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Public Bill Committees

Debated on Thursday 14 April 2016

Investigatory Powers Bill (Fifth sitting)

The Committee consisted of the following Members:

Chairs: †Albert Owen, Nadine Dorries

† Atkins, Victoria (Louth and Horncastle) (Con)

† Buckland, Robert (Solicitor General)

† Cherry, Joanna (Edinburgh South West) (SNP)

† Davies, Byron (Gower) (Con)

† Fernandes, Suella (Fareham) (Con)

† Frazer, Lucy (South East Cambridgeshire) (Con)

† Hayes, Mr John (Minister for Security)

† Hayman, Sue (Workington) (Lab)

† Hoare, Simon (North Dorset) (Con)

† Kinnock, Stephen (Aberavon) (Lab)

† Kirby, Simon (Brighton, Kemptown) (Con)

† Kyle, Peter (Hove) (Lab)

† Matheson, Christian (City of Chester) (Lab)

† Newlands, Gavin (Paisley and Renfrewshire North) (SNP)

† Starmer, Keir (Holborn and St Pancras) (Lab)

† Stephenson, Andrew (Pendle) (Con)

† Stevens, Jo (Cardiff Central) (Lab)

† Warman, Matt (Boston and Skegness) (Con)

Fergus Reid, Committee Clerk

† attended the Committee

Public Bill Committee

Thursday 14 April 2016


[Albert Owen in the Chair]

Investigatory Powers Bill

Before we continue with line-by-line scrutiny of the Bill, I have a number of announcements to make. First, some amendments appear as starred amendments on this morning’s notice of amendments. One group—amendments 252 to 256, concerning clauses 34 to 36—were tabled on time, but there was an error and an oversight. They have been published today, however, and I have decided to use my discretion and select them as a single group this morning.

Amendments 250 and 251 to clause 30 are also starred. They are not new amendments, but have been disaggregated from amendment 94, which has been shortened. They will be marshalled for debate on clause 30, which they seek to amend, and have been selected in the first group of amendments.

New clause 7 is also starred but is not new and was previously tabled as amendment 163. The thrust of the new clause is exactly the same and I have selected the clause for debate as part of the group led by amendment 164.

Finally, I have spoken to the Minister about this, but I want to make it clear to the Committee that he can move that a clause stand part of the Bill formally, but that does not shut down debate. If other members of the Committee wish to debate it, they can do so, whether or not it is moved formally, and the Minister will have the right to reply before I put the question. I hope that is helpful to Members.

Clause 30

Modification of warrants

With this it will be convenient to discuss the following:

Amendment 69, in clause 30, page 24, line 5, leave out paragraphs (6)(d) and (e).

Amendment 94, in clause 30, page 24, line 8, leave out subsection (7)

This amendment, and others to Clause 30, seeks to circumscribe the power to modify warrants without judicial authorisation.

Amendment 70, in clause 30, page 24, line 8, leave out subsections (7) and (8).

Amendment 95, in clause 30, page 24, line 32, after “major”, insert “or minor”.

Amendment 96, in clause 30, page 24, line 32, leave out from “warrant” to end of line 33 and insert—

“pursuant to subsection (5) or (6), if a Judicial Commissioner determines”.

Amendment 71, in clause 30, page 24, line 46, leave out subsection (11) and insert—

“(11) In any case where a major modification of a warrant is sought under paragraph (4)(a), section 21 (Approval of warrant by Judicial Commissioners) applies to the decision to modify a warrant as it applies in relation to a decision to issue a warrant.

(11A) In a case where any modification under subsection (4) is sought to a warrant to which section 24 (Members of Parliament etc.) or section 25 (Items subject to legal privilege) applies, section 21 (Approval of warrant by Judicial Commissioners) applies to the decision to modify the warrant as it applies in relation to a decision to issue the warrant.”

Amendment 250, in clause 30, page 24, line 46, leave out subsection (11)

This amendment, and others to Clause 30, seeks to circumscribe the power to modify warrants without judicial authorisation.

Amendment 72, in clause 30, page 25, line 3, leave out subsection (12).

Amendment 251, in clause 30, page 25, line 7, leave out subsection (13).

This amendment, and others to Clause 30, seeks to circumscribe the power to modify warrants without judicial authorisation.

