Investigatory Powers Bill

Robert Buckland Excerpts

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

[Keir Starmer]

I am grateful for that intervention. The certainty point is really important. It is a point that Lord Judge made when he gave evidence to the Public Bill Committee. When I asked him about the reference to judicial review principles, he was concerned that that was not clear enough for the judges to know which particular test they were to apply. Now, with the new text in the manuscript amendment, it is crystal clear to the judges that they review the decision according to judicial review principles, but they must

“consider the matters referred in subsection (1)”—

necessity and proportionality—

“with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by the section”.

That is the privacy clause. The test for the judges is now crystal clear: look at necessity and proportionality, and review the Home Secretary’s decision with a sufficient degree of care to make sure that the judicial commissioner complies with the duties imposed by the general provision in relation to privacy. That deals with the certainty point.

As far as the reasons are concerned, I cannot improve much on my previous answer. What I think is envisaged is that there will be a number of judicial commissioners whose task will be to undertake this review, and to take such time as they need to look at the material and apply this test. They will not necessarily have the constraints that the Home Secretary and the Foreign Secretary have, but obviously a lot of this will happen in real time, so there will be the constraint of time in that sense. As I said, they will not be doing that alongside the other sorts of duties that a Secretary of State has to carry out during the course of a day.

I share the concerns that have been expressed on this matter, but I am clear in my mind that close scrutiny on judicial review principles is markedly different from Wednesbury unreasonableness and makes a real difference in real cases, so long as there is access to all the material, and clarity that the privacy provisions must be complied with. That effectively means that there are factors that it is mandatory for the judicial commissioner to take into account. That makes a material difference. That is why we will support the amendment.

[The Solicitor General (Robert Buckland)]

The hon. and learned Gentleman and I debated this point closely in Committee, and I thank him for the way in which he has approached the matter. With regard to clarity, it is not now beyond any doubt that the test will depend not on the personality of commissioners, but the facts before them? They have a very clear basis on which to make their judgment, looking at the particular degree and seriousness of the case, and balancing the right to privacy with all the qualifications that he, I and others know exist in article 8.

[Keir Starmer]

I am grateful for that intervention. To illustrate why we are satisfied, under the general privacy clause—I have a tighter version of new clause 21, but for this purpose that does not matter—one of the general duties is to have regard to

“whether what is sought to be achieved by the warrant, authorisation or notice could reasonably be achieved by other less intrusive means”.

Under this test, a judicial commissioner will have access to the material, will obviously know the Secretary of State’s decision, and will have to ask himself or herself that question. That is a long way from simply asking whether a decision was so unreasonable that no reasonable Secretary of State could have taken it, and that is why the new clause makes it clear that it is close-scrutiny review, rather than long-arm review, that is being dealt with.

--- Later in debate ---

[Mr Grieve]

Thank you, Mr Deputy Speaker. I am grateful to the Minister for his response, and I look forward to such a review happening. It would be good if it could take place in plenty of time before the Bill is passed, because we must have this issue in mind if we want to take different steps in respect of this matter.

Let me move on to new clause 2 and the associated amendment 18, which reflect some of the important concerns of the Intelligence and Security Committee. The Bill contains some welcome reforms to the commissioners who are currently responsible for the audit of authorisations and warrants that govern the use of intrusive powers. I am sure that all Members will agree that the new judicial commissioners will be critical in providing the assurance we need that the intrusive powers are being used appropriately.

What is currently missing, however, is a power to refer cases to the commissioners by the Intelligence and Security Committee. The ISC considers strategic issues and overall policies, including operations of significant national interest, but that is quite a different role from the commissioners who audit specific authorisations and warrants. The Committee sees our roles as complementary and, at times, our own work will throw up concerns about issues that we ourselves are not in a position to investigate. It is entirely appropriate that matters arising from a strategic or high-level inquiry conducted on behalf of Parliament by the ISC be capable of being referred to the commissioners for more detailed audit.

To date, however, I have to say that the informal process has not been working well. I mentioned previously that the ISC discovered that the Interception of Communications Commissioner did not know how many selection rules GCHQ applied to its bulk intercept materials. In such circumstances, the ISC should be able to refer that matter to the commissioner to ensure that he investigates the selection rules and provides thorough oversight.

To provide a further example, in its report on the killing of Fusilier Lee Rigby, the ISC identified a number of concerns about the involvement of the intelligence services prior to events and particularly in respect of one of the killers. Despite numerous invitations to discuss the matter, the Prime Minister referred it to the commissioner, yet despite numerous representations to the commissioner for an opportunity for the ISC to raise its concerns directly with him, that opportunity has never been taken up. Neither has there been any response of any kind to the ISC’s representations.

I want to emphasise that the commissioner is independent. There is no suggestion on the part of the Committee that we should be telling the commissioner what to do, but if informal channels of communication do not seem to be working very well, it seems to us that greater co-operation is required to make this and every other aspect of our scrutiny and the commissioner’s scrutiny work better. It would therefore be helpful if there were a clear mechanism by which the commissioner could receive a reference and be required to acknowledge it. That is why we tabled new clause 2. It has been suggested that this might be in some way improper because the commissioner has a judicial function. I have to say that although the commissioner is a person who must have held judicial office, being a commissioner is not a judicial function, so I cannot see for the life of me why this requirement cannot be placed on him.

[The Solicitor General]

I have listened very carefully to what my right hon. and learned Friend has said about amendment 18, which the Government are prepared to accept. On the first part of new clause 2, the Government are prepared to accept referral in principle, but I would like to address in greater detail in my closing remarks, my concerns about reporting. I am sure my right hon. and learned Friend will listen carefully to what I have to say in due course.

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[Joanna Cherry]

I do, but let us suppose the judicial commissioners have been selected by an independent board. The Judicial Appointments Board of Scotland, the Judicial Appointments Commission—in England and Wales—and the Northern Ireland Judicial Appointments Commission are not made up just of lawyers; there are lay people and people from other walks of life on these bodies. That is to give the public confidence in the independent appointment process of the judiciary, and it is very important that the public—our constituents, who have concerns about how far the powers in this Bill are going—have confidence that the judicial commissioners who will be performing the oversight functions and enforcing the safeguards on this Bill are appointed independently, rather than being the right chap for the job being chosen. I choose my words advisedly there.

I am very conscious of not eating up too much time, Mr Deputy Speaker. I have discussed two crucial amendments that I would like to put to a vote on part 8. I have tabled other amendments that others will perhaps be able to speak about, such as the measures on post-notification following surveillance and the notification of errors. I briefly wish to turn to amendment 482, which is designed to put it beyond doubt that voluntary, unsolicited disclosures are protected and that a whistleblower is protected from criminal prosecution. The amendment reflects our concern that provisions in the Bill may inadvertently risk discouraging or preventing individuals within public authorities or agencies, or in communication services providers, from approaching the Investigatory Powers Commissioner with concerns or communicating with the commission frankly. Throughout the Committee process, we attempted to amend the Bill by inserting a public interest defence for whistleblowers. Regrettably, the Government were not prepared to accept it, but I was happy that when I proposed an amendment similar to this one to part 8, the Solicitor General said in Committee that he recognised the sentiment behind the amendment and was of a mind to give it further consideration. I urge the Government now to make a gesture by supporting this amendment, which I may push to a vote if I get the chance to do so.

[The Solicitor General]

The hon. and learned Lady is absolutely right in her recollection, and I am giving this matter anxious consideration. I would, however, point out that clause 203, dealing with the information gateway, underpins the important principles that she outlines about the rights of whistleblowers. I hope that is of some assistance.

[Joanna Cherry]

I hear what the Solicitor General says, but we took clause 203 into account when framing this amendment, and we remain of the view that it needs to be put beyond doubt in the Bill that whistleblowers will be protected from criminal prosecution and that there will be a public interest defence. I will mention that again when discussing other parts of the Bill.

Time prevents me from talking about the fact that the right of appeal in respect of the Investigatory Powers Tribunal is, regrettably, curtailed, but I do not think we are going to get to deal with that today. What I really want to say in conclusion is that this Bill seeks to put on a statutory footing very extensive powers, and it is vital that there is proper oversight of the way in which they are exercised. Part 8, as it stands, is pretty mealy-mouthed. It does not even implement the central recommendation of RUSI, the Joint Committee and David Anderson that there should be a separate investigatory powers commission. Without these amendments proposed by the SNP on key recommendations about oversight, we cannot support the Bill in its current form.

