Investigatory Powers Bill

Suella Braverman Excerpts

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

[Tom Elliott]

I welcome the opportunity to speak in this debate and to follow the hon. Member for South Ribble (Seema Kennedy). I fully support this legislation. If anything, I am beginning to worry that it is already being watered down. I want to make it even stronger. That is why I oppose the Scottish National party’s amendments. I heard the point made by the hon. and learned Member for Holborn and St Pancras (Keir Starmer) about health records; I appreciate that thought process and will support it if relevant amendments are proposed.

I have to say that I and some of my colleagues from Northern Ireland, and indeed on other Benches, have lived through the troubles and seen what terrorism has done. But we face a different type of terrorism now, and a different type of world criminality, much of which is conducted through technology—for example, via mobile phone signals and satellites and on the internet. We now have a totally different perspective. We therefore need a different mechanism, and we need it to be proactive, which is what I believe the Bill will do. It is about being much more proactive.

With regard to bulk capabilities, I do not see what the problem is. We have to have trust and faith in the people doing that surveillance and collecting that intelligence. If we do not have trust and faith in them to have the bulk capabilities, why do we have trust and faith in them to do other things? I think there is a real challenge out there for the wider public to realise what is actually going on in society. I do not realise everything that is happening, and I know that the wider public do not. That is why I have to have trust in those people who are carrying out these actions.

I am also aware that there needs to be a balance; I accept that. There needs to be a balance for the public, to avoid snooping and going into too much detail with these investigatory powers. However, that must be balanced against the wider public information that is required to deal with terrorism, criminality and the fraudsters in our society. For me, the priority in that balance is to deal with those people effectively. If that means people using those investigatory measures to look into some of my details, so be it. If I have nothing to hide, then I have nothing to fear. I have no difficulty with people looking at the details that are held on me, and that should be the same for the wider public if they have nothing to hide. There must be real opportunities here for the Government and the people who are carrying out the investigatory work to deal with those details. That is why I think the amendments we are debating overstep the mark and would reduce the effectiveness of the people dealing with those causes. My speech has been brief, but I think that it has dealt with the amendments succinctly.

[Suella Fernandes (Fareham) (Con)]

It is a privilege to speak in this debate, and indeed to have participated in the Committees that have considered the Bill: I was a member of the Joint Committee that scrutinised the draft Bill in February, and I was also a member of the Bill Committee earlier this year. I want to put on the record my appreciation of the Labour party’s constructive and fruitful contributions. This vital legislation has come far since its first iteration. It is an example of cross-party collaboration, so I am glad that party politics has been put aside in the name of national security. I urge all Members of the House to act in such a manner when we go through the Lobbies later today. However, judging by the words of the hon. Member for Glasgow North East (Anne McLaughlin), I do not think that will be the case.

I rise to speak against amendment 309 and the others relating to bulk powers. The Scottish National party Members says that those powers are disproportionate, that they have no utility and that they are therefore unlawful. The amendments propose removing most of parts 6 and 7, from clause 119 onwards, and with them the three types of bulk power afforded to our security and intelligence services—bulk interception, bulk acquisition of communications data and bulk equipment interference. Those powers allow for the collection of large volumes of data and are set out in clause 119 onwards. Further warrants are required before those data can be examined. The purposes of such examination, which are set out in the Bill, may be to pursue more information about known suspects and their associates or to look for patterns of activity that may identify new suspects. Crucially, those powers are not afforded to law enforcement services.

I have a few points to make. First, these powers are founded on a clear and robust legal basis. They are all available to the agencies in existing legislation. Bulk interception is covered in section 20 of the Regulation of Investigatory Powers Act 2000. Bulk communications data are covered in section 94 of the Telecommunications Act 1984. Bulk equipment interference is covered in sections 5 and 7 of the Intelligence Services Act 1994. If amendment 390 and the others were passed today, we would remove the vital powers on which our agencies rely to do their jobs and we would prevent them from acting on those powers.

Secondly, these powers are not novel or a quirk of the modern age; they have been around for decades. Back in world war one, our intelligence services tracked the worldwide network of German cables under the sea by using secret sensors. They were able to intercept telegraph messages on a bulk basis, looking for patterns in communications and signals from the enemy.

When cables ended, radio surveillance was necessary to break codes during world war two. That involved bulk interception of data by hand. That work was famously based at room 40 of the Admiralty. Alan Turing and his team at Bletchley Park would never have cracked Enigma were it not for the bulk interception of cyphers. That advanced cryptanalysis changed the course of history by enabling the allies to pre-empt enemy planning, saving countless lives and shortening the war.

[Joanna Cherry]

Does the hon. Lady agree that the difference is that, in the days of Bletchley Park, we were at war? We are not at war now. What we are concerned to do here is not to assist this country’s enemies, but to protect the privacy of the people who live here, who include her constituents.

[Suella Fernandes]

I am astonished by the hon. and learned Lady’s suggestion that we are not at war. Paris, Brussels, Jakarta—I do not need to go on. We are engaged in a worldwide conflict against Daesh, and it is a threat to our security every day and every night.

[Simon Hoare]

My hon. Friend is right to draw attention to the terrorists, but let us not forget those who wish to wage war on the safety of our children through paedophilia and those who wish to wage war on the safety of women through people and sex trafficking. Those important elements are at the nub of the Bill, alongside terrorism, and we should not forget them.

[Suella Fernandes]

I totally agree. We are waging a foreign policy and international security war, but we are also waging war on the online fraudsters and the paedophiles. We are in a constant state of threat, and it is easy to delude ourselves if we do not face that threat directly.

Big data are presented to us as a modern phenomenon, but they are actually something that has been used before and that is quite old, and they lie at the heart of our heritage on national security.

Thirdly, the utility of bulk powers is clear. In its report, the Joint Committee made that clear after taking extensive evidence. At paragraph 340, we reported:

“We are aware that the bulk powers are not a substitute for targeted intelligence, but believe that they are an additional resource. Furthermore, we believe that the security and intelligence agencies would not seek these powers if they did not believe they would be effective and that the fact that they have been operating for some time would give them the confidence to assess their merits.”

The Committee concluded:

“we are content that the safeguards proposed by the Home Office, buttressed by authorisation by Judicial Commissioners and oversight from the Investigatory Powers Commissioner will be sufficient to ensure that the bulk powers are used proportionately.”

Therefore, after taking evidence from all sides of the debate, and from all the coalitions involved in this discussion, that was the considered conclusion of the cross-party Committee.