Amendment 74, in clause 31, page 26, line 13, at end insert—

“(8) Where, by virtue of section 30(11), section 25 (items subject to legal privilege) applies in relation to the making of a major modification of a warrant pursuant to section 30(7), this section applies as if each reference in subsections (2), (5) and (6) to a designated senior official were a reference to a Judicial Commissioner.”

In the light of the statement you have just made, Mr Owen, I want to thank the Bill Office team for the hard work they have done on tracing down the amendments—particularly amendments 252 to 256—so that they can be starred for today’s purposes. They are working extremely hard and we are all really grateful. I also thank the Government, because although some of these amendments do not add a great deal to other amendments that have been tabled, amendments 252 to 256 are substantive. The Government could have taken the view that they have not had sufficient time to prepare for them, through no fault of their own. I also thank you, Mr Owen, for starring them and allowing us to debate them so that we can move on through the Bill today.

Let me turn to the amendments to clause 30, which deals with modifications. As you will remember, Mr Owen, on Tuesday we debated at some length the necessity and proportionality tests when a warrant is to be issued, as well as the role of the Secretary of State, the scrutiny that the Secretary of State applies to a warrant and the role of the judicial commissioners. Although there was disagreement between us on who should exercise precisely which function, there was agreement that there should be intense scrutiny at all stages to ensure that the warrant is necessary and proportionate and correctly identifies the people, premises and operations to which it relates.

That can be seen in clause 15(1) and (2), which we touched on on Tuesday and which relate to the subject matter of warrants. Clause 15(1) states that a warrant may relate to

“a particular person or organisation”


“a single set of premises”.

Then there is the thematic targeted interception warrant in clause 15(2), which sets out the group of persons who could be identified.

Clause 27 complements clause 15 by setting out the requirements that must be met by the warrants. I draw attention to clause 27, because clause 30, dealing with modification procedures, relates back to it. The requirements that must be met under clause 27 are as follows. A warrant that relates to a particular person or organisation must name or describe that person or organisation. A warrant that relates to a group of persons related by a purpose or activity must describe the purpose or activity. A warrant that applies to more than one organisation must describe the investigation and name or describe the persons involved. Therefore, on the face of it, there is scrutiny in the process. Then there is a requirement to set out in some detail on the face of the warrant what it actually relates to—the people, activity and premises, as set out in subsections (3), (4) and (5) of clause 27.

Clause 27(8) sets out that

“Where…a targeted interception warrant or mutual assistance warrant authorises or requires the interception of communications…or…a targeted examination warrant authorises the selection of the content…the warrant must specify the addresses, numbers, apparatus, or other factors, or combination of factors, that are to be used for identifying the communications.”

That is important because it sets out the higher level of protection for content, either under a targeted intercept warrant itself or under an examination warrant on the back of a bulk warrant. The requirements under clause 27 sit with all the scrutiny, checks and safeguards of the double-lock mechanism. They are all additional important safeguards.

We then get to clause 30, which states:

“The provisions of a warrant issued under this Chapter may be modified at any time by an instrument issued by the person making the modification.”

This is to modify any of the warrants I have just described, which will have set out, on the face of the warrant, the details of the application of the warrant. The modifications that can be made are set out under clause 30(2)(a) and (b). Subsection (2)(a) relates to adding, varying or removing names, descriptions and premises. Those are the three subsets under clause 27—in subsections (3), (4) and (5)—which are all required. Clause 30(2)(b) relates to the factors that are relevant to content warrants, either as a targeted content warrant or as an examination warrant following on from a bulk one.

Clause 30(2) states:

“The only modifications that may be made under this section are”,

suggesting that it is rather limiting. However, if we go back to clause 27, I think—I will be corrected if I am wrong—that the only thing that is left out in relation to modification is the testing and training activities. Everything else is up for grabs in relation to modification. It is “only” those provisions, but what is not said is that that is practically everything that will ever be on the face of any warrant, save for a training warrant and a testing warrant. Therefore, the scope of modification is very wide.

Then there is a subdivision in clause 30(4) between “major” modifications and “other” modifications. That does not quite sit with clause 30(2), but a major modification is essentially clause 30(2)(a), but without the removing: if a name is removed, it is not a major modification, but if a name, description, organisation or premises is added or varied, that is a major modification. Everything else, which is what is left in clause (30)(2)(a) and the factors in clause 27(8), is described as “minor”.

