be trusted to stand up for the women in his party, he cannot be trusted to stand up for Britain.

[Keir Starmer]

At the last count, the Deputy Prime Minister was facing 24 separate allegations of bullying. According to recent reports, some of the complainants were physically sick. One says that they were left suicidal. How would the Prime Minister feel if one of his friends or relatives was forced to work for a bully simply because the man at the top was too weak to do anything about it?

[The Prime Minister]

I notice that the right hon. and learned Gentleman did not say anything about how one of his own MPs describes being in his party. When I was made aware of formal complaints, I instructed a leading independent King’s counsel to conduct an investigation, because I take action when these things happen.

What did the right hon. and learned Gentleman say at the weekend? He said that hate had been allowed to “spread unchallenged” in the Labour party under his predecessor. He was speaking as if he was not even there, but he was sitting right next to the right hon. Member for Islington North (Jeremy Corbyn), supporting him for four long years and not challenging. That is typical of the right hon. and learned Gentleman—declining to lead, sitting on the fence, carping from the sidelines and never standing up for a principle that matters. [Interruption.]

[Mr Speaker]

Order. I want to hear both sides. I will not be interrupted by either side. I am particularly looking for people who continue, because we will sort it out today.

[Keir Starmer]

The Prime Minister is just like one of his predecessors who treated questions about conduct as something to brush off, and thought that ducking responsibility was a perfectly reasonable response from a Prime Minister. In fairness, at least his predecessor did not go around pretending he was a paragon of integrity and accountability. On that subject, was it a coincidence that the two people who arranged an £800,000 line of credit for the former Prime Minister were shortlisted for plum jobs at the BBC and the British Council?

[The Prime Minister]

As I said when we addressed this previously, the appointments process for the BBC chairman is rigorous, transparent and set out in a public code of conduct. Indeed, it was fully supported not just by expert panel members but by the cross-party Digital, Culture, Media and Sport Committee, which included Labour Members who described the appointment as impressive.

Back to this week and what is happening to the people of this country, the right hon. and learned Gentleman voted with the unions to oppose minimum safety levels. He voted with Just Stop Oil to water down the Public Order Bill. What do the unions and Just Stop Oil have in common? They bankroll him and his party. While he sides with extremist protesters and union bosses, we stand up for hard-working Britons and schoolchildren.

[Keir Starmer]

After 13 years in power, trying to blame the Labour party for the Prime Minister’s failure to sort out the strikes is rank pathetic. The Tory party’s addiction to sleaze and scandal has done huge damage to this country, and the cost to the public keeps adding up. We have a justice system letting murderers walk the streets, heart attack victims waiting hours for an ambulance, and an economy that is shrinking quicker than the his leadership. Even I could not quite believe it when I saw that his Government are expecting taxpayers to pay the legal fees for the right hon. Member for Uxbridge and South Ruislip (Boris Johnson) to defend himself over his lockdown rule breaking—a quarter of a million pounds! Surely even this Prime Minister can put his foot down, stand up to his old boss and tell him: he made the mess, he can pick up the bill.

[The Prime Minister]

The right hon. and learned Gentleman cannot stand up to his union bosses, he cannot stand up for Britain’s schoolchildren today and he cannot stand up for the women in his party. We are getting on: we are halving inflation, we are growing the economy, we are reducing debt, we are cutting waiting lists and we are stopping the boats. While he cannot even figure out what he believes in, we will keep delivering for Britain.

Oral Answers to Questions

Keir Starmer Excerpts

Wednesday 7th December 2022 Commons Chamber

[Mr Speaker]

We now come to the Leader of the Opposition.

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

Let me start by welcoming the new Member of Parliament for the City of Chester, my hon. Friend the Member for City of Chester (Samantha Dixon), to her place in this House. This was the best result for Labour in the 105 years we have been fighting that seat, and I look forward to working with her to build a better future for the people of Chester.

The Conservative party promised the country that it would build 300,000 houses a year. This week, without asking a single voter, the Prime Minister broke that promise by scrapping mandatory targets. What changed?

[The Prime Minister]

Let me start by also welcoming the hon. Member for City of Chester (Samantha Dixon) to her place. The right hon. and learned Gentleman comes here every week, and I know he is focused on the process and the politics, but I do not think he has actually taken the time to read the detail of what we are doing to improve our planning system. So let me just explain what we are doing. We are protecting the green belt, we are investing millions to develop brownfield sites, and we are providing support and protection for local neighbourhood plans. Just this morning, the shadow Housing Secretary said, “Communities should have control over where homes are built and what sort of homes are built.” That is my position and that is her position. What is his position?

[Keir Starmer]

Does the Prime Minister really expect us to believe that the right hon. Member for Chipping Barnet (Theresa Villiers) and the hon. Member for Isle of Wight (Bob Seely) are cheering him on because he is going to build more homes? Pull the other one! I shall tell him what changed: his Back Benchers threatened him and, as always, the blancmange Prime Minister wobbled. He did a grubby deal with a handful of his MPs and sold out the aspirations of those who want to own their own home. Was it worth it?

[The Prime Minister]

As ever, the right hon. and learned Gentleman is engaging in petty personality politics, not focused on the substance. Again, let me explain what we are doing. We are delivering what I said we would do: we are protecting the character of local communities, we are cracking down on land banking and irresponsible developers, and we are giving people a greater say in their decisions. Just this week, on Monday, the right hon. and learned Gentleman said that the Government should be giving people more power and control. Now he seems to be opposing that policy. It is only Wednesday. I know that he flip-flops, but even for him that is pretty quick.

[Keir Starmer]

The Prime Minister has forgotten, but last week I offered him Labour votes to pass these housing targets, because this is bigger than politics. A former Housing Secretary on the Conservative Benches said that scrapping mandatory targets would be

“a colossal failure of political leadership.”

Those were his words. No wonder he does not want to fight the next election. The author of the manifesto on which Conservative Members all stood said that this would cut building by 40%, perhaps even more. Why would the Prime Minister rather cripple house building than work with us to get those targets through?

[The Prime Minister]

We are not going to work with the Labour party on housing. You know why, Mr Speaker? We will have a look at Labour’s record on housing. In London, the former Conservative Mayor, in five years, built 60,000 affordable homes. The current Labour Mayor—he has built half of that amount. In Wales, we want to build 12,000 homes. What is Labour delivering? Half of that, Mr Speaker. The Labour party talks, the Conservatives deliver.

[Keir Starmer]

As ever, the Prime Minister is too weak to stand up to his own side on behalf of the country.

I noticed that there was another U-turn last night; this time on wind farms. Actually, I agree with that one, but is there no issue on which the Prime Minister will not give in to his Back Benchers?

Now, Mr Speaker, how did his colleague, Baroness Mone, end up with nearly £30 million of taxpayers’ money in her bank account?

[The Prime Minister]

Like everyone else, I was absolutely shocked to read about the allegations. It is absolutely right that the baroness is no longer attending the House of Lords and therefore no longer has the Conservative Whip. The one thing that we know about the right hon. and learned Gentleman is that he is a lawyer and should know that there is a process in place. It is right that that process concludes; I hope that it is resolved promptly. I shall tell him what is weak, and that is not being able to stand up to people. I know that he has taken some advice from Gordon Brown lately. Why does he not listen to a former Minister in Gordon Brown’s Government, who just said, “Why does the Labour party refuse to stand up for workers in businesses like pubs and restaurants who will lose business as a result of the train strikes?” Labour should stand up for working people. If he is strong, that is what he should do.

[Keir Starmer]

It may not seem like it, but he is supposed to be the Prime Minister. This morning, his Transport Secretary said that his flagship legislation on strikes—[Interruption]—this is what he said this morning; they might want to listen to this—is

“clearly not going to…help with the industrial action”

we are facing. He should stop grandstanding, stop sitting on his hands, get round the table and resolve these issues.

Everyone can see what is happening here: a Tory politician got their hands on hundreds of millions in taxpayers’ money and then provided duff PPE, and the Prime Minister says that he was shocked. He was the Chancellor. He signed the cheques. How much is he going to get back?

[The Prime Minister]

It is right that the right hon. and learned Gentleman has brought up legislation with regard to strikes; I am very happy to address that. Hard-working families in this country are facing challenges. The Government have been reasonable. We have accepted the recommendations of an independent pay body, giving pay rises, in many cases, higher than the private sector. But if the union leaders continue to be unreasonable, it is my duty to take action to protect the lives and livelihoods of the British public. That is why, since I became Prime Minister, I have been working for new, tough laws to protect people from that disruption. That is the legislation he is asking about. Will he now confirm that he will stand up for working people and that he and his party will back that legislation?

[Keir Starmer]

The Prime Minister has obviously not heard what his Transport Secretary said about that legislation this morning. It is obvious why the Government are so opposed to Labour’s plans to clean up Westminster: they all voted for tax rises for working people while one of their unelected peers pocketed millions flogging dodgy personal protective equipment.

I want to raise something that is worrying parents across the country. Our hearts go out to the families of the children who have tragically died from the outbreak of strep A in recent weeks. I am very happy to work with the Government on this, so can the Prime Minister take the opportunity to update the country on the measures being taken to keep children safe this winter?

[The Prime Minister]

My thoughts are of course with the families of the children who have sadly lost their lives. We are seeing a higher than usual number of cases of strep A this year. The NHS, which I have sat down with to talk about this, is working very hard to make sure parents are aware of the symptoms they should be looking out for, because strep A can be treated appropriately with antibiotics. There are no current shortages of drugs available to treat it and there are well-established procedures in place to ensure that that remains the case. The UK Health Security Agency is monitoring the situation at pace and has confirmed that this is not a new strain of strep A, so people should be reassured that there is no reason to believe it has become more lethal or more resistant to antibiotics. The most important thing for parents to do is to look out for the symptoms and get the treatment that is available for them.

Withdrawal Agreement: Legal Advice

Keir Starmer Excerpts

Thursday 29th November 2018 Commons Chamber

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

(Urgent Question): To ask the Chancellor of the Duchy of Lancaster and Minister for the Cabinet Office if he will make a statement on the publication of the Attorney General’s legal advice on the proposed withdrawal agreement.

[The Solicitor General (Robert Buckland)]

The Government recognise the legitimate desire of Members on all sides of the House to understand the withdrawal agreement and its legal effect. That is why my right hon. Friend the Chancellor of the Duchy of Lancaster confirmed to the House on Tuesday 13 November that the Government will publish a full reasoned statement to set out their position on the legal effect of the withdrawal agreement. That is in addition to the material that the Government have already published, including, for example, a detailed explainer of the withdrawal agreement and a technical explanatory note on the Northern Ireland protocol. My right hon. and learned Friend the Attorney General will also make a statement to the House on Monday 3 December—the next sitting day—about the legal effect of the agreement, and he will answer questions from Members, I am sure in the fullest possible way.

[Keir Starmer]

Not good enough.

Mr Speaker, nobody who was present in the debate on 13 November, including the Solicitor General, could be in any doubt about what the House was asking for. During that debate I stated that

“the motion requires the publication of the final and full advice provided by the Attorney General to the Cabinet concerning the terms of any withdrawal agreement. This must be made available to all MPs. It is to be published after any withdrawal agreement is reached with the EU, but in good time to allow proper consideration before MPs are asked to vote on the deal.”—[Official Report, 13 November 2018; Vol. 649, c. 235.]

The motion was passed unanimously on those terms, and when it was passed, I made it clear that those were its terms.

It was perfectly clear to Ministers, including the Solicitor General who spoke at the end of the debate, that the House was not asking for a position paper or a summary of the Attorney General’s advice. That was the offer made from the Dispatch Box during the debate, and it was roundly rejected, as the Solicitor General knows full well. The binding motion that was passed was for nothing less than for the full and final legal advice provided by the Attorney General. It is therefore wholly unacceptable, and frankly shows contempt for this House, for Ministers, including the Prime Minister at the Dispatch Box yesterday, now to pretend that the House was asking only for partial or qualified legal advice. If the Government are not willing to comply with the order of the House, why did they and the Solicitor General not vote against the motion?

In 12 days’ time, this House will have to take the most important decision it has taken for a generation, and MPs are entitled to know the full legal consequences of the deal that the Prime Minister is asking them to support. That is why the order was made, and why it must be complied with. Throughout the Brexit process, the Government have repeatedly tried to sideline and push Parliament away. If they now intend to ignore Parliament altogether, they will get into very deep water indeed. I urge the Solicitor General to think again and to comply with the order of the House.

[The Solicitor General]

With the greatest respect to the right hon. and learned Gentleman, his request is wholly premature—[Interruption.]

European Union (Withdrawal) Bill

Keir Starmer Excerpts

Wednesday 13th June 2018 Commons Chamber

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

I beg to move amendment (a) to Lords amendment 51.

[Mr Speaker]

With this it will be convenient to discuss the following:

Lords amendment 51, amendment (b) thereto, and Government motion to disagree.

Lords amendment 1, amendment (a) thereto, and Government motion to disagree and Government amendment (a) in lieu.

Lords amendment 2, amendment (a) thereto, and Government motion to disagree and Government amendment (b) in lieu.

Lords amendment 5, and Government motion to disagree.

Lords amendment 53, Government motion to disagree, and Government amendment (a) in lieu.

Lords amendment 4, and Government motion to disagree.

Lords amendment 3, motion to disagree, and amendments (c), (e) and (d) in lieu.

Lords amendment 24, Government motion to disagree, amendment (i) and Government amendment (ii) to Government amendment (a) in lieu, and Government amendments (a) and (b) in lieu.

Lords amendments 32, 6 to 9, 33 to 36, 38, 40 to 42, 159 to 161, 163, 164, 166 to 168 and 170.

[Keir Starmer]

I rise not only to move amendment (a) to Lords amendment 51, but to support the other Lords amendments that we are considering today. May I start by thanking the other House for its work? In particular, I wish to record our thanks to our Labour Lords team, led by Baroness Hayter and Baroness Smith, who have worked extremely hard to improve this Bill.

The amendments in this group this afternoon, as with yesterday, cover a number of crucial issues, such as enhanced protection for EU-derived rights, environmental safeguards and the charter of fundamental rights. In many respects, that should not be controversial, and I will return to those issues later on.

Let me start with Lords amendments 1 and 2. These amendments, if upheld here, would require a Minister to lay before both Houses of Parliament a statement outlining the steps taken in the article 50 negotiations to negotiate our continued participation in a customs union with the EU. I do not suppose that it is the making of a statement that the Government object to; it is the negotiation of a customs union with the EU. In fact, so determined are the Government not to accept a customs union with the EU that they have gone to extraordinary lengths to dream up alternatives.

When the so-called partnership agreement and the so-called maximum facilitation options first saw the light of day last summer, nobody really took them seriously, not even the Brexit Secretary. Within two weeks, he was describing the customs partnership as blue-sky thinking. Thus, when the Prime Minister resurrected them in her Mansion House speech earlier this year, many of us, including myself, were genuinely surprised. Since then, it has become increasingly apparent that neither option is workable, that neither is acceptable to the EU and that neither will get majority support across this House. The Foreign Secretary calls the customs partnership “crazy”. The Business Secretary says that the maximum facilitation option would cost thousands of jobs in manufacturing. It is no wonder that a Cabinet peace summit is planned for July.

The proposal in Lords amendments 1 and 2 that the Government should seek to negotiate a customs union with the EU as part of the future arrangement is a sensible one for many reasons.

[Mr Simon Clarke (Middlesbrough South and East Cleveland) (Con)]

Is the right hon. and learned Gentleman prepared to accept free movement as the cost of a customs union, or is he not?

[Keir Starmer]

I will come to that issue, but I am sure that the hon. Gentleman is aware that free movement has nothing to do with the customs union.

[Mr Ben Bradshaw (Exeter) (Lab)]

Given the reports that we are hearing just now that No. 10 has rejected the agreement that was made yesterday with sensible Conservative MPs on the Grieve amendment, at least the third part of it, there is no guarantee now—absolutely none—that there will be a meaningful vote. Is it not absolutely essential that a loud voice goes out from this House today to say that we want the least damaging Brexit possible—in the customs union and in a single market?

[Keir Starmer]

I am grateful for that intervention. I have not seen the news that is just coming through. If that is the case, it is extremely concerning. A strong message needs to go out from this House about the proper role of Parliament in the article 50 process and one that argues for the best possible outcome in terms of a close economic relationship with the EU.

[Anna Soubry (Broxtowe) (Con)]

rose—

[Keir Starmer]

I will give way—

[Mr Edward Vaizey (Wantage) (Con)]

Give way!

[Keir Starmer]

I have already given way, so I cannot be accused of not giving way.

[Anna Soubry]

I thank the right hon. and learned Gentleman for giving way. We need to be very clear about this. Something may have happened, but I heard the Prime Minister saying very clearly from the Dispatch Box that an amendment would be forthcoming, that it would largely incorporate much of the amendment that my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) tabled yesterday, that discussions and negotiations are continuing, that that amendment will be tabled in the Lords in due course and that the job will be done on a meaningful vote involved for this House.

[Keir Starmer]

I am grateful for that intervention. I have not seen whatever news is coming out, but having observed the proceedings yesterday and the various interventions, it seems to me that what the right hon. and learned Member for Beaconsfield (Mr Grieve) was saying was very clear for us all to hear. He spoke about the specific paragraphs that were of huge importance, and we heard about what the proposed amendment in the Lords would contain. Obviously, we will have to wait and see what the wording is, but, from my point of view, as someone who was observing it, I thought that it was pretty clear what was being said from the Front Bench about what was likely to happen in the course of next week.

[Frank Field (Birkenhead) (Lab)]

Will my right hon. and learned Friend give way on that very point?

[Keir Starmer]

I will, but I must say that I was not anticipating spending the whole afternoon on re-interpreting yesterday, but let us see how we get on.

[Frank Field]

Does my right hon. and learned Friend agree that, though it was fun yesterday, the truth is that, if this House wants a meaningful vote, there are ways and means by which we will have a meaningful vote irrespective of what the legislation says?

[Keir Starmer]

I could not help noticing yesterday that, as my hon. Friend the Member for Greenwich and Woolwich (Matthew Pennycook) was spelling that out, the Government’s position was that, should article 50 be voted down, they guarantee that they will make a statement within 28 days and that that was not particularly convincing—the Brexit Secretary himself found that to be a cause of some amusement. That is certainly not enough. What is needed is the opportunity for this House not only to vote on the article 50 deal, but to have an appropriate and proper role if the article 50 deal is voted down. I am afraid that we are rehearsing yesterday’s argument, but we on the Labour Benches voted for the amendment, which would have given not only a meaningful vote, but a proper role for Parliament afterwards to decide what happens next.

[Mr Speaker]

Order. The right hon. and learned Gentleman is completely innocent in this matter, but he has, almost unavoidably, been diverted from the path of virtue as a result of interventions. I simply want to remind not just him but the House that we are supposed to be focused on amendments that relate to the European economic area. What we must not do is have a replay of yesterday’s proceedings.

--- Later in debate ---

[Mr Speaker]

Well, the right hon. Member for Wantage (Mr Vaizey). Well, my cup runneth over today. I am having moral support from sedentary positions both from the right hon. Gentleman and from the right hon. Member for Broxtowe (Anna Soubry) to boot. It is clearly my lucky day.

[Keir Starmer]

I will press on, make my case and take some further interventions later on.

I was saying that the proposal in Lords amendments 1 and 2 that the Government should seek to negotiate a customs union with the EU as part of the future arrangements is a sensible one for many reasons. The first is the economy. Over a number of decades, our manufacturing model has adapted to the arrangements that we currently have with the EU, including the customs union. Thus, typically, we see, across the UK, thousands of manufacturing businesses that operate on the basis of a vital supply chain in goods and parts from across the EU. The car industry is an obvious example, but not the only one.

Such businesses operate on the basis of a just-in-time approach. Whereas years ago there were stockpiles of parts and so on, these days there is a just-in-time approach. Parts come in and are assembled, and the finished product then goes quickly and seamlessly across the UK and/or out to the EU. That is the manufacturing model that this country has operated for many years, and MPs across the House know that that is what goes on in their constituencies.

[Emma Reynolds (Wolverhampton North East) (Lab)]

The outgoing president of the CBI said today that manufacturing sectors, particularly the car industry, would be severely damaged if the UK did not stay in a customs union with the EU. Does my right hon. and learned Friend agree that those comments are very concerning?

[Keir Starmer]

One of the risks for Members taking interventions is that the very next point we are about to make is stolen, but my hon. Friend is absolutely right. I will just remind the House that the president of the CBI this morning said:

“If we do not have a customs union, there are sectors of manufacturing society in the UK which risk becoming extinct... Be in no doubt, that is the reality.”

This is at the heart of the debate. If we destroy the manufacturing model that I just described, we destroy a vital part of the economy and job losses will be considerable. That is why there are such high levels of concern across the business community about the Government’s current approach.

[Charlie Elphicke (Dover) (Ind)]

The right hon. and learned Gentleman is being very generous in taking interventions. Will he just tell the House whether he believes that Britain should remain in the EEA—yes or no?

[Keir Starmer]

For the benefit of the House, I am going to go through the customs union argument before moving on to discuss the EEA and the single market, and then I have other remarks to make. If the hon. Gentleman will forgive me, I will deal with his point when I deal with the EEA. I am currently dealing with the customs union.

[Sir Edward Leigh (Gainsborough) (Con)]

Is Labour in favour of staying in the customs union, or a customs union that approximates to a customs arrangement that would allow us to make free trade deals with states other than the EU—the customs union, or a customs arrangement?

[Keir Starmer]

The current customs arrangements are in the membership treaty. Therefore, if they are to be replicated and if there is to be a customs union that does the work of the current customs union, there needs to be a new treaty. That is why we are in favour of a customs union, but a customs union that does the work of the customs union that we are currently in. Although this was a point of great heat and discussion weeks and months ago, I think most people now understand that there will have to be a new agreement that replicates and does the work of the current customs union.

