Investigatory Powers Bill

Stephen McPartland Excerpts

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

[Mr Howarth]

I have to say to the hon. Gentleman that that is not my experience. The right hon. and learned Member for Beaconsfield, who chairs our Committee, gave a specific example of where someone was unwilling not only to explain themselves but even to engage with the Committee. That is why I support new clause 2, which gives the Intelligence and Security Committee the ability to refer a matter to the commissioner and to at least give them a nudge in the right direction in terms of concerns that need to be looked at.

I do not share the complete pessimism of the hon. and learned Member for Edinburgh South West. The Bill has moved an incredibly long distance since the original draft Bill. There is some way to go, but we may hear further concessions today or tomorrow. However, I would be grateful if the issues I have raised could be addressed by the Minister when he replies.

[Stephen McPartland (Stevenage) (Con)]

I will keep my remarks short, Mr Deputy Speaker, as I appreciate that you want them to be short. I want to speak to new clause 16 and to amendments 189 to 195, but I will group them together.

I welcome new clause 5 because it puts privacy at the heart of the Bill. Although I found the draft Investigatory Powers Bill to be some kind of absolutely Orwellian nightmare that I would never have been able to support, this Bill goes some way towards being something that I would be able to support. It is horrible that we live in a society where this House, as a cross-party organisation, will have to legalise mass surveillance of every man, woman and child in the United Kingdom who has an electronic device, but sadly that is the society we live in, and we have to have a trade-off between what keeps us free from terrorism and what keeps us free in terms of privacy. I appreciate the Government’s efforts in trying to put privacy at the heart of the Bill.

On my new clause and my amendments, I want to look at possibly introducing into the Bill notification of surveillance against innocent people. I have tabled 63 amendments because I know there will be a review before the Bill gets to the upper House. The Government have been incredibly conciliatory and have provided concessions all the way through. I consider both the Ministers on the Front Bench friends, and I have been speaking to them about the Bill for many months—for well over a year, in fact. I have tried to be constructive in my disagreements with them; my amendments are probing amendments—they are there not to cause difficulty but to try to tease out more information.

The Bill fails to provide a viable system of notification of surveillance, particularly for those who have been wrongly surveilled. The current drafting covers only error reporting, and it places a higher importance on public interest—I understand that that is the source of the dispute about whether we should have new clause 5 or new clause 21, in terms of privacy and what is in the public interest. The concepts of public interest and serious error are difficult to define, and that leads to the problem of the judicial commissioners and others having to decide what those concepts are, and whether there are varying degrees of them. I want the Bill to state very clearly what we want them to be, so that we do not have that mission creep.

Adding notification to the Bill through a new clause would go some way towards ensuring that privacy is further enhanced as the backbone of the Bill. To put the issue into context, the countries that permit notification of surveillance include America, Canada, New Zealand, Germany, Belgium, the Netherlands, Austria, Ireland, Switzerland, Slovenia, Montenegro and Hungary, so this is not something that will be specific to the United Kingdom, and we will not be leading the way; we will be trying to catch up with our partners. I appreciate that each of those countries offers a different threshold in terms of how people will be surveilled, but there is no possibility of notification in the Bill at the moment. The Ministers have been very conciliatory, and if they want to intervene on me to say that they will accept my new clause 16, I will happily sit down. No, I didn’t think so. Never mind—we will keep trying.

[Mr John Hayes]

I am not going to surprise my hon. Friend or the House, but he will have noted that the changes we have brought forward to the Bill mean that if a serious error has been identified by the commissioner, the individual concerned will be notified. That is a significant and new provision, which goes some way towards satisfying his desire. Perhaps he can meet me halfway.

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[Stephen McPartland]

I will certainly meet the Minister halfway, because I will not call a vote on my provisions, or vote against him on this aspect of the Bill. Obviously, I would like to get my own way, but I appreciate that this is about compromise, and both Ministers have been very good at compromising over the course of the Bill.

On error reporting and notification, it is worth noting the views expressed in sections 613 to 622 of the report by the Joint Committee on the draft Investigatory Powers Bill. I will not read them all out—you would not like that, Mr Deputy Speaker—but I would like to pull a few highlights out. The report states:

“Clause 171 provides that the Investigatory Powers Commissioner must inform a person about any ‘serious error’ when the Investigatory Powers Tribunal agrees the error is serious”,

and when that is in the public interest. But why would it ever be in the public interest to inform somebody that the error was serious? I cannot imagine that it would ever be in the public interest to do so, so they would never be informed.

The report also noted that the Bingham Centre for the Rule of Law felt that the approach in the draft Bill to error reporting was a matter of profound concern. Similarly, the Interception of Communications Commissioner’s Office believed the provisions in the clause were weaker than the current well-established powers. The requirement that an error should cause significant prejudice or harm was also criticised for setting a very high bar. In addition, the test was criticised by the Law Society of Scotland, Privacy International, the Interception of Communications Commissioner’s Office and Amnesty International UK for being poorly defined.

[Victoria Atkins]

I will be grateful to my hon. Friend if he can answer this question; it may negate the need for me to make a speech on this point. I have looked very carefully at new clause 16 and, indeed, new clause 1, and I cannot find any reference to “error” in them. New clause 16 seems to be a general clause of notification to anyone who is subject to a warrant. Is that correct?

[Stephen McPartland]

I certainly do not take any credit for being good at drafting new clauses. New clause 16 may not mention “error”, but I think it is mentioned in amendments 189 to 195, with which it should be considered. In “A Question of Trust”, David Anderson, QC, recommended that the judicial commissioners be given the power to report errors to individuals. I appreciate that the Minister has moved towards my point of view.

In conclusion, the Joint Committee made two recommendations. The first was that referral to the Investigatory Powers Tribunal was unnecessary and cumbersome and created a brake on the notification of errors. The second was that the error-reporting threshold should be reviewed so that it was more specific and defined.