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[The Solicitor General]

I am sure hon. Members on both sides will forgive me if I have to canter through all the issues that have been raised at the pace of a Derby thoroughbred and so do not name them in turn. I am grateful for the thrust of the debate, which dealt very much with the historic but continuingly important balance between the need to protect the individual’s right to privacy—a right against intrusion—and the clear national interest in making sure that the agencies responsible for the detection and prevention of crime and terrorism have the tools to do the job.

I will deal first with new clause 21, which has taken up much of the debate. In an intervention on the hon. and learned Member for Holborn and St Pancras (Keir Starmer), my right hon. Friend the Minister for Security indicated that we will consider the position with regard to new clause 5 very carefully. That is indeed the case. It seems to me that we are very close indeed on the provision on privacy. There is one issue, namely the effect of the Human Rights Act. I would say that it is axiomatic that all public bodies are subject to that Act, so an amendment to make that even clearer is not necessary. However, we are going to consider the matter very carefully, and I invite further deliberation in another place. In that spirit, I invite hon. Members on all sides to support Government new clause 5. As someone who has consistently advocated action on privacy by this place, as opposed to leaving it to the courts, I am delighted to see that new clause being placed in a major piece of legislation that I hope will stand the test of time.

I shall now deal with amendments tabled on behalf of the Intelligence and Security Committee. I am grateful to its members for their careful consideration of the Bill. In an intervention on my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), the Committee Chair, I indicated the Government’s position on amendment 18. Amendment 8 relates to the underlying internal safeguards. The Government are happy to accept this amendment so that greater clarity and reassurance to Parliament and the public can be provided. Let me make it crystal clear that the remit of the Investigatory Powers Commissioner will include oversight of the internal handling arrangements and processes that enable compliance with the Bill’s safeguards.

I have already indicated that in principle the Government accept the first part of new clause 2, which concerns the referral of issues to the Investigatory Powers Commissioner, and we will table an amendment in the other place to give effect to that intention. As I said, however, I have rather more hesitation with regard to reporting. In agreeing the principle of reference and referral, we are already creating that line of communication that, as my right hon. and learned Friend said, was not working in one respect.

I am grateful to my hon. Friend the Member for North Dorset (Simon Hoare) for directly outlining some of the tensions that still exist with regard to the judicial status and independence of the Investigatory Powers Commissioner, and a role that could lead to an overlap or—dare I say it?— confusion, given how important it is to have clear lines of authority and reporting.

[Mr Grieve]

I realise that time is short. The Minister has gone a long way towards reassuring me, and I certainly do not wish to press this issue to a vote unnecessarily. However, if there is a reference mechanism, an obligation of acknowledgement and at least an indication of what is happening and a report back seem eminently reasonable—after all, the Intelligence and Security Committee exists on Parliament’s behalf to provide scrutiny. I simply do not see how it undermines any element of judicial independence whatsoever.

[The Solicitor General]

I am not saying that the new clause is unreasonable; I am simply being cautious about the need for those involved—namely the commissioner—to be part of the process, and to be consulted if there is to be such a change. With regret, I cannot at this stage support that part of the new clause, but I am grateful to my right hon. and learned Friend for the clear, careful and considered way that he and the Committee have put that point.

New clause 4 relates to clarity on criminal offences. The Minister for Security has properly said that the Government will undertake to prepare a schedule of existing criminal law, and I think he will find that whatever our arguments about the level of penalty in the Data Protection Act, every bit of potential misconduct or criminality that could be carried out under the Bill will be covered by existing criminal law. As practitioners in the field for many years, my right hon. and learned Friend and I are always anxious about the creation of unnecessary new criminal offences. My simple argument is that I am not persuaded that new clause 4 would add anything to criminal law or achieve the sort of clarity that he and others seek, and I am therefore not persuaded and able to accept the new clause.

Let me move swiftly to the amendments on judicial commissioners which were tabled by the hon. and learned Member for Holborn and St Pancras. I listened carefully to the arguments, and I agree that there is real merit and value in providing expertise from the heads of the judiciary in the appointment process. I also believe that there is a role for the Lord Chancellor in these appointments. He has responsibility for ensuring that the Courts and Tribunals Service has enough judges to operate effectively. Given the limited number of High Court judges, these appointments could affect that. Involving the Lord Chancellor in making a recommendation on appointment would help to avoid any accusations of judicial patronage. On the basis that we will table an amendment in the other place to fulfil that aim, I invite the hon. and learned Gentleman to withdraw his amendments.

Let me deal quickly with the judicial appointments commission and the amendment tabled by the hon. and learned Member for Edinburgh South West (Joanna Cherry). I am persuaded by the argument of Lord Judge who, when asked in the Bill Committee about that matter, said:

“there is no point whatever in involving the Judicial Appointments Commission”.

Why? Because judges will have been through the process themselves, and the measure is therefore completely otiose.

On the hon. and learned Lady’s other amendments, I am still not persuaded that the creation of an independent non-departmental public body—namely the investigatory powers commission—would add anything to the thrust of reforms that we are already undertaking, other than cost to the taxpayer. I therefore do not think that creating a new statutory body will add anything to the public interest, which is what we are trying to serve.

The right hon. and learned Member for Camberwell and Peckham (Ms Harman) chairs the Joint Committee on Human Rights, on which I served in the previous Parliament. She is not currently in her place, but I wish to deal with the question of the Chinese wall. She was right to make the concession about David Anderson, who himself said there should be a relationship between the judicial authorisation function and the inspectorate. Indeed, there needs to be a distance, but creating the sort of division envisaged in the amendment would break the important link that exists to allow those who review fully to understand how the process works in practice. For that reason, the Government will seek to resist that amendment if it is pushed to a vote.

My hon. Friend the Member for Louth and Horncastle (Victoria Atkins) clearly and eloquently set out her objections to the amendments tabled in the name of the right hon. Member for Orkney and Shetland (Mr Carmichael) and others on notification. I cannot improve on her argument, except to say that comparisons with other jurisdictions are somewhat invidious, bearing in mind the differing natures of, for example, an inquisitorial process as opposed to the adversarial process that we use in the United Kingdom. My worry is simply that those who are continuing in their criminality will change their behaviour as a result of notification. For that reason, the Government cannot accept the amendment.

On amendment 482, I am happy to consider how to make it absolutely clear that whistleblowers can make disclosures to the IPC without fear of prosecution. I agree that that should be the case, and I will consider how to amend the Bill to bring even greater clarity to that issue. Amendments can also be tabled in the other place, which I hope the hon. and learned Member for Edinburgh South West will take on board when considering her party’s position.

On the wider amendments to the Investigatory Powers Tribunal, let us not forget that the Bill already represents a significant step forward. The only route of appeal available to complainants from decisions of that tribunal is currently a direct reference to the European Court of Human Rights. We are now establishing a domestic right of appeal that allows parties to seek redress in the United Kingdom, and that will also lead to greater speed. My concern is that if every decision of the IPT could be made subject to appeal, the operation of that body would grind to a halt, which I know is very much the view of its president. Currently, only 4% of claims questioning the tribunal’s work have any merit to them, so I am worried about the increasing expense and loss of efficiency that would result.

Similarly, the amendment that would force public hearings would, I am afraid, remove the tribunal’s discretion in deciding how best to operate in the public interest. It currently regularly holds public hearings and publishes copies of its judgments when appropriate.

The requirement to appoint special advocates is unnecessary—I argued that case forcefully in Committee. I can see no reason for departing from the position on declarations of incompatibility with the Human Rights Act, because only a small number of courts currently have that reservation.

I will close with this remark: privacy is now very clearly at the heart of the Bill. I am very proud of that, and Members on both sides of the House will agree that this is a job well done.

Question put and agreed to.

New clause 5 accordingly read a Second time, and added to the Bill.

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Brought up, and read the First time.

[The Solicitor General]

I beg to move, That the clause be read a Second time.

[Mr Speaker]

With this it will be convenient to discuss the following:

Government new clause 8—Further provision about modifications.

Government new clause 9—Notification of major modifications.