[Several hon. Members rose—]

[Keir Starmer]

I am going to make some progress; I have taken a lot of interventions and I will take others later.

The concern about the customs union is not confined to the business community. It inevitably extends to trade unions, on behalf of those they represent; those who depend on the manufacturing sector; and those who work in and operate our ports and places of entry and exit. I have visited Dover to look at the operation there and to talk through with management and staff the impact of any change to the current customs arrangements. I have also visited Holyhead, the second biggest port, where there are high levels of concern.

[Kevin Hollinrake (Thirsk and Malton) (Con)]

I know that the right hon. and learned Gentleman wants to separate out the customs union from the single market, but we cannot separate those two things if we are talking about frictionless trade and just-in-time deliveries. Checks would be required not just for customs and rules of origin, but for product regulations and conformity with standards. Further to the question from my hon. Friend the Member for Middlesbrough South and East Cleveland (Mr Clarke), is the right hon. and learned Gentleman therefore willing to accept free movement of people as the price of access to the single market?

[Keir Starmer]

I assure the hon. Gentleman that I will discuss the single market and the EEA, and I will deal with his question then. At the moment, I am making a case on the customs union, although I accept the proposition that the customs union on its own does not produce frictionless trade, and nor does it answer the question, “How would you prevent a hard border in Northern Ireland?” I will specifically deal with this matter later in my speech, and I will take further interventions then.

[Mrs Madeleine Moon (Bridgend) (Lab)]

Is my right hon. and learned Friend aware that the Dutch Government and the European Commission have begun to advise businesses not to take car parts produced in the UK for export because of concerns about rules of origin. Will today’s proposals address that?

[Keir Starmer]

I had heard that. It is not an isolated example; there are others. This is deeply troubling, which is why the amendments before the House today are so important.

[Stephen Timms (East Ham) (Lab)]

My right hon. and learned Friend has already reminded the House that the Cabinet has not made up its mind on what sort of customs arrangement it wants. Is it his understanding, as it is mine, that the maximum facilitation option would entail infrastructure on the border in Northern Ireland, so it would get us back to the hard border that everyone says we want to avoid?

[Keir Starmer]

The main problem with maximum facilitation is that it involves technology yet to be invented and certainly yet to be made to operate. Nobody knows quite what it is, whether it can be developed and delivered, and if so, when. On the Northern Ireland border—although I will speak about Northern Ireland later—the commitment is to no infrastructure, no checks and no controls. I will come to that point specifically when I deal with Northern Ireland.

[Rushanara Ali (Bethnal Green and Bow) (Lab)]

My right hon. and learned Friend will be aware that the permanent secretary of Her Majesty’s Revenue and Customs indicated that the implementation costs of maximum facilitation would be £17 billion to £20 billion a year. This information was shared across Whitehall, so Ministers are well aware that it would be damaging to our economy.

[Keir Starmer]

Yes, I did see that figure. It is deeply concerning that those sorts of costs are even contemplated for that option in relation to technology that has not been developed or, in many respects, even invented. That is why there is such a bitter dispute going on in the Cabinet.

[Mr John Baron (Basildon and Billericay) (Con)]

Will the right hon. and learned Gentleman give way?

[Keir Starmer]

I am going to press on, if the hon. Gentleman does not mind. I will take other interventions later.

I realise that all sorts of fanciful promises about new customs arrangements were made during the referendum and have been made since, but we have a duty to protect our economy, jobs and the manufacturing sector across the UK. That is at the heart of today’s debate. The only way to uphold that duty is to negotiate a customs union with the EU.

There is, of course, another important aspect. In December last year, our Government made a solemn promise in the phase 1 agreement: no hard border in Northern Ireland. And that was spelt out—no infrastructure, no checks and no controls. Now, in all the to-ing and fro-ing yesterday, what may have been missed is that one amendment that went through, without any dissent from the Opposition, was a Government amendment to Lords amendment 25 for that obligation to be legally binding in UK law. That is a very significant amendment; after the political commitment in December to no hard border, no infrastructure, no checks and no controls, we now have a binding law to that effect. This goes to the issue of maximum facilitation, because if maximum facilitation does involve infrastructure, checks or controls, it would be unlawful under the provision passed yesterday. Therefore, it cannot happen.

[Heidi Allen (South Cambridgeshire) (Con)]

The right hon. and learned Gentleman is right. We did not get to debate that amendment because we ran out of time yesterday, but it is huge. It means that, logically, we will have to come to a customs union agreement, partnership—[Interruption]—I’ll do that. I do not care what we call it, but that is what we will need to avoid any border at all in Northern Ireland. It is great progress.

[Keir Starmer]

It is a significant amendment, and it was also a significant amendment in the Lords. Even as amended—taking it back to being closer to the wording of the phase 1 agreement—the amendment is still a very significant measure.

[Mr Dominic Grieve (Beaconsfield) (Con)]

It also goes further than that, does it not? Not only will we have to stay in a form of customs arrangement amounting to a union, but we will also have to have a high level of regulatory alignment. Otherwise, the life that takes place along the border will be impossible because of different regulations on either side.

[Keir Starmer]

I agree, and I will develop that argument, because a customs union alone will not solve the conundrum of how to keep to the solemn commitment to having no hard border in Northern Ireland.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I will not repeat what my hon. Friend the Member for South Cambridgeshire (Heidi Allen) and my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve) have said, because I was about to make the same point. It was the most significant thing that happened yesterday, but given the circus that surrounded everything and the timetable that stopped us debating it, nobody so far has taken any notice. However, it does bear on today’s debate, because yesterday’s legally binding commitment extends the needs of the Irish border to the whole United Kingdom. We are talking about Dover—and we settled that yesterday—and we are not having a border down the Irish sea. The United Kingdom has therefore got to negotiate an arrangement with the EU as a whole that has no new frontier barriers. Effectively, we are going to reproduce the customs union and the single market, and the Government will be unable to comply with yesterday’s legal obligation unless it does so.

[Keir Starmer]

I am grateful for that intervention. When the phase 1 agreement was reached in December, I thought that commitment was the most significant thing that had happened since the referendum, with regard to indicating what our future relationship with the EU would be. I think that it is clear to everyone who has considered this and visited Northern Ireland to talk it through that the only answer to having no hard border, in the end, is a customs union and high-level single market alignment, and that is why yesterday was so significant. The fact that that was accepted by the Government and turned into domestic law gives it a status that it did not have until yesterday, because previously it was a political agreement at international level. I am not suggesting for one moment that it was not solemnly entered into by the Government, or indeed that they would resile from it as a matter of international negotiation, but it will now become a matter of domestic law. It is probably the most significant thing that happened yesterday.

[Mr Baron]

May I just remind the right hon. and learned Gentleman that the vast majority of people, not only at the referendum but at the general election—85% of those who voted—voted to leave the customs union and the single market? It was a very clear result. Let me ask him this one straightforward question, for clarity: in their search for a customs union, are the Opposition willing to sacrifice our ability to negotiate trade deals outside the EU in order the achieve that customs union with the EU?

[Keir Starmer]

We all want new trade deals. At the moment we have got an excellent trade deal with the EU, and we have 37 additional agreements with 67 countries through our membership of the EU. The first thing we need to do is preserve that. Lots has been said about new trade agreements and how they will be fast and how we will get much better terms than would be offered to any other country in the world. In fact, we are told that they will be queuing up to give us preferential treatment, and quickly. I think the Brexit Secretary said that by March next year we will have had trade deals with countries in an area that is geographically 10 times larger than the EU. Well, he has only a few months left to pull that one off. The Opposition consider that if new trade deals are struck together and jointly with the EU, we have a better chance of getting quicker and better trade deals.

[Karin Smyth (Bristol South) (Lab)]

On Monday I was in Ireland with the British-Irish Parliamentary Assembly, and I think that what happened yesterday will be welcomed across the island. I remind the House that many things that happened in Northern Ireland over the past 40 years did not necessarily arise because of a border; they arose because of civil rights discussions across the island. The House must be mindful that, as we go forward in these discussions, we need to be careful when talking about our relationships across the island, both north and south, and within the United Kingdom.

[Keir Starmer]

This is a matter that I know every Member across the House is really concerned about. The commitment to having no hard border in Northern Ireland, which was set out in the Good Friday agreement, was not just a question of how technically one might get people or goods across a line in the road between the Republic and the north, and nor is it as we go forward; it is a manifestation of peace. I had the privilege of working for the Policing Board in Northern Ireland for five years, implementing some of the Good Friday agreement. Having talked to both communities consistently over those five years, I know that this is deep in the hearts of everybody there. This is more than a technical issue; it goes to the heart of what was achieved 20 years ago. We must always bear that in mind.

[Owen Smith (Pontypridd) (Lab)]

My right hon. and learned Friend speaks truthfully and eloquently about preserving peace in Northern Ireland, and of the centrality of the border to that. He also says that in order to achieve that we must effectively be in a single market and a customs union. Does he accept that one of the concrete ways we might deliver that is to be in the customs union and the European economic area, which is entirely possible, as Michel Barnier pointed out yesterday?

[Keir Starmer]

I assure my hon. Friend that I will come to the EEA later and take interventions on it, but first I want to deal with the customs union.

[Lady Hermon (North Down) (Ind)]

I am grateful to the right hon. and learned Gentleman for allowing me to intervene. He referred, quite rightly, to his service to the people of Northern Ireland through the Policing Board in earlier years. I am aware that he visited Northern Ireland recently and met the present chief constable of the Police Service of Northern Ireland. He will therefore be aware that the chief constable has recently withdrawn from sale three unused border police stations and asked for funding for an additional 400 police officers to deal with the border arrangements after Brexit. Can he throw some light on why on earth the chief constable would do that if we are not going to have a hard border?

[Keir Starmer]

I did go to Northern Ireland recently and I did have a meeting with the chief constable, who I know in any event. We spoke in confidence, and I will not break that confidence, but the facts about staff, posts and buildings, as the hon. Lady has just laid out, are right. Although having no hard border was a political commitment made in December, and it is now a legal commitment, there is a concern that that should be delivered. That is not a concern solely of the Police Service of Northern Ireland; it is a concern across the piece.

[Several hon. Members rose—]

[Keir Starmer]

I will take two more interventions, from the hon. Member for East Worthing and Shoreham (Tim Loughton) and my hon. Friend the Member for Slough (Mr Dhesi), but then I really must press on—I keep saying that, and I must do it.

[Tim Loughton (East Worthing and Shoreham) (Con)]

May I just bring the right hon. and learned Gentleman back to the question from my hon. Friend the Member for Basildon and Billericay (Mr Baron)? My understanding from his answer, as it tailed off, is that he is only in favour of trade deals severally and jointly with the European Union. Is he not aware that currently the EU has trade deals in operation with under 10% of the world’s economies? Is he saying that under Labour’s vision we would be unable to secure trade deals with the other 90%? Does his vision also include the fact that at the moment four fifths of the tariffs collected under the customs union are paid to Brussels? Does he want to see that sort of arrangement continue under his vision?

[Keir Starmer]

The EU has trade deals with 67 countries through 37 agreements. It has a further 49 agreements with developing countries. There are 200 countries in the world, 28 in the EU, and 67 are already in extra agreements with the EU, and there are 49 in the developing country agreements. That is a considerable number of countries in the world.

[Mr Tanmanjeet Singh Dhesi (Slough) (Lab)]

Does my right hon. and learned Friend agree that the crux of today’s debate is whether we want a close working relationship with our neighbour and social, cultural and economic partner, the European Union? Ultimately, that is why so many of us—including the business community, trade unions and many Opposition Members —want a customs union.

[Keir Starmer]

I am grateful to my hon. Friend for his comments, and I agree.

[Several hon. Members rose—]

[Keir Starmer]

I just want to finish this point—[Interruption.] I do not think that anybody could accuse me of not having taken interventions. I need to move on.

[Mr Speaker]

Order. I am extremely grateful to the right hon. and learned Gentleman. There was a less than wholly polite chunter from a sedentary position. I warn the hon. Member for Wyre Forest (Mark Garnier) that I might need to have a word with family members of his who live in my constituency, who would expect him to behave in a seemly manner. I simply say to the shadow Brexit Secretary that I am listening to his disquisition with great interest, and will do so, but I know he will be sensitive to the fact that although we have six hours for debate, there is a very large number of Members wishing to contribute.

[Keir Starmer]

I am grateful for that, Mr Speaker.

To finish my point about Northern Ireland, I think that the conclusion of the vast majority of people who have considered this in great depth and with concern is that there is no way of delivering on the solemn promise that there should be no hard border in Northern Ireland unless the UK is in a customs union with the EU and there is a high level of single market alignment. The so-called backstop argument that has been going on in recent weeks is testament to that, because the Government are trying to find a post-implementation period phase when in truth we will be in a customs union and in high-level regulatory alignment with the single market. For our economy, and to enable us to keep our solemn commitments on Northern Ireland, I urge hon. and right hon. Members to vote to uphold Lords amendments 1 and 2.

I now turn to the EEA and amendment (a) to Lords amendment 51, which is in my name and those of other shadow Front Benchers. I understand why their lordships have become so concerned about the state of negotiations that they want an amendment to cover the single market. The Prime Minister’s red lines of October 2016 were a profound mistake. If we are to keep to our duty of protecting our economy, including the manufacturing sector and the services sector, and our solemn promise in relation to Northern Ireland, we need a customs union with the EU, and we also need a strong single market deal based on shared regulations and institutions.

[Gareth Snell (Stoke-on-Trent Central) (Lab/Co-op)]

Can my right hon. and learned Friend explain the tangible difference between us being in a customs union with full access to the single market and our being members of the EU, other than the fact that we will not be electing Members of the European Parliament?

[Keir Starmer]

Obviously, politically, we will not be in any of the institutions, and we will not be a member of the EU. We are dealing with the question of whether we should have a close economic relationship with the EU, which everybody recognises is a critical issue, and working through the best configuration for that. I do not think that the mere fact that there has been a vote to leave the EU can be interpreted as the wish of anybody who voted to make our economic relationship with the EU any worse. I do not think that anybody was voting to harm the ability of businesses in this country to do business.

[Several hon. Members rose—]

[Keir Starmer]

I am going to press on and then I will give way again.

The EEA has a number of real benefits with regard to shared regulations and shared institutions, but it also presents real challenges. I have taken this option very seriously. I went to Norway to discuss it with that country’s political leaders, trade unions and businesses, and I also visited an EEA border—the Norway-Sweden border—to see what it was like.

The EEA undoubtedly works well for Norway, Iceland and Liechtenstein, but their economies are very different from ours, as is their size—Norway has 5 million people, Iceland has 300,000 and Liechtenstein has 37,000. Those countries chose not to be in a customs union with the EU. The European Free Trade Association is, after all, a free trade association, and those countries have struck trade deals in their own right as a group. I am sure that those trade deals work well for them, but I think that the 37 trade deals that the EU has struck work better for the UK than the EFTA trade deals would.

[Mark Garnier (Wyre Forest) (Con)]

Will the right hon. and learned Gentleman give way?

[Keir Starmer]

I will just complete this point.

The EEA excludes agriculture and fisheries, which presents a problem in relation to the solemn commitment to no hard border in Northern Ireland. When I went to the border between Sweden and Norway, there was infrastructure, checks and controls—not for people, but for goods. The EEA also provides very little flexibility on the four freedoms, including freedom of movement and the way in which single market rules are implemented. Some say that those challenges can be overcome. I will continue to listen to those arguments, because there is no doubt that, in addition to a customs union with the EU, we need a strong single market deal, but I do not think we can ignore those challenges.

[Angela Smith (Penistone and Stocksbridge) (Lab)]

Despite their small populations, Iceland and Norway represent the two biggest catch sectors in Europe’s fishing industry. If the exclusion of the common fisheries policy is so bad in terms of UK membership, how on earth is it that Iceland and Norway, which depend heavily on fishing, are still in the EEA and benefit from it?

--- Later in debate ---

[Keir Starmer]

I am obviously not making my point in the right way. If the question we are trying to answer is how we ensure there is no hard border in Northern Ireland, it is very difficult to see how we can answer that by adopting the EEA model as it is, because agriculture is outside of the agreement that Norway, Iceland and Liechtenstein have struck. That is the point I was trying to make.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

It seems to me that the right hon. and learned Gentleman is, in effect, making the same argument on this issue as the Government, which is that we want to negotiate a free trade deal without the bureaucracy or the regulations—in other words, to have the best of the EU and the single market but without the downside. That is a very valid position to take, but can he confirm that he is in concurrence with the Government’s position on that?

[Keir Starmer]

No, our position is not the same as the Government’s at all. I recognise that we need a strong single market model. All I am saying is that I think there are challenges in the EEA model, which is not the only model, and that we would be better off with a model that does not tie us to a particular deal that another country has done. However, and this is why our amendment is important, that model should ensure full access to the single market and no new impediments to trade, with common rights, standards and protections as a minimum, underpinned by shared institutions and regulations. That is a long way from the Government’s position because they are not prepared to sign up to those commitments. The frustration in the negotiations is that nobody yet knows, because the Cabinet is still divided, whether the Government really want to negotiate something that is close economically to the EU, which will require shared regulations and institutions, or if they want to negotiate something else altogether.

[Frank Field]

I hope that all of us who support Brexit wish the UK to have access to the single market on the terms we have now, with the conditions about regulation that will follow from that. A key part of the campaign was that we should have control of our borders and not be subjected to foreign courts. Does my right hon. and learned Friend accept that we might have to pay for the privilege of gaining free access to the single market but controlling our borders?

[Keir Starmer]

I accept that freedom of access was bound up with the referendum, and that is why every time I have stood at this Dispatch Box, I have said that we accept that freedom of movement will end when we leave the EU. The question is: what comes next, what does it look like and how do we negotiate it with the EU? That does not make things easy, but I think the Government’s approach, which was to abandon any argument for the customs union or the single market at the outset for fear of having that discussion with the EU, was wrong in principle.

[Caroline Flint (Don Valley) (Lab)]

I absolutely agree with my right hon. and learned Friend that, when we leave the European Union, freedom of movement should end, and this is about what comes next. Does he agree that the EEA Norway-Liechtenstein-Iceland model does not allow us to have control over how freedom of movement will change and ties us in to “no say”? Norway, Liechtenstein and Iceland have signed up to having no say over freedom of movement.

[Keir Starmer]

I have looked very carefully at the provisions in the EEA agreement, and there has been a lot of discussion about articles 112 and 113 in particular. I have to say that my reading of those articles is that they are what are called “in extremis” provisions, which actually do allow some flexibility on all obligations under the EEA agreement, but only in extreme circumstances and for a short period. The argument that others have put to me is that there is a different interpretation, but we are still discussing that matter.

[Wayne David (Caerphilly) (Lab)]

rose—

[Keir Starmer]

I will give way once more and then I really will have to get on.

[Wayne David]

Does my right hon. and learned Friend agree that the EEA would become a viable option only if Britain were able to negotiate fundamental changes to the EEA agreement, which would be a huge challenge for the United Kingdom?

[Keir Starmer]

In fairness to those who advocate joining the EEA, there is a recognition that the EEA agreement, unamended, would not be the right deal for the UK, but the argument is that it could be amended.

[Several hon. Members rose—]

[Keir Starmer]

I am going to press on because I have used up far too much time.

Our amendment (a) puts forward a strong single market proposition—[Interruption.]

[Mr Speaker]

Order. I say very courteously to the hon. Member for Chelmsford (Vicky Ford) that we cannot have an intervention by what I would call “proffered chunter” from a sedentary position. If the right hon. and learned Member who has the Floor wishes to give way, it is open to him to do so. [Interruption.] Order. The blame game taking place between the right hon. Member for Wantage (Mr Vaizey) and the hon. Member for Wyre Forest (Mark Garnier) about who else chuntered, with each pointing at the other, is not altogether seemly.

[Keir Starmer]

I am going to press on because I have taken lots of interventions and engaged with them. I have been on my feet for nearly 45 minutes, which is not fair to colleagues on both sides of the House who want to speak.

Our amendment is a strong single market proposition. It sets out the kind of new relationship we want to achieve with the EU—a close economic relationship, with full access, while ensuring there is no lowering of common standards and protection, and recognising that shared institutions are required to achieve that. It is a million miles away from the Government’s position on the single market. It does not set a narrow route; it sets the parameters of the new single market relationship we want to achieve, and it leaves options open to achieve that. I urge all Members on both sides of the House to support it.

Let me turn to the question of human rights and other protections. Lords amendment 4 sets out enhanced protections for employment, equality, health and safety, consumer standards, and environmental rights and standards. The argument is very simple; it was very simple at the start and it is very simple now. At the moment, these rights have enhanced status because we are members of the EU. They are being converted into our law—the Government said they would convert them and they are converting them; I will come on to the charter of fundamental rights in a minute—but not with any enhanced protection. All the amendment says is that if those rights and protections are to be changed, that should be done by primary legislation.

The amendment is not contentious, and it does not even say that the Government cannot change those rights. It just says that if they believe in these rights and think they should have enhanced protection, they should for heavens’ sake put them into a form that means that if they want to change them, they have to use primary legislation to do so. The only reason I can think of for resisting that is that somebody thinks it might be a good idea to chip away at these rights without doing so through primary legislation.

[The Solicitor General (Robert Buckland)]

indicated dissent.

[Keir Starmer]

The Solicitor General shakes his head. If that is not the case, he should accept Lords amendment 4 and get on with it. This is the same argument we have been making since the Bill started its life back in September 2017.

There is good reason to be concerned. I know these are old examples, but they are real ones. The Foreign Secretary has complained of “back-breaking” EU workers’ rights, and the Secretary of State for Environment, Food and Rural Affairs has claimed that the Government should

“have the potential to...if necessary rescind”

employment protections after Brexit. Such examples give Opposition Members, trade unions and working people across the country huge cause for concern that, in the absence of enhanced protection, these rights will be vulnerable.