[Mr Alistair Carmichael]

New clause 1 stands in my name and is supported by Scottish National party Members. It is remarkably similar to new clause 16, to which the hon. Member for Stevenage (Stephen McPartland) has just spoken. He says that his is a probing amendment; I regard mine as more than that, but I shall wait to hear what the Minister has to say when he replies to the debate.

I will preface my remarks on new clause 1 by highlighting some more general concerns. I absolutely agree with the hon. and learned Member for Edinburgh South West (Joanna Cherry) that the way in which today’s proceedings are being conducted is highly unsatisfactory. The time allowed is clearly insufficient. The Government have done themselves no favours, because all they do by insisting on conducting proceedings in this way is throw a bone to those in the other place and allow them to justify the greater degree of scrutiny that they will inevitably give to the Bill. It has already been referred to as a constitutional Bill that countenances the most egregious interference with individual liberty by the state. Such scrutiny ought to be done by this elected Chamber.

The fact that the Government are still taking on board amendments after the draft Bill, the report by David Anderson, QC, and the debate in Committee indicates an unsatisfactory attitude on their part. It shows that they are not yet putting privacy at the heart of the Bill, and that they are being dragged kicking and screaming to that position. On new clauses 5 and 21, it is unsatisfactory that the best provision has been proposed by the hon. and learned Member for Holborn and St Pancras (Keir Starmer), who speaks for the Opposition, and that we will not get to that unless we first vote down an inferior proposal that, while adequate and an improvement, is not as good as that proposed by the official Opposition. I reiterate a point that I made in an intervention on the hon. and learned Member for Edinburgh South West: the Government will still have the opportunity, if they are minded to take it, to insist on their version in the other place at a later stage, but this House should be empowered to express a view on new clause 21, which for reasons of procedure it is not able to do at present.

The thinking behind new clause 1 is that sunlight is the best disinfectant. The question of whether the Government will accept the approach suggested by us and the hon. Member for Stevenage relates to the question of whether privacy is at the heart of the Bill. As things stand, an individual will be able to find out whether they have been the subject of intrusion under the Bill’s powers only through a whistleblower or public interest litigation. It is a question of happenstance. If the Government are sincere and prepared meaningfully to protect our liberties and individual rights, they should not object to a process with all the necessary safeguards, as outlined in new clause 1. There should be no objection to notifying those who have been the subject of surveillance once the surveillance has concluded. As the hon. Gentleman has pointed out, that idea is not novel. It happens in a number of jurisdictions and has already been the subject of judicial approval and, indeed, instruction from the European Court of Human Rights in two cases, namely Klass v. Germany in 1978, and Weber and Saravia v. Germany in 2006.

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There are many more amendments that I would like to speak to, but I am not going to, in recognition of the fact that others deserve time to speak. I would simply say again that the Scottish National party considers the time afforded to debate the many amendments tabled to this serious and far-reaching Bill to be wholly inadequate, and there are many people beyond this Chamber who also take that view.

[Stephen McPartland]

I shall speak to four different sets of amendments. As I said earlier, it is a difficult Bill to support, but I acknowledge the work that Ministers and the Government have done in trying to work with Government Members and Opposition Members to produce a Bill with which we can all begin to start to feel comfortable. I am not a lawyer, but amendments 147 to 152, which stand in my name, are designed to leave out clauses that provide for the modification of warrants. In my view as a non-lawyer, these changes seem, through a major modification, to have the potential to change the key components of a warrant. I wonder at what stage a new warrant should be drafted instead. How far can the warrant be modified before it needs to become a new warrant? The warrant provisions seem to be very wide ranging and very ill defined.

The next set comprises amendments 178 to 186, which try to refine the matters to which targeted equipment interference warrants may relate by removing vague and overly broad categories, including equipment interference for training purposes. People outside this place may not be aware of it, but when we talk about “equipment interference”, we are basically talking about hacking devices that can hack into mobile phones, computers, email systems, or the apps that people use for their banking. “Equipment interference” is a nice way of saying state-authorised hacking, which is what we are talking about here. To me, this is an incredibly intrusive power, permitting real-time surveillance, as well as access to everything we store on our digital devices, from text messages to address books, calendars and emails, along with the websites people visit, which apps they use and how they use them.

The Bill also seems to me to provide for thematic hacking warrants, which amount to general warrants to hack groups or types of individuals in the UK. Hacking is not restricted in the Bill to equipment belonging to, used by or in the possession of particular persons or organisations. Even the director of GCHQ has apparently raised concerns about the breadth of the current definitions, which could apply to the equipment of a hostile foreign intelligence service. We here might say, “So what? So be it. That’s what they’re there for”, but what would we say if those warrants allowed all employees and family members of a particular company or the people who visit a particular religious venue or who live in a particular road to be hacked? Would we still say, “So what? Should we be bothered?” This may sound unlikely, but the draft equipment interference code of practice permits the targeting of people who are “not of intelligence interest”. If that is not carte blanche, I do not know what is, because it is in effect allowing hacking of the equipment of anybody anywhere in the UK or overseas, if the agencies choose to do so.

[Mr Davis Davis]

I am entirely in agreement with my hon. Friend on this. He says that it might not involve hacking a whole street, but it could easily involve hacking two layers of contacts. If I call 100 people, and then the people called by those 100 people are investigated, that would be a very typical intelligence exercise, pursuing the two rings of contacts. That could involve 100,000 people, most of whom have nothing to hide but could become under permanent surveillance by the state.

[Stephen McPartland]

I totally agree with my right hon. Friend’s point. As a Master of Science and Technology, I, of course, have never hacked anything in my life and would never dream of doing so, but it is not a particularly difficult thing to do at the moment. Many people do not appreciate that the measures in the Bill are authorising the state hacking of equipment. Combined with other measures in the Bill, this is not just about hacking the equipment of somebody who may be of particular interest as part of a terrorist organisation; we are talking about every man, woman and child with an electronic device inside the UK. That is where my concerns arise.