I want to trace through the journey of a modification, starting with a major modification. These are considered to be the most important modifications. The first issue that crops up is who can make a modification. Under clause 30(5), it is the Secretary of State, a member of the Scottish Government in certain cases or a senior official. The first, obvious point is that there is no double lock. There is no reference to a judicial commissioner. There is no notification requirement and no requirement for the judicial commissioner to consider the warrant; it simply is the Secretary of State and this additional senior official in certain circumstances.

I should mention in passing that a major modification can even be made in an urgent case by someone described in clause 30(6)(d) and (e) as

“the person to whom the warrant is addressed, or…a person who holds a senior position in the same public authority”.

That is in addition to a senior official. In an urgent case, they can add a name, a premises or an organisation.

We then move on to the purposes. For major modifications, we jump straight to clause 30(9), where I acknowledge there is a necessity and proportionality test—the decision maker has to think about the necessity and proportionality of the amendment. Where the decision is made by a senior official rather than the Secretary of State, there is a duty to notify the Secretary of State. That is it for major modifications. The Secretary of State—there is separate provision for Scotland—or a senior official makes the decision on necessity and proportionality grounds. They can add practically anything that could have been on the face of the warrant, apart from testing and training. I read into the duty to notify the Secretary of State that by implication she must consent to it, because otherwise she would presumably reverse the decision, although that is not expressed on the face of the Bill.

There is no duty to go to a judicial commissioner, no reference to a judicial commissioner and no notification to a judicial commissioner of the modification, which can be very wide. A warrant could be issued on day one to cover a given individual. On day two, three or four, another individual, premises or organisation can be added without the need to go through the double-lock process. That cuts so far through the safeguards as to make them practically meaningless in any case that comes up for modification.

The hon. and learned Gentleman will have seen David Anderson’s supplementary written evidence. In relation to clause 30, he wrote:

“New persons, premises or devices…may be added on the say-so of a senior official, without troubling…the Judicial Commissioner…I adhere to my opinion that any such additions should be approved by the Judicial Commissioner.”

Is that the general thrust of the hon. and learned Gentleman’s amendments?

It is, and it is why not only David Anderson, but many others have expressed concern about the provision. Stepping back for a minute, even if a sensible case can be made for a modification process, a modification process that allows anything on the face of the warrant to be amended—save for training and testing—without the need for that modification to go through the double lock cuts so far through the whole point of the double lock. Through modification, everything that it was feared would happen without a double lock can take place.

The only other thing relevant to a major modification is subsection (15), which states:

“Nothing in this section applies in relation to modifying the provisions of a warrant in a way which does not affect the conduct authorised”.

That is not a limiting, but an excepting subsection.

I want in particular to highlight clause 30(11). On Tuesday we debated the issue of Members of Parliament and legal privilege. Although there was a difference of approach among members of the Committee, there was a general consensus that special protection is needed when it comes to MPs’ communications and legal professional privilege, yet subsection (11) states:

“Sections 24 (Members of Parliament etc.) and 25…apply in relation to a decision to make a major modification of a warrant by adding a name or description as mentioned in subsection (2)(a) as they apply in relation to a decision to issue a warrant; and accordingly where section 24 applies only the Secretary of State may make the modification.”

Two things are clear from that provision. First, for minor modifications to warrants that touch on MPs’ communications and for minor modifications that deal with legal professional privilege, the decision does not need to be made by the Secretary of State and it does not go to a judicial commissioner. Secondly, clauses 24 and 25, which are specifically referenced in clause 11, do not require the judicial commissioner to be involved.

If I am wrong, I will stand corrected right now, but on any reading of that, I cannot see how a modification to a warrant that brings it within the otherwise special protection for MPs and/or legal professional privilege is required to be put back through the judicial commissioner. I invite the Minister to correct me on this, because otherwise it is a worry that a warrant could be modified and taken into that otherwise protected territory without any notion of a double lock and simply the safeguard of having the Secretary of State making the decision, not a senior official.