--- Later in debate ---

[Andy Burnham]

I said at the start that I was looking for considerable comfort, and I think I have just received it from what the Minister has said. To be clear, I was saying that there should be a threshold of six months for the use of communications data, and a higher threshold on top of that for internet connection records. As the Minister just acknowledged, there is a qualitative difference between the two. If that is what we are agreeing, and if we are also agreeing that there should be no restriction on the use of internet connection records for the other serious purposes that I have outlined, the Opposition can probably move forward on that basis without pressing our amendments to a vote.

This is the area in which the Bill has the ability to lose public trust if we do not get it right, because it could affect every single citizen in the land. I am sure that as constituency MPs many of us have dealt with situations where an individual falls out with the police at a local level, and they perceive that they are being investigated for all kinds of things and that all aspects of their lives might be turned upside down. We have to put in place appropriate protections that would not allow personal information to be handed over freely in relation to more trivial offences.

[Suella Fernandes]

The provisions on ICRs are designed to resolve two problems. First, our law enforcement and security personnel cannot carry out IP address resolution—identifying which device is communicating with which device—without the new powers. Secondly, even with the originating and destination IP addresses, it may not be clear which website or communications service has been accessed. The evidence from the professionals to the Joint Committee was clear: ICR retention is imperative to enable IP address resolution for investigations.

[Andy Burnham]

I am grateful to the hon. Lady for making a point that will enable me to be absolutely clear about what I am saying. I am not arguing against the retention of the data, as I think I made clear at the beginning. I am not arguing against ICRs per se. I acknowledge that they could be a very important tool. In an age when communications have migrated online and people have fewer voice telephone calls, this information could be crucial in detecting serious crime. I am saying that while we should legislate to allow the data to be held, we must also legislate to put in place a very precise threshold, so that the circumstances in which those data can be accessed are explicitly clear. There is not a broad reasonableness or necessity test. What I am saying is that we need a very clear definition of what level of crime permits the authorities to access those records.

I believe that if we find that definition—I feel that the Minister has given a commitment that we will get it—it will enhance public trust in this legislation. In my view, it will knock out completely that lazy label of “snoopers charter”. That is why it is so important that the Government nail this point before the Bill concludes its passage.

--- Later in debate ---

[Madam Deputy Speaker (Natascha Engel)]

For the remaining one and half minutes, I call Suella Fernandes.

[Suella Fernandes]

I will be short and to the point, Madam Deputy Speaker.

I rise to speak in support of this Bill, as it is a hard-won fight for all of us, and something of which this whole House can be proud. The nature and scale of the threat that we face today differs from the one that we faced even 12 months ago, as it is rapidly evolving and complex. I am proud to have contributed to this Bill as a member both of the Joint Committee and the Bill Committee. We made more than 100 recommendations, many of which have been adopted by the Government.

It is vital for our constituents that we pass this Bill today, and it will get my vote. I wish to put on record my thanks to the Front-Bench team, which was led by the Home Secretary and ably assisted by her turbo-charged team of the Solicitor General and the Minister for Security who brought style, eloquence, professionalism and panache, and to our Government Whip, my hon. Friend the Member for Brighton, Kemptown (Simon Kirby). I am proud to support this Bill, and it has my vote tonight.

Question put, That the Bill be now read the Third time.

Investigatory Powers Bill

Suella Braverman Excerpts

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

[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 (Thirteenth sitting)

Suella Braverman Excerpts

Committee Debate: 13th sitting: House of Commons
Thursday 28th April 2016 Public Bill Committees

[Suella Fernandes (Fareham) (Con)]

I rise to speak in favour of clause 196 as drafted and against the amendments. It is an honour to serve under your chairmanship, Mr Owen.

Part 8 and clause 196 cover the oversight functions for the Investigatory Powers Commissioner and the judicial commissioners. Clause 196 sets out the functions of and legal basis for oversight relating to the interception of communications, the acquisition or retention of communications data and secondary data, and equipment interference. That review power includes audit, inspection and investigation of the exercise of the powers; it also relates to the use of data acquired, and taken with subsections (2) and (3) it extends to cover bulk personal datasets, section 216 notices and functions under section 80 of the Serious Crime Act 2015. That constitutes not only wide-ranging powers of oversight, but duties, which means there will be constant watch on how the powers are implemented on the ground, which is vital to ensuring public trust.

Investigatory Powers Bill (Fourteenth sitting)

Suella Braverman Excerpts

Committee Debate: 14th sitting: House of Commons
Thursday 28th April 2016 Public Bill Committees

[The Solicitor General]

I am grateful to the hon. and learned Lady for the way in which she has sought to persuade the Committee of her case. She is quite right that the IPT has an inquisitorial procedure rather than an adversarial one, but it still needs a claimant. It would be wholly inappropriate if the commissioner ended up being the complainant and therefore a party to the proceedings. With respect to her and those who proposed the amendment, although I appreciate their intentions, they mischaracterise the process. There will indeed be a claimant, but that will be the individual or body that is the subject of the error. Where the error is serious, the judicial commissioner will inform that person or body of their right to apply to the IPT for a remedy. As all authorities are already required to provide the IPT with all the information it needs in the course of its investigations, it is difficult to see the benefit of the amendment.

[Suella Fernandes (Fareham) (Con)]

Does my hon. and learned Friend agree that the heavy common law duty of candour on the authorities that will be the subject of such inquiries is applicable to these jurisdictions? Those authorities will have to disclose everything, even if that militates against the applicability of their evidence. That position was endorsed by the divisional court in the case of Chatwani.

[The Solicitor General]

I am grateful to my hon. Friend for reminding us about the duty of candour that applies to public bodies, which is of course material.

In addition, the clause has already been amended, pursuant to the Joint Committee’s recommendation 59, to make it clear that a commissioner does not need to consult the Secretary of State before sharing information with or providing assistance to the IPT. That is provided for in clause 199(4) and may well address many of the concerns raised by the hon. and learned Member for Edinburgh South West about the Secretary of State being some sort of bar to proper disclosure and sharing of information. That is not the case under the Bill as already amended. As for providing the IPT with all information relating to relevant errors, as I have said, courts and tribunals cannot and will not consider those issues without a party first having brought a claim.

Within the framework of the clause, we have the necessary structure for proper and frank disclosure to the IPT by the commissioners of relevant material that will assist any party in bringing an action where they have been subject to an error or some form of wrong. To conflate the two would lead to more confusion and would be unnecessary. With respect, I urge the hon. and learned Lady to withdraw the amendment.