[Suella Fernandes (Fareham) (Con)]

I am grateful to the hon. Gentleman for that explanation of his amendment, but surely there are clear limits to the powers relating to equipment interference set out in clause 91. The action needs to be necessary, proportionate and in the interests of national security, so it is really not fair to say that this is a sweeping power to which any man, woman or child could be subjected.

[Stephen McPartland]

I am grateful to my hon. Friend for her intervention, but the reality is that schedule 4 to the Bill will give a range of other organisations the ability to access this power if they choose to do so. For example, the Financial Conduct Authority could do so in circumstances relating to the stability of the markets. A whole variety of organisations will be able to use these powers, not just the intelligence services. Police services up and down the country already use equipment interference to target criminals, for example. A whole range of powers such as these is already being used. I appreciate that the Bill is trying to put them on a statutory footing, and I understand the need to keep people safe, but we have to balance this with resources. Let us remember 9/11 in the United States, when many different agencies and organisations had information but were not sharing it. I believe that we are getting ourselves into a situation in which we will have so much information on so many people that it will be of no value to us whatever. It will be like the internet: you can put anything in, and you get 3,000 pages back.

We need a stronger legal framework if we are going to authorise the state hacking of equipment in the United Kingdom. My amendments 187 and 188 simply seek to ensure that all targets of hacking are properly named or specified. We need a more specific legal framework. Amendments 173 to177 would eliminate the power of the Government to compel third parties to assist in carrying out equipment interference. As the Bill stands, this compelled assistance will not be subject to any judicial authorisation process. The relevant organisations will be able to turn up at a company and say, “We have this warrant, so you now have to help us to hack your devices.” The company will have no choice. Clause 114 contains strict non-disclosure provisions, which are effectively gagging orders that will prevent anyone from being able to say whether they have been involved in such procedures. The Science and Technology Committee documented widespread concerns regarding company compelled hacking and concluded that

“the industry case regarding public fear about ‘equipment interference’ is well founded.”

The draft equipment interference code of practice indicates that no company in the United Kingdom, no matter how small, is exempt from these obligations.

My amendments 196 to 205 are, like the rest, probing amendments to try to get these issues debated and to make people aware of them. They would provide that national security and technical capability notices be subject to a double-lock authorisation by the Secretary of State and the Investigatory Powers Commissioner. I appreciate that new clause 10 and other Government amendments are moving some way towards achieving that, which might make what I am about to say obsolete. I do not fully understand those amendments yet, as I am not a lawyer, as I have said.

My understanding of the Bill as it stood this morning was that only the Secretary of State had the power to authorise a retention notice, a national security notice and a technical capability notice. That was not in keeping with the rest of the Bill, which requires a judicial commissioner to be involved in the review and approval of those areas. Those notices in effect enable the Secretary of State to demand that private companies act as a facilitator, depository and provider of people’s communications. We need independent oversight, and as I have said, the Government have come some way towards establishing that, in new clause 10 and elsewhere. However, technical capability notices will have an impact on UK businesses with 10,000 or more users, in that they will require those companies to build systems to store user data for use by the intelligence agencies, the police and the Home Office. That is what is written into the code of practice.

Looking at the codes of practice, one thing that jumped out at me and which I found very difficult as a Conservative was the fact that the communications service providers—CSPs—will be subject to a technical capability notice. They will have to notify the Government of new products and services in advance of their launch in order to allow consideration of whether it is necessary and proportionate to require the CSP to provide technical capability information on a new service. So, in English, and from a Conservative point of view, that will effectively mean that UK-based companies launching new products will now have to get permission from the state before they can go to market, in order to identify whether or not the state will require an ability to hack those products. Why on earth would a small business launch a new service here in the United Kingdom if those conditions remain in the codes of practice?

Investigatory Powers Bill

Stephen McPartland Excerpts

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

[Lucy Frazer]

I am honoured to take part in this debate, as I was to serve on the Bill Committee. I waited with much anticipation to hear my hon. Friend the Member for North Dorset (Simon Hoare) quote Rudyard Kipling, but I am not sure that the quote was forthcoming. At first, I thought he might say, as Kipling did:

“A woman’s guess is much more accurate than a man’s certainty.”

On reflection, I thought perhaps he would say that,

“words are…the most powerful drug used by mankind.”

That would have been an apt quote in the context of the Bill, because communication can be revolutionary. We saw that with printing. Printing established the first mass medium for transmitting information, and some historians said that it played a role in the unrest that characterised the devastating thirty years war. They say that because although the doctrines set out by Luther in the 16th century were formulated two centuries earlier, they did not spread until the printing revolution.

We are now in the midst of a technological revolution. It has never been easier for terrorists to spread hatred and devastation across continents and recruit others to do so. Our security services need the tools to keep up with the technological developments.

I will deal with two matters: first, the background to the bulk powers and the reasons we need them; and secondly, the safeguards that exist in the Bill in respect of bulk powers.

The threats that we face are real. MI5 has said that the number of terrorism offences has risen by 35% since 2010. David Anderson, the independent reviewer of terrorism legislation, has said that at the time of his report, MI5 explained to him that it had

“disrupted two…plots by lone actors in the past nine months”.

It explained to him that,

“identifying such individuals is increasingly challenging, exacerbated by the current limitations in their technical capabilities”.

David Anderson was saying the same thing as the director of Europol, who in evidence to the Home Affairs Committee in January 2015 said:

“Given that a majority of those communications run by these networks are moving online, there is a security gap there.”

He thinks that that is

“one of the most pressing problems that police face across Europe.”

The bulk powers are an important part of our toolkit. The Home Office has said that the bulk capability has

“played a significant part in every major counter terrorism investigation of the last decade, including in each of the seven terrorist attack plots disrupted since…2014”.

There are safeguards in the Bill. I have counted at least seven in relation to bulk interception. Bulk interception relates only to overseas communications; it needs to be activated in the interests of national security, in cases of serious crime or in the interests of the economic wellbeing of the UK; a warrant can be issued only by the Secretary of State; it can be issued only if the action is necessary and proportionate; the action of the Secretary of State is reviewed by a judge; there are restrictions on copying, disseminating and retaining the material that is collected; and there is a panoply of offences for cases of misuse.