[Mr Grieve]

The right hon. and learned Gentleman is making a very powerful case. I can tell him that Government Members should also be concerned about this matter. I am sure he agrees that it is perfectly possible to carry out Brexit—without incorporating the charter of fundamental rights, which I know is a subject of difficulty—while at the same time securing these rights through this perfectly sensible amendment.

[Keir Starmer]

I am grateful for that intervention. I would have thought that this is not controversial. The Prime Minister said that she did not want to reduce these rights, and we take her at her word, but if the Government convert them into a form in which they lose their protection, they make them vulnerable. I would have thought that any Government who want to change these rights would have the decency to do that through primary legislation so that this House can carry out the proper scrutiny process. It is very straightforward.

I now turn the charter of fundamental rights. Through the Bill, thousands of EU provisions are being converted into our law—only one is not being converted. All the others can be converted, changed, modified or brought into our law in some shape or form, but the charter apparently cannot be converted, and that is wrong in principle.

[Mary Creagh (Wakefield) (Lab)]

I am very interested in my right hon. and learned Friend’s point, particularly in relation to the charter of fundamental rights. Does he agree that amendment (c) in lieu of Lords amendment 3 —it talks about environmental principles, and potentially rights, being put into primary legislation—may leave us in the anomalous position of having more environmental rights after Brexit than social and civic rights? Is that not a disgrace?

[Keir Starmer]

I am grateful to my hon. Friend for that intervention. She makes the case very well and powerfully. As far as the charter is concerned—

[Kevin Hollinrake]

Will the right hon. and learned Gentleman give way?

[Keir Starmer]

I will make this point about the charter and then I will give way.

The charter has enabled the evolution of important rights, adding significantly to the fields of equality and non-discrimination, especially lesbian, gay, bisexual and transgender rights, and the rights of children, workers and the elderly. As Liberty, Amnesty International and the Equality and Human Rights Commission have argued, excluding the charter from the Bill

“will lead to a significant weakening of the current system of human rights protection in the UK”.

Human rights develop over time. This country and the House have played long and distinguished roles in that development. Brexit should not be used to end that tradition or to reduce our human rights protection in the UK. We therefore call on right hon. and hon. Members across the House to vote for Lords amendments 4 and 11.

I shall now come on, briefly, to the environmental provisions. Lords amendment 3 seeks to maintain environmental principles and standards as we leave the EU. The amendment has our full support. The EU’s environmental principles are hard-wired into the treaties, and they underpin all its environmental policies and laws, which are then enforced by EU institutions and agencies. These environmental principles and the enforcement mechanisms that uphold them must be retained and replaced if Brexit is not to weaken protection for our natural environment.

I know that amendment (c) in lieu, tabled by the right hon. Member for West Dorset (Sir Oliver Letwin), is designed to address some of those concerns. If it is supported by the Government—I assume it will be—it will introduce some helpful developments in the Government’s policy, including proposals to enable the watchdog to initiate legal proceedings. However, it does not go far enough, so we urge Members to support Lords amendment 3.

[Mary Creagh]

Does my right hon. and learned Friend agree with me that the amendment, as it stands, asks the Government not to act in accordance with the duty on them, but only to have regard to it, which is a much less stringent legal test? Does he also agree that while it creates the ability to initiate legal action, it does not provide a legal remedy or access to justice for UK citizens?

[Keir Starmer]

I agree with my hon. Friend, which is why I am saying it is a step in the right direction, but it is not enough on its own and more is needed.

I turn finally to the question of refugee family reunion. I am pleased that Lords amendment 24 is before us, and I pay tribute to Lord Dubs for his tireless campaign on this issue. Labour supports Lords amendment 24, which is long overdue. We recognise that some concern has been raised about the scope of family reunion that qualifies under the Government’s clause, and I would welcome any clarification from the Minister on that issue. However, in general, Labour will support the amendment.

In conclusion, the Lords amendments address crucial issues. Along with Labour’s single market amendment, they would be a huge step forward in improving the Bill and protecting jobs and rights. I hope that right hon. and hon. Members will support them today.

[The Solicitor General]

It is a pleasure to rise in this debate to set out the Government’s stance on these important amendments. The right hon. and learned Member for Holborn and St Pancras (Keir Starmer) was properly concerned about the effluxion of time. I share that concern; there is a lot to go over, and I will do my very best to cover all the amendments before us and, of course, to take interventions, as I always strive to do.

May I first echo the opening remarks made yesterday by my right hon. Friend the Secretary of State, who talked about the important role of the other place as a revising Chamber? There is no doubt that in some instances the other place has made some constructive improvements to the Bill, which the Government have every reason to support. However, on other matters, which were debated at length and agreed to by this elected House, the other place chose to ignore decisions that were taken here. Instead, we have a set of amendments that, I am afraid, are not properly thought through and would have a negative impact on our plan for a smooth and orderly exit.

We heard from the right hon. and learned Member for Holborn and St Pancras that the Opposition do not accept Lords amendment 51, which seeks to make continued participation in the EEA a negotiating objective for the Government. Well, we are sure about his position, but we are not so sure about that of certain other Opposition Members. However, on this issue, we are certainly in broad agreement.

This country is party to the EEA agreement by virtue of its membership of the EU. After the implementation period ends, that agreement will no longer apply to the UK. Seeking to participate in the EEA agreement beyond that period does not pass our test—that our future partnership with the EU must respect the referendum result. It does not deliver the control over our laws, and indeed other aspects of our domestic policy, that we seek. On borders, it would mean that we would have to continue to accept all four freedoms of the single market, including the free movement of people.

Investigatory Powers Bill (Fifteenth sitting)

Keir Starmer Excerpts

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

[The Chair]

Before we begin, this sitting is officially due to finish at 5.30 pm, but we will continue until 6.30 pm, at which point there will be a break. The Committee will reconvene at 7 o’clock with Mr Owen in the Chair.

Clause 212

Combination of warrants and authorisations

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

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

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

[The Minister for Security (Mr John Hayes)]

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

Question put and agreed to.

Clause 212 accordingly ordered to stand part of the Bill.

Schedule 8 agreed to.

Clause 213

Payments towards certain compliance costs

[Keir Starmer]

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

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

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

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

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

[Mr Hayes]

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

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

He went on to say that

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

And I am clear, quoting the Home Secretary, that

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

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

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

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[Mr Hayes]

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

[Keir Starmer]

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

Amendment, by leave, withdrawn.

Clause 213 ordered to stand part of the Bill.

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

Clause 216

National security notices

[Keir Starmer]

I beg to move amendment 853, in clause 216, page 166, line 36, after “State”, insert

“following approval by a Judicial Commissioner”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 854, in clause 216, page 166, line 41, after “State”, insert “and a Judicial Commissioner”.

Amendments 853 and 854 would require judicial authorisation for national security notices. This would also extend the “double lock” standard that is set in other parts of the Bill.

Amendment 845, in clause 217, page 167, leave out lines 20 and 21 and insert—

“(1) The Secretary of State may, following approval by a Judicial Commissioner that the notice is justified, practicable, necessary and proportionate, give a relevant operator a notice (a ‘technical capability notice’)”.

This amendment would require judicial authorisation for Clause 217 and bring the clause in line with other provisions within the bill that require judicial authorisation.

Amendment 855, in clause 217, page 167, line 20, after “State”, insert

“following approval by a Judicial Commissioner”.

This amendment would require judicial authorisation for technical capability notices. This would also extend the “double lock” standard that is set in other parts of the Bill.

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

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

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

Amendment 859, in clause 220, page 171, line 4, at end insert—

“(9A) Any variation made under subsection (9) must be approved by a Judicial Commissioner.”

This amendment would require judicial authorisation for the variation and revocation of national security and technical capability notices. This would also extend the “double lock” standard that is set in other parts of the Bill.

[Keir Starmer]

The amendments go in pairs: amendments 853 and 854 are to clause 216, amendments 845 and 855 to clause 217 and amendments 852 and 859 to clause 220. They all have the same purpose and intent: to subject the powers in the clauses to the double-lock mechanism—in other words, to involve the judicial commissioners in those powers.

Clause 216 is concerned with national security notices. Subsections (1) and (2) make the power to issue such notices subject only to the test that they be

“necessary in the interests of national security”

and “proportionate”. There is no specific reference to any operational purposes; it is a very broad power. Once a notice is issued, subsection (3) takes effect:

“A national security notice may…require the operator to whom it is given—

(a) to carry out any conduct, including the provision of services or facilities, for the purpose of—

(i) facilitating anything done by an intelligence service under any enactment other than this Act, or

(ii) dealing with an emergency (within the meaning of…the Civil Contingencies Act 2004);

(b) to provide services or facilities for the purpose of assisting an intelligence service to carry out its functions more securely or more effectively.”

The Secretary of State issues a notice; once that notice is issued, the requirement on the operator is very broad. To be fair, subsection (4) makes it clear that a national security notice cannot be used to sideline or cut across a warrant or authorisation that is required under the Act, but the clause does make a very wide-ranging power available to the Secretary of State and it seems subject to pretty well no check, balance or safeguard.

The amendments would subject the procedure to the double-lock mechanism, to ensure that such a notice would go before a judicial commissioner, who would consider whether it was in the interests of national security and proportionate under subsections (1) and (2). The Joint Committee raised concerns about this issue when it looked at the draft Bill, and in particular how the lack of a definition of national security means that the power granted by the clause is very wide indeed.

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

Does the hon. and learned Gentleman agree that, in the absence of a definition of national security, it is difficult to foresee the kinds of activity or intrusion that obligations under the clause could entail? Is it not therefore providing a blank cheque power to the Government?

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[Keir Starmer]

I agree. This is one of the rare occasions on which the Bill does not set out the procedure for what happens before the Secretary of State considers the exercise of her function. In other areas, we have seen particular requirements for what must be set out in the application and in the warrant—there is a bit more detail. Here, the notice procedure does not include any details of the formalities of the Secretary of State’s consideration or what must be set out in a notice; nor does the Bill provide any safeguard through the judicial commissioners, so not having a definition of national security means that the power is extremely wide and unchecked.

My amendments go only to the process and not to the substance of clause 216, but if they were made, at least a separate pair of eyes would look at the notice and consider whether the test of necessity and proportionality was met. That in itself would be an important safeguard in keeping with the model that runs through the Bill.

[The Solicitor General (Robert Buckland)]

It is a pleasure to serve again under your chairmanship, Ms Dorries. I have listened carefully to what the hon. and learned Gentleman and others have said about their concerns regarding the provisions, but may I reassure him and put to bed the notion that somehow this is a back door or a blank cheque to allow the authorities to do what they like when it comes to interference with the privacy of individuals? Far from it. I will explain as far as I can the purpose of the type of warrantry, particularly the national security notice, that we are talking about, and indeed the technical proficiency provisions as well.

An example of the type of support that might be required would be the provision of services or facilities to help the intelligence agencies in safeguarding the security of their personnel and operations. A notice might typically require a communications service provider to provide services to support secure communications by the security and intelligence agencies—for example, by arranging for a communication to travel via a particular route in order to improve security. A notice may additionally require the confidential provision of services to the security and intelligence agencies within the communications service providers, such as by maintaining a pool of trusted staff for the management and maintenance of sensitive communications services. I hope that gives the hon. and learned Gentleman some insight into what we are talking about here.

[Keir Starmer]

I am grateful for that indication, but I am not sure why that is an argument for not subjecting what could be a wide-ranging power to the double-lock mechanism, which has been the preferred safeguard for such powers in the Bill.

[The Solicitor General]

There are clear reasons for not going down that route. We are talking about the preparatory stage as opposed to the stage of interference with privacy. If the Government’s position was that there was a loophole—a gateway—to allow such interference, the hon. and learned Gentleman’s argument would have real strength, but that is far from the case. This is all about the preparatory stages—the necessary stages that need to be taken by communications service providers before we get to the application for what we all accept is an intrusion.

I am afraid I cannot share with hon. Members their analysis that we need a “now and forever” definition of national security in law. There is a good reason why national security is not defined in statute. Any attempt to define it in the Bill runs a real risk of restricting the ability of this country to respond to constantly evolving and unpredictable threats. It is vital that legislation does not, however unintentionally, constrain the ability of our security and intelligence agencies to protect this country. The examples are all around us: who would have imagined a few years ago cyber-attacks of the nature and on the scale that now threaten us? My concern is that if we try to rigidly define what we mean by national security, we run the risk of defeating the means by which we can keep this country safe.

[The Solicitor General]

I have gone as far as I can to explain the types of scenarios that the national security notices would be used for. In essence, they deal with the nuts and bolts rather than the intrusion. If somehow there was a gateway into intrusion, the hon. and learned Lady would be absolutely right, but I assure her that there is not, so the worries that she and other people and organisations have about a blank cheque, while understandable, are unfounded. I can assure her in Committee and I am happy to continue to make the assurance that the function of this type of notice is not intrusion.

Indeed, we have oversight because national security notices will be overseen by the Investigatory Powers Commissioner. The commissioner will have a duty to report at least once a year on what he or she has found and to make recommendations on where improvements can be made. The commissioner will also have the power to report on an ad hoc basis on any issue that he or she considers appropriate.

[Keir Starmer]

I am listening carefully to the Solicitor General. He says that the notices are not a gateway for preparatory steps to become steps that invade privacy, but where in the Bill is the provision that prevents that happening? The only restriction is subsection (4), which does not achieve that end.

[The Solicitor General]

With respect, I do not think that is necessary because any agency that sought to use this type of notice in order to get around the double-lock provisions in the Bill would soon come a cropper with the commissioner. That important oversight means that organisations are not operating in a vacuum; they will be held to account if they try to misuse these notices in the way that the hon. and learned Gentleman and others fear.

As I have said, we have the powers of review by the IPC. We also have the provision, pursuant to clause 220(5)(b) and (7), that the Secretary of State must consult the commissioner if a notice is reviewed, and the commissioner will then consider the proportionality of the matter before reporting conclusions to the Secretary of State. We have the checks and balances that the hon. and learned Gentleman rightly wants within the mechanism.

On amendments 853 and 854, I would say this: the role of the Secretary of State in issuing national security notices rightly reflects the responsibility of the Executive in protecting our national security; conversely, the role of the judicial commissioner in approving the issuing of warrants under the Bill reflects the particular and proper sensitivity regarding interference with private communications. We have got the double lock in place to ensure that, before the fact, a senior judge has to be satisfied that any interference with privacy is justified. The Bill explicitly prohibits—this is an important point—the issuing of national security notices for the primary purpose of obtaining private information, and the double lock then applies to the use of the most sensitive powers. We need to focus on the need for the double lock in relation to applications that result in the acquisition of private information. These types of notices do not permit the authorities to do that, so the amendments are unnecessary.

Amendments 845 and 855 deal with technical capability notices. Clause 217 builds on the current power provided for under the Regulation of Investigatory Powers Act 2000, where a company can be obliged to maintain a permanent interception capability in order to ensure that when a warrant is served, a company has the infrastructure in place to give effect to it securely and quickly. Again, any warrant served will have been reviewed by a judicial commissioner; he or she will play an important part in overseeing the operation of technical capability notices and any appeal that may be lodged against them. The commissioner will also be consulted about the making of regulations that will provide more detail about the operation of these types of notices, and those regulations will be put before Parliament for approval. Plenty of the checks and balances that the hon. and learned Member for Holborn and St Pancras, others interested in Bill and I would expect and want to see are here.

I am not persuaded of the need for amendments 852 and 859, because clause 220 already sets out the role of the IPC in the process of review and the actions that the Secretary of State must take in that process. The IPC will be integral to any review, because the Secretary of State must consult the commissioner, who will then consider whether the notice is proportionate. Inevitably, considerable weight will be afforded to the advice of the commissioner. The role of the commissioner provides an opportunity for the person on whom the notice has been served and for the Secretary of State to present evidence. The conclusions of the commissioner will be reported to the Secretary of State and to the person who has made the reference. After consideration of the conclusions, the Secretary of State may decide to confirm the effect of the notice, to change or vary it, or to withdraw it. Until that decision is made, there is no requirement for the person who has referred the notice to comply with the specific obligations under review.

In a nutshell, there are plenty of adequate safeguards to alleviate the concerns expressed by the hon. and learned Gentleman. I urge him to withdraw his amendments.

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[Keir Starmer]

I listened carefully to the Solicitor General, and I am grateful to him for setting out how he envisages the notices operating. The difficulty is that there is a mismatch between what he says is their intended operation, and the safeguards in the clause. For me, subsection (4) does not do what he contends it does.

I am also concerned about clause 217. We will get on to that in more detail in a moment, but it is a wide-ranging clause on the maintenance of technical capability, which again ought to be subject to the double lock.

I apologise to the Committee, but on this occasion I will press the amendments in the group to a vote. In the past, in relation to a number of clauses, I have tested the Committee on the first one, but on this occasion I am not sure that I can do that. I think this will be the only occasion on which I will test the patience of the Committee, but clauses 216 and 217 are conceptually different and do not seem to be run as a group. I am afraid that I will press for a vote—as I say, I will not make a habit of it, and I have not done so before.

Question put, That the amendment be made.

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Division 126

Ayes: 7

---

Labour: 5
Scottish National Party: 2

Noes: 9

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Conservative: 7

[Keir Starmer]

I beg to move amendment 846, in clause 217, page 168, line 8, at end insert—

‘(4A) A notice may not impose upon the relevant operator any obligations relating to the removal of electronic protection applied by or on behalf of that operator to any communications or data unless the relevant operator or a person acting on its behalf retains the technical ability to remove the electronic protection from such communications or data.”

This amendment would provide clarity and legal certainty for industry that the Government will not require back doors to be installed into products and services, is not seeking to weaken or restrict the use of encryption and that companies cannot be required to remove encryption if they do not have the means to do so at their disposal.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 847, in clause 217, page 168, line 16, at end insert—

“(e) persons generally held to be representing users and privacy interests in order to assess the impact of any such Regulations on users.”

This amendment would ensure that privacy protections form an overarching part of the Bill and apply across the full range of investigatory powers afforded to the security services.

Amendment 848, in clause 217, page 168, line 24, leave out subsection (8) and insert—

“(8) A technical capability notice may only be given to persons outside the United Kingdom (and may require things to be done, or not to be done, outside the United Kingdom) where it would not cause the person to act contrary to any laws or restrictions under the law of the country or territory where it is established, for the provision of services.”

This amendment would remove all provisions within the Bill that have extraterritorial reach and undermine the long term objective of creating a long term, international framework for law enforcement to gain access to data held overseas and resolves conflict of laws situations that may otherwise arise by providing the Secretary of State with the power to serve such notices without having to take account of domestic legal obligations to which the recipient is subject.

Amendment 857, in clause 217, page 168, line 30, at end insert—

“(11) A person shall not be liable to have a technical capability notice served on him in accordance with regulations under this section by reason only that he provides, or is proposing to provide, to members of the public a telecommunications service the provision of which is or, as the case may be, will be no more than—

(a) the means by which he provides a service which is not a telecommunications service; or

(b) necessarily incidental to the provision by him of a service which is not a telecommunications service.”

This amendment would exclude (under powers in RIPA section 11(4)) those services that have a communications element, but are primarily not a communication service. This limits the very broad range of “telecommunication services” that could be required to build a technical capability under this Part.

Amendment 849, in clause 218, page 168, leave out lines 37 and 38, and insert—

“(3) Before giving a relevant notice, the Secretary of State must provide evidence that the notice is justified, necessary practicable and proportionate, having, among other matters, taken into account—”

Amendment 850, in clause 218, page 168, line 45, at end insert—

“(f) the effect on the privacy and human rights of people in the United Kingdom and outside the United Kingdom”

Amendments 848 to 850 would make explicit the requirement on the Home Secretary to justify the use of a power as intrusive as a technical capability notice. It will also require the Home Secretary to take account of the full effects of such a notice, particularly on people and companies based overseas.

Amendment 858, in clause 218, page 169, line 7, leave out—

“A technical capability notice may be given to a person outside the United Kingdom”

and insert—

“Where a technical capability notice is to be given to a person outside the United Kingdom, the notice shall be served at that person’s principal office outside the United Kingdom where it is established, for the provision of services. Where it is considered unfeasible or inappropriate in the circumstances”

This amendment would require that a UK agency would only serve a notice on an overseas entity that is capable of providing assistance under the warrant.

[Keir Starmer]

This important clause is causing a great deal of concern to operators that may be called upon to comply with a notice. The clause provides for a power to be vested in the Secretary of State to give a relevant operator a technical capability notice

“imposing on the relevant operator any applicable obligations specified in the notice,”

and

“requiring the person to take all the steps specified in the notice for the purpose of complying with those obligations”.

That is a very wide power, and the concern is about the extent of it. In a moment, I will refer to the code of practice, which sets out some of the capabilities that might be required.

It is clear that the power includes taking steps relating to encryption. I say that for two reasons. Subsection (4) lists in paragraphs (a) to (e) the obligations that may be specified in regulations. They include obligations

“to provide facilities or services of a specified description”

and obligations relating to

“apparatus owned or operated by a relevant operator”

or to

“the removal by a relevant operator of electronic protection applied by or on behalf of that operator to any communications or data”.

That is clearly veering into encryption. Obligations may also relate to

“the security of any postal or telecommunications services provided by a relevant operator”

or

“the handling or disclosure of any information.”

If one reads ahead, clause 218(4) deals with further provisions on notices under clauses 216 and 217, stating:

“Where the relevant notice would impose any obligations relating to the removal by a person of electronic protection applied by or on behalf of that person to any communications or data, in complying with subsection (3) the Secretary of State must in particular take into account the technical feasibility, and likely cost, of complying with those obligations.”

The concern of many who might be called upon to comply with the obligations is about the wide-ranging nature of the power.