New clause 20—Power of Secretary of State to certify warrants—

“(1) The Secretary of State may certify an application for a warrant in those cases where the Secretary of State has reasonable grounds to believe that an application is necessary pursuant to section 18(2)(a) (national security) and involves—

(a) the defence of the United Kingdom by Armed Forces; or

(b) the foreign policy of the United Kingdom.

(2) A warrant may be certified by the Secretary of State if—

(a) the Secretary of State considers that the warrant is necessary on grounds falling within section 18; and

(b) the Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(3) Any warrant certified by the Secretary of State subject to subsection (1) is subject to approval by a Judicial Commissioner.

(4) In deciding to approve a warrant pursuant to this section, the Judicial Commissioner must determine whether—

(a) the warrant is capable of certification by the Secretary of State subject to subsection (1);

(b) the warrant is necessary on relevant grounds subject to section 18(2)(a) and subsection (1)(a) or (b); and

(c) the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(5) Where a Judicial Commissioner refuses to approve the person’s decision to approve a warrant under this section, the Judicial Commissioner must produce written reasons for the refusal.

(6) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, approves or refuses to approve a warrant under this Section, the person, or any Special Advocate appointed, may ask the Investigatory Powers Commissioner to decide whether to approve the decision to issue the warrant.”

Amendment 267, in clause 15, page 12, line 3, leave out “or organisation”.

These amendments would retain the capacity of a single warrant to permit the interception of multiple individuals but would require an identifiable subject matter or premises to be provided. This narrows the current provisions which would effectively permit a limitless number of unidentified individuals to have their communications intercepted.

Amendment 25, page 12, line 7, leave out “or” and insert “and”.

On behalf of the Intelligence and Security Committee of Parliament, to limit the potentially broad scope of thematic warrants involving people who “share a common purpose” by ensuring that they also must be engaged in a particular activity.

Amendment 131, page 12, line 8, after “activity” insert

“where each person is named or otherwise identified”.

These amendments seek to make more specific the currently very broadly worded thematic warrants in the Bill, to make it more likely that such thematic warrants will be compatible with the requirements of Article 8 ECHR as interpreted by the European Court of Human Rights.

Amendment 268, page 12, line 9, leave out “or organisation”.

See amendment 267

Amendment 132, page 12, line 11, after “operation” insert

“where each person is named or otherwise identified”.

See amendment 131.

Amendment 272, page 12, line 12, leave out paragraph (c).

See amendment 267.

Amendment 306, page 12, line 13, leave out subsection (3).

See amendment 267.

Amendment 218, in clause 17, page 13, line 8, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 219, page 13, line 10, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 220, page 13, line 13, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 221, page 13, line 16, leave out subsection (1)(d).

Amendment 222, page 13, line 20, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 223, page 13, line 22, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 224, page 13, line 24, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 225, page 13, line 27, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 226, page 13, line 3, leave out subsection (2)(d).

Amendment 227, page 13, line 35, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 228, page 13, line 37, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 229, page 13, line 39, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 230, page 13, line 42, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 231, page 13, line 45, leave out subsection (3)(d).

Amendment 232, page 14, line 5, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 233, page 14, line 8, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 234, page 14, leave out lines 11 and 12.

Amendment 235, page 14, line 13, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 312, in clause 18, page 14, line 22, leave out paragraph (c).

See amendment 313.

Amendment 313, page 14, line 24, at end insert—

‘(2A) A warrant may be considered necessary as mentioned in subsection (2)(b) and (3) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed.”

These amendments would require that there is reasonable suspicion of serious crime for a warrant authorising interception and delete the separate subsection relating to economic well-being of the UK.

Amendment 236, page 14, line 30, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 237, page 14, line 31, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 262, page 14, line 38, at end insert—

‘(6) The fact that the information which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary on grounds falling within this section.”

This amendment restricts the application of warrants in relation to trade union activity.

Amendment 238, page 14, line 39, leave out clause 19.

Amendment 208, in clause 21, page 17, line 4, leave out

“review the person’s conclusions as to the following matters”

and insert “determine”.

Amendment 209, page 17, line 10, leave out subsection (2).

Government manuscript amendment 497.

Amendment 265, page 17, line 10, leave out from “must” to end of line 11, and insert

“subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.

An amendment to clarify the role of judicial commissioners. This amendment is an alternative to amendments 208 and 209 (which are a package).

Government manuscript amendment 498.

Amendment 314, in clause 24, page 18, line 39, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 316.

Amendment 315, page 18, line 41, leave out subsection (b) and insert—

“(b) the warrant involves a member of a relevant legislature.”

See amendment 316.

Government amendment 53.

Amendment 316, page 19, line 7, leave out subsection (2) and insert—

“(2) Further to the requirements set out elsewhere in this Part, the Judicial Commissioner may only issue a warrant if—

(a) there are reasonable grounds for believing that an indictable offence has been committed,

(b) there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence at (a),

(c) other proportionate methods of obtaining the material have been tried without success or have not been tried because it appeared that they were bound to fail,

(d) it is in the public interest having regard to the democratic interest in the confidentiality of correspondence with members of a relevant legislature.”

These amendments would ensure that applications for warrants to intercept the communications of elected politicians would be made to the Judicial Commissioner rather than to the Secretary of State via the Prime Minister. They would also set out additional requirements that the Judicial Commissioner must take into account before granting a warrant.

Amendment 1, page 19, line 8, at end insert

“and where the member is a member of the House of Commons he must also consult the Speaker of the House of Commons.”

This amendment would require the Secretary of State to consult the Speaker before deciding to issue a warrant that applied to an MP’s communications.

Amendment 137, page 19, line 8, after “Minister” insert

“and give sufficient notice to the relevant Presiding Officer of the relevant legislature to enable the relevant Presiding Officer to be heard at the hearing before the Judicial Commissioner.”

Amendment 138, page 19, line 14, at end insert—

“(4) In this section “the relevant Presiding Officer” means—

(a) the Speaker of the House of Commons,

(b) the Lord Speaker of the House of Lords,

(c) the Presiding Officer of the Scottish Parliament,

(d) the Presiding Officer of the National Assembly for Wales,

(e) the Speaker of the Northern Ireland Assembly,

(f) the President of the European Parliament.”

This amendment adds the safeguard of giving the Speaker, or other Presiding Officer, of the relevant legislature, sufficient notice before the Secretary of State decides whether to issue a warrant for targeted interception or examination of members’ communications, to enable the Speaker or Presiding Officer to be heard at the hearing before the Judicial Commissioner.

Amendment 139, in clause 25, page 19, line 16, leave out subsections (1) to (3).

This amendment removes the power to apply for a warrant the purpose of which is to authorise the interception, or selection for examination, of items subject to legal privilege.

Amendment 140, page 19, line 44, leave out subsection (4)(c).

See amendment 141.

Amendment 141, page 20, line 7, after “considers” insert—

“(a) that there are exceptional and compelling circumstances that make it necessary to authorise the interception, or (in the case of a targeted examination warrant) the selection for examination, of items subject to legal privilege, and

(b) ”.

These amendments introduce a threshold test for the interception or examination of communications likely to include items subject to legal privilege, reflecting the strong presumption against interference with lawyer-client confidentiality.

Amendment 307, in clause 27, page 21, line 7, leave out “or organisation”.

See amendment 267.

Amendment 308, page 21, line 8, leave out “or organisation”.

See amendment 267.

Amendment 309, page 21, line 13, leave out

“or describe as many of those persons as is reasonably practicable to name or describe”

and insert

“or specifically identify all of those persons using unique identifiers.”

See amendment 267.

Amendment 310, page 21, line 15, leave out “or organisation”.

See amendment 267.

Amendment 311, page 21, line 19, leave out

“or describe as many of those persons or organisations or as many of those sets of premises, as it is reasonably practicable to name or describe”

and insert

“all of those persons or sets of premises.”

See amendment 267.

Amendment 19, in clause 29, page 22, line 25, leave out

“before the end of the relevant”

and insert “during the renewal”.

See amendment 20.

Amendment 20, page 23, line 4, at end insert—

“(4A) ‘The renewal period’ means—

(a) in the case of an urgent warrant which has not been renewed, the relevant period;

(b) in any other case, the period of 30 days ending with the relevant period.”

