Investigatory Powers Bill

Lord Beith Excerpts

Wednesday 7th September 2016 Lords Chamber

Our Amendment 223B suggests that health records are so sensitive that the exceptional and compelling circumstances should relate only to national security and not, for example, serious crime. I beg to move.

[Lord Beith (LD)]

My Lords, my noble friend has very helpfully referred to the qualification of economic well-being as a justification by reference to national security and he rightly probed why it appears in that form. It gave me some satisfaction, in a sense, that it was qualified in this way because, in my years on the Intelligence and Security Committee, I occasionally thought that the concept of economic well-being was capable of extraordinarily wide interpretation. If it was being interpreted very widely in order to support actions which might in some way touch upon economic well-being, it is appropriate that it should be qualified if the powers engaged are sufficiently wide as potentially to affect the rights and liberties of other people. In this legislation we are talking about powers which can impinge upon the lives and liberties of other people unintentionally or not as part of the purpose but as a necessary consequence of being able to use things such as bulk datasets or equipment interference. Therefore, I hope that the reason that economic well-being is qualified by reference to national security is a recognition that some of the powers given in this Bill require particularly stringent qualification to be permissive and used. If that is so, I welcome it.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I am obliged to the noble Lord, Lord Paddick, for making it clear that these are essentially probing amendments and I respond to them in that light. These amendments relate to the issuing, approval and modification of warrants under Parts 6 and 7 of the Bill.

Amendments 194J, 201B and 210B would remove from the Bill an important safeguard which requires that a bulk interception, acquisition or equipment interference warrant may be issued only if doing so is in the interest of national security. The Bill provides for a warrant under Part 6 to be issued where it is necessary on three statutory grounds: in the interests of national security; for the prevention and detection of serious crime; or in the interests of the economic well-being of the United Kingdom where those interests are also relevant to national security.

Clause 129(1)(b)(ii), Clause 146(1)(a)(ii) and Clause 164(1)(b)(ii), which these amendments seek to remove, ensure that one of those statutory grounds must always be national security. This is clearly an important safeguard which recognises the particular sensitivity of bulk powers and therefore limits their use to the most tightly drawn circumstances. In other words, the Bill says that a bulk warrant provided for in Part 6 of the Bill must have,

“in the interests of national security”,

as one of the statutory purposes to authorise collection. However, collection can also be authorised to prevent serious crime and to protect the economic well-being of the United Kingdom in addition to being authorised to protect national security.

The inclusion of the additional statutory grounds relating to serious crime and economic well-being remains vital. There will be circumstances where it is necessary and proportionate to select for examination data collected under a bulk warrant in order to, for example, prevent and detect serious crime, such as to detect and disrupt child sexual exploitation. However, the Bill ensures that the initial collection of data could be authorised only if doing so is necessary to protect national security, albeit that it may be necessary for one of the other two purposes that I have already described. In other words, there is a relationship between the statutory requirements for the bulk warrant and the operational purposes which will be specified in the same warrant application, some of which may relate to the prevention of serious crime or economic interest.

On that last point of economic interest, it has been asked how that can be distinguished from national security. In a sense, it is a matter of emphasis at the end of the day. The ISC looked at this in detail, and at the need to retain it as a statutory purpose in its own right. It took extensive evidence from the agencies and, indeed, from the Foreign Secretary. I believe that Dominic Grieve was the chair at that time. He made it clear during Report in the Commons that the ISC had been persuaded that there remained a need for safeguarding the UK’s economic well-being to continue to exist as a statutory purpose for the use of the investigatory powers in the Bill in their own right. Therefore, I accept that it is linked to national security but it is a matter of underlining the need to have in mind the cases in which economic well-being will be the prevailing factor.