This also goes deep into the debate about encryption. It is absolutely clear that a notice could require protection to be removed, and the clause envisages that being the case. That becomes clearer when one reads the “Interception of Communications” draft code of practice from chapter 8 onwards. If one reads paragraphs 8.1 to 8.94, one sees what is in fact a power that allows the Secretary of State, through this mechanism, effectively to take control of a capability of a service provider. Paragraph 8.1 states:

“The purpose of maintaining a technical capability is to ensure that, when a warrant is served, companies can give effect to it securely and quickly. Small companies (with under 10,000 users) will not be obligated to provide a permanent technical capability”.

Paragraph 8.3 then lists the wide range of obligations that can be imposed in a notice under this clause.

Paragraph 8.4 of the draft code states:

“An obligation placed on a CSP to remove encryption only relates to electronic protections that the company has itself applied to the intercepted communications (and secondary data), or where those protections have been placed on behalf of that CSP, and not to encryption applied by any other party.”

That is very important provision, which I think I am right to say was clarified as a result of a recommendation from prelegislative scrutiny. The difficulty—I am anticipating the discussion we are about to have—is that this crucial issue is dealt with in the code of practice and not in the Bill. The concern expressed in the evidence given to the various prelegislative bodies and to the Committee was that companies will be obliged to remove the protections in their own systems. Paragraph 8.4 is of some comfort to them because it makes it clear that the obligation would only relate

“to electronic protections that the company has itself applied”

and not to other encryption—but the real problem is that paragraph 8.4 is in the code of practice and not in the Bill. That needs to be rectified. We cannot leave something as important as that in the code of practice. It goes to the heart of the power in the clause. It is far and away the biggest cause for concern among CSPs, yet it is not dealt with in the Bill. The Bill provides for a permissive, rather than a restrictive, regime—if I am wrong about that, I will happily take an intervention.

Paragraph 8.6 of the code of practice clarifies that:

“While an obligation to remove encryption may only relate to protections applied by or on behalf of the company…there will also be circumstances where a CSP removes encryption from communications for their own business reasons. Where this is the case, an intercepting agency will also require the CSP, where applicable and when served with a warrant, to provide those communications in an intelligible form.”

The code then makes provision for giving a notice, for the disclosure of technical capability notices, and for their review and variation. Paragraph 8.27 and 8.28 are very wide-ranging. Paragraph 8.28 states:

“CSPs subject to a technical capability notice must notify the Government of new products and services in advance of their launch, in order to allow consideration of whether it is necessary and proportionate to require the CSP to provide a technical capability on the new service.”

That goes deep into territory hitherto unregulated in this way; CSPs will be required to give the Government notice of their new products and services, so that the Government can consider whether to vary a notice that already applies to them. We can see why the service providers are so concerned about that capability.

Pressing on through the code of practice, we see that the contribution of costs for the maintenance of a technical capability is dealt with from paragraph 8.43. Again, these provisions give an indication of the breadth of the capability covered by the clauses of the Bill. Paragraph 8.43 states:

“Section 213 of the Act recognises that CSPs incur expenses in complying with requirements in the Act, including notices to maintain permanent interception capabilities under Part 9. The Act, therefore, allows for appropriate payments to be made to them to cover these costs.”

In a sense, the requirement for CSPs to give notice when they have new or different services and to maintain permanent interception capabilities when they would not otherwise do so means the taking control of their services for the purposes of the Act.

--- Later in debate ---

[The Solicitor General]

In arguing in opposition to the amendments, I first want to address the last point that the hon. and learned Member for Holborn and St Pancras made. I can come back to his point about the tests, but in a nutshell, they are inherent to the Bill. The tests of necessity and proportionality are part and parcel of the decision-making process that the authority will be enjoined to carry out.

[Keir Starmer]

It is noticeable that, for obvious reasons, necessity and proportionality have been written into relevant clauses throughout the Bill, but here, I think for the first time, we have a wide-ranging power with no such test—unless I have missed it, in which case I will happily concede the point.

[The Solicitor General]

In strict terms, the hon. and learned Gentleman is right—I am looking at clause 218 in particular. I think that subsection (3) might help him, because although we do not have the words “necessity” and “proportionality” there, the matters to be taken into account lead one to conclusions based on necessity and proportionality, and perhaps do so in a more prescribed way that is more helpful to the decision maker. Subsection (3)(a) to (e) addresses the hon. and learned Gentleman’s point, and I put it clearly on the record that the principles of necessity and proportionality are part and parcel of the tests to be applied.

I also note that necessity is required under clause 217(6), which relates to the steps specified in a technical capability notice. I do not know whether that helps the hon. and learned Gentleman. I will certainly consider the issue carefully, but on the face of it, I do not think there is a worry of the sort that he envisages.

--- Later in debate ---

Clause 217 relates to technical capability notices. Before such a notice is given, the Secretary of State must specifically consider the technical feasibility and likely cost of complying with it. Clause 218(4), which has been the subject of some debate, provides that that consideration must explicitly take into account any obligations to remove encryption applied by, or on behalf of, a communications service provider. In my submission, that deals with the point about third parties that the hon. and learned Member for Holborn and St Pancras raised.

[Keir Starmer]

I looked carefully at that subsection, but perhaps the Minister could explain why it is a limiting provision. It is a requirement provision as far as the notice is concerned, but on the face of it, encryption is not limited to protection applied by, or on behalf of, the person themselves. It tells us how that situation would be dealt with, but it is not limited to that.

[The Solicitor General]

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

[The Solicitor General]

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

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

[Keir Starmer]

I have looked at this issue in the past day or two, and I was concerned about the implication that on the face of it, one could not challenge the provision in court, because there is an absolute bar on disclosure. Am I right in assuming—if I am, it should be on the record—that the Secretary of State will give permission, where appropriate, for a legal challenge to be brought? In other words, there could be disclosure for the purposes of legal proceedings.

[The Solicitor General]

On the face of it, that has to follow. If any clarification is needed on that, I am sure I can assist as I further develop my remarks.

I was dealing with the process of consultation before the giving of a notice, and we have had the Apple example. I would like to develop the importance of the draft codes of practice, which the hon. and learned Gentleman has referred to.

--- Later in debate ---

[The Solicitor General]

That question is about the definition of the provider. I am sure we will be able to provide some clarity on that before I draw my remarks to a conclusion. I am grateful to the hon. and learned Lady for raising that point.

Amendment 850 relates to consideration by the Secretary of State of the effect of a notice on the privacy and human rights of people both here and outside the kingdom. The amendment is unnecessary because of the point I made before, which I will reiterate: the clause is not about notices authorising an interference with privacy. A warrant provided for elsewhere in the Bill is required to do that, and we have already considered the potency of the double lock and the test to be applied. A point that is relevant to all the amendments in this group is the statutory function of the Investigatory Powers Commissioner to oversee the use of notices. I raised that in the context of national security notices, and I pray it in aid here again.

Amendment 857 seeks to narrow the category of operators to whom a technical capability notice can be given. I am worried that that would limit the effects of law enforcement. We know about the diversification of criminality and terrorism in order to find new ways to avoid protection. I am concerned that narrowing the legislation would allow loopholes to get larger. It is therefore important that the obligations relating to the technical capabilities for a range of operators can be imposed by the Government in order to ensure we keep ahead of the curve.

The hon. and learned Lady made the powerful point that the clause does not relate to personally applied encryption. However, measures in part 3 of RIPA 2000 provide for where law enforcement agencies can require an individual to remove encryption that he or she has applied themselves. We know that the Bill generally does not cover all the agencies’ powers. This is perhaps a welcome opportunity to remind ourselves of the existing provisions in part 3, so I am grateful to her.

Of course we accept that it may well be appropriate to exclude certain categories of operator from obligations under the clause—I am thinking, for example, of small businesses; we are always mindful of the burden of regulation on small businesses—but it is our intention to use secondary legislation to achieve that. It would not be appropriate in primary legislation to impose blanket exemptions on services with a communications element that are not primarily communications services. To do so would send a rather alarming and clear message to terrorists and criminals that communications over certain systems will not be monitored. That sort of carve-out recalls the point that I made about the use by criminals of seemingly unrelated or innocuous communications channels in other internet facilities or apps, in order to hide their illicit enterprises.

I know that I have taken up an inordinate amount of the Committee’s time. I am obliged to the Committee and to you, Ms Dorries, for your indulgence. I hope that I have set out the reasons why I urge hon. Members to withdraw the amendment, and I pray in aid my arguments as advancing the case that the clause should stand part of the Bill. I urge the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I have only three issues to address. The first, which requires more attention from the Solicitor General—I say so with no disrespect—is the question of the extent of the prohibition on disclosure and, essentially, access to the courts or appropriate tribunals. On the face of it, clause 218(8) is a prohibition on disclosure, save with the permission of the Secretary of State. With respect to Committee members, I do not think that clause 220 provides the answer, because that deals with the consultation exercise where a notice is being reviewed.

I have no doubt that, if the Secretary of State exercised her power under clause 218(8) to prevent access to the courts, it would run straight into an article 6 access to courts argument that would succeed on judicial review. I had assumed that one could read into the clause by implication that permission would not be refused in a bona fide and proper case where access to court—or the relevant tribunal, which may be a better way of putting it—was an issue. If that were made clear for the record or by some redrafting of the clause, it would help. As I said, I think that, in practice, any court in this jurisdiction would strike down pretty quickly a Secretary of State who sought to prevent access to the court.

[The Solicitor General]

I think that the hon. and learned Gentleman is right about that. On that basis, I will have another look at clause 218(8), to get it absolutely right. I reassure him that it is not the Government’s intention to preclude access to the court.

[Keir Starmer]

I am reassured. I am sure that that would not be the case, but it might be sensible to clarify that rather than relying on clause 220, because I am not sure that that is the right way to do it. However, I will say no more about that.

I was going to press for votes on amendments 846 and 849, but I have listened carefully to what the Solicitor General said and to what the Minister said when he rose to make some observations earlier. They are by far the two most important amendments. Amendment 846 deals with encryption. I think I heard the Solicitor General say that he will look again at the wording of clause 218(4) to see whether it is possible to make clear what is clear in the code of practice, namely, that an obligation placed on a CSP to remove encryption relates only to electronic protections that the company itself has applied to intercepted communications and secondary data. That is clearly the position that the Government adopt, because it is now set out in the code. I think that the Solicitor General might accept that, at the moment, clause 218(4) does not quite achieve that objective. On the basis that he is prepared at least to look at that again, I will not press amendment 846.

--- Later in debate ---

[Mr Hayes]

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

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

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

Amendment 734 agreed to.

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

Clause 220

Review by the Secretary of State

[Keir Starmer]

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

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

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

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

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

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

[Mr Hayes]

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

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

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

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

[Keir Starmer]

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

Amendment, by leave, withdrawn.

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

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

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

Question put, That the amendment be made.

--- Later in debate ---

to prepare the report, rather than it being done by the Secretary of State or persons acting under their auspices. The new clause would also provide that the necessary financial wherewithal was made available to enable that job to be done properly.

[Keir Starmer]

I shall speak briefly in support of new clause 23. The essential difference between this new clause and clause 222 is, of course, that the new clause would provide for a review within an initial period of five years and for subsequent five-yearly reviews, and for the reviews to be carried out by the independent reviewer, which we submit is more appropriate.

I understand why this new clause has been tabled, but it puts me in a bit of a dilemma. Is a review by the Secretary of State a good thing? Yes. I would therefore support clause 222 if I could not get anything better. I would not want to vote against the Secretary of State reviewing the Act if I lost on new clause 23, because it is sensible to have a Secretary of State review it. In other words, clause 222 is good, but new clause 23 is better; that is the way I would put it. I am in a dilemma, because if I vote against clause 222, I am voting against a good clause that I would naturally support in principle, but if the vote on new clause 23 was not carried—and having looked at the voting record so far, I am not confident that it would be—

[The Chair]

Order. Mr Starmer, would it be helpful to say that you could table amendments to clause 222 on Report, if you wished to?

[Keir Starmer]

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

[Mr Hayes]

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

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

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

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

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

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

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

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

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

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

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

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

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

[Keir Starmer]

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

[Mr Hayes]

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

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

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

Investigatory Powers Bill (Seventh sitting)

Keir Starmer Excerpts

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

[The Chair]

Thank you very much, Minister.

Clause 61

Relevant public authorities and designated senior officers

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

I beg to move amendment 135, in clause 61, page 49, line 32, leave out subsections (1) and (2) and insert—

“(1) For the purposes of this Part, a relevant public authority is—

(a) a police force maintained under section 2 of the Police Act 1996,

(b) the Metropolitan police force,

(c) the City of London police force,

(d) the Police Service of Scotland,

(e) the Police Service of Northern Ireland,

(f) the British Transport Police Force,

(g) the Ministry of Defence Police,

(h) the Royal Navy Police,

(i) the Royal Military Police,

(j) the Royal Air Force Police,

(k) the Security Service

(l) the Secret Intelligence Service,

(m) the GCHQ,

(n) the National Crime Agency and

(o) the Criminal Cases Review Commission.

(2) For the purposes of authorisations sought pursuant to section 53(7)(g) a relevant public authority also includes—

(a) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 whose functions include the provision of emergency ambulance service,

(b) a fire and rescue authority under the Fire and Rescue Services Act 2004,

(c) the Northern Ireland Ambulance Service Health and Social Care trust,

(d) the Northern Ireland Fire and Rescue Service Board

(e) the Scottish Ambulance Service Board and

(f) the Welsh Ambulance Services National Health Service Trust.

(3) For the purposes of authorisations sought pursuant to Section 53(7)(h), a relevant public authority also includes—

(a) the Criminal Cases Review Commission and

(b) the Scottish Criminal Cases Review Commission”.

[The Chair]

With this it will be convenient to discuss amendment 236, in clause 61, page 49, line 34, leave out subsection (2) and insert—

“(2) For the purposes of this Part, a relevant public authority is—

(a) a police force maintained under section 2 of the Police Act 1996,

(b) the Metropolitan Police Force,

(c) the City of London Police Force,

(d) the Police Service of Scotland,

(e) the Police Service of Northern Ireland,

(f) the British Transport Police Force,

(g) the Ministry of Defence Police,

(h) the Royal Navy Police,

(i) the Royal Military Police,

(j) the Royal Air Force Police,

(k) the Security Service,

(l) the Secret Intelligence Service,

(m) the GCHQ,

(n) the National Crime Agency,

(o) the Criminal Cases Review Commission, or

(p) the Scottish Criminal Cases Review Commission.

(2A) For the purposes of authorisations sought pursuant to 53(7)(g), a relevant public authority also includes—

(a) a National Health Service Trust established under section 5 of the National Health Service and Community Care Act 1990 whose functions include the provision of emergency ambulance service,

(b) a fire and rescue authority under the Fire and Rescue Services Act 2004,

(c) the Northern Ireland Ambulance Service Health and Social Care trust,

(d) the Northern Ireland Fire and Rescue Service Board,

(e) the Scottish Ambulance Service Board, and

(f) the Welsh Ambulance Services National Health Service Trust.

(2B) For the purposes of authorisations sought pursuant to Section 57(3)(h), a relevant public authority also includes—

(a) the Criminal Cases Review Commission and

(b) the Scottish Criminal Cases Review Commission.”

This amendment ensures that only police forces and security agencies may request a communications data warrant, except where the warrant is issued for the purpose of preventing death, in which circumstances emergency and rescue services also fall within the definition.

[Keir Starmer]

It is a pleasure to continue to serve under your chairmanship, Ms Dorries.

The clause sets out the relevant public authorities and designated senior officers for the purposes of part 3 of the Bill—in essence, those who may exercise the powers of obtaining communications data throughout this part. Last week, I drew attention to schedule 4 to the Bill and, in particular, to the large number of public authorities listed as “relevant”, including Food Standards Scotland, the Food Standards Agency, the Gambling Commission, the Office of Communications and the Northern Ireland Fire and Rescue Service Board. The list of relevant public authorities in schedule 4 is very long.

I also drew attention to the designated senior officers, who are authorised to obtain communications data. They are listed in the second column in schedule 4. To remind the Committee, if we take the Food Standards Agency, the designated senior officer is a grade 6 officer; if we take the Northern Ireland Fire and Rescue Service Board, the officer is the watch manager of control; and, to take one more example, for the Office of Communications, the officer is a senior associate. The point that I made last week was that, where there are wide powers of retention under the Bill, which we will come to later, the threshold for accessing the data is vital. The number of relevant public authorities is too wide and the level of the designated senior officers too low to provide a proper safeguard.

The amendment is intended to address that defect by setting out in the legislation a narrower set of relevant public authorities, listed in paragraphs (a) to (o) of proposed new subsection (1). It is a shorter and tighter list, but would none the less be a functional and effective one. Proposed new subsections (2) and (3) are an attempt to tie in other relevant public authorities to the particular power that would be appropriate for them to exercise. The relevant public authorities for the purposes of authorisation under clause 53(7)(g) are listed under proposed new subsection (2) and, similarly, those for clause 53(7)(h) are listed under proposed new subsection (3).

The amendment would tighten up the drafting of the Bill to limit the number of relevant public authorities and tie the lists more closely to the particular objectives set out in clause 53. Logically, therefore, it follows from the point that I was making last week and anticipates the one that I will make later this morning about the scope of the retention powers.

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

There is one small difference between amendment 135, which was tabled by the Labour party, and amendment 236, which was tabled by the Scottish National party. Amendment 236 includes, in proposed new subsection (2)(p), the Scottish Criminal Cases Review Commission, which is a separate body. I say that for completeness.

[The Solicitor General (Robert Buckland)]

It is good to serve under your chairmanship once again, Ms Dorries. I welcome the spirit in which the amendments have been tabled. There is a common sense of purpose among Committee members to ensure that the ambit of the authorities that have power to access communications data should always be strictly scrutinised. In that spirit, the Government have progressively reduced the number of such authorities. They have reviewed that number and keep it under review. The list of such authorities in the Bill is not simply a replication of the list in the Regulation of Investigatory Powers Act 2000, but has been the subject of careful consideration.

It has been judged that it is necessary for those public authorities to be allowed to access communications data for a narrow range of purposes. For example, insider trading needs to be investigated, and the Financial Conduct Authority is the body to do that. The Maritime and Coastguard Agency will need access to such information to locate people lost at sea. Bodies such as the Food Standards Agency and the Department for Work and Pensions have been given clear remits by Parliament to investigate certain types of criminality and civil matters, because such investigations often require dedicated resources and specialist knowledge. To unduly restrict those agencies in their work would cause an imbalance.

I know that the hon. and learned Gentleman shares those views, because in his previous incarnation as the Director of Public Prosecutions he made it clear, for example, that communications data should be available to organisations such as the DWP in investigating any abuse of the welfare system or other public funds. I therefore know that he has a common purpose in mind.

The Bill for the first time brings together all the public authorities with access to communications data in primary legislation. That is an important and welcome step up from previous practice. I should be clear that all the authorities listed in the Bill were required to make the case that they needed the power to access communications data. Therefore, as I have outlined, the list in the Bill is not just a blind replication of existing lists. As I have said, we removed 13 public authorities from the list in February last year. Amendments that were tabled by my right hon. Friend the Minister for Security and that we will debate shortly will introduce further restrictions on certain public authorities. That shows that the Government are taking great care in this area.

[Keir Starmer]

I wonder whether the Solicitor General can assist the Committee, either now or at some later stage, by setting out some detail about how the case was made for each of the agencies, and in particular why the designated senior officer grades were chosen. That is quite a complicated question, but it is striking, from the Committee’s point of view, that a watch manager is listed as a designated senior officer when one is talking about accessing communications data. I have already given other examples.

[The Solicitor General]

I shall try to assist the hon. and learned Gentleman. I will not be able to give him an exhaustive list here and now, as he is aware, and I am pretty sure that the information that he seeks is available in some form. We will, of course, help to signpost him to it.

I make the simple case about watch managers that there will be emergency situations, such as missing persons inquiries, in which fleetness of foot is essential. Suggesting that a more senior level of management would be appropriate risks important data being lost or not being available in those emergency situations. There are certain key situations where we are talking about the protection of life in which the balance needs to be struck in the way that we suggest in schedule 4.

With regard to schedule 4, public authorities cannot all acquire communications data for the full range of statutory purposes. Each can acquire data only for the purposes for which it has justified a need for them. That maintains the essential principle of proportionality, so that the public authorities concerned only have the powers for which they have made a compelling case.

To give some examples of the changes from RIPA, ambulance services will no longer be able to acquire communications data for the purposes of preventing and detecting crime, and the Prudential Regulation Authority will no longer be able to acquire communications data in any circumstances. In addition, the Bill allows for the ability of a public authority to access communications data to be removed, should a public authority cease to have a requirement to make those acquisitions. That is a very important check and balance.

To fill in some more detail in respect of the question the hon. and learned Member for Holborn and St Pancras asked about the detailed justification for each public authority, each authority has been required to provide evidence of utility and the need to acquire communications data. That included detailed consideration of the level of authorising officers, so that we got the balance right in terms of appropriateness.

[The Solicitor General]

I am grateful to the hon. and learned Lady and can correct the record in this way. I should have used the phrase “utility and need”. I think that important word, to which she quite rightly draws my attention, answers the point. In one of the examples I have given, where a need was not demonstrated by the PRU, the power was removed entirely.

Among the bodies that the amendment seeks to remove are Her Majesty’s Revenue and Customs and the Ministry of Defence. I am afraid that both bodies are intercepting agencies, and communications data are part of their work in targeting interception so that the powers which we all accept are intrusive are used in as tightly constrained circumstances as possible. My worry is that the amendment, however well intentioned, might well have the contrary effect on that important targeted work and the need for those organisations to target their activities.

I remind the Committee that David Anderson QC concluded in his report:

“It should not be assumed that the public interest is served by reducing the number of bodies with such powers, unless there are bodies which have no use for them.”

The Joint Committee on the Draft Investigatory Powers Bill also recognised communications data as

“an important tool for law enforcement and other public bodies.”

For those reasons, I urge the hon. and learned Gentleman to withdraw the amendment.