On behalf of the Intelligence and Security Committee of Parliament, to prohibit the possibility of a warrant being renewed immediately. Clauses 28 and 29 would currently theoretically allow for warrants of 12 months duration rather than the intended six.

Amendment 21, page 23, line 16, at end insert—

“(8A) In this section ‘urgent warrant’ has the same meaning as in section 28.”

See amendment 20.

Amendment 147, page 23, line 19, leave out clause 30.

Government amendments 54 to 57.

Amendment 142, in clause 30, page 24, line 45, at end insert—

“(10A) Section 21 (Approval of warrants by Judicial Commissioners) applies 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 it applies in relation to a decision to issue a warrant; and accordingly where section 21 applies a Judicial Commissioner must approve the modification.”

This amendment seeks to ensure that major modifications of warrants require judicial approval.

Government amendment 58.

Amendment 148, page 25, line 22, leave out clause 31.

Government amendments 59 to 73.

Amendment 317, page 34, line 21, leave out clause 44.

This amendment would delete a Clause which permits the creation of additional interception powers immigration detention facilities.

Amendment 15, in clause 45, page 34, line 42, leave out “C” and insert “D”.

Consequential upon amendment 16.

Amendment 16, page 35, line 7, at end insert—

“(3A) Condition C is that the interception is carried out for the purpose of obtaining information about the communications of an individual who, both the interceptor and the person making the request have reasonable grounds for believing, is outside the United Kingdom.”

On behalf of the Intelligence and Security Committee of Parliament, to reinstate the current safeguard in RIPA that the person being intercepted must be outside the UK.

Amendment 17, page 35, line 8, leave out “C” and insert “D”.

Consequential upon amendment 16.

Government amendments 75 to 77.

Amendment 299, 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.”

An amendment to introduce a public interest defence for interception disclosures.

Government amendment 74.

Government new clause 11—Persons who may make modifications under section 104.

Government new clause 12—Further provision about modifications under section 104.

Government new clause 13—Notification of modifications.

New clause 23—Members of Parliament—

“(1) This section applies where—

(a) an application is made to the Judicial Commissioner for a targeted equipment interference warrant, and

(b) the warrant relates to a member of a relevant legislature.

(2) This section also applies where—

(a) an application is made to the Judicial Commissioner for a targeted examination warrant, and

(b) the warrant relates to a member of a relevant legislature.

(3) Where any conduct under this Part is likely to cover material described above, the application must contain—

(a) a statement that the conduct will cover or is likely to cover such material,

(b) An assessment of how likely it is that the material is likely to cover such material.

(4) Further to the requirements set out elsewhere in this part, the Judicial Commissioner may only issue a warrant if—

(a) there are reasonable grounds for believing that an indictable offence has been committed, and

(b) there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence at (a), and

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

(d) it is in the public interest having regard to:

(i) the public interest in the protection of privacy and the integrity of personal data,

(ii) the public interest in the integrity of communications systems and computer networks, and,

(iii) the democratic interest in the confidentiality of correspondence with members of a relevant legislature.”

This new clause would ensure that applications for a targeted equipment interference warrant or targeted examination warrant in relation to Parliamentarians are granted on application only to a Judicial Commissioner, removing the role of Secretary of State and applies additional safeguards to the correspondence of parliamentarians when a warrant for hacking is sought.

New clause 24—Audit trail of equipment interference—

“Any conduct authorised under a warrant issued under this Part must be conducted in a verifiable manner, so as to produce a chronological record of documentary evidence detailing the sequence of activities (referred to hereafter as ‘the audit trail’).”

See amendment 387.

Amendment 178, in clause 90, page 68, line 24, leave out subsection (1)(b).

See amendment 186.

Amendment 133, page 68, line 26, after “activity” insert

“where each person is named or otherwise identified”.

See amendment 131.

Amendment 134, page 68, line 29, after “operation” insert

“where each person is named or otherwise identified”.

See amendment 131.

Amendment 179, page 68, line 31, leave out subsection (1)(e).

See amendment 186.

Amendment 180, page 68, line 33, leave out subsection (1)(f).

See amendment 186.

Amendment 181, page 68, line 35, leave out subsection (1)(g).

See amendment 186.

Amendment 182, page 68, line 38, leave out subsection (1)(h).

See amendment 186.

Amendment 187, page 68, line 40, at end insert—

“(1A) A targeted equipment interference warrant may only be issued in relation to any of the matters that fall under subsection (1) if the persons, equipment, or location to which the warrant relates are named or specifically identified using a unique identifier.”

This amendment would ensure that all targets of hacking are properly named or otherwise identified.

Amendment 352, page 68, line 44, leave out paragraph (b).

See amendment 357.

Amendment 135, page 68, line 45, after “activity” insert

“where each person is named or otherwise identified”.

See amendment 131.

Amendment 136, page 68, line 47, after “operation” insert

“where each person is named or otherwise identified”.

See amendment 131.

Amendment 353, page 69, line 1, leave out paragraph (d).

See amendment 357.

Amendment 354, page 69, line 3, leave out paragraph (e).

See amendment 357.

Amendment 188, page 69, line 4, at end insert—

“(2A) A targeted examination warrant may only be issued in relation to any of the matters that fall under subsection (2) if the persons, equipment, or location to which the warrant relates are named or specifically identified using a unique identifier.”

This amendment would ensure that all targets of hacking are properly named or specifically identified.

Amendment 239, in clause 91, page 69, line 9, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 240, page 69, line 11, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 241, page 69, line 14, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 242, page 69, line 17, leave out subsection (3)(d).

Amendment 358, page 69, line 17, leave out paragraph (d) and insert—

“(d) the Judicial Commissioner has reasonable grounds for believing that the material sought is likely to be of substantial value to the investigation or operation to which the warrant relates.”

See amendment 361.

Amendment 243, page 69, line 20, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 244, page 69, line 22, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 245, page 69, line 24, leave out “and”.

Amendment 246, page 69, line 25, leave out subsection (2)(b).

Amendment 247, page 69, line 31, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 248, page 69, line 33, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 249, page 69, line 35, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 250, page 69, line 38, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 251, page 69, line 43, leave out subsection (3)(d).

Amendment 252, page 69, line 46, leave out subsection (4).

Amendment 359, page 70, line 8, after “crime” insert

“where there is reasonable suspicion that a serious criminal offence has been or is likely to be committed”.

See amendment 361.

Amendment 360, page 70, line 11, at end insert—

‘(5A) A warrant may be considered necessary only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed in relation to the grounds falling within this section.”

See amendment 361.

Amendment 361, page 70, line 25, at end insert—

“(10) A warrant may only authorise targeted equipment interference or targeted examination as far as the conduct authorised relates—

(a) to the offence as specified under (5)(b), or

(b) to some other indictable offence which is connected with or similar to the offence as specified under (5)(b)”.

These amendments would require that there is reasonable suspicion of serious crime for a warrant authorising equipment interference to be issued. These amendments would introduce a requirement that warrants are only granted where there are reasonable grounds for believing material to be obtained will be of substantial value to the investigation or operation; the requirement of a threshold of reasonable suspicion that a serious criminal offence has been committed in order for a warrant to be granted; and the requirement that warrant applications contain this information. This amendment would require that a warrant only authorises conduct in relation to the offence for which the warrant was sought, or other similar offences.

Amendment 258, page 70, line 26, leave out Clause 92.

Amendment 253, in clause 93, page 71, line 21, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 254, page 71, line 23, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 255, page 71, line 25, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 256, page 71, line 28, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 257, page 71, line 31, leave out subsection (1)(d).

Amendment 382, page 71, line 31, leave out subsection (d) and insert—

“(d) the Judicial Commissioner has reasonable grounds for believing that the material sought is likely to be of substantial value to the investigation or operation to which the warrant relates.”

See amendment 362.

Amendment 362, page 71, line 35, leave out from “include” to the end of line 36 and insert—

“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and

(b) the requirement that a “Cyber-Security Impact Assessment” has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—

(i) the risk of collateral interference and intrusion, and

(ii) the risk to the integrity of communications systems and computer networks, and

the risk to public cybersecurity.”