Investigatory Powers Bill (Eleventh sitting)

Suella Braverman Excerpts

Committee Debate: 11th sitting: House of Commons
Tuesday 26th April 2016 Public Bill Committees

The Minister has talked about the powers not being new, and there has been a recent avowal that the communications data of UK citizens are already being collected in bulk under section 94 of the Telecommunications Act 1984. That section is somewhat vaguely worded and, as the right hon. Member for Haltemprice and Howden (Mr Davis) has said, nobody could have envisaged that it would be used for that purpose when the Act was passed because, as I think I am correct in saying, in 1984 the internet was just a notion in the minds of several clever individuals.

[Suella Fernandes (Fareham) (Con)]

Does the hon. and learned Lady agree that all three independent assessments concluded that the mass surveillance she suggests is complete fantasy? In his evidence to the Joint Committee, Professor Clarke from the Royal United Services Institute endorsed the approach. The idea that the state somehow has a huge control centre where it is watching what we do is complete fantasy. Not only is there a limit to capacity but there is no interest in carrying out such activities.

[Joanna Cherry]

The hon. Lady may recall that, when I spoke about this on Second Reading, I said that I was not going to use the phrase “snoopers charter” because it is counterproductive, and nor was I going to use the phrase “mass surveillance,” but that I was going to use the phrase “suspicionless surveillance.” What is happening under section 94 of the Telecommunications Act will continue to happen if we pass these powers without questioning them properly: bulk acquisition warrants will authorise the acquisition of huge amounts of communications data on everybody living in the United Kingdom, which will then be analysed by computers at GCHQ without any further need for authorisation. My argument is that that is a form of suspicionless surveillance. While it may have some utility, as David Anderson has said, I am not convinced that it is either necessary or proportionate. I made some fairly detailed arguments last Thursday about the inadequacy of the operational case and will not repeat them.

Investigatory Powers Bill (Tenth sitting)

Suella Braverman Excerpts

Committee Debate: 10th sitting: House of Commons
Thursday 21st April 2016 Public Bill Committees

[Joanna Cherry]

I do not accept that the independent reviewer has carried out the exercise that I am suggesting. He fulfils a particular function, and we are talking about setting up a panel of individuals to consider the necessity and proportionality of these powers. They could consider in detail certain information that we, as hon. Members, would not be able to see. David Anderson is one individual who fulfils an important function and whose work has greatly assisted everyone on the Committee, and all hon. Members, in trying to understand what underlies the Bill.

[Suella Fernandes (Fareham) (Con)]

The hon. and learned Lady is asking the Committee to attach less weight to David Anderson’s review, as my hon. and learned Friend the Member for South East Cambridgeshire said, and inviting us to prefer the evidence of Mr Binney, a whistleblower whose evidence was clearly out of date, because the last time he was security cleared was 2001.

[Joanna Cherry]

Forgive me, but the hon. Lady was out of the room when I said that I am not asking the Committee to look at Mr Binney’s evidence. I am asking the Committee to look at the evidence of the US President’s Review Group on Intelligence and Communications Technologies and of the Privacy and Civil Liberties Oversight Board, which led to the repeal of section 215 and its replacement with the USA Freedom Act. I am not asking the Committee to look at Mr Binney’s evidence; I am asking the Committee to consider and take into account the background of two high-level independent US reports—the USA is our closest ally—that found that similar bulk powers are not necessary or proportionate.

I will not be side tracked by a suggestion that I am criticising David Anderson, because I am not—I make that absolutely clear. His review, “A Question of Trust”, was published prior to the Joint Committee of these Houses saying that a sufficient case has not been produced for bulk powers. David Anderson’s report was taken into account by the Joint Committee. I know that some members of this Committee, including the hon. Member for Fareham, sat on the Joint Committee, and one of its conclusions, recommendation 23, was:

“We recommend that the Government should publish a fuller justification for each of the bulk powers alongside the Bill. We further recommend that the examples of the value of the bulk powers provided should be assessed by an independent body, such as the Intelligence and Security Committee or the Interception of Communications Commissioner.”

The Joint Committee said that in the full knowledge of David Anderson’s report, having read and considered it. My point is that such operational case as has been produced by the Government does not live up to the Joint Committee’s recommendation 23, and does not adequately provide an operational case for the powers.

Investigatory Powers Bill (Fourth sitting)

Suella Braverman Excerpts

Committee Debate: 4th sitting: House of Commons
Tuesday 12th April 2016 Public Bill Committees

[Suella Fernandes (Fareham) (Con)]

Welcome to the Chair, Mr Owen, for my first contribution to this Committee.

Regarding amendments 59 and 60, is it not the position that bulk interception is provided for under section 8(4) of RIPA and is therefore subject to tests of necessity and proportionality? If it relates to a British citizen within the British Isles and an analyst wishes to select for examination the content of the communication of an individual known to be located in the British islands, the analyst has to apply to the Secretary of State for additional authorisation under section 16(3) of RIPA—similar to section 8(1). There are robust and extensive safeguards in place for this purpose.

[Mr Hayes]

I am delighted to be able to say in response to that extremely well informed intervention that my hon. Friend is right. The Bill does not actually add to bulk powers, contrary to what some have assumed and even claimed. In the sense that it reinforces safeguards and maintains the ability of our agencies to collect bulk data, it builds on what we already do. The Bill pulls together much of the powers in existing legislation; part of its purpose is to put all of those powers in one place, making them easier to understand and more straightforward to navigate. She is absolutely right; we took those powers in RIPA because they were needed to deal with the changing threats and the character of what we knew we had to do to counter them. That was done in no way other than out of a proper, responsible desire to provide the intelligence agencies with what they needed to do their jobs.

To return to amendments 59 and 60, when people are discovered to be outside the country and are subject to an investigation by the security services they do not usually present their credentials for examination, and it is important that the powers we have fill what would otherwise be a gaping hole in our capacity to do what is right and necessary. The aim of the Bill is to place vital powers on a statutory footing that will stand the test of time.

Amendment 83 relates to clause 14 and the definition of secondary data. It is important to point out that it has always been the case that an interception warrant allows communications to be obtained in full. Historically, that has been characterised in law as obtaining the content of communication and of any accompanying “related communications data”. However, as communications have become more sophisticated it has become necessary to revise the definitions to remove any ambiguities around the distinction between content and non-content data and to provide clear, simple and future-proof definitions that correctly classify all the data the intercepting agents require to carry out their functions.