I am sure that in due course we will outline where we are with regard to the role, or lack thereof, of the commissioner. With regard to a warrant involving a Member of Parliament, if that relates to a single individual—let us say a single Member of Parliament—that cannot be modified to have other people added in that category. There would have to be a fresh application relating to separate names. That is an important caveat that deals with a lot of the hon. and learned Gentleman’s genuine concern.

I am grateful for that intervention; I am happy to be intervened on. I think that comes from paragraph 5.61 of the code, on page 33, which says:

“A targeted warrant that relates to just one specified person, organisation or location, for example, cannot be modified to go beyond the original scope of the warrant.”

Slightly further down it says:

“Whilst this can be subject to modification, it cannot be modified to move beyond or outside of the scope of the original thematic warrant.”

This is an important point. First, something as important as that needs to be in statute—that is critical. In other words, if someone has a warrant for person A on a Monday and they want to add person B on a Tuesday, they must get a new warrant, not modify the existing warrant. That should be in statute, not in a code. There is obviously the question of what goes in the code, but that safeguard is important. If, for an example, a warrant touched on A on a Monday and could be modified in a way that might touch on an MP or go into prohibited legal privilege on a Tuesday, that requires more than a paragraph in a code of practice, because it is really important.

Again, I invite an intervention, but the code says:

“A targeted warrant that relates to just one specified person, organisation or location, for example, cannot be modified to go beyond the original scope of the warrant.”

That is a carefully drafted sentence. What is the position when there is a targeted warrant that relates to two people and the idea is to add one, and that one is an MP or a solicitor? I invite an intervention because that is not covered by the code’s wording.

I think I can assist. Perhaps there is a bit of a misconception about the current situation. If a warrant says, let us say, person A and others are known, the Regulation of Investigatory Powers Act 2000 does not require an amendment to the warrant even if another person becomes known and therefore becomes a potential target. We are tightening that up and making it a requirement that if person B becomes known, even though the ambit of the warrant at the moment covers others unknown, there has to be an amendment where we know the identity of individuals. The answer to the hon. and learned Gentleman’s question is that it can only be amended if there is an unknown part to the original warrant, as opposed to specific names.

I am grateful for that intervention. This is an improvement on RIPA, but that is setting the bar pretty low when it comes to modifications.

Let us not forget that modifications to add MPs can only be authorised by the Secretary of State. That is another important safeguard. I would not pooh-pooh what we are doing by saying that we are improving on RIPA. This is a significant improvement from where we are.

I look forward, on Report or Third Reading, to somebody informing MPs that a modification of the warrant that includes them can be made by the Secretary of State, without the involvement of a judicial commissioner. Understandably, great play was made of the role of the judicial commissioner when colleagues on both sides of the House were concerned about their communications with constituents. They were assured that there was a double lock and that a modification could not happen without a judge looking at it as well. Somebody has to stand up, be honest with them and say, “Well, it can actually, because it can be modified to bring you within it.” There is nothing on the statute or in the code to prohibit that. That is a very serious proposition because these are not urgent modifications. They are permanent and, in many cases, slower-time modifications.

I understand that, in a fast-moving case, urgent procedures are needed and urgent modification procedures may be needed, but these include slower-time, considered, permanent modifications to a warrant. Somebody needs to tell our colleagues that they can be included in the warrant by modification, and that it starts and ends with the Secretary of State and goes nowhere near a judge. They need to know that.

Somebody also needs to address the legal privilege point because I do not think that is addressed at all on the face of clause 30 or, as far as I can see, in the modifications part of the code of practice. Again, if I am wrong about that I will be corrected. From my reading of the Bill, a modification could be made to allow intercept in the otherwise protected area of legal professional privilege. The Secretary of State has to apply the higher test—I accept that—but it will never go to a judge. A sort of comfort is being held out to lawyers that, even in the extreme case where they will be targeted, it will at least be seen by a judge. That comfort is shot through by this provision. The clause really needs to be taken away and reworked in the light of the significant flaws—that the code is not clear enough and is not the right place for protections for MPs or for legal professional privilege. That should be on the face of the statute through an appropriate amendment.