[Keir Starmer]

I am grateful to the Solicitor General. There is obviously concern about the threshold and safeguards for accessing communications data. That is what the Digital Rights case is all about; it is what the Tom Watson and David Davis case will test. To some extent, until that case is concluded, we will not know in specific terms what the safeguards are, although, as I foreshadowed last week, my view is that the requirements for safeguards will tighten as time goes by. It may not be exactly as the divisional court set out.

The Solicitor General has indicated that he will point me to the material that at least summarises why it was thought that each body should be on list. I am grateful for that and will consider it carefully. Will he also, either in a letter or some other appropriate form, set out the test that was applied in clear terms, so that it can be contrasted with the Digital Rights case and any outcome of the David Davis case in due course? I acknowledge that the hon. and learned Gentleman makes a powerful point about Her Majesty’s Revenue and Customs and, on that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[The Chair]

We come to the question that clause 61 stand part of the Bill.

--- Later in debate ---

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

[Keir Starmer]

I rise to put on the record a concern about the clause and to remind the Committee that with the wide power of retention, the safeguards on access provisions are critical to the operation of the Bill as a whole. Broadly speaking, the safeguards are: who can authorise access, what the test is, the scope of the conduct authorised and such checks and limits as are otherwise put in the Bill. The clause covers who can authorise access, and my strong feeling is that that should be in the Bill rather than left to regulations, because it is a central safeguard. I will not vote against the clause, but I want to put on the record my view that a provision as important as who can access should be in the Bill and that amendments should be made to legislation rather than through regulation.

--- Later in debate ---

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

[Keir Starmer]

I wish to raise two issues for the Committee’s consideration. The first is that the test in subsection (5) for a judicial authority is very weak. We are talking about restrictions on local authorities and we have moved from a test of reviewing the decision, found in other parts of the clause, to a test whether the judicial authority, in this case a justice of the peace, considers that

“there are reasonable grounds for considering requirements of this Part would be satisfied”.

The second is that the authority in this case is a JP. I accept that this a replication of another scheme in the same words, as the Solicitor General says. I will not oppose the clause, but in a Bill that is tightening safeguards, there is nothing to prevent that test being aligned with the other tests applied when judges, magistrates or other independent judicial figures oversee authorisations by bodies such as local authorities.

In fairness, I think these clauses were put in to tighten the controls on local authorities.

[Mr Hayes]

They were.

[Keir Starmer]

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

[Mr Hayes]

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

[Keir Starmer]

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

[Mr Hayes]

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

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

--- Later in debate ---

Division 19

Ayes: 2

---

Scottish National Party: 2

Noes: 9

---

Conservative: 8

[Keir Starmer]

I beg to move amendment 138, in clause 67, page 53, line 26, at end insert—

‘( ) the public interest in the protection of privacy and the integrity of personal data; and

( ) the public interest in the integrity of communications systems and computer networks.”

[The Chair]

With this it will be convenient to discuss amendment 140, in clause 67, page 53, line 38, at end insert—

‘( ) the public interest in the protection of privacy and the integrity of personal data; and

( ) the public interest in the integrity of communications systems and computer networks.”

[Keir Starmer]

The two amendments can essentially be read together: they bite on clause 67(5) and (6) respectively. The purpose of this clause, as I understand it, is to provide a mandatory consultation exercise for designated senior officers, with a single point of contact. That will be particularly important where the designated senior officer has little if any experience of authorising and will therefore be particular important in some of the smaller relevant public authorities, which may not exercise this power on a regular basis, although I realise it is mandatory in all cases. The point of amendments 138 and 140 is to put in the Bill a requirement that, in the course of that consultation exercise, the single point of contact advises not only on issues such as appropriate methods, costs, resource implications, unintended consequences and so on, but, as set out in amendment 138, on

“the public interest in the protection of privacy and the integrity of personal data; and…the public interest in the integrity of communications systems and computer networks.”

Such an amendment is necessary because there is a lack of an overarching privacy provision that can be read into each of these clauses. When a designated senior officer is being advised, it would be prudent and sensible for them to be advised not only about costs and resources, but about privacy and integrity, which are critical to the operation of the Bill.

[Joanna Cherry]

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

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

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

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

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

While the clauses that these amendments are attached to refer to

“any issues as to the lawfulness”

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

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[Mr Hayes]

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

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

[Keir Starmer]

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

[Mr Hayes]

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

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[Mr Hayes]

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

[Keir Starmer]

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

[Mr Hayes]

It does.

[Keir Starmer]

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

[Mr Hayes]

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

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

[Keir Starmer]

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

[Mr Hayes]

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

[Mr Hayes]

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

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

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

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

[Keir Starmer]

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

[Joanna Cherry]

I hear what the Opposition spokesman says in this regard, and I have much sympathy with it. However, I wish to press the amendment, for the simple reason that if privacy and integrity are as important as the Minister acknowledges, why not have them in the Bill? That would cause no possible detriment; it can only do good. Therefore, I wish to press the amendment to a vote.

Question put, That the amendment be made:—

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Commissioner approval for authorisations to identify or confirm journalistic sources

[Keir Starmer]

I beg to move amendment 141, in clause 68, page 54, leave out lines 3 to 13 and insert—

“( ) An application for an order shall be made on notice to the journalist or journalists affected unless the Judicial Commissioner determines that an application without such notice is required in order to avoid prejudice to the investigation.

( ) Paragraphs 7 – 9 of Schedule 1 to the Police and Criminal Evidence Act 1984 shall apply in relation to the service of a notice of application for an order under subsection (1) as if the application were for an order under Schedule 1 Police and Criminal Evidence Act 1984.

( ) Criminal Procedure Rules may make provision about proceedings under this section where the Judicial Commissioner determines that an application without such notice is required.

( ) A Judicial Commissioner may only make an order if the person making the application has convincingly established that—

(a) the order is directed to one or more of the legitimate aims specified in Article 10.2 of the Convention, and

(b) there is an overriding public interest necessitating the order, and

(c) reasonable alternative measures to the order do not exist or have been exhausted, and

(d) the order is proportionate to the legitimate aim or aims being pursued.

( ) The costs of any application and of anything done or to be done in pursuance of an order made under it shall be in the discretion of the Judicial Commissioner”.

How journalistic material and in particular journalists’ sources are to be protected under part 3 of the Bill is a substantive issue of real importance in a modern democracy.

“Issues surrounding the infringement of the right to freedom of expression may arise where an application is made for the communications data of a journalist. There is a strong public interest in protecting a free press and freedom of expression in a democratic society, including the willingness of sources to provide information to journalists anonymously.”

Those strong statements of principle that underpin our democracy are agreed across this House. I say that with confidence not only because of the strong public interest, but because they are written into the code of practice at paragraph 6.5. That suggests they are shared and important democratic principles. I argue that that expression of principle is not translated into reality in the provisions of the clause or through the Bill, and the clause is of considerable concern.

Let me give the background, as there is a chequered history. It is now clear that, in the case of Tom Newton Dunn, the police used the Regulation of Investigatory Powers Act 2000 to access his phone records in secret in 2014. They did not notify him that they had accessed his material or sources; the Metropolitan police obtained the phone records without notification or consent. In other RIPA cases, no journalists were informed in advance. The Interception of Communications Commissioner highlighted in a report in February 2015 that 19 police forces had accessed the communications data of 82 journalists using RIPA in that way. The point of real importance is that there is no fundamental difference between the authorities asking for a journalist’s physical contact book and footage or for their telephone and communications records; the effect on journalists and sources is exactly the same and the same legal safeguards must apply to both.

The safeguards in the Police and Criminal Evidence Act 1984 set a higher standard than those in the Bill as it stands. Under PACE, journalists are notified when the authorities want to access their material and sources, and they have the ability to defend their sources. Neither RIPA nor the Bill apply the same protections and safeguards. The RIPA interim codes of practice, published in March 2015, stated that the authorities must use the PACE procedures to apply to the court for a production order to obtain data. The Bill fails to meet that test.

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

I am trying to think how this will work in practice. Under the usual rules for a non-notice application, to show that it will be without notice it would be necessary to highlight a number of factors of history as to why it should be without notice rather than on notice—for example, fraud or historical events. In this case, what would the circumstance be that would make it without notice rather than on notice? There would be a significant risk that any journalist would take action. What evidence could be put to the judicial commissioner to persuade them that this should be a without-notice application? There would be no history on the journalist himself.

[Keir Starmer]

I am grateful to the hon. and learned Lady for that intervention. As she will know, there is a 20 to 25-year history of the evolution of protections for journalists, from the point when they were not put on notice to the point when they are now routinely put on notice. There are exceptions that have been tested in the Court of Appeal, but journalists are pretty well always put on notice and on many occasions will go and argue their corner to protect their source. Over the years, the case law has determined what the proper test is; on some occasions it has protected the source and on others it has allowed access. Under the PACE regime, there is now a clearly established way to proceed in cases in which journalists’ sources are an issue. It is well understood and it works well. It is significant that none of the law enforcement bodies to my knowledge are complaining that the on-notice PACE procedure for obtaining material that relates to journalists’ sources is not working in practice. Having battled it out over 25 years, pretty well all the sides accept that the current arrangement represents and protects their interests.

The amendment would essentially apply the same regime to communications data where communications data has been retained and is now being accessed. In the modern world, as journalists have made absolutely clear, to say that authorities have to go via PACE when they want to get a physical address book with a source in it but not when they want the virtual version through comms data is to cut right through the protection that has been so carefully crafted over the last 20 to 25 years. That does not protect journalists’ sources and is a cause of real concern.

Amendment 141 reflects current practice by providing for exceptional circumstances in which applications do not have to be on notice, whereas the Bill simply does not offer journalists any meaningful protection whatever. It is a carefully thought through, constructive amendment, intended to give journalists the protection they need without thwarting an investigation that needs to be protected. The test in paragraph (b) of the fourth subsection of the amendment puts the code of practice into the Bill. There is then a provision on costs.

The amendment is simple: it preserves PACE protections and extends them to communications data. It sets out the right test for the designated senior official and the judicial commissioner to apply. Nobody can quarrel with the test, because it is taken from the code of practice itself. It is all very well having warm words in the code of practice and warm words, which we have heard many times, about the protection of journalists’ sources, but unless they are translated into something that has real bite and effect, they remain warm words. I do not say that to underplay what the Solicitor General will say. I know that he believes in the underpinning principles I have outlined, but history shows that unless protection for journalists is written into legislation in a meaningful and effective way, it will not apply in practice as it should.

[The Solicitor General]

I thank the hon. and learned Gentleman for clearly outlining the kernel of his concern about the way the clause is drafted. Although in the drafting of the clause we have tried, quite properly, to address what is a sensitive occupation—I hesitate to use the word “profession” because some journalists do not like to be described in that way—we are in danger of moving the focus away from the public interest that journalists serve, which is freedom of expression in a democratic society without fear of intrusion by the authorities and in a way in which sources, and the journalists themselves, can be protected. We have to draw a very important distinction. It is tempting to try to draft amendments dealing with journalists in an ad hominem, or group, way. However, we are not talking about that; we are talking about the source material. Therefore, in a nutshell, I am afraid that the amendment does not really deal with the essential public interest, and that is why I commend the Government’s approach to the Committee.

I will say to the hon. and learned Gentleman, by way of reassurance, that if we can do better in the code of practice, we will. I am certainly open to active consideration of the ways in which we can improve the drafting to make the principles of freedom of expression, and the points that he and I agree on, even clearer to those applying these rules.

[Keir Starmer]

The Solicitor General is resisting this sensible and constructive amendment, which reflects the PACE approach, on the basis that one should not get too specific and one needs to understand the underlying public interest. He must accept that the points he makes apply equally to the PACE test. It does not matter whether someone is physically seizing a document that reveals a source or seizing something that serves virtually the same purpose. He must accept that the test is working well in practice and that all sides are pretty content with the way it works at the moment.

[The Solicitor General]

I am grateful to the hon. and learned Gentleman, but, tempting though it is to draw that comparison, I think that he is mistaken. The PACE code of practice focuses on the person who, as it appears to the judge, is in possession of the material. That is not always the journalist; for example, a journalist’s material in regards to comms data will be held by the communication service providers and not by the journalist. Under PACE, journalists are not notified in such cases.

[Keir Starmer]

Will the Solicitor General give way?

[The Solicitor General]

I will not give way at this stage because I want to explain the position. I have given way repeatedly and I want the chance to make my argument. I am sorry if people think, for some reason, that I am not listening or being reasonable. I need to explain the case because I do not think that it has been fully understood.

The hon. and learned Gentleman is right to talk about the position under PACE whereby journalists are asked to surrender data, such as in notebooks; however, under RIPA and the PACE procedures, applications are already being made to others in possession of material, journalists are not notified and the principles are very clear. I do not think it is right of him to draw such an easy comparison and to say, “It is working for PACE, therefore it should be read across the provisions of the Bill.” That is comparing apples with pears—with respect to him.

[Keir Starmer]

I have obviously looked carefully at what the Government said in the past on this issue and what was said in response to the pre-legislative Committees. The point has been made that, on the one hand, it is seizing from the journalist themselves and on the other hand, it is seizing from the person who holds the data; that is a material difference and we cannot compare the two schemes. I wonder whether that withstands proper scrutiny. The whole point is to give a source confidence that they can come forward and tell a journalist something and they will be protected. Otherwise, all the case law recites the fact that sources will not come forward and wrongdoing will not be exposed, which is unhealthy for democracy.

The argument that, if you seize my name in physical form from a journalist, it is to be protected, but if my name is being held by a data holder it can be given up and does not require protection, defies common sense. For the source, the question is: what is the protection for me if I come forward and try to expose someone? The argument that you are fine if it is written in a notebook and held by the journalist, but you are not protected if it finds its way into a bit of data held by someone else does not hold up.

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[Keir Starmer]

In amendment 141, which the Solicitor General is resisting, we have deliberately and intentionally accommodated the test that notice need not be given where it is necessary

“in order to avoid prejudice to the investigation.”

He has given a powerful example, but we have catered for that by saying that notice does not need to be given in that instance. The norm is that notice is given in the usual way, but the exception is where there is prejudice to the investigation. That absolutely meets his concerns; but it does meet my point that notice should otherwise be given.

[The Solicitor General]

I am glad we both note that we are trying to get to the same objective. I have already said to the hon. and learned Gentleman that the combination of legislation and the code of practice will be the way in which this framework is set out. I have indicated that if we can do better on the code of practice, we will; we will work with him on that. I also reiterate the amount of care that my right hon. Friend the Minister for Security and I are taking on this particular issue. We have met with leading representatives from journalism on three occasions to discuss the Bill. We have written to the National Union of Journalists and the News Media Association about the concerns they have raised. This is part of a dialogue that is very much ongoing about the protections afforded by the Bill to journalistic material. They rightly say to us that it is not about them but about the interests that they serve. I cannot reiterate enough that we must focus on that issue when drafting the legislation.

May I deal with other Members who have considered the issue? The Interception of Communications Commissioner carefully considered it last year. He made it clear in his recommendation that, where communications data are sought that do not relate to investigation to determine the source of journalistic information, then judicial authorisation is not necessary. I know that the hon. and learned Gentleman is trying in effect to replicate that carve-out. On the proposed restrictions on the circumstances in which a communications commissioner may approve the obtaining of communications data that are journalistic in nature, where the request is for one of the legitimate aims in article 10.2 of the convention, there is an overriding public interest necessitating the order and the order is proportionate to the legitimate aim or aims being pursued, we already have the concepts of necessity and proportionality under part 3 as spelt out in the draft code of practice—as indeed they are in the code of practice for existing legislation. We already have a tightly constrained framework here, which offers a high degree of reassurance to all of us who care passionately about these issues, as I do. The Investigatory Powers Tribunal has been clear in recent authority, such as the case of News Group Newspapers Ltd and others v. Metropolitan Police Commissioner in December last year, that the 2015 code of practice drafted under the current provisions and replicated in the regime in the Bill meets the standards on freedom of expression set out in article 10.

On the proposed requirement for a judicial commissioner to ensure that all reasonable alternative measures to such an authorisation have been exhausted, I am afraid that in my view, there are problems with its practicability. There are many reasons why a particular approach to an investigation might be selected and the use of a particular power might be called for. Judicial commissioners, with respect to them, are not the experts in this consideration and should not be expected to be. It is for those with expertise in the range of investigative options available in the particular circumstances of the case to decide that. Then, of course, the tests can be applied.

I do not want to take technical points. With regard to the technicalities of the amendment, there are some drafting issues that would need to be worked on, but I accept that it is really about principle and the approach to be taken. At this stage, although I disagree with the means by which the hon. and learned Gentleman seeks to make the change, continuing dialogue on the issue is meaningful. For those reasons and in that context, I respectfully ask him to withdraw the amendment.

[Keir Starmer]

I have listened carefully to the Solicitor General. In the end, it boils down to a matter of principle. I think that he accepts what amendment 141 says in proposed new subsections (a), (b), (c) and (d). He criticises (c), but I will not spend time on that. The most important thing is to establish that the order is directed to one or more of the legitimate aims in article 10.2 and that an overriding public interest makes it necessary. He says that that is the framework within which the decisions should be taken, so there is no disagreement between them.

The difference, then, appears to be simply that I say it should be on the face of the statute and clear to all, and he says, “No, it can be in a code without express reference in statute.” There is a problem in principle with that. Protection of journalists’ sources should be on the face of the Bill. That is important in a modern democracy. For the Bill to be silent about the test, and for only the code of practice to apply it, is wrong in principle.

Secondly, I am afraid that there is a test spelled out in the Bill, and it is inconsistent with that test. The test for the judicial commissioner in the Bill is simply to check that there were reasonable grounds for considering something, but that the other requirements in the provisions were complied with. As a matter of statutory construction, the judicial commissioner is bound to apply the test in the Bill and cannot apply any other test, so it is wrong in principle not to put it in the Bill. It is also problematic, because there is a test in the Bill and it is not a special test. Ultimately, it says that the judicial commissioner must ensure that the other provisions of the Act are complied with. We would expect that; it is hardly an enhanced test by anybody’s standards.

In those circumstances, I am afraid that the Solicitor General’s arguments are wholly unpersuasive. I will withdraw the amendment, partly because I think that there is room for improvement, on which I will certainly work with the Government. To be absolutely clear, partly because I want to reserve my position to propose the amendment at a later stage, as it is of such importance to the Bill, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

I beg to move amendment 142, in clause 68, page 54, line 5, leave out from “data” to “and” on line 7 and insert “further to this Part”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 143, in clause 68, page 54, line 18, leave out “considers” and insert “determines”.

Amendment 144, in clause 68, page 54, line 19, leave out subsections (5) (a) and (b) and insert—

‘( ) that the conduct permitted by the authorisation is necessary for one or more of the purposes in section 53(7); and

( ) that the conduct permitted by the authorisation is proportionate to what is sought to be achieved by that conduct.”

Amendment 145, in clause 68, page 54, line 29, leave out subsection (7) and insert—

‘( ) The Investigatory Powers Commissioner may for the purposes of approving authorisations under this Section appoint Deputy Judicial Commissioners.

( ) A “Deputy Judicial Commissioner” must be—

(a) in relation to England and Wales, a justice of the peace,

(b) in relation to Scotland, a sheriff, and

(c) in relation to Northern Ireland, a district judge (magistrates’ courts) in Northern Ireland.

( ) An authorisation under this Section may not grant authorisation in relation to the obtaining by a relevant public authority of communications data—

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

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

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

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

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

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

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

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

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

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

( ) A Judicial Commissioner may issue an authorisation sought under subsection (3), if satisfied that—

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

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

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

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

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

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

(ii) the importance of the prosecution and

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

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

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

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

( ) Where an authorisation issued under this Part would seek to authorise any activity which may involve access to special procedure material, the following subclauses apply.

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

(a) journalistic material other than material which a person holds in confidence and

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

( ) The special procedure authorisation may only be granted on application to a Judicial Commissioner.

( ) The Judicial Commissioner must be satisfied that there are reasonable grounds to believe that—

(a) a criminal offence has been committed,

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

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

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

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

(ii) the importance of the prosecution,

(iii) the importance of maintaining public confidence in the integrity of journalists’ work product, and/or communications with members of relevant legislatures and

(iv) the public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.

( ) Where data could reasonably be obtained by means of a search and seizure order pursuant to the Police and Criminal Evidence Act 1984, a warrant under this Part will not be in the public interest.

( ) An application for an authorisation concerning journalistic material held in confidence or information for the purpose of identifying or confirming a source of journalistic information, may only be considered by the Investigatory Powers Commissioner, who must be satisfied that there are reasonable grounds to believe—

(a) a criminal offence has been committed,

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

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

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

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

(ii) the importance of the prosecution;

(iii) the importance of maintaining public confidence in the integrity of journalists’ work product and

(iv) the public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.

( ) In considering an authorisation concerning journalistic material held in confidence, the Investigatory Powers Commissioner must give notice to the journalist concerned, unless it would not be in the public interest to do so.

( ) If an authorisation is considered without notice, the Investigatory Powers Commissioner must appoint a Special Advocate to represent the interests of the journalist and the person to whom confidence is owed, and the wider public interest in the integrity of journalists sources and freedom of expression, including as protected by Article 10 ECHR.

( ) Journalistic material is held in confidence for the purposes of this section if—

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

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

Amendment 242, in clause 68, page 54, line 29, leave out subsection (7) and insert—

‘( ) The Investigatory Powers Commissioner may for the purposes of approving authorisations under this Section appoint Deputy Judicial Commissioners.

( ) A “Deputy Judicial Commissioner” must be—

(a) in relation to England and Wales, a justice of the peace,

(b) in relation to Scotland, a sheriff, and

(c) in relation to Northern Ireland, a district judge (magistrates’ courts) in Northern Ireland.