Secondary data describes data that can be obtained through an interception warrant other than the content of communications themselves. Those data are less intrusive than content, but are a broader category of data than communications data. For example, it could include technical information, such as details of hardware configuration, or data relating to a specific communication or piece of content, such as the metadata associated with a photographic image—the date on which it was taken or the location—but not the photograph itself, which would, of course, be the content.

I want to make it clear that the data will always, by necessity, be acquired through interception. The definition does not expand the scope of the data that can be acquired under a warrant, but it makes clearer how the data should be categorised. Interception provides for the collection of a communication in full and the amendment would not serve to narrow the scope of interception. It would, however, reduce the level of clarity about what data other than content could be obtained under a warrant. It would also have the effect of undermining an important provision in the Bill. In some cases secondary data alone are all that are required to achieve the intended aim of an operation or investigation. That is an important point. Another misconception is that it is always necessary to acquire content to find out what we need to know. In fact, sometimes it is sufficient to acquire simpler facts and information. For that reason, clause 13 makes it clear that obtaining secondary data can be the primary purpose of an interception, and the kind of data that can be obtained under a warrant is also set out.

Narrowing the scope of secondary data would reduce the number of occasions on which the operational requirement could be achieved through the collection of those data alone, resulting in greater interference with privacy where a full interception warrant is sought. Where we do not need to go further we should not go further. Where secondary data are sufficient to achieve our purposes, let that be so.

Secondary data are defined as systems data and identifying data included as part of or otherwise linked to communications being intercepted. Systems data is any information that enables or facilitates the functioning of any system or service: for example, when using an application on a phone data will be exchanged between the phone and the application server, which makes the application work in a certain way. Systems data can also include information that is not related to an individual communication, such as messages sent between different network infrastructure providers, to enable the system to manage the flow of communications.

Most communications will contain information that identifies individuals, apparatus, systems and services or events, and sometimes the location of those individuals or events. The data are operationally critical to the intercepting agencies. In most cases, the information will form part of the systems data, but there will be cases when it does not. When the data are not systems data and can be logically separated from the communication, and would not reveal anything of what might reasonably be considered to be the meaning of the communication, they are identifying data. For example, if there are email addresses embedded in a webpage, those could be extracted as identifying data. The definitions of systems data and identifying data make clearer the scope of the non-content data that can be obtained under the interception warrant.

The fact that the definition of secondary data is linked to clear, central definitions of systems and identifying data ensures that there can be consistent application of powers across the Bill to protect privacy and that data can be handled appropriately regardless of the power under which it has been obtained.

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[Keir Starmer]

The point I am making is not that that judicial commissioner could be more accountable, or that there would be some forum in which the judge could go and explain. I completely accept that that is a limitation. I am meeting the argument against this proposal, which is that at the moment the Secretary of State has some political accountability which would be reduced or taken away if this amendment were accepted.

The point David Anderson makes is that it is of course a criminal offence to disclose that the warrant has been signed, so in fact the Secretary of State could not go to the Dispatch Box even in an extreme case. She would commit an offence if she went to the Dispatch Box to be held accountable for an individual decision. That is exactly why David Anderson writes as he does in paragraph 14.56 of his report. If any other members of the Committee have found an example of a Secretary of State ever actually being held accountable for an individual warrant, I personally would like to see the Hansard report of that taking place.

[Suella Fernandes]

On the question of accountability, there is a clear line of accountability to the Executive in the form of the Intelligence and Security Committee. It is a body of reviewers—elected, accountable and within the parliamentary and democratic process—who have access to this confidential information and can review the actions under this function. That is a clear line of accountability, which exists and is exercised.

[Keir Starmer]

Again—and I will be corrected if I am wrong on this—the statutory prohibition on the Secretary of State ever saying whether or not she signed a warrant applies across the board, whether in a Select Committee or in any other parliamentary proceedings. In other words, first, she could not be asked a question about an individual warrant because there would be no basis on which it could be put and, secondly, even if it were asked she could not answer it. I take the point that is being made but, wherever the accountability is placed, to hold the idea that there is individual accountability for the hugely important decisions that are made on individual warrants is to misunderstand how the regime works.

--- Later in debate ---

[The Solicitor General]

It is a pleasure to serve under your chairmanship, Mr Owen, for the first time in what I am sure will be a number of important sittings.

May I address the amendment moved by the hon. and learned Member for Holborn and St Pancras? I am grateful to him for rightly pointing our way to paragraph 4.7 of the draft code. Indeed, by reference, paragraph 4.8 gives a clear basis for the decision maker to assess the nature of the proportionality. Therein lies something of the problem with regard to the approach to be taken in the clause. It is tempting, on the face of it, to include the test in the primary legislation, but it might provoke more questions than answers.

Naturally, when one makes a bald statement about proportionality, people want to know more, so where does one end in terms of adding to the primary legislation the detail that is necessary for decision makers to reach a considered conclusion? My simple argument is that the amendments therefore are not necessary. What makes this the right balance is the combination of the primary legislation that sets out the framework and a living document—the code of practice—that will be more easily amendable and accessible in terms of any changes that need to be made in the light of experience and practice.

We do not want to end up with a situation where this type of warrantry can only be obtained when all other avenues have been exhausted, a bit like the position when one comes to an ombudsman. That would be an artificial scenario to end up with and would cause problems operationally. I can think of examples where the exhaustion of other avenues will just not be practicable. For example, in a kidnap situation where an individual’s life might be in danger, this type of warrantry would probably be the most appropriate step to take before any other type of intervention. Of course, there are occasions where other means of intelligence gathering, such as live human intelligence sources, might be high-risk or result in a higher degree of collateral inclusion.

I am concerned that we do not end up, despite the best intentions of the hon. and learned Gentleman, with an inflexible approach on the face of primary legislation. It is far better, in my submission, to keep the balance as it is, as clearly outlined in the code of practice and the framework within the clause.

[Suella Fernandes]

I echo everything that the Solicitor General says. Is not the amendment trite, in that it is clear for any practitioner, judge or decision maker that the question in the amendment—whether the information sought could reasonably be obtained by other less intrusive means—is part and parcel of, and essential to, the proportionality test?

[The Solicitor General]

My hon. Friend makes a powerful point. There is a danger when dealing with primary legislation of gilding the lily. I mean that in the spirit of co-operation that I know we have managed to engender in these debates, in the main. For those reasons, I respectfully ask the hon. and learned Gentleman to withdraw his amendment.

--- Later in debate ---

[Keir Starmer]

This is where we pick up the discussion about scrutiny. As the amendments to clause 17 were withdrawn, the premise here is that of a dual function, carried out first by the Secretary of State and then by the judicial commissioners. To be clear, we welcome the involvement of judicial commissioners, and the amendments focus on their role in the process. We have had the discussion about whether the judicial commissioners should be the default decision-makers—this is a different exercise.