During the Bill’s passage we have heard about additional safeguards. The Home Secretary has committed to providing a further operational case for bulk powers. We saw yesterday, with the passing of new clause 5, that the decision on whether a bulk power is allowed will be subject to the additional safeguard of a test of whether the result could be achieved by less intrusive means.

Like printing, the internet is improving our ability to communicate. We need to give our security forces the means to keep pace with these developments, because a country that cannot protect its citizens provides no freedom at all.

[Stephen McPartland (Stevenage) (Con)]

I will speak to the amendments that stand in my name, amendments 153 to 160, which would remove clauses throughout the Bill that allow for the modification of bulk warrants. I will not press them because, like the rest of my amendments, they are probing amendments designed to tease out information from Ministers and ensure that there is further debate in the other place.

As I said in yesterday’s debate, I am not a lawyer, but in my humble opinion, major modifications of a warrant have the potential to completely change the key components of that warrant. I would like to understand at what point it becomes reasonable for a new warrant to be drafted.

I listened carefully to the Minister for Security yesterday and he said clearly to the House:

“I entirely accept the point that it would be completely unacceptable to have a robust system for issuing warrants and a less robust system for modifying them. Warranting has to be consistent throughout, and there can be no back-door way of weakening the process. That is not what the Government intend and not what we would allow.”—[Official Report, 6 June 2016; Vol. 611, c. 982.]

That is very reassuring and greatly welcome. I look forward to seeing how the robust system for modifications will be introduced as the Bill progresses. I accept that the Government have tabled a number of amendments to try to help in this area and, as I said, I will not press any of my amendments to a vote.

On a final point, I am not a particular fan of the bulk powers in the Bill. I have listened with great interest to the debates today and yesterday, and to the points that the Chairman of the Intelligence and Security Committee has made about how bulk powers are used at the moment. In my view, surveillance should be targeted and the subjects of that activity clearly identified. That may well be naive in some senses, and I appreciate that there may be some areas where we require bulk powers, to identify the haystack, as has been said. But the carte blanche on bulk powers should not be the first resort; it should always be the last resort.

There has been a lot of talk about postbags, and whether the country is at war and so on. The debate in general has been very conciliatory and Members on all sides have tried to get a Bill that, at the start of this Parliament, was very difficult to a place where most people can stomach most elements of it. I am still not in a position where I feel I can support it, but, realistically, a lot of people now feel it has been greatly improved and there is a lot of trust in the Minister for Security and the Solicitor General because of their work in listening to people and accepting amendments.

I am also very grateful that the Home Secretary has tried to alleviate concerns and agreed to an independent review of the bulk powers in the Bill, led by David Anderson, the independent reviewer of terrorism legislation. I look forward to his recommendations and what comes forward from them.

[Tom Tugendhat]

It is a pleasure to serve under your chairmanship, Madam Deputy Speaker, particularly as you are appropriately attired in something that may indeed be collecting bulk data.

We are talking about amendments that would fundamentally undermine the very Bill that we have come to support, and would change the very tone of the debate. I speak very much in support of my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), who has gone through various aspects in quite significant detail, explaining to us time and again why the controls over the collection of bulk data are entirely appropriate. I also speak in support of the hon. and learned Member for Holborn and St Pancras (Keir Starmer), who has been through the Bill with the eye he has as a former Director of Public Prosecutions, seeing both the loopholes and the potential abuses, and covering them off.

I also speak in support of the Solicitor General, who has done exactly the same for us, and the Minister for Security, who has brought forward a Bill that answers the very questions that this state must always ask itself: how we guard our citizens and keep them safe while also keeping them free. This Bill does exactly that.

My first encounter with bulk data collection came in the constituency of my right hon. and learned Friend the Member for Beaconsfield, where the Defence School of Languages was sited. I was going through vast amounts of Arabic text. Although I was doing so in a most junior and rather ineffective manner, I learned how it was done properly. I was only a student; the masters have learned from that great Scots mathematician John Napier, who in the 17th century developed the logarithm, and whose lesson to us all, through mathematics, is how to build the pattern, understand the shape and break the code. That is why bulk data matter. We cannot build patterns without data and without volume, and we cannot make shapes without substance.

The bulk data are not themselves intelligence. As an intelligence officer in Her Majesty’s armed forces I was very proud to work on intelligence. It is not the raw product. It is what is analysed, what is useful and what decisions can be made from. That is not the bulk or the mass—the intelligence is the product. I am sorry to say that there appears to be a slight misunderstanding as to what is the intrusion. The intrusion is surely not the clay from which the form is made, but only the detail on the individual that could be used against them. The Bill does not allow that without the tightest of safeguards, both from former judges and from serving Ministers.

--- Later in debate ---

Brought up, and read the First time.

[Stephen McPartland]

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

[Madam Deputy Speaker (Mrs Eleanor Laing)]

With this it will be convenient to discuss the following:

New clause 19—Local authority authorisations: notification of chief executive—

“Where, on an application under sections 66 to 69, the relevant judicial authority approves an authorisation (including a Judicial Commissioner approval by order under section 68), the designated senior officer must notify the chief executive of the local authority, or subscribing authority, of that approval, or those approvals as the case may be, prior to that authorisation taking effect.”

Amendment 320, in clause 53, page 42, leave out lines 14 and 15 and insert

“Subsection (2) applies if a designated senior officer of a relevant public authority considers—

“(a) that a Judicial Commissioner may, on an application made by a designated senior officer at a relevant public authority, issue a communications data access authorisation where the Judicial Commissioner considers—”.

See amendment 327.

Amendment 321, page 42, line 21, leave out paragraph (b)(ii).

See amendment 327.

Amendment 322, page 42, line 26, leave out

“The designated senior officer may authorise any officer of the authority to”

and insert

“A communications data access authorisation may authorise the designated senior officer or a telecommunications operator to”.

See amendment 327.