( ) An authorisation under this Section may not grant authorisation in relation to the obtaining by a relevant public authority of communications data—

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

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

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

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

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

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

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

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

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

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

( ) A Judicial Commissioner may issue an authorisation sought under subsection (3), if satisfied that—

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

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

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

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

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

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

(ii) importance of the prosecution; and

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

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

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

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

( ) Where an authorisation issued under this Part would seek to authorise any activity which may involve access to special procedure material, the following subclauses apply.

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

(a) journalistic material other than material which a person holds in confidence;

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

( ) The special procedure authorisation may only be granted on application to a Judicial Commissioner.

( ) The Judicial Commissioner must be satisfied that there are reasonable grounds to believe that—

(a) a criminal offence has been committed;

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

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

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

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

(ii) importance of the prosecution;

(iii) importance of maintaining public confidence in the integrity of journalists’ work product; and

(iv) public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.

( ) In considering an authorisation concerning journalistic material held in confidence, the Investigatory Powers Commissioner must give notice to the journalist concerned, unless it would not be in the public interest to do so.

( ) If an authorisation is considered without notice, the Investigatory Powers Commissioner must appoint a Special Advocate to represent the interests of the journalist and the person to whom confidence is owed, and the wider public interest in the integrity of journalists sources and freedom of expression, including as protected by Article 10 ECHR.

( ) Journalistic material is held in confidence for the purposes of this section if—

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

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

This amendment proposes special procedures for communications data, subject to legal professional privilege, and for the protection of journalistic material and the communications data of politicians. It also provides for the Investigatory Powers Commissioner to appoint Deputy Judicial Commissioners to consider applications for the authorisation of access to Communications Data.

New clause 14—Authorisations in relation to items subject to legal privilege—

‘(1) Subsections (2) and (3) apply if—

(a) an application is made by or on behalf of a relevant public authority for authorisation under this Part, and

(b) the purpose, or one of the purposes, of the authorisation is to obtain communications data which contains, or might tend to reveal the content of, items presumptively subject to legal privilege.

(2) The application must contain a statement that the purpose, or one of the purposes, of the authorisation is to obtain communications data which contains, or might tend to reveal the content of, items presumptively subject to legal privilege.

(3) The person to whom the application is made may grant the authorisation only if the person considers—

(a) that compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise the acquisition of the communications data in question, and

(b) that the relevant public authority has made arrangements of the kind described in section 46 (safeguards relating to retention and disclosure of intercepted material), including specific arrangements for the handling, retention, use and destruction of such items.

(4) Subsections (5) and (6) apply if—

(a) an application is made by or on behalf of a relevant public authority for authorisation under this Part,

(b) the relevant public authority considers that the relevant communications data is likely to include communications data which contains, or might tend to reveal the content of, items subject to legal privilege, and

(c) subsections (2) and (3) do not apply.

(5) The application must contain—

(a) a statement that the relevant public authority considers that the relevant communications data is likely to include communications data which contains, or might tend to reveal the content of, items subject to legal privilege, and

(b) an assessment of how likely it is that the relevant communications data will include communications data which contains, or might tend to reveal the content of, such items.

(6) The person to whom the application is made may grant the authorisation only if the person considers that the relevant public authority has made arrangements of the kind described in section 46 (safeguards relating to retention and disclosure of material), including specific arrangements for the handling, retention, use and destruction of any communications data which contains, or might tend to reveal the content of, items subject to legal privilege.

(7) Subsections (1) to (6) of section 68 (commissioner approval for authorisations in relation to journalistic sources) apply to an authorisation to which this section applies as they apply to an authorisation in relation to the obtaining by a relevant public authority of communications data for the purpose mentioned in subsection (1)(a) of that section.

(8) In this section “relevant communications data” means any communications data the obtaining of which is authorised by the authorisation.”

[Keir Starmer]

Although there are numerous amendments, they will not take as long as the previous amendment, because to some extent they cover the same ground. Amendments 142 to 144 are intended to tighten up the test for journalistic material and apply a stricter test. Amendment 145 is an attempt comprehensively to redraft clause 68 to provide meaningful protection for journalist’s material and the protection of journalist’s sources. It is also an attempt to provide protection for other protected information, namely that which is subject to legal privilege and communications between MPs. This is a form that we have seen on previous occasions.

I invite interventions because I cannot now quite remember, but I do not think that in this part of the Bill there is a self-standing provision for MPs in relation to access to data. I will happily be intervened on if I am wrong, because then this would not apply. My concern when drafting this amendment was that, while in other parts of the Bill there is a specific provision—although we can argue about whether it is strong enough—for MPs’ correspondence in relation to accessing the communications data of MPs, there is no provision at this point in the Bill. That should be a cause of concern to everyone on the Committee, and it will certainly be a cause of concern to others.

[Joanna Cherry]

I am grateful to the hon. and learned Gentleman for the typically clear and concise way in which he has approached these amendments to clause 68, on which I wholeheartedly support him. On the question of protection for parliamentarians, the wording that has been used is a “relevant” parliamentarian. That will cover Members of the Scottish Parliament and the devolved Assemblies as well.

[Keir Starmer]

I am grateful for that. On looking at it, it is clear that clause 94 applies generally across this—actually, I am not sure that it does. I am sorry to pause on this, Ms Dorries.

[Joanna Cherry]

Perhaps I could assist the hon. and learned Gentleman. The phraseology that is used is “a member of a relevant legislature”, which is defined to include the Scottish Parliament and the devolved Assemblies.

[Keir Starmer]

I am grateful for that. The purpose of the amendment is really to cover all three protected areas—legal professional privilege, MPs’ correspondence and journalism—and to set out a comprehensive test for all three. It is similar to a provision that we have already looked at in relation to other parts of the Bill. I commend it as a constructive way to protect the interests that ought properly to be protected on the face of the Bill.

--- Later in debate ---

[Keir Starmer]

I think the guidance that we are given in declaring our interests to the House is that, for legal work, the identity of the person advised is not to be disclosed, because that comes within legal professional privilege. In other words, the fact that somebody has sought advice and who has sought advice are protected by legal professional privilege. I have never known there to be any doubt about that. This is an area where there is a need for special protection; that ought to be in the statute. I think that is common ground. That is how I have always understood it. I am not entitled to say who instructs me without the consent of the client, certainly before the matter comes to court.

[The Solicitor General]

While I agree with the hon. and learned Gentleman on the principle and the absolute nature of the privilege—subject to the iniquity exemption that we all know about and those of us who practise are familiar with—I am talking about a restricted area, in which we are looking at the threads of an investigation as opposed to the actual meat of the subject.

--- Later in debate ---

[The Solicitor General]

I am grateful to my hon. and learned Friend. There might be an earlier stage, for example at a police station in a criminal investigation, when that might not be a matter that is automatically disclosed in that way.

[Keir Starmer]

I absolutely accept that, for litigation in open court, it is pretty clear who everybody is acting for. It is common practice in the commercial world for protection to be put around whether a client is seeking advice and from whom. That is jealously guarded by every law firm that I have ever had anything to do with, for very obvious reasons. People go to lawyers; they do not necessarily want the world at large to know that they have gone and to which lawyer they have gone. I cannot over-emphasise that, in the commercial reality of the real world, that is jealously guarded.

[The Solicitor General]

I am grateful to hon. Members for trying to sift their way through what appears to be something of a labyrinth at times. I do not want to overcomplicate the situation. The Government’s view is that, combined with the code of practice, we have the necessary protections in the Bill that acknowledge that the degree and nature of the interference in an individual’s rights and freedoms will of course be greater in these sort of circumstances, so considerations of the necessity and proportionality become highly germane because they draw attention to any such circumstances that might lead to an unusual degree of intrusion or infringement of rights and freedoms, in particular privacy.

[The Solicitor General]

The hon. and learned Lady makes her point with force. Although the concerns she has about content and the issues that we have debated and will debate in part 5 are understandable, we are talking about a different nature of material and a different regime, where considerations can be distinct from those that apply in other parts of the Bill.

I will deal as quickly as I can with the points that have been made. I would argue that we have, in effect, a particular restriction that I would regard as not striking the right balance with respect to those who need it. We have to think in the context of the operational capability of our security and intelligence services in particular.

If there is a specific requirement for the use of PACE powers in these circumstances, I am worried that the requirements of clarity, consistency and transparency that we have to abide by will be undermined. The Interception of Communications Commissioners Office was clear in its rejection of the claim that public authorities had utilised RIPA to avoid the use of PACE. In fact, under this Bill part 3 authorisations for communications data to identify or confirm a journalistic source are subject to more stringent safeguards than under PACE, because the Bill replicates those procedures but at a higher level of authorisation, with a serving or former High Court judge, as opposed to a circuit judge, making the authorisation.

Making communications data accessible to those who have a lawful need for them at the right level of authorisation is a fine balance, but it is struck most effectively in the Bill as drafted. I am sure that Opposition Members do not intend us to reach a position where communications that have been made for the intent of furthering a criminal purpose are missed or are not accessible as they would want them to be. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras to withdraw the amendment.

[Keir Starmer]

I am afraid I simply do not follow the argument that transparency and accountability are lost if the protection that should properly be accorded to lawyers, journalists and MPs is spelled out in the Bill, with clear guidance to those who operate the authorisations on how to apply them. As I have indicated, these are matters of real concern that go to important issues in the Bill. In order to reserve my rights at a later stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 68 ordered to stand part of the Bill.

Clause 69

Collaboration agreements

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

Investigatory Powers Bill (Fifth sitting)

Keir Starmer Excerpts

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

[The Chair]

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

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

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

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

Clause 30

Modification of warrants

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

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

[The Chair]

With this it will be convenient to discuss the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[Keir Starmer]

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

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

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

“a particular person or organisation”

or

“a single set of premises”.

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

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

Clause 27(8) sets out that

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

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

We then get to clause 30, which states:

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

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

Clause 30(2) states:

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

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

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Keir Starmer]

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

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

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

That is not a limiting, but an excepting subsection.

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

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

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

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

[The Solicitor General (Robert Buckland)]

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

[Keir Starmer]

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

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

Slightly further down it says:

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

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

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

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

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

[The Solicitor General]

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

[Keir Starmer]

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

[The Solicitor General]

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

[Keir Starmer]

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

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

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

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

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

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

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

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

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

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

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

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

[Keir Starmer]

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

[The Solicitor General]

For minor ones.

[Keir Starmer]

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

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

[The Solicitor General]

rose—

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[The Chair]

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

[Keir Starmer]

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

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

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

[The Solicitor General]

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

[Keir Starmer]

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

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

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

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

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

[Keir Starmer]

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

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

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

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

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

[The Solicitor General]

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

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

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

[Keir Starmer]

Is there a reason why paragraph 5.61 states that a

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

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

[The Solicitor General]

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

[Keir Starmer]

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

--- Later in debate ---

[The Solicitor General]

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

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

[Keir Starmer]

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

[The Solicitor General]

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

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

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

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

--- Later in debate ---

[The Solicitor General]

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

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

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

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

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

[Keir Starmer]

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

[The Solicitor General]

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

--- Later in debate ---

[The Solicitor General]

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

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

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

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

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

[Keir Starmer]

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

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

[The Solicitor General]

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

[Keir Starmer]

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

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

[The Solicitor General]

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

[Keir Starmer]

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

Amendment, by leave, withdrawn.

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

[Joanna Cherry]

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

--- Later in debate ---

[The Solicitor General]

I am obliged to the hon. and learned Lady.

Question put and agreed to.

Clause 31 accordingly ordered to stand part of the Bill.

Clause 32 ordered to stand part of the Bill.

Clause 33

Special rules for certain mutual assistance warrants

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

[Keir Starmer]

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

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

[The Solicitor General]

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

[Keir Starmer]

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

[The Solicitor General]

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

Question put and agreed to.

Clause 33 accordingly ordered to stand part of the Bill.

Clause 34

Implementation of warrants

[Keir Starmer]

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

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

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

[The Chair]

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

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

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

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

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

See the explanatory statement for amendment 253.

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

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

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

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

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

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

[Keir Starmer]

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

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

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

--- Later in debate ---

[Victoria Atkins]

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

[Keir Starmer]

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

[The Chair]

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

[Keir Starmer]

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

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

Amendment 252 states:

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

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

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

[The Minister for Security (Mr John Hayes)]

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

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

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

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

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

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

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

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

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

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

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

--- Later in debate ---

[Keir Starmer]

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

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

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

because it is only reasonable steps they must take—

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

The concern is about asking for something that is unlawful.

[Mr Hayes]

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

--- Later in debate ---

[Mr Hayes]

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

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

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

[Keir Starmer]

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

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

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

[The Chair]

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

Investigatory Powers Bill (Sixth sitting)

Keir Starmer Excerpts

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

[Joanna Cherry]

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

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

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

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

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

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

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

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

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

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

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

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

[Mr Hayes]

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

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

--- Later in debate ---

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

[Keir Starmer]

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

[The Solicitor General (Robert Buckland)]

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

[Keir Starmer]

I am grateful.

Question put and agreed to.

Clause 47 ordered to stand part of the Bill.

Clause 48

Exclusion of matters from legal proceedings

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

[Joanna Cherry]

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

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

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

The United Kingdom’s ban on intercept evidence in criminal proceedings reflects long-standing Government practice, but it is out of step with the position in many other Commonwealth and European countries, and it has proved increasingly controversial over time. Importantly, the European Court of Human Rights has recognised the value placed on admissible intercept material, in countries where it is available. It has said that admissible intercept material constitutes

“an important safeguard; against arbitrary and unlawful surveillance, as material obtained unlawfully will not be available to found the basis of any prosecution”.

--- Later in debate ---

[Joanna Cherry]

At present, in the United Kingdom intercept evidence is not admissible in criminal trials. My purpose in opposing the clause is to make it admissible in criminal trials and proceedings, but there would have to be very careful rules and procedures, and the nature of our disclosure systems both north and south of the border will need to be taken into account.

I invite Members to consider, on the one hand, how the ban on the use of such material balances the new system that the Bill seeks to introduce of expanded and untargeted access to communications data and whether lifting the ban on the admissibility of intercept evidence in criminal trials would, as the Privy Council has said, increase the likelihood of successful prosecutions and, on the other hand, whether it might also reduce the reliance on administrative alternatives to prosecution, such as terrorism prevention and investigation measures, and on the use of untargeted forms of surveillance. Members will also have to consider whether the Government’s cost base analysis is accurate and sustainable. We cannot say that the ceiling would fall down on the security surveillance system in this country if we removed the ban, because the system operates effectively in other countries.

[Keir Starmer]

It is of course the long-standing practice of all Governments to maintain this exclusion. The current form is effectively to continue the regime as it has operated until now. The regime has been reviewed a number of times, and the last review was probably in 2014. As has already been mentioned, the Privy Council said that the regime’s removal could lead to an increase in the number of successful prosecutions. The exclusion is frustrating, and I was frustrated in a number of cases when I was Director of Public Prosecutions where, had it been possible to deploy such evidence, individuals who could not be convicted and locked up for serious offences might have been successfully charged and prosecuted. So the ban is a source of frustration because the net result is that, where someone cannot be charged because of this rule, there are only two possibilities in serious cases. One is that they continue to be subjected to surveillance, which can be extremely expensive and resource-intensive. The other is that they are put through some preventive measure, which has advantages and disadvantages but also a shelf life, which is normally shorter than the sort of sentence they might have received if the evidence had been admissible and a conviction had been obtained.

--- Later in debate ---

[The Solicitor General]

The hon. and learned Gentleman is right about avowal but, of course, evidence pursuant to equipment interference has always been admissible. It is a bit of a mixed picture when you look at the detail of it.

[Keir Starmer]

I accept that there have been different avowals at different times in the past two years. I was speaking more generally. The argument about techniques is harder to sustain in the current set of circumstances. My view is that if there were a way to get around this exclusion, being able to use the evidence would bring very many benefits. When it comes to those involved in serious crimes, my strong preference is that they should be charged, put before a jury and, if convicted, serve the appropriate sentence, rather than be dealt with in some other way. For reasons that everybody understands, this provision frustrates that process. That is why I think it is time for a review against the current set of circumstances.

[The Solicitor General]

I am grateful to hon. Members for giving us the chance to have this brief but important debate. The hon. and learned Lady is right to characterise the existence of the prohibition, which has been in existence since the Interception of Communications Act 1985, with good reason.

I accept the points made by the hon. and learned Gentleman about evolution of powers and the avowal of particular techniques. Of course, very often we are talking about the protection of individual capabilities and that is a slightly more nuanced argument than the general points he makes. Therefore, ground No. 2 of the objection to the adduction into evidence of intercept material still remains a strong one, and ground No. 1 has to be acknowledged.

My hon. Friend the Member for Louth and Horncastle made the point well about the need to recast disclosure because it is material and relevant to the debate, and about ensuring that what is now intelligence but what would be evidence is in a form that can therefore be handled and admitted by a court. There is a cost to that, and the estimates given in the 2014 report vary between £4.25 billion and £9.25 billion. Those are not insignificant sums and they cannot be ignored or dismissed when balancing out the merits of taking this step.

The Government take the view—this is iterated in the 2014 report—that the problems outweigh, for the present at the very least, the potential benefit. The potential benefit is not clear, save for the points that the hon. and learned Gentleman makes. As a litigator and a prosecutor myself, I share his frustration and have been in those circumstances many times. I will not repeat the points he makes: I will adopt them.

The Government’s position in that report was to say that they will keep under review any changes that might affect the conclusions of their latest review. That remains very much the position. I do not think it is appropriate in this legislation for us to depart, in the absence of any further evidence, from the position that has been iterated in no fewer than eight different reports over the past few years.

Many of us in the room are familiar with this issue. The debate is held regularly and will continue, but in the absence of compelling reasons to depart from the provisions of the 1985 Act I commend the clause to stand part of the Bill.

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

--- Later in debate ---

Duty not to make unauthorised disclosures

[Keir Starmer]

I beg to move amendment 77, in clause 49, page 39, line 2, after “not”, insert “, without reasonable excuse,”

[The Chair]

With this it will be convenient to discuss amendment 78, in clause 49, page 39, line 19, at end insert—

“(3A) For the purposes of subsection (1), it is, in particular, a reasonable excuse if the disclosure is made with the permission of the person issuing the warrant or the person to whom it is issued.”

This provision adds a “reasonable excuse” defence to the “unauthorised disclosure” offence and expressly provides that the defence applies where the permission is given by the person issuing the warrant or the person to whom it is issued, the equivalent of a similar provision in clause 73(2) in relation to communications data authorisations.

[Keir Starmer]

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

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

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

[Mr Hayes]

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

As clause 50 sets out, disclosure is already permitted if

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

I would therefore argue that amendment 78 is not required.

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

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

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

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

[Keir Starmer]

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

Amendment, by leave, withdrawn.

Clause 49 ordered to stand part of the Bill.

Clause 50

Section 49: meaning of “excepted disclosure”

[Keir Starmer]

I beg to move amendment 65, in clause 50, page 40, line 27, leave out paragraph (7)(a).

[The Chair]

With this it will be convenient to discuss amendment 66, in clause 50, page 40, line 35, leave out

“under Chapter 1 of this Part”

and insert

“described in sub-paragraphs (2)(a)(i) and (ii) of section 49.”

[Keir Starmer]

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

[Mr Hayes]

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

[Keir Starmer]

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

[Mr Hayes]

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

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

[Keir Starmer]

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

Amendment, by leave, withdrawn.

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

[Keir Starmer]

I do not oppose clause 50 stand part, but I ask the Minister to clarify how it is anticipated the clause provides for disclosure of the details of a warrant to the Intelligence and Security Committee. On Tuesday, we had a lively debate about the extent to which Committees of this House can question and protest to the Secretary of State on warrants. My understanding is that if that process is to perform the function that was claimed on Tuesday, it must be done under this provision or not at all because there is an absolute prohibition on the disclosure and that covers the existence or content of a warrant, the details and so on. That stops the Secretary of State or anyone else disclosing to the House, a Committee or anyone else, and goes to the heart of the discussion about accountability.

It was argued that the ISC can hold the Secretary of State to account and it is important that, if this Bill passes into law, we understand how that is intended to take place. It would not come under head 1, head 3 does not apply, and head 4 is for a different purpose. Head 2 may be the answer, but to assist all of us in our further scrutiny of the provisions relating to the role of the Secretary of State and the judicial commissioners, it is important to identify the legal route by which the Secretary of State can be held to account and answer questions within the territory demarcated by clause 49(4). At the moment, it would be an offence for her to disclose any of those matters. Unless there is a route that allows her to do so, that seems to be an absolute bar.

[The Solicitor General]

I am grateful to the hon. and learned Gentleman for the question. Our answer is that, looking at clause 150(3), we say that it would come under head 2 and that the Secretary of State would have discretion to disclose—[Interruption.]

[Keir Starmer]

Sorry. Which clause was that?

[The Solicitor General]

Sorry. It is clause 50(3), where we have head 2 and:

“(a) in the case of a warrant under Chapter 1 of this Part, a disclosure made to, or authorised by, a judicial Commissioner;

(b) in the case of a warrant under Chapter 1 of Part 1…a disclosure made to, or authorised by, the Interception of Communications Commissioner or a Judicial Commissioner”.

The disclosure is made by the Secretary of State. That might not be clear on the face of it, but that is the intention as I understand it of the clause.

[Keir Starmer]

I am just not sure. I think the Solicitor General has just quoted clause 152 to me.

[The Chair]

For clarification, will the Minister explain which clause he is referring to?

[The Solicitor General]

May I correct the record? It is my error. I omitted a number. I was talking about clause 150(3). Page 117 of the Bill states:

“For the purposes of subsection (2) something is necessary for the authorised purposes if, and only if”,

and then we have paragraphs (a) to (f). That underpins the discretion of the Secretary of State to make that disclosure.