I turn to the so-called minor amendments. We must remember that although they are called minor amendments, they are not minor. Clause 27(8) is really what comes within the ambit of a minor amendment, and that is all the detail about how the content will be examined. There is a bulk warrant, which, by its very nature, hoovers up a lot of communications. Then there is an examination warrant, which is intended to be a check and balance, and that is why there is a requirement to set out how the examination warrant will work—the address, the numbers, the apparatus, and a combination of other factors and so on. That is the really important safeguard. It is the only safeguard for bulk warrants accessing content, yet all of that is deemed to be a minor amendment. The amendments to the examination warrant—which, in truth, is the most important warrant for the bulk powers after the wide bulk warrant in the first place, as this is where we are actually looking at stuff—are all deemed to be minor.

What is the route for a so-called minor amendment? Let us trace it. Who can make the decision on a minor amendment? Clause 30(6) states that a minor amendment may be made by the Secretary of State, the relevant Scottish Government Minister, a senior official, the person to whom the warrant is addressed or a person who holds a senior position in the same public authority as that person. There is no urgency requirement. Real-time, slow amendments to the way bulk warrants will be subjected to examination can be made in the ordinary, run-of-the-mill case by the person to whom the warrant is addressed—they can modify their own warrant—or by a person who holds a senior position in the same public authority as them. With no disrespect to the individuals in those positions, we have dropped a long way down the ranking when it comes to the authority for sign-off of an amendment to an examination warrant that allows my content or anyone’s content to be looked at where it has been scooped up under a bulk provision.

I am afraid it gets worse. Whereas for a major modification there is a requirement for the decision maker to look at necessity and proportionality, there is no such requirement for minor amendments. That is astonishing and very hard to justify. I will listen carefully in due course to what is said, but why is there no need on the face of the Bill to consider whether a so-called minor modification to an examination warrant in relation to bulk powers is necessary or proportionate? Subsection (9) is clearly drafted only to catch major modifications.

Consider that a minor amendment to a warrant that applies to an MP or that touches on legal professional privilege could be made by the person to whom the warrant is addressed or someone in a senior position in the same public authority. I ask Members to inform their colleagues of that. There is no requirement that a minor amendment even goes to the Secretary of State, and certainly nowhere near a judicial commissioner.

The approval mechanism in clause 31 is only for major modifications. There is a low level of authority for making minor modifications, and there is no test. If I were a senior official in the public authority, I might say, “You just asked me to make a modification. What am I supposed to take into account?” but on the face of the Bill, there is not even a test to be applied. There is no duty—again, I am happy to be corrected—to inform the Secretary of State. For major modifications, there is such a duty, but for minor ones, there is not. Someone in a senior position in a public authority can therefore make the modification and not notify the Secretary of State. There is certainly no double lock. It is no wonder the Joint Committee was so concerned about this provision, and it is no wonder so many others have raised such concerns.

In the Joint Committee’s examination of this provision, one crucial point we raised was exactly the one the hon. and learned Gentleman raises. We were told that the crucial phrase is in clause 30(2)(a):

“adding, varying or removing the name or description of a person”.

It is the description of a person, not the person. This is about aliases for individuals; it is not about changing the individuals themselves. I wonder if he has considered that point, which the Joint Committee was assured of in its evidence.

I would be interested in the Government’s position on that, because it does not sit with what is in the code of practice. If all clause 30 intends is to say, “We thought he was called Keir Starmer; now we know he’s called Steve”—I have always wanted to be called Steve—“but the warrant applies to exactly the same person,” or, “We thought it was 137 Charlton Road; we now realise it’s 172, but it’s the same premises”, I will sit down now and invite an intervention.

No, I think the intervention is suggesting major modifications—subsection (2)(a) only applies to major modifications. That is, apart from the removing, it is the description of a major modification. If a major modification is only intended to allow the name of the same individual to be swapped—where it is appreciated that it is the same person, now called not X, but Y— that is one thing, but the code of practice then does not make much sense, because it is written on the basis that individuals are being added.

I am inviting an intervention, but I am not getting one. I would quite like one, because I would be less concerned. If this is right and that is what the Joint Committee was told—that that was the intention—then the measure clearly needs to be rewritten, which would remove a lot of concern. That is why I invite some clarification. I suspect that the non-intervention is because that understanding is not the right answer.

Order. I gently remind the Minister that he has the opportunity to respond on behalf of the Government at the end of our debate on the group. We do not need to have a ding-dong on each point.