What is clear in clause 21(1) and (2) is that what is envisaged in the Bill is a review exercise by the commissioners. That is clear from the words “must review”. Subsection (1) states that the judicial commissioner must review the person’s—in this case, the Secretary of State’s—conclusions as to necessity and proportionality, and subsection (2) states that

“the Judicial Commissioner must apply the same principles as would be applied by a court on an application for judicial review.”

It is therefore a review mechanism, and it is a review according to judicial review principles.

Two problems arise from that. The first is that it is not, therefore, truly a double lock. A double lock denotes a decision by the Secretary of State, which survives in clause 17, and a decision by a judge—a judicial commissioner—under clause 21, but this is not that sort of double lock.

The second problem, the reference to judicial review, is equally profound. Committee members will remember my question to Lord Judge:

“Do you agree with me that as the Bill is currently drafted, it is not clear what Parliament intends”—

in relation to judicial review of warrants—

“and therefore it will fall to the judges? In other words, it is broadly enough drafted to cover a longer-arm review or a closer intense review depending on what judges decide as cases evolve. It could accommodate both approaches.”

That is the problem with judicial review here.

I will quote Lord Judge’s response, because he captures the real cause for concern here:

“I think ‘judicial review’ is a very easy phrase to use. It sounds convincing, but it means different things to different people. People say, ‘Wednesbury unreasonableness’—that was a case decided by the Court of Appeal in 1948 or 1947, and it has evolved. Personally, I think that when Parliament is creating structures such as these, it should define what it means by ‘judicial review’. What test will be applied by the judicial—I call him that—commissioner, so that he knows what his function is, the Secretary of State knows what the areas of responsibility are and the public know exactly who decides what and in what circumstances? I myself do not think that judicial review is a sufficient indication of those matters.”––[ Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 67-68, Q220.]

That is one of the most experienced and well-respected judges in the country indicating that in those circumstances judicial review is not a sufficient indication of the test.

Amendment 62 would require the judicial commissioner to decide for him or herself on necessity and proportionality. Amendment 89 would take out the reference to judicial review. The scheme and structure of the Bill would therefore be retained. There would be a double lock. Both the Secretary of State and the judicial commissioner must be satisfied that necessity and proportionality is made out, at which point the warrant would come into effect, unless of course it is an urgent warrant. There would be clarity about the role of the judge.

In previous exchanges, it has been accepted that the judicial commissioner will see the material that is before Secretary of State and therefore can make that decision. The lock therefore becomes what we have termed an equal lock, where both parties make a decision on the substantive merits of the case. That gets rid of the potential ambiguity with which Lord Judge was concerned. It would then be absolutely clear that this is truly a double lock. It is a simple and straightforward amendment that would bring real clarity to the exercise.

[Suella Fernandes]

I am listening to the hon. and learned Gentleman with interest, and I appreciate his exploration of the meaning of this term. What is his opinion of Lord Pannick’s assessment of the insertion of judicial review? He concludes that it is sufficient, flexible but clear and strikes the right balance.

[Keir Starmer]

I know and respect Lord Pannick hugely, but there is no guarantee in the Bill that his preferred way of approaching this under judicial review principles is the one that will be carried out in practice; he has no control over the test that will be applied. Lord Judge’s concern is that some judges may consider that this is an area where they virtually take the decision, which is what they do in certain cases involving particular human rights issues, where they get very close to the decision, while other judges will be much more deferential.

With the best will in the world, Lord Pannick puts forward the view that judicial review will work, but there is no guarantee of that. Unless it is set out in the Bill, the test will be simply left to be applied on a case-by-case basis. Nobody, in this formulation, could argue that a judge who applied long-arm reasonableness was acting in any way other than in accordance with the test.

Obviously, I respect what Lord Pannick says, but Lord Judge was making a different point that goes back to accountability, to some extent. He was alive to the fact that once judges are involved in the decision-making process, a torch will be shone on them in relation to these warrants. There will be inhibitions on what they can say and the circumstances in which anybody could hold them to account. We have rehearsed that. I read into his answer that he wanted absolute clarity and a tightness of test so that the judges knew what they were to do and could operate within those confines, thus protecting themselves from the suggestion that they had applied too close or too loose a test. It is partly about clarity, with one eye on judicial accountability in the longer term for the decisions that have to be made.

--- Later in debate ---

The problem is that the clauses are of general application for all judges. I know and respect Sir Stanley greatly, and I have no doubt that he would interpret the measure as requiring him to exercise very close scrutiny, but that does not mean it is clear enough on its face or that the test is simple enough. It is a question of whether there is a double lock in the true sense of the Secretary of State making a decision and then a judge making a decision, or whether it is something less than that, where the Secretary of State makes a decision and the judge then reviews what the Secretary of State has done. According to this formula, the judge could do it according to the old-fashioned, 1948 Wednesbury test, which would involve a long-arm review even to the point where a judge would say, “I personally do not think that this is necessary or proportionate, but in the circumstances I do not think that what the Secretary of State has done is so unreasonable that no reasonable Secretary of State would have done it.” That is the danger that everyone involved in the discussion is concerned about. The amendment would make it crystal clear that nothing is lost by the simple test proposed, while a great deal would be gained for the application of the test and, actually, for the judges themselves as they carry out their new role. That is a serious consideration.

[Suella Fernandes]

It is an important issue. Evidence to the Joint Committee from Sir Stanley Burnton and Lord Judge was unequivocal, in that Wednesbury unreasonableness would have no place in this context. That seems to be maintained by Sir Stanley Burnton in the evidence that we have received more recently. Does the hon. and learned Gentleman agree that Wednesbury unreasonableness has no role in this context, especially by virtue of reference to necessity and proportionality?

[Keir Starmer]

The reference to proportionality and necessity does not help in this context, because the question for the judge on this formula is not, “Is the measure necessary? Is it proportionate?” Judges often make, and are well used to making, that decision. The decision for them on this formula is whether, when the Secretary of State decided that it was necessary and proportionate, she was exercising her powers in a way that cannot be questioned, applying the principles of judicial review. That is the real difference.

Whether I think the long-arm Wednesbury test is appropriate is neither here nor there. So long as we have clause 22(2), it is open to a judge to apply the old-fashioned Wednesbury test, because that is within the principles of judicial review. The case law obviously varies. The closest possible scrutiny is usual in control order or TPIMs cases, but there are many other examples involving national security where the judges have persistently said that long-arm review applies. There are two strong lines of case law, and I am arguing that one is better than the other. The point is whether the Bill is clear enough about the test to be applied.