Amendment 323, page 42, line 39, leave out “authorised officer” and insert “designated senior officer”.

See amendment 327.

Amendment 286, page 43, line 39, after “detecting”, insert “serious”.

This amendment inserts a higher threshold for accessing communications data.

Amendment 287, page 43, line 39, after second “preventing”, insert “serious”.

This amendment inserts a higher threshold for accessing communications data.

Amendment 324, page 43, line 41, leave out paragraphs (c) to (e).

See amendment 327.

Amendment 288, page 44, line 1, after first “or”, insert “serious”.

This amendment inserts a higher threshold for accessing communications data.

Amendment 289, page 44, line 1, after “any”, insert “serious”.

This amendment inserts a higher threshold for accessing communications data.

Amendment 290, page 44, line 2, after “any”, insert “serious”.

This amendment inserts a higher threshold for accessing communications data.

Amendment 291, page 44, line 2, after third “or”, insert “serious”.

This amendment inserts a higher threshold for accessing communications data.

Amendment 325, page 44, line 13, at end insert—

“(7A) An authorisation may be considered necessary as mentioned in subsection (7)(b) or (7)(f) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed.”

See amendment 327.

Amendment 292, page 44, line 18, at end insert—

“(9) Serious crime in subsection (7)(b) above means—

(a) any crime where a person guilty of the offence is liable on conviction to imprisonment for a term of imprisonment of [a maximum of] 6 months or more; or

(b) a crime which causes serious damage to a person’s physical or mental health.”

This amendment defines the higher threshold, inserted by other amendments to Clause 53, for accessing communications data.

Amendment 326, in clause 54, page 44, line 19, leave out clause 54.

See amendment 327.

Amendment 13,  page 44, line 28, leave out subsection (3)(b) and insert—

“(b) the investigation or operation concerned is one where there is an exceptional need, in the interests of national security, to keep knowledge of it to an absolute minimum,

(ba) there is an opportunity to obtain information where—

(i) the opportunity is rare,

(ii) the time to act is short, and

(iii) the need to obtain the information is significant and in the interests of national security, or”.

On behalf of the Intelligence and Security Committee of Parliament, to amend the Bill to ensure that the exceptional national security-related circumstances under which there does not need to be a separation between those requesting and those authorising requests for communications data, is narrowly drawn.

Amendment 293, page 45, line 13, at end insert—

“(7) For the avoidance of doubt, an internet connection record does not include the content of any communication.”

An amendment to clarify the description of internet connection records.

Amendment 327, in clause 55, page 45, line 16, leave out paragraph (a).

Amendment 4, page 46, line 40, leave out clause 58.

These amendments provide that in order to access communications data, a relevant public authority must seek a warrant from a Judicial Commissioner rather than undertake a system of internal authorisation. These amendments would require that there is reasonable suspicion of serious crime for a warrant authorising communications data acquisition.

Amendment 164, in clause 58, page 46, line 41, leave out “maintain”.

See amendment 163.

Amendment 165, page 46, line 41, leave out “operate”.

See amendment 163.

Amendment 166, page 47, line 1, after “officer” insert “in exceptional circumstances”.

This amendment restricts the use of the filter to exceptional circumstances. This will ensure that the use of the filter does not become routine practice or the default mechanism for obtaining communications data.

Amendment 161, page 47, line 7, leave out “arrangements” and insert “regulations”.

See amendment 163.

Amendment 167, page 47, line 18, at end insert—

“(c) obtaining the approval of a Judicial Commissioner to the filtering regulations in the same way as if the data was to be obtained by a targeted interception warrant as set out in this Act.”

This amendment requires use of the filtering arrangements to obtain data to be approved by a Judicial Commissioner. Filtering requires higher authorisation standard, as it has much greater powers to detect across many datasets and with high efficiency, being more akin to bulk acquisition than to individual requests for data.

Amendment 168, page 47, line 19, leave out subsection 3.

This amendment stops the user of the filter for general purposes - such as support, maintenance, oversight, operation or administration of the arrangements - not directly related to the core investigative functions of public bodies. It also removes the use of the filter to support the general oversight functions of the Investigatory Powers Commission.

Amendment 162, page 47, line 19, leave out “arrangements” and insert “regulations”.

See amendment 163.

Amendment 163, page 47, line 27, leave out “arrangements” and insert “regulations”.

These amendments would make the filtering arrangements to be governed by a statutory instrument subject to all normal transparency and processes of judicial review.

Amendment 169, page 47, line 32, leave out “must consult” and insert

“shall obtain the prior approval of”.

This amendment creates a duty to obtain prior approval from the Commissioner for the filtering system. By asking the Commissioner for prior approval of any plans, the assessment of necessity and proportionality would be much more likely to be robust. Any abuse and expansion of scope and abilities of data mining would be more likely to be restrained. The Commissioner would also have the ability to ensure that requirements they might seek are properly considered at the start.

Amendment 170, page 47, line 35, at end insert—

“(5A) Nothing in this section shall be used in respect of information which can be reasonably obtained by any other means under this Act.

(5B) Nothing in this section shall be used for the bulk collection of information.

(5C) The powers under this section shall only be used by the Secretary of State when no other power under this Act or other statute can achieve the same objective.”

This amendment restricts the use of the filter to those purposes the government has put forward. Given the lack of clarity on what the filtering arrangements are and whether they will become the normal way to acquire communications data of any type, this amendment seeks to restrain the power so that it is used as narrowly as possible.

Amendment 171, page 47, line 35, at end insert—

“(5A) The Secretary of State shall at least once a year make a report to Parliament detailing the filtering arrangements made under this clause.”

This amendment would require the Secretary of State to make an annual report to Parliament explaining what the filtering arrangements consisted of and were being used for. This would improve public scrutiny and reinforce the provision in clause 58(4).

Amendment 5, page 47, line 36, leave out clause 59.

Amendment 6, page 48, line 16, leave out clause 60.

Amendment 172, in clause 60, page 49, line 29, at end insert—

“(10) All filtering arrangements under this Act shall not endure more than six months.