[Keir Starmer]

I am happy to pursue this matter outside the Committee if it is more convenient, but I think the provisions in clause 150 apply to bulk acquisition warrants rather than all warrants. Clause 150(1) sets out that it is expressly dealing with bulk acquisition warrants, and subsections 150(2) and 150(3) follow on from that. This is not intended as an exercise. Standing back from this, what I am concerned about is that it—

[The Chair]

Order. That was a lengthy intervention to help the Minister, who I now think wants to get back and explain the situation to the Committee.

[The Chair]

I will allow the hon. and learned Gentleman to ask further questions, and then the Minister may come back if he wishes.

[Keir Starmer]

Thank you for your indulgence, Mr Owen. I am grateful to the Solicitor General for indicating that he will write, and I am more than happy to have it in writing. That information is important because it is central to the debate about the roles of the Secretary of State and the judicial commissioner. It is not just me. Other people need to be assured on the role and accountability of the Secretary of State. It is one thing to say, “She can be asked in a Committee about it”, but it is another to point to the legal route by which that can happen in practice in a way that allows a degree of accountability. It is not intended as a trick question, and if it can be dealt with in a letter, I would be grateful.

Question put and agreed to.

Clause 50 accordingly ordered to stand part of the Bill.

Clause 51

Offence of making unauthorised disclosures

[Joanna Cherry]

I beg to move amendment 79, in clause 51, page 41, line 18, at end insert—

“(4) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”

This amendment seeks to provide a public interest defence to the offence of disclosure in relation to a warrant issued under this Part.

The amendment is about whistleblower protection and would provide a defence for the criminal offence of disclosure in relation to a warrant issued under this part of the Bill. The offence as framed in clause 51 includes disclosure of the existence and content of a warrant as well as disclosure of the steps taken to implement a warrant.

The offence is subject to a maximum penalty of five years’ imprisonment. If committed, it is clearly a serious offence—the maximum penalty reflects that—but there are strong arguments that there should be a defence of disclosure in the public interest. By their very nature, surveillance powers are used in secret, with the vast majority of those subject to them never realising that surveillance has taken place. That means it is vital that sufficient checks, balances and safeguards are in place to ensure that the powers are used appropriately. I know that is why we are here, so apologies for stating the obvious. It is part of the checks, balances and safeguards to ensure that those who, in one way or another, witness or have knowledge of abuse or mistakes are able to bring that to the attention of individuals capable of addressing it, which may on occasion include bringing information to public attention. The provisions in clause 51 that criminalise the disclosure of information relating to the use of interception powers risk shutting down a vital route of ensuring accountability for the use of surveillance powers unless there is the defence of disclosure in the public interest.

--- Later in debate ---

Clauses 49 to 51 authorise the disclosure of information relating to certain matters, but it is unclear whether persons disclosing other information will be subject to the offence. It is far from clear where there are similar statements for whistleblowers. My purpose in moving the amendment is to create a safe route for whistleblowers where their disclosure is in the public interest.

[Keir Starmer]

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

[Mr Hayes]

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

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

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

and goes on similarly.

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

--- Later in debate ---

[Keir Starmer]

I beg to move amendment 118, in clause 53, page 42, line 14, leave out subsection (1) and insert—

“(1) A Judicial Commissioner may grant a communications data access warrant where the judicial commissioner considers—

(a) that it is necessary to obtain the data for the purposes of a specific investigation or a specific operation, and

(b) that the conduct authorised by the warrant is proportionate to what is sought to be achieved.

(1A) The grant of a warrant is subject to restrictions set out in the rest of this Part.”

[The Chair]

With this it will be convenient to discuss the following:

Amendment 125, in clause 53, page 42, line 25, at end insert—

“(1A) The Judicial Commissioner may grant a warrant on application from—

(a) an officer from a relevant public authority involved in the relevant investigation; or,

(b) an individual designated by the relevant public authority to make applications for warrants to the Judicial Commissioner.”

Amendment 126, in clause 53, page 42, line 25, at end insert—

“(1B) A warrant must—

(a) name or otherwise identify the person or persons, organisation, premises, or location to which the warrant relates; and

(b) describe the investigation or operation to which the warrant relates.”

Amendment 229, in clause 53, page 42, line 26, leave out from beginning to end of line and insert—

“A warrant granted by a judicial commissioner may authorise the applicant or a telecommunications operator to”.

Amendment 119, in clause 53, page 42, line 26, leave out “designated senior officer” and insert “warrant”.

Amendment 120, in clause 53, page 42, line 32, leave out subsection (3).

Amendment 121, in clause 53, page 43, line 4, leave out “authorisation” and insert “warrant”.

Amendment 122, in clause 53, page 43, line 14, leave out “authorisation” and insert “warrant”.

Amendment 123, in clause 53, page 43, line 16, leave out “authorisation” and insert “warrant”.

Amendment 124, in clause 53, page 43, line 25, leave out “authorisation” and insert “warrant”.

Amendment 130, in clause 55, page 45, line 15, leave out “authorisation” and insert “warrant”.

Amendment 128, in clause 55, page 45, line 16, leave out subsection (1)(a).

Amendment 132, in clause 55, page 45, leave out line 31.

Amendment 129, in clause 55, page 45, line 37, leave out subsection (4).

Amendment 133, in clause 57, page 46, line 20, leave out “authorisation” and insert “warrant”.

Amendment 134, in clause 57, page 46, line 24, leave out “authorisation” and insert “warrant”.

Amendment 146, in clause 72, page 57, line 27, leave out from “by” to “and” in line 29 and insert “a warrant”.

Amendment 147, in clause 72, page 57, line 30, leave out “authorisation or notice” and insert “warrant”.

[Keir Starmer]

We are now moving to a different part of the Bill and to a very important provision. I apologise if it takes some time, but we are moving to a significant set of matters that need to be considered together. The amendments to clause 53 have to be seen in context, and the context is the retention powers later in the Bill, which I will highlight in a moment.

I want to put the position of the Labour party on this and other provisions clearly on the record. It is accepted that there are circumstances in which it is necessary to retain or obtain the data of individuals who are not necessarily targets themselves, so that at a later stage that data can be accessed for a specific purpose or reason—so we have a broad retention power and then a much more narrowly defined access provision. Clause 53 is the access provision. The retention provision is clause 78 and I direct the Committee’s attention to that clause because that is where this all starts.

Under clause 78 the Secretary of State can require “relevant communications data” to be retained by “any description of operators”, and she can require the retention of

“all data or any description of data”

so long as they come within

“one…of the purposes falling within paragraphs (a) to (j) of section 53(7)”.

The Secretary of State’s very wide retention power is exercised by issuing a notice, the effect of which is to require the retention of potentially wide-ranging and extensive data for 12 months. That is an extensive retention provision. There is some provision for filtering the data, but the power to access the data is in clause 53.

On the face of it, the retention powers are quite wide and will necessarily involve retaining data of individuals who are not targets or subjects, never will be and were never intended to be—in fact, all of our data, in many respects. Our long-standing position is that to justify that potentially very wide power, which is a serious cause for concern to many people, it is critical that at the point of access there is a clearly defined and high threshold and clear safeguards. In other words, if one collects a lot of data, at the point of accessing it one must go through a much more rigorous set of preconditions with effective safeguards. Clause 53 allows such access.

On clause 53(1), the first thing to be observed is the person who is to grant authorisation—the holder of the keys to the gateway—to allow any of the activities in subsection (2), engaging in conduct

“for the purpose of obtaining the data from any person”,

and further action under subsection (4), is not the Secretary of State or a judicial commissioner, but a “designated senior officer” of a relevant public authority. That is an immediate cause for concern. There is a very wide power to retain, so it is necessary to have really strict preconditions before access, and the keys are held by a designated senior officer—nobody of higher rank than that.

To understand what that means, I direct Members’ attention to schedule 4, although I should perhaps go via clauses 61 to 64, which make further provision in relation to relevant public authorities and designated senior officers. The question is: who is a designated senior officer and what are the public authorities concerned? For that, we go to schedule 4 on page 204, where there is a long list of the public authorities and designated officers who can access the relevant data.

There we see some familiar bodies that one would expect to find in such a schedule, but running one’s eye down the list brings one to the Royal Navy Police, the Royal Military Police, and, further down, the Department of Health. Across the page are the Ministry of Justice, the Department for Transport, the Competition and Markets Authority, and the Criminal Cases Review Commission. I will pause there. In the Criminal Cases Review Commission, the person who can authorise access to data is an investigations adviser. With all due respect to the investigations advisers in the CCRC, that is a very low level of authorisation to access or obtain data that has been retained.

There are other examples. In the Financial Conduct Authority, any head of department in the enforcement and market oversight division has authorisation. Over the page, in a fire and rescue authority the watch manager provides authorisation, and in the Food Standards Agency it is a grade 6 employee. The Gambling Commission can access data under this provision, as long as a senior manager says so. These are really worrying levels of authorisation in relation to personal data: a senior manager in the Gambling Commission has the role of deciding whether your data or mine can be accessed. Dropping down the page, in a national health service trust it is the director of operations, or a control and communications manager, or the duty manager in ambulance trust control rooms who can authorise access to the relevant data, and so on and so forth. In the Office of Communications, it is the senior associate.

The first thing that is striking about clause 53 is the insufficiently senior level at which authorisation may be granted. Access may be authorised if

“a designated senior officer of a relevant public authority”

thinks

“that it is necessary to obtain communications data for a purpose falling within subsection (7)”

and that it is relevant for

“a specific investigation or a specific operation or…testing…The designated senior officer may authorise any officer of the authority to engage in any conduct which…is for the purpose of obtaining the data from any person”,

and so on. That is a real concern. Will the Solicitor General explain why it is thought appropriate to drop from what until now have been quite high levels of authorisation and scrutiny, with strict tests, right down to

“a designated senior officer of a relevant public authority”?

I have dealt with who can authorise access; let me turn now to the purpose of gaining access. What is it that the designated senior officer has to be satisfied about? That takes us straight to clause 53(7), which states that

“It is necessary and proportionate to obtain communications data for a purpose falling within this subsection if it is necessary and proportionate to obtain the data—”

Before I go down the list that follows in clause 53(7), I remind the Committee that the case involving David Davis, Tom Watson and others is before the Court of Appeal. We do not know the outcome of that case. Of course, it does not relate to these provisions, because they are not in force, but it relates to provisions that are not dissimilar to these. The question that arises in that case is: what is the true interpretation and effect of the Digital Rights Ireland case, in which it was found that one of the EU directives was invalid? The question before the Court of Appeal, which was critical to the European Court’s analysis in the Digital Rights Ireland case, is whether a regime for retention of data—a regime similar to the regime in the Bill—requires safeguards. The two safeguards in the Digital Rights Ireland case of most relevance to this clause are the safeguard that there must be a serious offence threshold for access and the requirement that there must be prior judicial oversight.

I am aware of the submissions and counter-submissions in that case on how those safeguards apply—whether they apply generally across the piece or whether they are case-specific. I am aware of what the divisional court said and what the Court of Appeal has said so far. In addition, I recognise that it would not be right for me to say that on the analysis of the Court of Appeal so far it is established that it is a precondition that the threshold must be a serious offence or that there must be prior judicial oversight. I do not advance an argument on that basis, because any fair reading of the Court of Appeal does not allow me to do so, and I do not do so. However, what it does is set up a challenge, which is what all of the courts have been concerned with in the Tom Watson and David Davis case, namely whether the safeguards are sufficiently rigorous and strict. The question is whether they have to be those particular safeguards or whether other safeguards could achieve the same balance.

--- Later in debate ---

[Keir Starmer]

I am grateful for that intervention. If the Solicitor General can point to such a provision, I would be interested to see it. On the face of it, the clause allows designated senior officers within a public authority to obtain communications data in the interests of the economic wellbeing of the UK without that further qualification.

Subsection (7) then states that data can be obtained

“in the interests of public safety…for the purpose of protecting public health”

or,

“for the purpose of assessing or collecting any tax”.

We then come to paragraph (g), on which I want to spend some time. It states that data can be obtained

“for the purpose of preventing death”—

that would obviously be a high threshold—

“or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health”.

The threshold is way, way down. There are many ways in which a person’s physical or mental health could be damaged. The Bill, if passed, will authorise access to communications data without any threshold as to the level of damage or injury.

[Suella Fernandes (Fareham) (Con)]

I appreciate the hon. and learned Gentleman’s analysis, but does he agree that obtaining communications data is one of the less intrusive powers contained in the legislation, but such data are very helpful for setting the scene and planting the seed for investigations? That has to be borne in mind when looking at the authorisation regime, because this is different from other powers.

[Keir Starmer]

Let me take that in stages. I accept that accessing communications data is in a different category and order from, say, the interception of the contents of communications. I also accept the proposition that communications data are used in many cases involving serious crime. I will go further than that: it is rarely possible to bring and to conclude cases of serious criminality without reliance on communications data. I have no in-principle objection to communications data being made available and being used. My concern is the very low level of sign-off required to access those data and the lack of any meaningful threshold in subsection (7); there simply is not one. Whether or not a meaningful threshold is achieved by the insertion of the word “serious”, as I propose in my amendment, or some other word, if we simply say that it could be necessary and proportionate to access communications data to prevent any crime or damage, we are proceeding on a basis for which it is very hard to think of any circumstances in which it would be difficult or impossible to justify obtaining communications data. It just is not a set of thresholds.

Dealing with miscarriages of justice and situations in which a person has died and so on, and

“for the purpose of exercising functions”

are listed in the subsequent paragraphs. My central point is obvious but important. I realise how necessity and proportionality apply, but on any reading of subsection (7) there is no threshold. I think there is a risk for the Government here. I appreciate the direction of travel of the Court of Appeal, but does anybody seriously think that the jurisprudence is not going to develop to a point where there is a threshold that is thought to be appropriate? It is one thing to say that we do not necessarily have to have a threshold of serious crime, but to go from that to saying that we do not have to have any threshold at all is to invite problems, if these provisions are passed.

[Suella Fernandes]

It appears that the hon. and learned Gentleman is dismissing the necessary hurdles of necessity and proportionality in satisfying the tests. They are obviously going to relate to and be thresholds, so is it not wrong to say that there is no threshold in the clause?

[Keir Starmer]

I appreciate that the necessity and proportionality test has to be applied—in any given case there will always be an argument about whether it is necessary and proportionate—but as ever with necessity and proportionality the question is: what are we assessing necessity against and how are we arguing that it is proportionate? Is it necessary to do what? We get that only from the face of the statute. In other words, necessity does not give us anything unless we have some subject matter that it bites on, which is why the subject matter that it bites on is so important. Whether it is necessary for serious crime is one question; whether it is necessary for crime is another.

There are many, many things that one could say were necessary to prevent or detect crime. I absolutely accept that in practice those two tests are applied at all times, but the question is: what are they applied to? The question that the designated senior officer has to ask him or herself is: “Am I satisfied that it is necessary to prevent crime?” That would be good enough under the clause. It is, in principle, an inadequate threshold. I also think it will invite challenge in due course, because I do not think for one moment that, in the long run, the European Court and our courts are going to be satisfied with a scheme that does not have any threshold, even though there will be and are arguments about the precise threshold. We can see what the divisional court said in the Tom Watson case, so it is not just counsel’s argument that was never accepted by anybody. In that case in the divisional court, counsel’s argument that the serious crime threshold was an important safeguard was accepted. Thankfully, the writing is therefore on the wall if the clause is not taken back and reconsidered.

I shall move on to the second “who”. The first “who” I focused on was who can issue the necessary authorisation, which is the designated senior officer. Under clause 53(2), that person can

“authorise any officer of the authority to engage in any conduct”.

It goes from a relatively low-level authorisation to somebody even further down in the authority having to get on with the job of obtaining data.

The breadth of what can be done is outlined in clause 53(5), which states:

“An authorisation…may relate to data whether or not in existence at the time…may authorise the obtaining or disclosure of data by a person who is not an authorised officer, or any other conduct by such a person, which enables or facilitates the obtaining of the communications data”—

so it goes beyond the specific authorisation to the facilitation—

“and…may, in particular, require a telecommunications operator who controls or provides a telecommunication system to obtain or disclose data relating to the use of a telecommunications service provided by another telecommunications operator in relation to that system.”

It is a very broad provision.

That enables us to see the amendments in their proper context. There are three categories of amendment. The first category is to be taken as a set and would insert some rigour and independence into the process by requiring judicial commissioners to sign off the necessary authorisations. The second set of amendments, which we will come to in due course, seeks to amend the threshold to provide a meaningful threshold for the judicial commissioner. To call clause 53 as drafted a set of safeguards is to mis-describe the words on the page.

[The Solicitor General]

It is with this amendment, I am afraid, that we have a strong disagreement. To say that there are no thresholds is a misrepresentation of the situation. Putting it bluntly, the Government’s worry is that creating a serious crime threshold will miss a whole panoply of crimes that are extremely serious to victims. I am thinking in particular about crimes relating to harassment, stalking and other types of offences that would not fall within the threshold of serious criminality.

It is important that we couch our remarks carefully—the hon. and learned Gentleman has tried to do that, and I respect him for it. We are not talking about targeted interception here; we are talking about the retention of evidential leads—information that could, not of itself build a case, but which, in combination with other material, could allow investigators to build a case against a suspect. The analogy is with existing comms data, namely telephonic records and mobile phone records—the sort of material that he, I and others on the Committee have regular use and an understanding of, as prescribed by the RIPA regime. We are all familiar with it. The difficulty is that, as the days go by, the reliance by criminals on conventional methods of telecommunication changes.

The old system, where the SMS message would be the way things would be done, is increasingly falling into disuse. WhatsApp, internet chat forums and all sorts of encrypted means of communication are now being used. There is no doubt that the ability of the agencies—the security and intelligence agencies, the police and other agencies—to obtain even those evidential threads is therefore becoming more difficult. We are not talking about content, nor should we be. I draw an analogy with the sort of drugs observance case where the police officers can see people coming and going from a house that is of interest, but cannot see what is going on inside that house. That is what we are talking about here. Adopting these amendments would be entirely the wrong step to take.

--- Later in debate ---

[Keir Starmer]

I want to be clear with the Committee. In fairness to the Solicitor General, I can see the argument that, for harassment, there can be serious consequences for the individual. I had to deal with a number people in that situation and I do not underestimate for a moment the serious consequence that a series of minor actions can have. I do not think that necessarily means that we cannot have a serious crime threshold. I would be willing to work on what that threshold would look like, but I should not be taken as thinking that harassment, for example, cannot have serious consequences.

[The Solicitor General]

I am grateful to the hon. and learned Gentleman for that concession. It is important and it is not straightforward, and that is why I am afraid, as currently constructed, these amendments are deficient.

If I can develop my argument, I would like to give an example from Gwent police—a force that I know very well and have prosecuted on behalf of for the Gwent CPS on many occasions. Last November, a female victim returning home from a night out was approached by an unknown male who proceeded to sexually assault her. As a result of her cries, two witnesses approached and, thankfully, the male fled the scene before the offence was completed, serious though it was. An urgent press release was issued, along with CCTV footage of the offender. As a result, a member of the public called the police stating that she recognised the offender, who had given her his number. Investigators acquired subscriber data on that number and identified a suspect, who was subsequently arrested. In court, the offender pleaded guilty and received a 12-week prison sentence that was suspended for 12 months, and was placed on the sex offenders register for five years. I think we would all agree that that sounds very serious.

[Keir Starmer]

It is.

[The Solicitor General]

But is it? We have got to be absolutely clear. None of us would want that type of offence to fall outwith any of the criteria in these provisions—I am sure that would be the case.

[The Solicitor General]

Of course, there are plenty of offences that do not involve violence or the threat of violence, such as fraud, although I understand that the potential consequences of some fraud can cause stress. May I reassure him that the test of necessity and proportionality in clause 53(7) remains very much at the centre of everything? I would not want him to be misled into thinking, as has perhaps been suggested by some of his Front Bench colleagues, that this is a free-for-all; far from it.

[Keir Starmer]

Will the Minister give way?

[The Solicitor General]

No, because I want to develop the argument. It is vital that we look at the underpinning of all this. None of the three reports that informed the drawing up of the Bill, nor the three reports arising from the pre-legislative scrutiny of the draft Bill, recommended any changes whatever to the authorisation regime for communications data. For example, David Anderson QC recommends authorisation of the acquisition of communications data by a designated person in a public authority. RUSI recommended:

“For the acquisition of communications data otherwise than in bulk, an authorisation by the relevant public authority. Communications data should only be acquired after the authorisation is granted by a designated person.”

Prior to that, the report from the Joint Scrutiny Committee on the draft Communications Data Bill 2012 looked into the authorisation regime in depth and concluded that it was indeed the right model.

I entirely accept that anything that can sensibly be done to improve the already strongly regulated regime should be done. That is precisely why we have, for instance, provided for a new criminal offence that applies to persons in public authorities who knowingly or recklessly obtain communications data from a communications service provider without lawful authority. We have made the highly regarded SPOC—single point of contact—regime, which provides expert advice and guidance to authorising officers, a mandatory requirement in the Bill.

[The Solicitor General]

I am grateful for that powerful example provided by my hon. and learned Friend.

It is important to note that in the report on the draft Bill—I am looking at paragraph 11 of the summary of conclusions and recommendations—the Joint Committee stated:

“We believe that law enforcement should be able to apply for all types of communications data for the purposes of ‘saving life’. We recommend that the Home Office should undertake further consultation with law enforcement to determine”—

the report then makes references to various things in the draft Bill that would not necessarily read over to the Bill that is before the Committee.

The point I am seeking to make, in the round, is that we have a tried and tested system, which is being replicated—indeed, enhanced—by the Bill, that deals with a very large number of applications. According to the latest annual report by the Interception of Communications Commissioner, in 2013 there were 517,236 authorisations and notices for communications data in total. That contrasts that with warrantry and intrusive and limited interception of communications—in the same period, there were 2,795—so we are talking about a very different set of parameters, with a large volume of requests. My worry is that, however well-intentioned the amendment is, it is wholly unrealistic when it comes to fighting crime.