I will help! I thought that I had made the point clear. What we are dealing with here is major modifications, which will allow for the warrant to be amended to include the names—for example, of a kidnap gang—as they become apparent. At the moment, RIPA does not allow for that—there is no such provision. We are putting that in the Bill, so that when names become known we may amend the warrant, because we think that that is fairer and more proportionate. The warrant will have been authorised initially against all of the gang, say, but we are then providing the specificity that should have been there anyway.

For that very reason, Minister—interventions have to be short. The debate is continuing and Keir Starmer has the Floor; then there is the opportunity to respond.

I am grateful to the Solicitor General. That was helpful, because if the previous intervention is right, a lot of my concern would be focused elsewhere and save a lot of time—but I am afraid it is not. On the face of the Bill, and consistent with the code of practice, named—[Interruption.] I want to be clear, to have clarity about what we are arguing about, because the point is a very serious one. As everyone can see, there is the real potential for all the careful checks and balances devised under the Bill to be shot through by the modification process. That is the real concern, and I think it is a shared concern, certainly in the Joint Committee, but also in other places.

To be clear, I think that the Solicitor General is accepting that the measure is not simply about re-identifying with a different name a person who is already specified on the warrant; he is suggesting that it would be used if a warrant was issued in relation to a gang of some sort, when some members are known and others become known, and a mechanism for adding them is needed. If that is what was intended, why is that not what has been written in the clause?

Clause 30, as drafted, does not limit in that way. If it did, the subheading would be “Modification of thematic warrants”, then it would state that where a thematic warrant has been issued naming a person, an organisation or whatever, and it becomes necessary to amend it, to clarify further the persons within the organisation, and so on, then that would be a much more restricted clause. That would probably have met some of the concerns of the Joint Committee and be a very different proposition, but that is not what has been drafted. In the code of practice, it is true, there are some warm words, but—

The hon. and learned Gentleman knows that the code of practice is much more than that and makes it clear that the measure is about thematic warrants. The mischief that he is worried about here is cured by the fact that if a sole named person is on the warrant, it cannot be modified to add another name; we would have to apply for a new warrant.

The question for the Minister is, if that is the purpose, why is the measure not limited to thematic warrants? It is impossible to answer that question unless one wants to keep open the option of modifying non-thematic warrants. It is a simple amendment, that the provisions of a warrant issued under whatever the relevant clause is may be modified by an instrument. In subsection (1), we could achieve exactly what the Solicitor General says is the clause’s purpose by amending it to “themed warrants”, but it has not been done, notwithstanding the concerns of the Joint Committee.

I wonder whether the hon. and learned Gentleman’s concerns are addressed by the last five words of subsection (2)(a):

“The only modifications that may be made under this section are adding, varying or removing the name or description of a person, organisation or set of premises to which the warrant relates”.

The Home Secretary, or someone else, will receive a warrant relating to a particular person, course of action or premises, and only if that warrant relates to those things could someone then be added—it must relate to the warrant itself.

I have considered that, and it is fair to say that subsection (2)(a) would not allow, in essence, a completely fresh warrant to be issued under the modification procedure. There has to be a relationship between the modification and the warrant, so someone could not say, “I want a warrant against X today, and I’ll modify it to include Y, which has nothing to do with X but it is handy to modify this warrant, as we have it before us.” There has to be a relationship, which I accept is the intention and the purpose of clause 30, but the drafting is still far too wide. What if an MP or a solicitor is involved? What if it becomes known that there is a gang and we think that X, Y and Z are involved—we do not know the others—and we then learn that one of them is talking to their solicitor? The solicitor is then related. A modification would allow something to be brought in, and there is nothing to prevent it.

With all due respect to everyone who has worked hard on clause 30, of all the clauses in the Bill it is the one that the further I went through it, the further my jaw dropped because of just how wide and unlimited it is. In an area such as this, where we are talking about safeguards, it is not enough simply to point to what are in fact limited words in the code of practice. I will not invite the Minister to do something now, but I am curious—I may have misunderstood—that paragraph 5.64 of the code says:

“Minor modifications that are made by the warrant requesting agency are valid for five working days following the date of issue unless the modification…is endorsed within that period by a senior official…on behalf of the Secretary of State. Where the modification is endorsed in this way, the modification expires upon the expiry date”.