These amendments require a technical assessment of proportionality accounting for the risks of the conduct proposed. These requirements would apply when applications from the intelligence services, the Chief of Defence Intelligence and law enforcement are considered. These amendments would introduce a requirement that warrants are only granted where there are reasonable grounds for believing material to be obtained will be of substantial value to the investigation or operation; the requirement of a threshold of reasonable suspicion that a serious criminal offence has been committed in order for a warrant to be granted; and the requirement that warrant applications contain this information.

Amendment 363, page 71, line 40, leave out Clause 94.

Government amendments 88 to 91.

Amendment 259, page 72, line 18, leave out Clause 95.

Amendment 364, in clause 96, page 72, line 37, leave out

“law enforcement chief described in Part 1 or 2 of the table in Schedule 6”

and insert “Judicial Commissioner”.

See amendment 383.

Amendment 365, page 72, line 38, leave out

“person who is an appropriate law enforcement officer in relation to the chief”

and insert

“law enforcement chief described in Part 1 of the table in Schedule 6”.

See amendment 383.

Amendment 366, page 72, line 41, leave out “law enforcement chief” and insert “Judicial Commissioner”.

See amendment 383.

Amendment 367, page 73, line 1, leave out “law enforcement chief” and insert “Judicial Commissioner”.

See amendment 383.

Amendment 368, page 73, line 4, leave out “law enforcement chief” and insert “Judicial Commissioner”.

See amendment 383.

Amendment 369, page 73, line 7, leave out paragraph (d).

See amendment 383.

Amendment 370, page 73, line 10, leave out

“law enforcement chief described in Part 1 of the table in Schedule 6”

and insert “Judicial Commissioner”.

See amendment 383.

Amendment 371, page 73, line 11, leave out

“person who is an appropriate law enforcement officer in relation to the chief”

and insert

“law enforcement chief described in Part 1 of the table in Schedule 6”

See amendment 383.

Amendment 372, page 73, line 13, leave out “law enforcement chief” and insert “Judicial Commissioner”.

See amendment 383.

Amendment 373, page 73, line 17, leave out “law enforcement chief” and insert “Judicial Commissioner”.

See amendment 383.

Amendment 374, page 73, line 20, leave out “law enforcement chief” and insert “Judicial Commissioner”.

See amendment 383.

Amendment 375, page 73, line 23, leave out paragraph (d).

See amendment 383.

Amendment 376, page 73, line 26, leave out subsection (3).

See amendment 383.

Amendment 261, page 73, line 26, leave out “law enforcement chief” and insert “Judicial Commissioner”.

Amendment 377, page 73, line 32, leave out paragraphs (b) and (c).

Amendment 378, page 73, line 38, after “Where” insert

“an application for an equipment interference warrant is made by a law enforcement chief and”.

See amendment 383.

Amendment 379, page 73, line 42, leave out subsections (6) to (10).

See amendment 383.

Government amendment 92.

Amendment 380, page 74, line 15, leave out

“whether what is sought to be achieved by the warrant could reasonably be achieved by other means”

and insert—

“(a) the requirement that other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail, and

(b) the requirement that a “Cyber-Security Impact Assessment” has been conducted by the Investigatory Powers Commissioner’s technical advisors with regard to the specific equipment interference proposed, accounting for—

(i) the risk of collateral interference and intrusion, and

(ii) the risk to the integrity of communications systems and computer networks, and

the risk to public cybersecurity.”

See amendment 383.

Amendment 381, in clause 96, page 74, line 18, leave out subsections (12) and (13)

See amendment 383.

Amendment 210, in clause 97, page 74, line 40, leave out

“review the person’s conclusions as to the following matters”

and insert “determine”.

Amendment 211, page 75, line 1, leave out subsection (2).

Amendment 270, page 75, line 1, leave out from “must” to end of line 2, and insert

“subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.

An amendment to clarify the role of judicial commissioners. This amendment is an alternative to amendments 210 and 211 (which are a package).

Amendment 183, in clause 101, page 78, leave out lines 21 to 27.

See amendment 186.

Amendment 184, page 79, leave out lines 3 to 7.

See amendment 186.

Amendment 185, page 79, leave out lines 8 to 12.

See amendment 186.

Amendment 186, page 79, leave out lines 13 to 18.

These amendments refine the matters to which targeted equipment interference warrants may relate by removing vague and overly broad categories including equipment interference for training purposes.

Amendment 386, page 79, line 21, leave out paragraph (b) and insert—

“(b) precisely and explicitly the method and extent of the proposed intrusion and measures taken to minimise access to irrelevant and immaterial information, and

(c) in a separate “Cyber-Security Impact Assessment”,

(i) the risk of collateral interference and intrusion, and

(ii) the risk to the integrity of communications systems and computer networks, and

(iii) the risk to public cybersecurity, and how those risks and damage will be eliminated or corrected.”

See amendment 387.

Amendment 387, page 79, line 23, at end insert—

“(c) the basis for the suspicion that the target is connected to a serious crime or a specific threat to national security, and

(d) in declaration with supporting evidence,

(i) the high probability that evidence of the serious crime or specific threat to national security will be obtained by the operation authorised, and

(ii) how all less intrusive methods of obtaining the information sought have been exhausted or would be futile.”

These amendments require a technical assessment of proportionality accounting for the risks of the conduct proposed. These requirements would apply when applications from the intelligence services, the Chief of Defence Intelligence and law enforcement are considered. They would introduce a requirement that all equipment interference produces a verifiable audit trail. These amendments would introduce a requirement that warrants are only granted where there are reasonable grounds for believing material to be obtained will be of substantial value to the investigation or operation; the requirement of a threshold of reasonable suspicion that a serious criminal offence has been committed in order for a warrant to be granted; and the requirement that warrant applications contain this information.

Amendment 355, page 79, leave out lines 31 to 36.

See amendment 357.

Amendment 356, page 79, leave out lines 37 to 44.

See amendment 357.

Amendment 357, page 80, leave out lines 8 to 12.

These amendments would ensure that all targets of hacking are properly named or specifically identified. Warrants may still be granted where the equipment in question belongs to or is in the possession of an individual or more than one person where the warrant is for the purpose of a single investigation or operation; or for equipment in a particular location or equipment in more than one location where for the purpose of a single investigation or operation.

Amendment 388, in clause 102, page 80, line 23, leave out “6” and insert “1”.

This specifies that hacking warrants may only last for one month.

Government amendments 93 to 96.

Amendment 149, page 82, line 1, leave out clause 104.

Government amendments 97 to 100.

Amendment 150, page 83, line 36, leave out clause 105.

Government amendments 101 to 113.

Amendment 151, page 84, line 34, leave out clause 106.

Government amendments 114 to 120.

Amendment 152, page 85, line 40, leave out clause 107.

Amendment 173, page 87, line 26, leave out clause 109.

Amendment 174, page 88, line 7, leave out clause 110.

Government amendments 121 and 122.

Amendment 175, page 88, line 35, leave out clause 111.

Amendment 176, in clause 114, page 92, line 6, leave out subsection (3)(e).

Amendment 177, page 92, line 8, leave out subsection (3)(f).

Government amendment 123.

Amendment 302, in clause 116, page 93, line 39, 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.”

An amendment to introduce a public interest defence for equipment interference disclosures.

Government amendment 124.

Amendment 383, in schedule 6, page 214, line 7, leave out part 2.

These amendments remove the power for law enforcement chiefs to issue equipment interference warrants on application from law enforcement officers and replace it with the power for Judicial Commissioners to issue equipment interference warrants on application from law enforcement chiefs. They also remove the power to issue equipment interference warrants from other officers listed in Part 2, Schedule 6. These amendments require a technical assessment of proportionality accounting for the risks of the conduct proposed. These requirements would apply when applications from the intelligence services, the Chief of Defence Intelligence and law enforcement are considered.

Government amendments 125 and 126.

Government new clause 10.

Amendment 488, page 167, line 9, leave out clause 216.

This amendment would remove the provision for national security notices.

Government amendment 78.

Amendment 196, in clause 216, page 167, line 14, after “State”, insert

“and Investigatory Powers Commissioner consider”.

See amendment 205.

Amendment 197, page 167, line 32, after “State”, insert

“and Investigatory Powers Commissioner”.

See amendment 205.

Government amendment 79.