[Keir Starmer]

I rise only because this is an important point about how the powers will come to be exercised. It is of course possible to say that the precise wording of the amendment might not work in certain circumstances—all but sentences of 10 weeks or less are serious cases, and so on—but I do not want us to miss the point. The challenge to the Solicitor General is that there is no threshold. It is perfectly all right to say that the amendment does not necessarily achieve in precise terms the right level of seriousness, but it is not right simply to push back at the notion that there must be some threshold in the measure that is meaningful, which at the moment there is not.

[The Solicitor General]

I hear what the hon. and learned Gentleman says, but I do not agree with him about the threshold. It is set out in subsection (7). I can give another example: what about a missing person inquiry? We would not know whether it was a crime; it might well be a young person who has run away. We all have some direct or indirect experience of that.

I will address the point, but I have to be careful, because the case to which the hon. and learned Gentleman has referred is sub judice. I do not disagree with any of his characterisation, by the way, and of course I have read with care the Court of Appeal judgment of Lord Justice Lloyd Jones, but the hearing in the Court of Justice of the European Union is this week, I think. We will have to see how that develops.

I am very conscious of how case law develops in this area, and I am mindful of it, bearing in mind my duty as a Law Officer to uphold the rule of law. I am sure the hon. and learned Gentleman understands that, but where we are is in a sensible place. My worry is that if we start to get too restrictive, we will in effect end up in a position in which many serious matters—matters that are serious to the victim, but might not be serious according to other criteria—are lost or missed.

I have already mentioned necessity and proportionality. I should also pray in aid the fact that there will have to be compliance with a detailed code of practice and independent oversight and inspection of the regime by a senior judge, currently the Interception of Communications Commissioner. The current internal authorisation regime is working well. No deliberate abuse of it has been identified in any ICC reports, which speaks volumes for the integrity of the current system.

--- Later in debate ---

[The Solicitor General]

I am familiar with what the hon. and learned Lady is talking about, but again, that involves a particular failure by the NCA on warrantry. Here we are talking about various agencies’ abilities. With respect to her, it is not the same. We are discussing a different regime. Tempting though it is to read over, that would be to frustrate the important work of many law, detection and investigative agencies in our country.

I do not see the purposes within the Bill as inconsistent in any way with the purposes set out in the exemptions from and limitations of the right to privacy in article 8.2 of the European convention on human rights. There has never been a serious crime threshold for the acquisition of communications data. No such limit is placed in article 8.2, which is why the Government’s position on this issue—I will not mention the case—is legally respectable and sustainable. That is why the provisions in the clause meet the challenge that faces the agencies in a way that is proportionate and necessary, and that keeps pace with the breathtaking rate of change of technology being taken advantage of by many people of good will, but also by people of less than good will. For that reason, I ask that the amendment be withdrawn.

[Keir Starmer]

I will not repeat the concerns that we raised. Proceeding with a clause that has no seriousness threshold, however expressed, is fraught with difficulties, but the Minister has indicated that he will consider some of the issues and I want to reserve this issue for a later stage, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Joanna Cherry]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Keir Starmer]

I beg to move amendment 110, in clause 53, page 43, line 39, after “detecting”, insert “serious”.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 109, in clause 53, page 43, line 39, leave out “or of preventing disorder”.

Amendment 111, in clause 53, page 43, line 40, at end insert

“which includes to assist in investigations into alleged miscarriages of justice”.

Amendment 112, in clause 53, page 43, line 41, leave out subsections (7)(c) to (f).

Amendment 114, in clause 53, page 44, line 1, after first “or”, insert “serious”.

Amendment 115, in clause 53, page 44, line 1, after “any”, insert “serious”.

Amendment 116, in clause 53, page 44, line 2, after “any”, insert “serious”.

Amendment 117, in clause 53, page 44, line 3, at beginning insert “serious”.

Amendment 113, in clause 53, page 44, line 5, leave out subsections (7)(i) and (j).

[Keir Starmer]

I have covered my concerns that relate to these amendments, and the Solicitor General has dealt with them in his submissions. For the same reasons as on the first group of amendments, I want to take this matter away and I reserve my position. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 53 ordered to stand part of the Bill.

Clause 54

Additional restrictions on grant of authorisations

[Keir Starmer]

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

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

[Mr Hayes]

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

[Keir Starmer]

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

[The Solicitor General]

I am grateful to the hon. and learned Gentleman. It was puzzling me, and he has solved the mystery. The amendment seemed to remove the safeguard, which I am sure he does not want to do.

[Keir Starmer]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

[Joanna Cherry]

I do not oppose the removal of safeguards from the Bill. However, this is the first time that internet connection records have raised their head in the Bill and I feel compelled to foreshadow the more detailed arguments that will be made when we reach clause 78.

The collection of internet connection records is one of the fundamental changes that the Bill seeks to introduce, and subsections (4), (5) and (6) of the clause contain the first mention in the Bill of such records. I think that I am correct in saying that they are in fact only mentioned in one further clause—clause 78.

Clause 54(6) sets out to define an internet connection record but fails spectacularly to do so because of its widely drawn language, which clearly attempts to cover every imaginable base. The Scottish National party understands that the police and other authorities need powers befitting the digital age but, as legislators, we cannot pass a clause with such a significant impact on civil liberties—on personal privacy—without a clear definition in the Bill.

The industry has made it clear that it is willing to work with the Government to try to help implement ICRs. The trouble is that the industry does not know what ICRs are—and it looks like the Government do not know either. I addressed that point in quite a lot of detail on Second Reading. It is interesting that the Internet Service Providers Association says:

“The Investigatory Powers Bill deals with highly complex technical matters, however, our members do not believe that complexity should lead to a Bill lacking in clarity.”

I very much associate myself with those comments.

We cannot legislate in a vacuum and if the Government cannot provide further detail and clarity so we all know what an internet connection record is and what we are legislating for, we will have no option but to try to remove the collection of such records from the Bill through our amendment to clause 78. But the Scottish National party objects to the inclusion of internet connection records not just because of the difficulty of defining them—in my speech on Second Reading, I suggested that they are not at all a sort of internet replication of a phone record, as the Home Secretary seemed to think they were—but because of their intrusiveness. They would provide a detailed record of every internet connection of every person in the UK over 12 months, with a log of websites visited, communications software used, systems updates downloaded, desktop widgets used and every mobile app used, and logs of any other device connected to the internet, such as games consoles or baby monitors. I said in that speech that that would be “fantastically intrusive” and I stand by that.

Law enforcement bodies can currently obtain similarly extensive internet connection data for specific surveillance targets in several ways. First, they can request that telecommunications operators in the future retain the data of specific targets. Secondly, they can request retrospective internet connection data on specific targets from operators who temporarily store such data for their own business purposes. Thirdly, if they are seeking to prevent or detect serious crime, they can request data or assistance from GCHQ, which has a remit to provide intelligence for those purposes. Intelligence sharing to tackle online child sexual exploitation will be fortified by the establishment in November last year of the National Crime Agency and GCHQ joint operations cell.

The Intelligence and Security Committee noted in recommendation I of its report on the draft Bill that the delivery of ICR proposals

“could be interpreted as being the only way in which Internet Connection Records may be obtained. However, this is misleading: the Agencies have told the Committee that they have a range of other capabilities which enable them to obtain equivalent data.”

The ISC recommended that the Bill be amended in the interests of transparency, but no transparency has been provided.

The Scottish National party believes that the case supporting this huge expansion of data collection by internet service providers and its benefit to law enforcement is deeply flawed and contradicted by the available evidence, and that it has been accurately described as overstated and misunderstood.

I reiterate that there are no other “Five Eyes” countries in which operators are or have been forced to retain similar internet connection data. In Europe, as we heard the Danish tried it and decided that it was not of any utility. They thought about trying it again recently, but decided not to repeat the experiment. David Anderson noted in his report “A Question of Trust”, on page 265, about the collection of that sort of internet connection data that

“Such obligations were not considered politically conceivable by my interlocutors in Germany, Canada or the US.”

He therefore said that a “high degree of caution” should be in order.

There is also a legal issue with the mooted collection of internet connection records, because in 2014 the Court of Justice of the European Union ruled in the Digital Rights Ireland case that indiscriminate collection and storage of communications data is a disproportionate interference with a citizen’s right to privacy. I therefore argue it is unacceptable that the Government are attempting to bypass that ruling to extend their policy of blanket data retention.

It will no doubt be argued that, provided there are sufficient safeguards, the Court’s concerns from that case do not apply. However, as we just heard, there are not independent safeguards because we do not have judicial authorisation for access to internet connection records. We have instead a long list of public officials who have access to such records through internal procedures. I want to make it clear that I do not seek to impugn the integrity of public officials, but the reality is that their primary concern will relate to the operational capacity of their agency. That is a perfectly understandable matter of organisational culture, but that is also a reality that mitigates in favour of independent third-party authorisation.

If we collect internet connection records, we face falling foul of European Union law. We will also face falling foul of European Union law if we collect them without proper independent authorisation. I oppose clause 54 because it is the first point at which internet connection records rear their head in the Bill and the Scottish National party is not convinced that the Government have made a case for internet connection records. We are not convinced that there are not alternative routes to get at the necessary information and we are concerned that the collection of such records will be in violation of the law and of civil liberties.

[Keir Starmer]

We shall not seek to vote down the clause, but I want to raise some serious concerns about internet connection records because, as has been said, I think this the first time that they appear in the Bill. Subsection (6) is important because that provides the definition that

“‘internet connection record’ means communications data which…may be used to identify, or assist in identifying, a telecommunications service to which a communication is transmitted by means of a telecommunication system for the purpose of obtaining access to, or running, a computer file or computer program, and…comprises data generated or processed by a telecommunications operator in the process of supplying the telecommunications service to the sender of the communication”.

That is a wide definition. I listened carefully to the evidence of senior law enforcement officials about their ask on internet connection records, and they made it clear that they were concerned to have the who, the how, the when and the location.

I appreciate that there are other provisions—in fairness, I will come to those—but my concern is that that definition is much wider than their ask. That is important because subsection (4) deals with the point of access to internet connection records and what the designated senior officer can authorise. I accept that that subsection contains the restriction that internet connection records cannot be obtained or accessed unless one of the purposes identified is complied with—

“which person…which internet communications service…where or when”.

That has a resemblance to what senior law enforcement told us was their ask, but the problem is that the definition in subsection (4) is much wider. It might be asked whether that matters. Well, it does matter because clause 78—the retention clause—as we have observed, provides that the Secretary of State may issue a retention notice in relation to relevant communications data. Clause 78(9) makes it clear that relevant communications data may be used to do a list of things—I will return to the list—and that internet connection records are included. That definition of internet connection records crops up again in clause 78(9). Therefore, anything within that description, so long as it also complies with the other bits of the subsection, may be retained.

--- Later in debate ---

[The Solicitor General]

It is important that we go through this carefully. The shadow Minister talked about browsing history. The full history does not constitute comms data; it is not an ICR for the purposes of this legislation. It is like looking at everything after the forward slash. Let us take the example of a website such as telegraph.co.uk: the fact that a person visited the website may be one thing, but everything after the forward slash—the detail of what the person is doing—is not an internet connection record for the purposes of the Bill.

[Keir Starmer]

I am grateful to the Solicitor General for that reply. The same point was made on Second Reading by the Home Secretary and was also made in Committee, but I have a difficulty with it that is important to put on the record. Where are the words in the Bill that result in what the Solicitor General said? I am concerned, because I cannot see them.

I accept that, when it comes to accessing internet connection records, there is the further test in clause 54(4). At the moment, a constituent might say, “Will my internet connection records and browsing history be kept?” People are concerned about whether there is a record of what they have looked at on the internet. They feel very chilled by that. The Solicitor General says that it goes so far but no further. That is to give people comfort and I understand why it is said. The difficulty I have is finding the precise words in the Bill that give effect to that proposition.

[The Solicitor General]

Is not the real question whether the authorities will have access to that history without due process? Therein lies the rub. As I have said to the hon. and learned Gentleman, the full browsing history will not be capable of being accessed without further warrantry.

[Keir Starmer]

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

[Mr Hayes]

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

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

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

[Keir Starmer]

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

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

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

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

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

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

[The Solicitor General]

As a preface to my remarks, which will have to be succinct, I do not want to stray into the debate on clause 78. I do not want to criticise the hon. and learned Member for Edinburgh South West, but she has made points that will properly be answered when we come to that debate. She is right to raise the point about the Danish experience and, like me, she has read the evidence in the Committees, but there are significant differences between what we are trying to do in the UK and what happened in Denmark. The Danish experience was not a great one. There are significant operational, financial and other differences that mean that the Danish Government are looking carefully and with a great interest at what we are attempting to do in the UK. This is not straightforward and it is not easy, but it is our duty as legislators to get ahead of the curve when it comes to the development of technology and to make sure we are not playing catch-up when it comes to criminals’ increasingly sophisticated use of the digital sphere.

--- Later in debate ---

[Joanna Cherry]

I wish to speak briefly on clause 58. I indicate that I will also cover clauses 59 and 60, which I also oppose. The clauses provide for the establishment and use of a filter to gather and analyse communications data. They provide for a communications data request filter, which was a feature previously proposed in almost identical terms in the rather unpopular draft Communications Data Bill. The only change made is that under clause 58(5), which states that the Secretary of State

“must consult the Investigatory Powers Commissioner about the principles on the basis of which the Secretary of State intends to establish”

the filter.

The request filter essentially is a search mechanism that allows public authorities to conduct simple searches and complex queries of the databases that telecommunications operators will be required to build and hold. The Joint Committee on the Draft Communications Data Bill described the request filter in that Bill as

“a Government owned and operated data mining device”,

which, significantly, positions the Government at the centre of the data retention and disclosure regime. Access to the filter and the data it produces would be subject to the same self-authorisation processes as all communications data. In practice, the request filter would be a search engine over an enormous federated database of each and every citizen’s calls, text records, email records, location data and internet connection records. Those would be made available to hundreds of public authorities.

I am sure the Government will, as they have in the past, be keen to portray the request filter as a safeguard for privacy. However, the processing of such a huge amount of personal data, as permitted by the request filter, is a significant privacy intrusion. It is not only me who thinks that; the Joint Committee on this Bill noted that there were

“privacy risks inherent in any system which facilitates access to large amounts of data in this manner.”

When I asked the Solicitor General why other countries do not do that, he said that the lead must start somewhere, but I do not want my constituents to be guinea pigs for such a system. I can tell from my mailbox that many of my constituents are very concerned about such huge amounts of personal, private data being held and analysed in that way. They want to see serious crime tackled, but not at the expense of their privacy.

A balance has to be struck, and I fear that the request filter is more of an intrusion into privacy than a safeguard for it. It is a portal with the power to put together a comprehensive picture of each of our lives. We should not misunderstand that that is what the filter can do. It raises many of the same concerns as a large and centralised store, with the added security concerns of protecting multiple distributed databases.

Public authorities will have a permanent ability to access the request filter, which will make it an enticing and powerful tool that could be used for a broad range of statutory purposes. The ability to conduct the complex queries that the request filter will allow for could increase the temptation to go on fishing expeditions—that is, to sift data in search of relationships and infer that concurrences are meaningful. That was one of the many concerns expressed by the Joint Committee on the Draft Communications Data Bill about the request filter proposal.

With the request filter power, authorities could use communications data to identify attendees at a demonstration and correlate that with attendance at other public or private locations in a 12-month period, or identify those regularly attending a place of worship and correlate that with access to online radio websites, inferring risk. Those examples show that the new ability risks casting undue suspicion on thousands of innocent citizens and mining their personal contacts for patterns, which is an unacceptable intrusion into the privacy and civil liberties of our constituents and British citizens generally.

[Keir Starmer]

I will not be long, but I want to raise some concerns about the provisions. It is clear—the Minister will correct me if I am wrong—that the arrangements are to assist a designated senior officer who is considering whether to grant an authorisation, and therefore has got to that stage of the exercise, and more broadly to provide for effective ways of obtaining communications long before there is serious consideration of a particular authorisation. Subsection (1)(a) applies in relation to the contemplation of a possible authorisation, whereas subsection (1)(b) is a much wider way of organising the data so that someone can later find what they want more easily.

The arrangements are made by the Secretary of State but then exercised by the designated senior officer, and we have discussed who will be doing that. It is so concerning because the provision allows for the designated senior officer, who in many cases will be not a high-ranking individual in a public authority, to start to organise the data that have been obtained under a retention power. It is therefore a very wide ranging power indeed.

Investigatory Powers Bill (Third sitting)

Keir Starmer Excerpts

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

[The Minister for Security (Mr John Hayes)]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The shadow Home Secretary suggests in the letter that

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

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

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

The letter also talks about the

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

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

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

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

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

It states:

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

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

--- Later in debate ---

[Mr Hayes]

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

[Keir Starmer]

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

[Mr Hayes]

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

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

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

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

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

[Keir Starmer]

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

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

[Mr Hayes]

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

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

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

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

[Mr Hayes]

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

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

[Keir Starmer]

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

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

[Mr Hayes]

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

--- Later in debate ---

[Joanna Cherry]

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

Question put and agreed to.

Clause 2 accordingly ordered to stand part of the Bill.

Clause 3

Definition of “interception” etc.

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

[Keir Starmer]

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

[The Solicitor General]

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

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

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

Clause 6

Monetary penalties for certain unlawful interceptions

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

[Keir Starmer]

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

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

“for the purpose of deciding whether to serve”

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

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

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

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

[The Solicitor General]

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

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

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

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

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Schedule 1 agreed to.

Clause 7

Restriction on requesting interception by overseas authorities

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

[Keir Starmer]

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

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

[Mr Hayes]

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

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clause 8

Restriction on requesting assistance under mutual assistance agreements etc.

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

[Keir Starmer]

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

[The Solicitor General]

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

Question put and agreed to.

Clause 8 accordingly ordered to stand part of the Bill.

Clause 9

Offence of unlawfully obtaining communications data

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

--- Later in debate ---

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

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

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

[Keir Starmer]

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

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

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

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

[The Solicitor General]

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

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

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

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

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

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

--- Later in debate ---

[Joanna Cherry]

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

Clause 10 ordered to stand part of the Bill.

Schedule 2 agreed to.

Clause 11

Mandatory use of equipment interference warrants

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

[Keir Starmer]

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

[The Solicitor General]

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

Question put and agreed to.

Clause 11 accordingly ordered to stand part of the Bill.

Clause 12

Restriction on use of section 93 of the Police Act 1997

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

[Keir Starmer]

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

[The Solicitor General]

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

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

[Keir Starmer]

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

[The Solicitor General]

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

Question put and agreed to.

Clause 12 accordingly ordered to stand part of the Bill.

Clause 13

Warrants that may be issued under this Chapter

[Keir Starmer]

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

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

[The Chair]

With this it will be convenient to discuss the following:

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

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

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

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

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

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

“In this Part “secondary data” means—

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

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

[Keir Starmer]

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

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

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

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

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

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

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

[The Chair]

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

[Keir Starmer]

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

[The Chair]

You can only do so in passing reference.

[Keir Starmer]

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

Clause 14(6) states:

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

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

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

Clause 13(3) is different, providing that:

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

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

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

“the interception of overseas-related communications”

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

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

“the obtaining of secondary data”,

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

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

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

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

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

which is that

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

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

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

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

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

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

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

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

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

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

[Joanna Cherry]

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

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

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

--- Later in debate ---

[Mr Hayes]

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

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

[Keir Starmer]

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

Oral Answers to Questions

Keir Starmer Excerpts

Thursday 25th February 2016 Commons Chamber

[The Solicitor General]

My hon. Friend asks probably the most important question about that balance. I can reassure him that the draft Bill, and indeed the legislation that will come forward shortly, strikes that balance, most notably in involving judicial authorisation for the granting of warrants. That double-lock process, which involves the Secretary of State and the judiciary, strikes the right balance.

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

The case involving the right hon. Member for Haltemprice and Howden (Mr Davis) and my hon. Friend the Member for West Bromwich East (Mr Watson), which the Solicitor General has referred to, and which is before the Court of Appeal, but with a reference to the European Court of Justice, could have implications for the draft Investigatory Powers Bill. The case is being heard in April. How does the Solicitor General see that impacting on the timetable for the Bill going through this House?

[The Solicitor General]

While we understand that the case will be heard in April, it is still very much an unknown factor as to when a judgment will come. What I can say is that the outcome of any case will, of course, be carefully considered. However, I do not anticipate that causing a delay to the introduction of that important Bill, bearing in mind the sunset provisions in DRIPA.

--- Later in debate ---

[Harriett Baldwin]

My hon. Friend makes a very good point and I welcome his support for the initiative. It is a voluntary scheme. We are trying to change the culture, and transparency is part of that. It will allow women to make a choice. If they are thinking of working for a company, they will be able to ask, “Am I able to see how this company treats men and women?” And at a time of record employment for women in this country, women have more choices.

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

5. What steps the Government are taking to secure long-term funding for domestic violence services.

[The Parliamentary Under-Secretary of State for the Home Department (Karen Bradley)]

The Government have already announced £40 million of funding for domestic abuse services between 2016 and 2020, as well as a £2 million grant to Women’s Aid and SafeLives to support early intervention. We will shortly publish a refreshed cross-governmental violence against women and girls strategy, which will set out how we will do more still to secure long-term funding for domestic violence services and support for all victims.

[Keir Starmer]

I return to the question of long-term funding for domestic violence services, which is so important, having raised it in January, when the Minister said she was holding discussions with service providers. How are those discussions progressing, and when will we see an outcome? Can we know at some stage, if not now, who is involved in those discussions?

[Karen Bradley]

I should make it clear that central Government funding for domestic abuse services has not been cut. I want to make that clear so that there is no confusion. The issue is about locally commissioned services. The hon. and learned Gentleman is right that I have been having discussions with local commissioners and service providers, and I will issue the refreshed VAWG strategy shortly.