This is a real opportunity, as much as a challenge, for the Government. The provision is a new one, and it is a double lock if properly applied. It ought to be substantive. The judge ought to decide whether a warrant is necessary or proportionate. As long as he or she does, the warrant comes into existence and can be relied upon. In the 21st century, that is the right approach when such a provision is going into statute for the first time.

--- Later in debate ---

[The Solicitor General]

They will have access to all the material that the primary decision maker has. The hon. and learned Lady is right to ask the question but, simply speaking, the judicial commissioner will have access to the material that the Secretary of State has. In fact, the judicial commissioner will be able to ask for more material, so there should not be any fear that the vacuum she mentioned will exist in relation to the judicial lock.

Returning to the obvious experience of judicial commissioners, I am keen to ensure that we end up in a position where commissioners feel that, on a case-by-case basis, they are not only free to agree with the Secretary of State, but are absolutely free to disagree. If there is not that element of flexibility, this double lock will be meaningless. Again, without casting any imputation upon the good intentions of those who have tabled amendments, my concern is that, first, this amendment is based on a difference of opinion on the nature of the judicial commissioner stage. Secondly, there is a danger that we might end up in a position where decisions are being second-guessed in a way with which the judiciary would feel uncomfortable, and where the balance between the actions of the Executive and proper scrutiny by the judiciary is not clearly delineated.

[Suella Fernandes]

Does my hon. and learned Friend agree that a similar inclusion of a reference to judicial review has worked well in other legislation and in other regimes, such as in relation to control orders and terrorism prevention and investigation measures? We have a history of such references not causing major problems.

[The Solicitor General]

I entirely agree with my hon. Friend. It would not be right for me to make an easy draw-across to the TPIM regime. The hon. and learned Member for Holborn and St Pancras has experience of TPIMs, and I was on the Bill Committee that passed the TPIM law back in 2011, so I have a keen interest in the evolution from what were control orders to TPIMs. The point is staring us all in the face: myriad different circumstances will confront judicial commissioners. It would be too easy for the Committee to come to a conclusion that, somehow, we should create an artificially hard and fast set of criteria that would prevent the judicial commissioners from exercising their duties when considering the varying scale and nature of the applications that they will receive.

--- Later in debate ---

[Keir Starmer]

There is. That is a very good point, and it is one that I have discussed with the Bar Council. In those circumstances, what is being targeted is material that is not legally privileged, though there might be something that is legally privileged within it. There should be safeguards put around that, and I readily accept that examples will arise, probably also in the bulk powers, in which, although the intention is not to target legally privileged material, it is very difficult to have a warrant which does not run the risk.

An example would be when there is a suspicion that a lawyer and client may be involved in some activity that would take the communication outside of legal privilege, but it is impossible to say at what point of the conversation or exchange it loses its legal privilege. That is an obvious example. The answer that the Bar Council gives to that, and that I agree with, is that in those circumstances, rather than having a warrant to target the legally privileged material, there is a regime that recognises that it may be that, when targeting what can legitimately be targeted—namely, the part of the communication that has lost its privilege—there is a risk that privileged communications are incidentally picked up. There should be a provision for dealing with that material and its disclosure.

The powerful point about subsections (1), (2) and (3) is that it is wrong, in principle, to target legally privileged material. It is possible to have a warrant that runs the risk, with a separate set of safeguards to ensure that, if the risk materialises—as it will in some cases—there are provisions for ring-fencing, safeguarding, and not disclosing that material. That is the intention behind the Bar Council amendment.

It may be that further tweaks or improvements can be made, but that is an important point of principle that I invite the Solicitor General to take away and consider. A clause that satisfied the Bar Council in terms of the legal protection of this important privilege would be a prize worth having. Although the Bar Council recognises, as I do, the movement that the Government have made here, they simply have not got this right, for the reasons that I have outlined.

Subsections (4), (5), (6) and (7) are focused, in a sense, on communications that are likely to include items of legal privilege, such as a warrant that touches on a solicitor or lawyer communicating with clients, where it is thought that privilege has been lost but also elements where it has not been lost. In those circumstances, the Bar Council’s view and my view is that what is set out is again simply not strong enough, because there is no test or special provision.

New clause 2 is a comprehensive clause that would deal with that issue. In a sense, it goes with amendment 80, which amends a much later provision. It is intended to tidy up and clarify what the Bar Council says properly represents legal privilege and a regime for protecting it.

[Suella Fernandes]

Does the hon. and learned Gentleman not think that there is a special level of safeguard incorporated in the clause? A higher bar needs to be overcome. Only in “exceptional and compelling circumstances” will privilege be circumvented. Is that not a high standard to meet?

[Keir Starmer]

I accept that it is a high standard to meet, but it is focused on the wrong target. If it is wrong in principle to target legally privileged material on the basis that that material might involve communications that further crime, on a proper understanding, that material has already lost its legal privilege. Having a higher test to target something that has not lost its legal privilege is a good thing, but it is not enough. Material that has not lost its legal privilege should not be targeted, because it is in fact not furthering crime. The proper way to deal with it is to recognise that what one really wants to target is communications that have lost their privilege. However, there is a risk of including—unintentionally, because one does not want to target it—other material, and that requires a different approach and a different regime. That is really the point. It is good to have a threshold, but the threshold does not work within the confines of this scheme.

I urge the Solicitor General to view the clause in that light and to reflect again on it. A lot of work has been done to try to get it into a better state, but that has not met with the approval of the Bar Council and, following analysis and discussion with the council, I can see why. New clause 2 is the council’s attempt to get it right. It has spent a lot of time on it and is very concerned about it. I invite the Minister to reflect again and commit to looking again at the clause, perhaps with us and the Bar Council, to try to get a clause that meets with the approval of everyone concerned. If that can be achieved, it will be a prize worth having; if it cannot, it will be a waste of a bit of time on a good cause.

Oral Answers to Questions

Suella Braverman Excerpts

Monday 11th April 2016 Commons Chamber

[Mike Penning]

What we intend to do, with the help of the Chancellor, is to make sure that the Metropolitan police has got the funding that it asked for, not to cut funding by 10%, as the Labour party requested. Neighbourhood policing is an operational matter for the commissioner and the Mayor, but I repeat what I said earlier: looking at the statistics, we can see that if we want more police on the beat, we should vote Conservative.