Amendment 489, page 167, line 35, leave out clause 217.

This amendment would remove the provision for technical capability notices.

Government amendments 80 and 81.

Amendment 198, page 168, line 9 [Clause 217], after “State”, insert “and Investigatory Powers Commissioner consider”.

See amendment 205.

Government amendment 82.

Amendment 199, page 168, line 27 [Clause 217], after “State”, insert “and Investigatory Powers Commissioner”.

See amendment 205.

Government amendment 83.

Amendment 200, page 168, line 36 [Clause 217], after “State”, insert “and Investigatory Powers Commissioner”.

See amendment 205.

Amendment 201, page 168, line 40 [Clause 217], after “State”, insert “and Investigatory Powers Commissioner”.

See amendment 205.

Government amendments 84 and 85.

Amendment 490, page 169, line 2, leave out clause 218.

Consequential amendment following deletion of national security and technical capability notices.

Amendment 202, page 169, line 6 [Clause 218], after “State”, insert “and Investigatory Powers Commissioner”.

See amendment 205.

Amendment 203, page 169, line 8 [Clause 218], after “State”, insert “and Investigatory Powers Commissioner”.

See amendment 205.

Government amendment 86.

Amendment 204, page 169, line 20 [Clause 218], after “State”, insert “and Investigatory Powers Commissioner”.

See amendment 205.

Amendment 205, page 169, line 34 [Clause 218], after “State”, insert “and Investigatory Powers Commissioner”.

National Security and Technical Capability Notices should be subject to a double lock authorisation by the Secretary of State and the Investigatory Powers Commissioner.

Government amendment 87.

Amendment 491, page 170, line 10, leave out clause 219.

Consequential amendment following deletion of national security and technical capability notices.

Amendment 492, page 170, line 38, leave out clause 220.

Consequential amendment following deletion of national security and technical capability notices.

--- Later in debate ---

[The Solicitor General]

It is a pleasure to deal with the second group of amendments. It is a large group, which some hon. Members have described to me as “unprecedented”. I would not be so bold as to say that, having served a mere six years in this place. I concede, however, that the group is considerable. That perhaps reflects the huge and legitimate interest of Members of all parties in these particular parts of the Bill.

Parts 2 and 5 of the Bill were debated at length in Public Bill Committee. The Government have listened to what was said in those debates and we have brought back a number of amendments in response. These changes will strengthen protections for parliamentarians; enhance the safeguards for targeted thematic warrants; and provide greater assurances in respect of the obligations that might be placed on communications service providers.

Before I come on to the detail of the Government amendments, let me say a few words about one of the most important issues that we will discuss in this group: the authorisation of warrants.

When the Government published the draft Bill in November last year, my right hon. Friend the Home Secretary announced the intention that warrants for the most sensitive powers available to the security and intelligence agencies would be authorised by the Secretary of State and approved by a senior independent judge. This would maintain democratic accountability and introduce a new element of judicial independence into the warrant authorising process. This double lock represents the most significant change in our lifetimes to the way in which the security and intelligence agencies exercise their vital powers. This is ground-breaking, innovative and important in striking a balance between the public interest in protecting our citizens and the interests of privacy. There is a range of views in the House on the question of authorisations, and I am sure that we will have a productive and weighty debate on these matters this evening.

The amendments tabled by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) seek to remove the reference to judicial review principles. The House will be aware that the Joint Committee that considered the draft Bill said that it was “satisfied” with the wording of the Bill and that judicial review principles would

“afford the Judicial Commissioner a degree of flexibility.”

That flexibility is important. It provides that judicial commissioners can undertake detailed scrutiny of decisions where appropriate, but it does not oblige judges to undertake forensic scrutiny of even the most straightforward warrants, because to do so would be unnecessary and would threaten the operational agility of the security and intelligence agencies.

In our debate on the first group of amendments, we had a mini-debate—we might have strayed slightly off piste—on the language that should be used in relation to the scrutiny that we want the judicial commissioners to deploy when considering their part in the double-lock mechanism. However, I believe that the manuscript amendment provides precisely the assurance that Opposition Members were seeking in Committee and in subsequent correspondence, and I am grateful to the hon. and learned Member for Holborn and St Pancras and other Opposition Members for agreeing to it. I am also grateful to the right hon. Member for Leigh (Andy Burnham) for his involvement in these important matters. I believe that we now have an amendment that will satisfy the concerns of all hon. Members and provide the robust safeguard that we were all looking for. The wording that the parliamentary draftsmen have come up with ties in the privacy provision that we debated in the last group of amendments and puts this matter right at the heart of the Bill. We now have a robust double lock that will maintain the important distinction between the Executive and the judiciary. As I have said, this is truly ground-breaking.

I shall speak to the other Government amendments as quickly as I can, to ensure that other hon. Members can be accommodated in the debate. New clauses 9 and 13 will deliver on our commitment to strengthen the safeguards around so-called thematic warrants—that is, those targeted warrants that apply to a group of suspects rather than to an individual. They will introduce a new requirement that major modifications to warrants—adding the name of a gang member, for example—must be notified to a judicial commissioner as well as to the Secretary of State.

Amendments 97 and 54 will strictly limit the operation of modifications, making it clear that a warrant targeted at a single suspect cannot be modified to expand its scope to target several suspects. This builds on the assurances that I gave in Committee, and the provision will now be on the face of the Bill, should the amendments be accepted. New clauses 8 and 12 make it clear that modifications that engage the Wilson doctrine or legal professional privilege should be subject to the full double-lock authorisation.

[Robert Neill (Bromley and Chislehurst) (Con)]

I am grateful to the Solicitor General for recognising the importance not only of the Wilson doctrine but of legal professional privilege. Would he accept that Government new clause 5 ought to be capable of embracing legal professional privilege within the overarching public interest in protecting privacy? Will he also continue to work with the Bar Council and the Law Society to ensure that we monitor the practical application of the protection of legal privilege in these matters?

[The Solicitor General]

I am extremely grateful to the Chairman of the Justice Committee, who speaks with knowledge and experience on such matters. He will be glad to know that Bar Council representatives, whom I recently met, have kindly undertaken to come up with further proposals by which the issues that took up so much time in Committee might be resolved. I will be meeting representatives of the Law Society this very week. It is perhaps a little unfortunate that those particular proposals were not crystallised prior to today’s debate, but there will of course be more time. If clear proposals come forward—I am sure that they will—they can be subject to full, proper scrutiny in the other place.

[Mr David Davis]

Bluntly, I ask my hon. and learned Friend to ensure that proposals come forward whether or not the Law Society comes up with any. The erosion of legal professional privilege without any recourse to this House is the single biggest erosion of liberty in this country over the past decade and a half. If the Bill is to meet its requirements, it is vital that such reforms are found.

--- Later in debate ---

[The Solicitor General]

My right hon. Friend speaks with passion and sincere conviction on such matters. He will be glad to know that, unlike in RIPA 2000, legal professional privilege is on the face of the Bill, which is a significant improvement over previous legislation. I reassure him that the provisions in the Bill that already embrace the importance of legal professional privilege have in large measure been warmly welcomed. The question is one of getting the detail right with particular regard to those occurrences, albeit rare, when the iniquity exemption—when people are pursuing a crime, which is not covered by legal professional privilege—applies and which might come under the purview of any warrantry that is sought under the Bill’s provisions.

However, I am certainly not leaving the proposals to other agencies. I am working as hard as I can with expert bodies that have great interest and knowledge and, like my right hon. Friend, recognise the overwhelming public importance of the preservation of legal professional privilege. I am glad to say that that dialogue will continue and will allow for meaningful scrutiny and debate in the other place.

Turning to the Wilson doctrine, clause 24 of the Bill currently requires the Prime Minister to be consulted before a targeted interception or targeted examination warrant can be issued in respect of such communications. Amendments 53 and 90 will strengthen that by making it clear that the Prime Minister must agree to the interception of the parliamentarian’s communications, rather than simply be consulted.

[Sir Edward Leigh (Gainsborough) (Con)]

Has my hon. and learned Friend noticed my amendment 1, in which I introduce the extra safeguard that the Speaker should be consulted?