(11) The Secretary of State shall not use any power under Part 3 of this Act unless such power cannot be exercised under any other statutory provision.

(12) The Secretary of State shall ensure that the filtering arrangements are always used exceptionally and with regard to privacy rights.

(13) The Secretary of State shall from time to time consider the proportionality and necessity of all filtering arrangements in place.

(14) The Secretary of State shall terminate any filtering arrangements which are not proportionate or necessary.”

This amendment requires filtering arrangements to be renewed every six months; makes them a power of last resort; requires assessment of necessity and proportionality; requires termination of arrangements which are not truly needed.

Government amendments 49 and 50.

Amendment 143, in clause 68, page 54, line 14, leave out “not”.

Amendment 144, page 54, line 15, at end insert

“unless an application without such notice is required in order to avoid prejudice to the investigation.”

Amendment 145, page 54, line 15, at end insert—

“( ) Schedule 1 to the Police and Criminal Evidence Act 1984 shall apply to an application for an order under this section as if it were an application for an order under that Schedule.”

This amendment seeks to ensure that the same level of protection is provided for journalists’ sources under the Bill as is currently provided in PACE.

Government amendments 51 and 52.

Amendment 300, in clause 73, page 58, line 33, 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 disclosures regarding the obtaining of communications data.

Amendment 207, page 205, line 6, leave out schedule 4.

New clause 26—Retention of communications data—

“An operator who has not been designated as the operator of an electronic communications network or service according to section 34 of the Communications Act 2003; or whose service has fewer than 50,000 subscribers, shall not be required to comply with a retention notice under Clause 78.”

The new clause excludes the providers of rural or community access communications services and small service providers from the obligation to collect and retain data, in accordance with policy statements made by the Home Office.

Amendment 328, in clause 78, page 61, line 5, leave out “Secretary of State” and insert “Judicial Commissioner”,

See amendment 350.

Amendment 329, page 61, line 5, after second ““notice”)” insert

“on an application made by a designated senior officer at a relevant public authority”.

See amendment 350.

Amendment 330, page 61, line 7, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 331, page 61, line 9, at end insert—

“(1A) A notice 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 section 53(7).”

See amendment 350.

Amendment 332, page 61, line 38, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 3, page 62, line 22, leave out “therefore includes, in particular” and insert “does not include”.

Amendment 294, page 62, line 23, at end insert—

“(10) A retention notice must not require any data which is, or can only be obtained by processing, an internet connection record to be retained for any purpose other than the purpose specified in section 54(4).”

An amendment to restrict the retention of internet connection records.

Amendment 333, in clause 79, page 62, line 26, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 334, page 62, line 35, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 336, in clause 80, page 62, line 40, leave out “Secretary of State” and insert “Judicial Commissioner” on both occasions.

See amendment 350.

Amendment 337, page 63, line 7, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 338, page 63, line 8, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 339, page 63, line 9, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 340, page 63, line 10, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 341, page 63, line 19, leave out “Secretary of State” and insert “designated senior officer at a relevant public authority”.

See amendment 350.

Amendment 342, page 63, line 24, leave out “Secretary of State” and insert “designated senior officer at a relevant public authority”.

See amendment 350.

Amendment 343, page 63, line 25, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 470, page 63, line 31, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 471, page 63, line 33, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 344, in clause 83, page 64, line 13, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 345, page 64, line 14, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 346, page 64, line 15, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 347, page 64, line 23, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 348, page 64, line 38, leave out “Secretary of State” and insert “Judicial Commissioner”.

See amendment 350.

Amendment 350, page 64, line 40, leave out “Secretary of State” and insert “Judicial Commissioner”.

These amendments provide that judicial authorisation is required for retention of communications data. These amendments would require that there is reasonable suspicion of serious crime for a warrant authorising retention of communications data.

Amendment 301, in clause 84, page 65, line 26, at end insert—

“(4A) Subsections (2) and (3) do not apply to a disclosure made in the public interest.”

An amendment to introduce a public interest defence for disclosures regarding the retention of communications data.

New clause 15—Review of operational case for bulk powers—

“(1) The Secretary of State must appoint the independent reviewer of terrorism legislation to review the operational case for the bulk powers contained in Parts 6 and 7 of this Act.

(2) The independent reviewer must, in particular, consider the justification for the powers in the Act relating to—

(a) bulk interception,

(b) bulk acquisition,

(c) bulk equipment interference, and

(d) bulk personal datasets.

(3) The independent reviewer must, so far as reasonably practicable, complete the review before 30 November 2016.

(4) The independent reviewer must send to the Prime Minister a report on the outcome of the review as soon as reasonably practicable after completing the review.

(5) On receiving a report under subsection (4), the Prime Minister must lay a copy of it before Parliament together with a statement as to whether any matter has been excluded from that copy under subsection (6).

(6) If it appears to the Prime Minister that the publication of any matter in a report under subsection (4) would be contrary to the public interest or prejudicial to national security, the Prime Minister may exclude the matter from the copy of the report laid before Parliament.

(7) The Secretary of State may pay to the independent reviewer—

(a) expenses incurred in carrying out the functions of the independent reviewer under this section, and

(b) such allowances as the Secretary of State determines.

(8) The independent reviewer shall complete further reviews on a five-yearly basis and the provisions of this section other than subsection (3) shall apply.

(9) In this section ‘the independent reviewer of terrorism legislation’ means the person appointed under section 36(1) of the Terrorism Act 2006 (and ‘independent reviewer’ is to be read accordingly).”

This amendment provides for an independent review of the operational case for the bulk powers in the Bill, and further periodic reviews, to be undertaken by the independent reviewer of terrorism legislation.

New clause 17—Review of the Operation of this Act—

“(1) The Secretary of State shall appoint an Independent Reviewer to prepare the first report on the operation of this Act within a period of 6 months beginning with the end of the initial period.

(2) In subsection (1) ‘the initial period’ is the period of 1 years and 6 months beginning with the day on which this Act is passed.