[Suella Fernandes (Fareham) (Con)]

As part of special branch, Hampshire marine unit provides vital crime prevention along our coastal borders and within the marine environment of the Solent and the Isle of Wight, through operations such as Project Kraken. Will my right hon. Friend confirm that that vital crime prevention service is protected under current reforms?

[Mrs May]

My hon. Friend raises an important point and describes the variety of tasks that our police forces carry out, and the variety of skills and operational capabilities that they need. I am very conscious of the marine capability requirements in Hampshire. It is, of course, an operational matter for the police to determine how they spend their budget and what they use it for. Crucially, my right hon. Friend the Chancellor has ensured that we can protect police budgets, when precept is taken into account, over the next four years.

Investigatory Powers Bill (First sitting)

Suella Braverman Excerpts

Thursday 24th March 2016 Public Bill Committees

[Byron Davies (Gower) (Con)]

I was a member of some of the agencies that will attend today.

[Suella Fernandes (Fareham) (Con)]

I was a Treasury counsel, representing Government Departments.

--- Later in debate ---

[Victoria Atkins]

Q By way of conclusion, you gave evidence to the Joint Committee scrutinising the draft Bill in November 2015 and at that time you said it gave effect to 90% or more of the recommendations in your report entitled “A Question of Trust”. Now that the Government have responded to the Joint Committee’s report and made further amendments, how much closer is the Bill to your report’s recommendations?

David Anderson: If I may say so, I thought that it was an excellent report and I was very pleased to see that the Government had given effect to the great majority of those recommendations.

[Suella Fernandes]

Q I have two questions. On the double lock and the judicial review test, concerns were expressed by witnesses to the Joint Committee about two issues. The first is the access to evidence by the judges and by the Ministers or the Home Secretary in the process of considering warrants. What would be the access to evidence by both parties involved in the double lock? Would it be the same or different?

David Anderson: I would certainly assume that the judges would have access to all the evidence that the Home Secretary or the Secretary of State had access to. I believe I have actually had a private assurance that that would be the case. I am afraid I have not checked to see whether that is in the code of practice, but plainly it ought to be, because this is not a rubber-stamp and nor is it simply a test of rationality or process. If it needs to, it should involve a proper look into these issues of necessity and proportionality. I was delighted to note that the Foreign Secretary said as much when he wound up the debate on Second Reading last week.

[Suella Fernandes]

You have pre-empted my second question, which is about the concerns that various witnesses have raised about the level of scrutiny involved in the judicial review test. Are we looking at a Wednesbury level of scrutiny?

[The Chair]

Order. I am afraid we have reached the end of the time allotted for the Committee to ask questions. On behalf of the Committee, thank you very much for your time and for giving evidence today.

Examination of witnesses

Eric King and Sara Ogilvie gave evidence.

--- Later in debate ---

[Simon Hoare]

Q You are right that there are a number of clubs in the golf bag of the law enforcement team and the agencies, but given that we live in an incredibly fast-moving, technological world, where international boundaries are not recognised and so on, would you agree that the more facilities that the agencies have available to them, the better—that is, the wider that the net can be cast, the more ne’er-do-wells one is going to identify and hopefully apprehend?

Eric King: Respectfully, as you acknowledge, there are different ways to solve a problem. Casting a very wide net is not always the right thing to do. IP resolution is certainly a very narrow technical issue that you need to resolve. Collecting all sorts of additional information in additional areas would not help resolve that narrow issue. I think you have to look at it on a case-by-case basis.

That is part of the reason why we need to scrutinise properly the operational cases for the variety of these powers, to understand which bits of them they help solve and which bits they do not. Certainly, intrusive powers need to be available to our law enforcement and agencies, but we need to understand which bits work and which bits do not.

[Suella Fernandes]

Q This is a question for Sara. In evidence to the Joint Committee, Shami Chakrabarti criticised the Bill on behalf of Liberty, saying that judges would not have the same access to evidence as Ministers in the warrant process. We have just heard evidence from the independent assessor of the terrorism legislation, David Anderson QC, that that is not the case. The Home Secretary has said on the record that that is not the case, and that they would have the same access. Do you withdraw that criticism of the legislation?

Sara Ogilvie: No. This is one of the areas where there has been a lot of discussion and to-ing and fro-ing. If the Home Secretary wishes to satisfy our concerns, those are the kinds of provision that should be dealt with on the face of the legislation. It seems to us that judicial review remains an inherently limited jurisdiction. That is quite a legal term to say that there are only so many things that it can do. We think that a much broader power needs to be granted to the judicial commissioners in order to satisfy public concerns that the powers be used appropriately and to match human rights standards. This is an area on which the Home Secretary has sought to give lots of reassurance, in which case I think it would be best if she put that reassurance in legislation.

[Suella Fernandes]

Q Evidence was given to the Joint Committee by Sir Stanley Burnton, the Interception of Communications Commissioner, and Lord Judge, the Chief Surveillance Commissioner. Both said that the double lock involves an intensive analysis including analyses of necessity and proportionality. It is not simply rubber-stamping. Again, do you maintain your disagreement with those senior judges?

Sara Ogilvie: I respect and agree with the fact that an extent of necessity and proportionality analysis will be done, but there is still very limited capacity for judges and judicial commissioners to undertake this exercise. We have seen, and judicial review case law tells us, what level of scrutiny can be applied to different kinds of decision, and we know that where a decision does not involve a restriction on the physical liberty of an individual, a lesser scale of judicial review scrutiny will be applied.

We also know that where cases involve national security, judges must apply a lesser level of review. Although I recognise that there is a difference of views, I think it needs to be much clearer in the legislation. Judicial review should be avoided as a standard in this circumstance.

[Christian Matheson]

Q I will ask only one question. Mr King, you talked about the astonishing amount and huge volumes of data that are collected. Can you both comment on the statement that the sheer volume of information means that there is less of a threat to personal privacy, simply because individuals’ personal data are almost swamped within the mass of data collected?

Eric King: It is an interesting idea, isn’t it, that the more widespread the intrusion, the less potentially bad it is. That is not a view that I can understand myself, particularly now. Computer analytics of such material is going to increase. It is going to get better and faster. The more data being collected, the more intrusion will be applied year on year as GCHQ engineers find cheaper, better and faster ways to process it. Perhaps five years ago, swamping agencies with material might have resulted in people passing through, but every day, that becomes less likely and less real.