[The Solicitor General]

My hon. Friend has tabled that amendment in the spirit of his speech on Second Reading, which referred to the role of the Speaker. I look forward to hearing any argument that he pursues on this matter. While I can see the merit in seeking to protect the privileges of parliamentarians through the office of the Speaker, my concern is that involving the Speaker in approving a particular warrantry process or not puts us at risk of confusing Executive action with the roles of this place and of the Speaker in terms of the legislature.

The Prime Minister will be accountable to hon. Members for any decision that he or she may take on warrantry through the normal process of questions, statements or being summoned to this House following an urgent question. The procedure in relation to any decision that the Speaker might make is more difficult—the mechanism might be a point of order. However, I am unsure whether that sort of challenge to the Chair would sit well with the role of the Speaker and the position of parliamentarians. There are difficulties in involving the Speaker.

[Mr David Davis]

Unfortunately, I am afraid that I can give my hon. and learned Friend evidence of his account of accountability not working. When the case of the hon. Member for Brighton, Pavilion (Caroline Lucas), who is a past, and no doubt future, leader of the Green party, went to the Investigatory Powers Tribunal, the Government lawyer’s stance was that it was not a legally binding constraint on the agencies. When I put that point to the Prime Minister, he was unable to answer. It is normally the case with the Wilson doctrine that the answer comes many years later, so an argument about accountability does not stand up here.

[The Solicitor General]

With respect to my right hon. Friend, I think it does, because we are putting in the Bill the Prime Minister’s role in approving the warrant; what we have for the first time is a very important statutory protection. Again, let us not forget the progress we have made in getting to the position we are in today. A few years ago, some of these conventions and operations were not even avowed, although that is not the case with the Wilson doctrine. Let us pause for a moment to remember what that doctrine is all about, which is making sure that hon. Members can carry out their public functions as office holders in a free and proper way, subject to the same laws as everybody else in this country—equality before the law applies to Members of this place as much as it does to other members of the public. I am sure that debate will be developed as we hear from speakers on this group.

On technical capability notices and national security notices, we have been very clear throughout this process that we will work closely with industry to ensure that the Bill provides the strongest protections to those who may be subject to obligations under this legislation. In Committee, we heard concerns that these notices were not subject to the same strict safeguards as the authorisations of warrants. We have listened to those concerns and responded with new clause 10, which applies the full double lock to the issue of notices under part 9 of the Bill. Following further engagement with industry, we have taken steps to address further concerns, and so amendment 86 will make it clear that national security notices cannot require companies to remove encryption; amendment 87 makes it clear that national security notices will not subject companies to conflicting obligations in law; and amendments 45, 70 to 73 and 122 make it clear that warrants must be served in an appropriate manner to a person who is capable of giving effect to it. That deals with the problems that companies with an international dimension have if these things are served to an inappropriate employee—somebody who does not have the power to deal with the warrant.

We have also tabled a number of minor and technical amendments, many of which respond directly to issues raised by the Opposition and by the SNP in Committee. Others, such as amendments 92 and 126, provide important clarification on issues relating to the Independent Police Complaints Commission and the Police Investigations and Review Commissioner in Scotland.

These important changes reflect this Government’s willingness to listen to suggestions that will improve this vital piece of legislation. My right hon. Friend the Minister for Security will respond to other amendments when winding up. In the meantime, I look forward to another informed and wide-ranging debate.

[Andy Burnham (Leigh) (Lab)]

Labour has taken a responsible and pragmatic approach to this Bill. We have supported the principle of a modern legal framework governing the use of investigatory powers, recognising that as communications have migrated online, the police and security services have lost capability, but equally, we know that much stronger safeguards are needed in law to protect individuals from the abuse of state power. That is the balance we have been trying to achieve.

Following Second Reading, I wrote to the Home Secretary setting out Labour’s seven substantial areas of concern, and I said that unless there was significant movement from the Government in those areas, we would be unable to support moves to put this Bill on the statute book by the December deadline. The group of amendments before us covers three of those seven issues: the double-lock process and the test to be applied by judicial commissioners; the protections for sensitive professions; and the position of trade unions with respect to this Bill. I will discuss each of those issues in turn, but I start by raising an issue that emerged in Committee.

My hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer), the shadow Immigration Minister, identified a potential loophole that allowed warrants to be modified after initial approval without proper scrutiny by judicial commissioners, thereby undermining the double lock. The Government have part-closed this loophole for sensitive professions, but we feel they need to go further and close it for everyone, to ensure that people cannot be added to thematic warrants by modification without the involvement of a judge. I hope that Ministers will listen to that concern and reassure us that they are open to further discussion.

I know that the judicial review test and the double lock have been discussed today, so I will not detain the House long. As Members on both sides of the House know, one of our earliest demands was that there should be independent judicial oversight of the approval of warrants, and we were pleased when the Home Secretary conceded that point some months ago. Labour has always believed that the judicial commissioner must be able to consider the substance of the Home Secretary’s decision to issue a warrant, not just the process. Put simply, it must be a double lock, not a rubber stamp.

My hon. and learned Friend has done painstaking work on this issue in Committee and outside, and we thank in particular the Minister for Security for his willingness to listen to our concerns and for the manuscript amendment tabled today by the Home Secretary. It accepts the spirit of the proposals we tabled in Committee by ensuring that judicial commissioners will have to take into account their duties under the overarching privacy clause when reviewing the Home Secretary’s decision to grant a warrant. Judicial commissioners’ decisions must therefore be taken in line with human rights concerns. They must consider whether the same result could have been achieved by other means, and whether public interest concerns are met. In short, it will require much closer scrutiny of the initial decision of the Home Secretary and, significantly, bring greater clarity than the Government’s initial judicial review test would have done. We believe that that does indeed amount to a real double lock and, I have to say, a real victory for the Opposition. I confirm that we will support the Government’s amendment tonight.

When we talk about protections for sensitive professions —lawyers, journalists and Members of Parliament—it might sound to anyone watching this debate as though we in this House were once again seeking special status for ourselves in the eyes of the law. That is why it is important that I emphasise that these are not special privileges or protections for Members of Parliament, but protections for members of the public. If someone seeks the help of an MP at a constituency advice surgery or of a lawyer, or blows the whistle to a journalist, they should be able to do so with a high degree of confidence that the conversation is confidential.

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[Andy Burnham]

That is a fair point, and the amendment tabled by my right hon. and learned Friend the Member for Camberwell and Peckham seeks to ensure that. Perhaps this is an issue that the Government need to think about. Of course the provisions should apply to Members of the Scottish Parliament, the Welsh Assembly and the Northern Ireland Assembly. The point made by the hon. and learned Member for Edinburgh South West (Joanna Cherry) should be accepted.

On journalists and journalistic sources, we welcome the fact that the Government have moved to put protections originally in the codes underpinning the Bill into the measure itself. We note, however, that the National Union of Journalists believes that wider protections are still needed, and the Government should continue to work with it to get that right.

Finally, on legal privilege there has been the least progress of all. Serious concerns have been expressed by the Bar Council and the Law Society about the fact that the provisions would weaken privacy protections currently enjoyed by lawyers, but those concerns are not adequately reflected in the Bill. It is disappointing that Ministers have yet to meet the legal bodies. [Interruption.] I did not quite hear what the Solicitor General said. I am happy to give way if he wants to clarify the position.

[The Solicitor General]

I have met the Bar Council, and I am meeting the Law Society on Wednesday, so I can assure him that there is engagement.

[Andy Burnham]

My mistake; I did hear the Solicitor General say that he was meeting those bodies this week. It is a little disappointing—I am not making a petty point—as we wish we could have made more progress before this debate. As the right hon. Member for Haltemprice and Howden (Mr Davis) said, this is extremely important, and our debates would be improved if there had been more progress in this area. Nevertheless, it is clear that this is firmly on the Solicitor General’s radar, and the excellent points made by the hon. Member for Bromley and Chislehurst (Robert Neill) show that there is concern in all parts of the House about moving further to get this right. In the absence of acceptable Government amendments, amendments 139 to 141 tabled by my right hon. and learned Friend the Member for Camberwell and Peckham are a step in the right direction. If amendments were forthcoming from the Government, we would certainly support them.