I cannot find any reference to that anywhere in the Bill. If I am wrong, I will happily be corrected, but I do not know where that comes from. Obviously, my amendments would restructure the clause to try to make it workable, but I do not see paragraph 5.64 anywhere in the clause. It would help to have that clarified.

That brings me to the amendments, which I will address briefly. In the spirit of constructive dialogue, I have tried to propose a restructuring of the clause in a way that would narrow it while leaving a workable modification provision. My amendments are not intended to be unhelpful. Amendment 68 would leave out subsection 5(c) so that the modification for a major case sits with the Secretary of State. Amendment 69 would leave out subsections (6)(d) and (e) to cut out people below senior official level so far as minor modifications are concerned. Amendment 70 would leave out subsections (7) and (8) because they are not necessary. Amendment 71 would make it clear that, in relation to MPs and legal professional privilege, all modifications must go through a judicial commissioner—if a modification goes into a protected area, it would have to go through a judicial commissioner. Amendment 72 would leave out subsection (12) because it would no longer be relevant, as senior officials would be taken out of the equation. Amendment 74 would make it clear that certain modifications have to go through the judicial commissioner. I tabled those amendments as a serious attempt to improve clause 30, which is seriously deficient for all the reasons that I have outlined. For the Government to nod this through at this stage, without standing back and asking if they have got it right, would not be the right approach.

Although we have only heard one speaker, we have covered the ground on the issues at hand. The hon. and learned Gentleman’s points about the importance of warrantry and the involvement of commissioners are interesting and important. This is all about fine-tuning what I regard to be an important step forward from RIPA in ensuring that we do not end up undermining the vitally important world-leading double-lock system that this Government want to introduce, by allowing the system of modification to be a back-door route. I am absolutely with him on that and know that he and other members of the Committee have advanced these amendments in that spirit.

The hon. and learned Gentleman is absolutely right to set the context of this debate and talk about the three areas of thematic warrantry that we are talking about—targeted interception, targeted assistance and mutual assistance warrants. He made the point about trying to make that clear on the face of the Bill and the code of practice not being enough. I will go away and think about that, because I think it is a reasonable point to make. If it needs to be made clearer, we are only too happy to help. I want to ensure that what I am about to say is underlined and made clear; what I say in Committee will greatly help to inform those who will operate in this area in the future.

We must be clear about what can be achieved by a modification in the first place. I have already said that the introduction of the concept of major modifications is an important new safeguard in the Bill, because of the absence of references to that in RIPA. What we had with the Regulation of Investigatory Powers Act 2000 was the authorisation of warrants on a thematic basis. I have given the example of a kidnap gang; RIPA requires that if, for example, the National Crime Agency wishes to intercept the communications of members of such a gang, their telephone numbers must be added to the warrant as they become known—not their names and identities, just that information. I do not think that is good enough and that is why that particular oversight and anomaly—I will be generous in that respect—needs to be corrected, which is what the Bill does. The code of practice makes it clear that names can only be added to a warrant when they are within the scope of the original warrant. For example, the name of a kidnapper could be added to a warrant that relates to a kidnap gang.

Is there a reason why paragraph 5.61 states that a

“targeted warrant that relates to just one specified person, organisation… cannot be modified”,

which is pregnant with the idea that there is a different position when it is not just one? Was that a carefully drafted sentence that means exactly what it says, in which case what the hon. and learned Gentleman has just said has limited it, or was a wider application intended?

I do not think it was. I can give an example; let us say you and I are named on a warrant—God forbid—then that is a restricted warrant. There is no wriggle room. It is a bit like a conspiracy, where we might plead a conspiracy between A and B and others are known, which is perfectly permissible and very often the case in a conspiracy. But if it was a much more limited warrant naming you, me and perhaps one other named person, that does not give space to use the modification procedure to add another name because it has already been limited in its terms of reference.

I understand the Solicitor General’s point. However, let us say that there was a warrant that named him and me, and a third person was then identified as being in league with us, whatever we were believed to be doing. What provision in the Bill or sentence in the code would actually prevent a modification to add that person? The Bill does not; paragraph 5.61 does not. The scheme that the Solicitor General describes is not the scheme in the Bill and the code. That is the problem.

Before you continue, Solicitor General, let me remind you that when you say “you”, you are making reference to me, and I am impartial in this discussion.