We have seen in the last five years a 7,000% increase inside GCHQ of the analytical capability on material. That means that 7,000% more material is being touched, analysed and scrutinised by those agencies. Perhaps it was an idea that could be comprehended 20 years ago, when it involved physical piles of paper that no one ever looked at, but now it is all being automated, and I am not sure that the notion stands up today.

Sara Ogilvie: I clearly agree with what Eric has said. The only thing I would add is that I ask you to consider the fact that we are not just concerned about the state having this information. All this information that is stored somewhere can be accessed by other individuals for nefarious purposes. We have seen the TalkTalk hacks this year. We have seen the VTech hacks. There are real and legitimate concerns about the way this vast amount of personal information can be used, not just by the state but by other people who really do wish to do us harm.

Investigatory Powers Bill (Second sitting)

Suella Braverman Excerpts

Thursday 24th March 2016 Public Bill Committees

[Joanna Cherry]

Q You will not get passwords from an ICR?

Alan Wardle: No.

[Suella Fernandes (Fareham) (Con)]

Q There has been a description of Tor as a facility that allows digital abuse of anonymous online activism. It is linked to encrypted information. I want you to say a bit about what effect encryption has on some of the work that you are involved with?

Alan Wardle: A lot of the activity that we take for granted online—shopping, banking and all the rest of it—could not be done without encryption, but of course, as with all these tools, encryption can be used for bad purposes by bad people. Similarly, with services like Tor and Freenet—the dark web—in the cases that we are concerned with, you get your most highly committed and dangerous offenders, quite often, particularly sharing very explicit images or videos of children being abused. Those services enable them to hide there. The police do the best they can, but, again, for a lot of that they will be dependent on traditional undercover techniques.

I think there is a question that is—I say this respectfully —beyond this Committee’s remit and beyond many of our remits. The direction of travel generally is that we are seeing greater moves to encrypt data as a matter of course, with things like Google Chrome browsers and so on. With browsers such as that, internet service providers cannot put in place the kind of protections they have, so they do not know what is going on there. That is a direction of travel and something that is worrying. It is clearly a global issue, but the police not being able to track what is going on due to increasing levels of encryption is a worry.

[Victoria Atkins (Louth and Horncastle) (Con)]

Q Just to pick up on the point made by the hon. and learned Member for Edinburgh South West about the missing child, is it right that, sadly, the victims of sex grooming rings do not surround themselves with friends and parents, because one of the tools that the groomers use is to isolate the victims, so that they have no one they can turn to in their hour of need?

Alan Wardle: That can be true. They can even turn the child against their family and friends as well.

--- Later in debate ---

[The Solicitor General]

Q But you appreciate the problem that we have in getting this right.

Lord Judge: I do, but that is what Parliament is for. We have to decide what the law should be. I myself would like the law on this issue to be absolutely unequivocal, whatever Parliament or the House of Commons ultimately want.

Sir Stanley Burnton: We wonder what the function of clause 196(6) is. It is either telling a judge the obvious or it is a big stick to wave at the judge, to say, “You have to approve this because if you don’t, you’ll be jeopardising the success of an intelligence operation.”

[Suella Fernandes]

Q Building on the point made by the Solicitor General, clause 21 sets out the “necessary” and “proportionate” tests. We have heard a lot about those words. What questions do you ask when you are assessing proportionality? What is that analysis?

Sir Stanley Burnton: You are looking at the effect of the measure in question as against alternatives and as against the mischief that is aimed at—are we talking about saving life, or it just a matter of money? If it is money, is it a lot of money? Is it pensioners’ money or the Government’s? You weigh one up against the other, and in the end, it is a matter of assessment—looking at one and looking at the other.

[Suella Fernandes]

Q So reading that meaning of proportionality, which we all agree on, with the factors listed in clause 18, is it not clear to a decision maker what factors are relevant and the level of scrutiny to be applied?

Sir Stanley Burnton: You have had my answer already. I am content with the Bill as is, but Lord Judge takes a different view.

Lord Judge: The answer surely is that those criteria are applied by the Secretary of State. The commissioner will apply the same criteria, but are you asking him or her to be a co-decision maker or a supervisor of the Minister? If a supervisor, then you have to define what his or her role should be.

[The Chair]

Thank you very much, panel. Have a happy Easter and enjoy your weekend reading.

Examination of Witnesses

Lord Reid and Charles Clarke gave evidence.

--- Later in debate ---

[Matt Warman]

Q You talked about updating the legislation and the importance of that. Do you see an internet connection record or something equivalent to it as a key part of updating this legislation for the world we live in now?

Charles Clarke: I do personally, yes.

Lord Reid: I do as well. Not to test the Committee, but two years after 7/7, on 6 August 2006, there was a plot to bring down seven airliners. There would have been 2,500 victims, and intercept was absolutely essential in protecting those lives—absolutely essential—with both the internet and telephone communications.

[Suella Fernandes]

Q It has been raised before, but some witnesses have said that warrantry should be solely within the Executive function—

Lord Reid: What, sorry?

[Suella Fernandes]

Warrantry should be retained by the Executive. Other witnesses have said that it should be a judicial function. The double lock is a middle way. Where do you both sit on that spectrum, ideally?

Charles Clarke: Personally, I am in favour of the Executive responsibility. I would prefer to have that. I think the more you draw the judiciary directly into the operation of the law, as in continental systems, the more you threaten the ability of the judiciary to play its characteristic role. I understand why proposals are being made to have a double system, and I am not against it, but it is against my instincts, actually. It is a path that has been ill thought through. There is a whole section of lobbies in this country who believe, essentially, that the lawyers are better people, in whom you can have more confidence than in the politicians. I reject that assessment.

Lord Reid: I agree entirely with Charles on that. I think that there are a couple of other reasons as well. First, this judgment ultimately is not just the strict codification of a law, although it involves that; it is about political judgment—I therefore think that there is a second reason. The third reason is quite simple. If a wrong decision is made and 2,500 lives are lost, for instance, it will not be the judges who are held accountable—I do not just mean by Parliament, but by the family, the public, the community—it will be the Minister. Therefore, for those three reasons, I personally am in favour of this being the decision of the Executive. For the reasons that I explained, I am willing to accept that the Home Secretary has had to bow to other pressures and to put in judicial oversight, but only as long as that is about oversight and judicial process, and not about decision making. If it is about decision making, I think it is a recipe for ineffective operational capability.

[The Chair]

I thank our two witnesses for tailoring their responses in a way that allowed all colleagues to get in, including Back-Bench colleagues. Absolutely fascinating. On behalf of the Committee, I wish you a very happy Easter. Thank you so much for being so generous with your time.