Investigatory Powers Bill

Lord Clarke of Nottingham Excerpts

Report: 1st sitting: House of Commons
Monday 6th June 2016 Commons Chamber

[Keir Starmer]

I actually said that that issue was being pressed for by Labour and the SNP—I think that is accurate—but of course I accept that in Committee, and outside, there has been constructive engagement by the Government. The Minister was quick to indicate a willingness to consider this issue, and discussions have been ongoing. It is important to have clarity so that legitimate trade union activities are protected. Our new clause is now broader than the one we considered in Committee because it goes to national security as well as economic wellbeing. It therefore covers trade union activities in this country, and not just acts outside the British Isles, as would be the case if it was just about economic wellbeing. Such constructive engagement has pushed the Bill forward.

As I said a moment ago, we have made significant demands—I do not hide that—and the Government have moved significantly in response to those demands. This is not a list of victories, scalps, concessions or U-turns; our demands were significant and we stuck by them, and in fairness the Government have responded in the right spirit—that is for those demands that we know about, although we will come to others during the debate.

[Mr Kenneth Clarke (Rushcliffe) (Con)]

I am listening with interest because the question of an overriding privacy clause has concerned a lot of people. I was not involved in the Committee, and I am not a member of any Select Committees. I am waiting to hear whether the hon. and learned Gentleman is satisfied by new clause 5, which he appears to be. The drafting of legislation is always somewhat obscure nowadays, but does he think that the new clause is satisfactory? It says that the public authority should have regard to

“any other aspects of the public interest in the protection of privacy”.

Would he have preferred some reference to the right of a citizen of the United Kingdom to privacy? Does he think that there is a significant difference, or am I simply making a minor drafting point?

[Keir Starmer]

If the House is content, I will deal with that in detail later. I have tabled an alternative in new clause 21 precisely to tighten up the reference to human rights and public law. It might be easier if I deal with that point in a few minutes when I get to that provision.

Labour has asked for a revised test for judicial commissioners. Currently in the Bill, the test is reviewed by reference to judicial review principles. The concern is that the judicial review exercise is a flexible test that, at one end, has close scrutiny, when judges look at the substance as well as the process of the decision. At the other end, there is a light-touch review, when the judges look more at process. We have argued that the review should be towards the upper end of strict scrutiny. I am pleased that the Government this morning tabled a manuscript amendment setting out a test for the judicial commissioners that makes it clear that the review will be an upper-end, stricter one—the close scrutiny that we have argued for. That refers back to the privacy clause, and I will try to make good that link when I get to it.

The manuscript amendment is a constructive move by the Government to meet my concern that review must be real and meaningful, not a long-arm, Wednesbury-unreasonableness review. The manuscript amendment is a significant change.

Investigatory Powers Bill

Lord Clarke of Nottingham Excerpts

Report: 2nd sitting: House of Commons
Tuesday 7th June 2016 Commons Chamber

[Mr Kenneth Clarke (Rushcliffe) (Con)]

The right hon. Gentleman is making good progress in getting very welcome undertakings from the Minister to review this whole business, in particular on serious crime and on the creation of ICRs; will he confirm that his concern also extends to the accessing of communications data by a huge range of public bodies, including every local authority? When he is discussing this matter in the near future he will have better access than anyone else, or at least than most other people, so will his concern extend not only to defining serious crime but to looking at clause 53(7)? In that subsection, any crime is relevant, as is any occasion of preventing public disorder, which could extend to difficult neighbour cases. It also allows collection of data

“for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department”.

It seems to me that the word “serious” should be put in all that, or else certainly some threshold should be. It is extremely all-embracing, and allows a district council anywhere to start getting access to communications data. Will he take those points into account as well?

[Andy Burnham]

I will certainly take the right hon. and learned Gentleman’s points into account. He is making the same case as we are in our amendments. To be clear, those amendments would create a general seriousness test for all communications data collection, which would have to be passed before any of those data could be released. The test created by my hon. and learned Friend the Member for Holborn and St Pancras in amendment 292 relates to offences for which the sentence is imprisonment for more than six months. We felt that that was proportionate. It begins to meet some of the right hon. and learned Gentleman’s concerns, as it would knock out some of the lower-level offences he has just described.

Given what the Minister has said, I do not intend to press that amendment to a vote, but it is the bottom line from where we start. On top of the general six months test for all communications data, we want a higher threshold for the more personal data in an internet connection record. I am glad that the right hon. and learned Gentleman intervened because we have now made that explicitly clear to the House.

I turn now to the independent review of the operational case for bulk powers, which allows me to finish on a more positive note. All the bulk powers in the Bill—bulk interception, bulk equipment interference, bulk acquisition, bulk personal datasets—give rise to privacy concerns because of the more indiscriminate way in which they might be used. That is why it is important that they are granted on the basis of what is strictly needed rather than what it would be helpful to have, a point made by the Intelligence and Security Committee in its extremely valuable report. The Joint Committee on the draft Bill also recommended that there should be an independent review of the bulk powers. It was a point upon which I laid great emphasis in my letter to the Home Secretary, and my hon. and learned Friend the Member for Holborn and St Pancras has done the same throughout the passage of the Bill.

We are extremely pleased that the Government have agreed to that request. We agree that David Anderson, the independent reviewer, is the right person to lead the review. I understand that, following correspondence between my hon. and learned Friend and the Security Minister, terms of reference have now been agreed and the review can start in earnest. It will be concluded in time to inform proceedings in the other place. Crucially, it will consider the necessity of the powers and whether the same result could have been achieved through alternative methods. It will also have a balance of security expertise and human rights expertise. This is a significant move by the Government and will ultimately help build public trust in the Bill.

To hark back briefly to the debate on the last group of amendments, it is too early to say what we will do on the back of the review. We will have to see what it concludes, but our working assumption is that it will be incumbent on Members on all sides of the House to respond to the review and if necessary reassess their position on the back of it.