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[Sir Edward Leigh]

I am perfectly happy—I think everyone in this House is—with the proposal that if the Secretary of State for the Home Department wishes to investigate communications with a Member of Parliament, the Prime Minister should always also be consulted. No one objects to that. But who appoints the Home Secretary? The Prime Minister does. They are both politicians—by their very nature, they are political animals—and members of the Executive. I have to ask my hon. Friends to look beyond the present situation; they may indeed have the utmost confidence in the present Secretary of State for the Home Department and the present Prime Minister, but they should always separate their view of those currently on the Front Bench from what might happen in the future.

All I am asking is that if the Government are taking the extreme step of intercepting communications between constituents and Members of Parliament, someone entirely non-political, namely the Speaker, should also be consulted. This is the point: he is no mere presiding officer. We do not call him “the presiding officer”, as is the case in other Assemblies and Parliaments. He is the upholder of order and the defender of the House’s privileges and immunities. I am absolutely not suggesting that he should be dragged into politics. But there is already a precedent. Have we not involved the Speaker very recently in consideration of whether amendments should be separately considered under English votes for English laws? Nobody—certainly not the Government—has suggested that that is dragging the Speaker into politics.

I am a member of the Procedure Committee, and we examined this issue in great detail. The system—I am not defending EVEL as that is not the subject of today’s debate—seems to be working fairly well. Nobody is calling the Speaker to order or complaining about his decision, but there is in a sense a double lock that seems to work quite well.

[The Solicitor General]

My hon. Friend makes a proper point about the Speaker’s role in English votes for English laws, and there are other certification procedures that he, I, and others know about. There is a difference, however, because that relates to the legislative process in this House, and it deals precisely with the point about exclusive cognisance and the privileges of this House in dealing with its own rules and regulations. There is therefore a difference between the points that my hon. Friend raises and involvement in an Executive decision.

[Sir Edward Leigh]

There may be a difference, but I do not think it is a substantive one. [Interruption.] I am delighted that you are now sitting in the Chair, Mr Speaker, because I am talking about you, which I know you always enjoy me doing.

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[Ms Harman]

Because the Prime Minister is the Executive, and we need the separation of powers and the balance of powers. I disagreed with the hon. Member for Gainsborough when he was talking about what a great guy the Prime Minister is, so it is not a problem with him, but it might be with the next one. I am on my fifth Prime Minister now and they all have something in common: they regard being held to account as a bit of a nuisance. They do not welcome scrutiny—it is just the nature of the beast. We have to take that into account and accept the fact that, for the rule of law, we have to protect lawyers; for freedom of speech and expression, we have to protect journalism; and for holding the Executive to account, we must protect our rights in this House.

[The Solicitor General]

I am grateful to one of my predecessors for allowing me to intervene. What if, in a hearing, the Speaker agreed with the application and said, “Yes, go ahead—apply for the warrant. We don’t have any objection to it.”? How would a Member of Parliament hold the Speaker to account for a decision that affected them?

[Ms Harman]

The point is that the system has accountability for the Home Secretary for issuing the warrant through the judicial commissioner. We are talking about additional protection by way of the Speaker. The Speaker would not be supporting an application; the Speaker would simply be notified, and if they had no objection, it would go through and they would have nothing to do with it—but the Speaker would have knowledge. That is true: the Speaker would have knowledge of it.

In a difficult situation, how do we make sure that we do not put all our rights as a legislature into the hands of the Executive? I appreciate that the Government have tried to work out ways to strengthen the safeguards, but the issue is not just the strength of the safeguards; it is the appropriateness of them. The Prime Minister is not an appropriate safeguard to protect the rights of us in this House to hold him to account. I simply ask the Government to look again.

I congratulate the Government, the Labour and SNP Front Benchers and Back Benchers for working constructively on this. Ultimately, we all want the same thing: we want to be able to walk the streets safely and sleep safely in our beds, but not have the Executive tempted to abuse their power.

[Mr Grieve]

It is a pleasure to follow the right hon. and learned Member for Camberwell and Peckham (Ms Harman). I shall resist being dragged away from the specific issues on which the ISC has tabled amendments. However, the Government have moved substantially on some key issues, providing greater protection, for which we should be grateful. On the point made by the right hon. and learned Lady, I confess that I find the idea that the Speaker could provide the necessary safeguard, when one looks at the surrounding circumstances, difficult to follow. Ultimately, the double-lock mechanism provides far greater protection. We have to accept that there are scrutiny and oversight mechanisms in place that mean that if this became a common issue, it would surface properly in our system, with both the Interception of Communications Commissioner and, ultimately, the ISC.

I understand the problem that the right hon. and learned Lady has raised. I am not unsympathetic to her anxieties, which have also been expressed by my hon. Friend the Member for Stevenage (Stephen McPartland). However, I do not see how the mechanism that has been proposed and which involves the Speaker would, in practice, provide the safeguard that the right hon. and learned Lady seeks.

Amendment 25 was tabled by members of the ISC and deals with thematic warrants, on which there has been quite a lot of discussion. I have absolutely no doubt that thematic warrants have the potential to intrude into the privacy of a great many people. In the ISC report on the draft Bill, we recommended that that greater intrusion should be balanced and constrained, and suggested that those warrants should be limited in duration to the period for which they could be authorised. We then took considerably more evidence from the agencies on thematic warrants, and they argued persuasively that if thematic warrants were issued for a shorter time, there would not be sufficient time for the operational benefits of the warrant to become apparent before they had to apply for it to be renewed. We recognised that the Secretary of State and the commissioner would therefore have insufficient information on which to assess necessity and proportionality.

We therefore accept that limiting the duration of a thematic warrant is not the most effective way to constrain it. Nevertheless, we remain of the view that clause 15 as currently worded is a very extensive power indeed. Subsection (2) makes it clear that a targeted interception warrant is turned into a thematic warrant if it can relate to

“a group of persons who share a common purpose or who carry on, or may carry on, a particular activity”.

Giving that its ordinary English meaning, it immediately becomes apparent that the scope is potentially enormous. However, I want to make it quite clear that we have not seen any examples of that power being misused in any way, which presents the House with a challenge. To try to meet that challenge, the Committee’s suggestion, after reflection, is that it might be possible to include an additional constraint by removing the word “or” and adding “and” after the words, “sharing a common purpose”, to try to narrow the scope of the provision. That is why amendment 25 was phrased in that way.

Since then, as often happens in dialogue between the Committee and the agencies, we have received further information. I saw persuasive information this morning that suggested that if we adopted that approach, it would have the unintended consequence of making perfectly legitimate operations by the agencies impossible, and would place a great burden on them, because the use of a straight, targeted warrant based on the particular person or organisation, or a single set of premises, could not meet the necessity and proportionality test of having to do something further. I tabled this probing amendment in order to contribute to the debate, but I still take the view that there is an issue here that the Government need to consider carefully. It crossed my mind as I listened to the various submissions that one possible route might be the creation of a protocol to be used by the agencies—one that could be seen by the Intelligence and Security Committee and that would provide reassurance that the wide scope of the wording could not be open to abuse.

The point was perfectly reasonably made to me—I think by the Home Secretary—that the idea that the Interception of Communications Commissioner would tolerate an abuse that went outside the necessity and proportionality test was, in practice, rather unlikely, but the issue cannot simply be ignored. Something more is needed, because on the plain wording of the statute, the scope that “common purpose” and “a particular activity” allow seems excessive. There must be some constraint, and I leave it to the ingenuity and common sense of the Ministers to come up with a solution to this real problem.

[The Solicitor General]

I think my right hon. and learned Friend can see the problem: if we limit the provision too much—to “common purpose”—we might end up being able to deal only with conspiracy-type offences, as opposed to individual ones. We are trying to be very careful as to the wording, and it certainly is not the Government’s intention to do anything by sleight of hand to create a definition that would be unacceptably wide—far from it.

[Mr Grieve]

I am grateful to the Solicitor General, and I have no reason to disagree with his analysis of the way in which this matter has been approached. I also have no reason to disagree with him about the necessity of having thematic warrants in addition to warrants targeted at premises, individuals or organisations, but the question is how that reassurance can be provided. I hope very much that the Government can go away and give this issue some thought. I suspect it will arise in the other place, when these provisions are debated there. It is important, and I think that a solution can be found, but I accept that, although the amendment we have tabled would provide one, it would also place the agencies in difficulty.