(3) Subsequent reports will be prepared every 2 years after the first report in subsection (1).

(4) A copy of the report is to be laid before Parliament, with provision made for a debate on the floor of both Houses and then approved by resolution of each House.”

Because the Bill deals with National Security and changing technological capabilities, it should be subject to greater scrutiny by both Houses. This amendment will call for an Independent Review to take place and be approved by Parliament within 2 years of the Bill becoming law and then every two years.

New clause 22—Primacy of judicial commissioner’s approval—

“No authorisation sought for a warrant to intercept or obtain or examine primary or secondary communications data, whether targeted or in bulk, under this Act may be considered by a Minister unless it has first been approved by a Judicial Commissioner.”

New clause 25—Review of the Operation of this Act—

“(1) The Secretary of State shall appoint an Independent Reviewer to prepare the first report on the operation of this Act within a period of 6 months beginning with the end of the initial period.

(2) In subsection (1) ‘the initial period’ is the period of 4 years and 6 months beginning with the passage of this Act.

(3) Subsequent reports will be prepared every 5 years after the first report in subsection (1).

(4) Any report prepared by the Independent Reviewer must be laid before Parliament by the Secretary of State as soon as the Secretary of State is satisfied it will not prejudice any criminal proceedings.

(5) The Secretary of State may, out of money provided by Parliament, pay a person appointed under subsection (1), both his expenses and also such allowances as the Secretary of State determines.”

This new clause provides that the review of the operation of the Act shall be carried out by an Independent Reviewer.

New clause 27—Protection for journalistic sources, materials and activities—

“(1) Save in the exceptional circumstances identified in subsection (2), the regimes provided for by Parts 2 to 7 may not be used to access, obtain, record, hold, consider, analyse, disclose or otherwise deal with information, material or data—

(a) of, or concerning the activities of, journalists, or

(b) if the purpose of so doing is to obtain information identifying a journalistic source.

(2) The exceptional circumstances referred to in subsection (1) are—

(a) the case is one of great emergency,

(b) immediate action is necessary, and

(c) the relevant investigatory powers under the regimes provided by Parts 2 to 7 can be used lawfully having regard to the provisions thereof.

(3) In any case where the regimes provided for by Parts 2 to 7 are disapplied by subsection (1), any person who could otherwise have sought to use one of the investigatory powers specified therein may apply to a judge for an order allowing that person to access, obtain, record, hold, consider, analyse, disclose or otherwise deal with such information, material or data in a way provided for by Parts 2 to 7.

(4) An application for an order under subsection (3) shall be made on notice to the journalist or journalists affected unless the judge determines that an application without such notice is required in order to avoid prejudice to the investigation.

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

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

(7) A judge may only make an order under subsection (3) if the person making the application has convincingly established that—

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

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

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

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

(8) The costs of any application under subsection (3) and of anything done or to be done in pursuance of an order as a result of the application shall be in the discretion of the judge.

(9) In this section—

(a) ‘source’ means any person who provides information to a journalist;

(b) ‘information identifying a source’ includes—

(i) the name and personal data as well as voice and image of a source;

(ii) the factual circumstances of acquiring information from a source by a journalist;

(iii) the unpublished content of the information provided by a source to a journalist; and

(iv) personal data of journalists and their employers related to their professional work;

in so far as this is likely to lead to the identification of a source.

(c) ‘the Convention’ means the European Convention for the Protection of Human Rights and Fundamental Freedoms; and

(d) ‘judge’ means a circuit judge or judge of the High Court.”

Amendment 206, page 172, line 24, leave out clause 222.

See new clause 17.

Amendment 494, in clause 223, page 173, line 18, leave out paragraph (i) and insert—

“(i) is about an entity to which a telecommunications service is provided by that telecommunications operator and relates to the provision of that service,”.

This amendment clarifies that the definition of communications data should apply to the providers of the relevant telecommunication services, rather than allowing an organisation to be required to provide data about services it does not provide.

Amendment 496, in clause 225, page 177, line 27, at end insert—

“‘national security’” means the protection of the existence of the nation and its territorial integrity, or political independence against force or threat of force”.

This amendment would provide for a definition of national security under “General definitions”, to apply throughout the Bill.

Amendment 495, page 177, line 36, at end insert—

“‘professional legal adviser’ means a person who is—

(a) an Advocate

(b) a Barrister

(c) a Solicitor.”

This amendment provides a definition of a “professional legal Adviser” which is important for clarification in relation to Clauses 25, 100, 135 and 171.

[Stephen McPartland]

I speak in support of all the amendments that I have tabled in this group. First, new clause 18 and amendment 207 are designed to try to restrict the powers in the Bill to the intelligence agencies and law enforcement only. Schedule 4 currently includes the Food Standards Agency and the Gambling Commission, and I am not clear what evidence there is for including those organisations and granting them access to such intrusive powers when other organisations will not have that access.

The Bill gives incredibly wide-ranging powers and there is clear nervousness about that on both sides of the House. I completely respect the integrity of the security services and the police, but a lot of the fear seems to stem from the behaviour of some local authorities in the past and how they have used anti-terrorism powers to spy on people to see whether or not they have been recycling correctly and so on. As a result, those local authorities are not included in the Bill.

Let me give an example from Hertfordshire. The child protection unit of Hertfordshire County Council does not have access to communications data or the powers in the Bill in order to catch paedophiles, but the Gambling Commission and the Food Standards Agency would do so. I am unclear why a body that we would want to have access to such powers so that it can catch paedophiles and break up rings around the world cannot have access, when organisations such as the Gambling Commission or Food Standards Agency can have access.

I want to understand that difference. In the oral evidence sessions, when Ministers were questioning witnesses and when witnesses were providing evidence, there was a lot of talk about intelligence agencies, paedophilia and the problems in that regard. Ministers made it clear that a range of organisations had made robust cases to be included. The amendments are intended to tease out of Ministers why those cases were accepted when others were not. Frankly, I would much rather that Hertfordshire County Council’s child protection unit had access to some of the powers in the Bill than the Food Standards Agency, the Gambling Commission or some other organisation. The purpose of my amendment is to try to identify why we are where we are at the moment.

[The Solicitor General (Robert Buckland)]

My hon. Friend and I have indeed spoken about these matters in some detail. I recognise his abiding concern and that of others with regard to this issue, which is why I will commit to publishing a detailed case for the minor public authorities ahead of these provisions being further considered in the other place. I hope that gives him some reassurance about the points that he has consistently raised.

[Stephen McPartland]

I am grateful to the Solicitor General. That is evidence of the work of the two Ministers over the past 12 months in negotiations with me and Opposition Members throughout to try to make the Bill workable for all of us. As I said, all my amendments are probing amendments and none are designed to be pressed to a vote. Their purpose is to gain information. I accept the Solicitor General’s undertaking and thank him.

--- Later in debate ---

[The Solicitor General]

I take what the hon. and learned Lady says advisedly. It is not good enough to rely purely on third parties to provide the sources of evidential leads. Government must take a lead in this. We are not in the scenario of building our own database, which has rightly been rejected as unfeasible and an unacceptable increase in state power. This is about requiring third parties to retain for up to 12 months information that could provide the sort of evidential leads that up till now have conventionally been provided by observation evidence and via telephone and SMS evidence that is increasingly becoming obsolete. This is about the Government doing their duty to the people whom we serve and to the country that we are supposed to defend, and doing our duty to protect our citizens.

I shall deal as best I can with the amendments in turn. I am grateful to my hon. Friend the Member for Stevenage (Stephen McPartland), who spoke to the issue of the request filter. That is a filter that will be maintained by the Secretary of State. It does not hold data of itself; it is a safeguard. It is there to prevent collateral information being provided to the public authority. It is an innovation and it specifically limits the communications data retained to only that which is relevant.

I would argue that the measure is essential because it serves the interests of privacy that have formed such a part of the debates in this House, and it will help to reduce error. The filter will accept only communications data disclosed by communications service providers in response to specific requests from public authorities, each of which must be necessary and proportionate. Any irrelevant data that do not meet those criteria will be deleted and not made available to the public authority. My hon. Friend has tabled probing amendments, and I know that that is the spirit in which he has initiated debate.

On the question of review, I am entirely sympathetic with the desire for ongoing review of the Bill’s provisions, but that is already provided for. The operation of the Act is to be reviewed by the Secretary of State after five years, which is entirely appropriate. This Bill will need some time to bed in, and time will be needed to see what effect it has had. My concern is that a two-year review runs the risk that we will not be in a position to properly assess its impact. For those reasons, I urge hon. Members who have tabled amendments relating to the review to accept the argument that I submit and to withdraw the amendments.

We have had much debate about journalists. Quite rightly, we have sought to focus on journalistic material because there is a danger in this debate, as with MPs and as with lawyers, that we focus upon the individual and the role, as opposed to the interest to be served. Journalists serve a public interest—the vital importance of freedom of expression in our society, freedom of speech, freedom of thought, and that vital aspect of journalism, the non-disclosure of the source of journalists’ material.

The Government are very cautious and careful about the way in which we seek to deal with these matters, which is why we have tabled the amendments that have already been spoken to by other Members. The placing of the stringent test in amendment 51—the public interest in protecting a source of journalistic information—is further evidence of our continued commitment to protecting the freedom of the press and freedom of expression in our country. As my right hon. Friend the Minister for Security and I have already said, we have listened to the strength of feeling on the matter and will consider whether further protections, over and above the significant protections that already exist under PACE in relation to journalists themselves, are appropriate where the collateral effect of warranted intrusion discloses their sources.

Let me therefore deal with the question of ICRs and their definitions. My right hon. Friend the Minister for Security, in an intervention on the shadow Home Secretary, has set out clearly the Government’s position on how we would view the threshold. The right hon. Gentleman quite rightly accepts that this is not an easy task and that we must get it right. We do not want to exclude offences such as stalking and harassment, for example. We want to ensure that the threshold is robust but actually makes sense in the context of the new powers of ICRs. I look forward to that work being ongoing.

Let me deal with the question of definition. I can be clear today once again that the Bill does not require companies to retain content, but I am willing to consider any amendments that further improve definitions in the Bill, as another opportunity for meaningful dialogue to take place so that we get the definition absolutely right. I know that that is a concern not only of the shadow Home Secretary, but of other right hon. and hon. Members.

Let me move on to the SNP amendments. I am grateful to the hon. Member for Paisley and Renfrewshire North (Gavin Newlands), who has been consistent in his argument today, as he was in Committee. With respect, however, I have to say that that consistency is misplaced. There is an important issue here about access to communications data that I think would be jeopardised in a way that would be prejudicial to the public if judicial commissioners became involved. I do not think that there is any utility or public interest to be served by the introduction of judicial commissioner approval for communications data acquisitions, because we are talking about a great volume of material. Also, the highly regarded single point of contact regime has already provided expert advice and guidance to authorising officers, and that is placed as a mandatory requirement in the Bill.

There are many other amendments that I could address, but time does not permit me, save to say that our commitment to protecting the public and ensuring that our legislation is up to pace with modern developments is clear, so I urge right hon. and hon. Members to support our amendments.

[Stephen McPartland]

I am grateful to the Solicitor General and to the Minister for Security for the time that they have given me over the past 12 months, to work with me on these amendments and in our negotiations. I am very happy to withdraw my new clause and not to press my other amendments, as they are probing amendments that were not intended to be pressed to a vote. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Clause 53

Power to grant authorisations

Amendment proposed: 320, page 42, leave out lines 14 and 15 and insert

“Subsection (2) applies if a designated senior officer of a relevant public authority considers—

(a) that a Judicial Commissioner may, on an application made by a designated senior officer at a relevant public authority, issue a communications data access authorisation where the Judicial Commissioner considers—”.—(Gavin Newlands.)

See amendment 327.

Question put, That the amendment be made.