You are right, Mr Owen; I stand corrected. I have lived my life speaking in the third person. I do not know why I—

I think I can help you now. You are not in court; you are in Bill Committee.

That is the thing. The hon. Gentleman and I had this problem in a previous Bill Committee—I think I referred to the ministerial Bill team as “those who instruct me”. I have not made that mistake yet, but that is the path I am being led down.

We have not got to that stage yet, Mr Owen. One day, perhaps I will be entitled to address you in those terms, but not yet.

Let me come back to the point. I disagree with the shadow Minister; I think the language is clear. I want to make it clear, on the record, that we do not seek, through the code of practice or through any sleight of hand in the drafting, to elide or blur divisions so that we can somehow get round the problem. If he and I were named on a warrant, another warrant would be needed in order to add another person, because the original warrant was targeted at named individuals: it did not have “and others unknown”. That is why we have introduced this provision to improve the position.

Does it not ultimately boil down to the statutory interpretation of subsection (2)(a)? The Solicitor General, who is a very distinguished lawyer, considers that it does not permit adding a new person. David Anderson QC, an equally distinguished lawyer, has stated in written evidence that he considers it does. The shadow Minister, also a distinguished lawyer, has argued eloquently that he does not believe that the Bill or the code prevent adding a new person. What is required from the Government is absolute clarity, because of the wide ambit of these powers.

I am grateful to the hon. and learned Lady. I am not saying that another name cannot be added. With a wider original warrant that says “Persons A, B and others unknown”, of course an extra name can be added. If the warrant’s original terms of reference are narrow—if they just include A and B—adding person C requires applying for a new warrant. With the greatest respect, I cannot make it any plainer or clearer than that. An ordinary warrant cannot be turned into a targeted, thematic warrant; that is the point. If a new warrant is needed, it must be applied for, and then the double lock will work.

Will that not be an incentive to make all warrants wide? The Solicitor General is saying that, when the original warrant is narrow, additional warrants will be needed, but when it is wide, names can be added.

The hon. Gentleman makes an extremely good point. That is why we are putting clause 30 in—because there is a danger, under the existing legislation, that a warrant can be drafted quite widely without having to come back and amend it in order to add extra names. I take his point, but I do not believe the clause will create a perverse incentive; on the contrary, I think it is vital. For those who draft the terms of the warrants, it will focus their minds on getting it right in the first place, so that we do not end up with the sort of mischief that he quite rightly warns about.

If that is so important—we want to make an improvement—why can we not have what the hon. and learned Lady is asking for, which is some clarity? That would improve what is clearly a defective clause.

I take issue with the hon. Lady’s assertion that the clause is defective. I do not think it is. There are one or two other points that I was already going to reflect on, and I will come to them later in my speech.

Let us just come back to the point that I know the hon. Lady wanted to make. If we end up with an original application that is too wide, it will not get through the double lock, because the commissioner will say, “Hold on. This is neither necessary nor proportionate. It doesn’t pass the test of review. Sorry, Secretary of State, you’ve got it wrong.” That is the whole thing that we are in danger of forgetting. I can see that the hon. and learned Member for Holborn and St Pancras is desperate to get in, so I will give way.

I really am desperate, because I want—if possible—to have an answer to the question that I put before, which is this: if what the Solicitor General is now saying is right, why does clause 30 apply to a section 15(1) warrant, because that simply does not come within the formulation?

What I would say to the hon. and learned Gentleman is that I am afraid we are forgetting the context. The mischief that he wants to deal with is that somehow an applicant for a warrant has got something in through the back door—it is too loose, too wide, and modification therefore becomes, in effect, a way of getting round the whole system. I do not believe, given my understanding of both the code of practice as drafted and of the proposed legislation as drafted, that we will get near to that nightmare scenario.

A section 15 warrant can be about an organisation. The point that I am seeking to make is that we are already in the realms of thematics, and therefore if someone has a warrant that has been drafted specifically, the process must be started again if they want to include other individuals.

May I deal with the question of the ability to modify warrants themselves? I do not think anybody is saying there should not be an ability to modify warrants; that was not part of the recommendations of any of the Committees that we know about. Also, of course, such a change would be a very significant reduction in the operational effectiveness of the warrantry process. It would mean, for example, that it would be necessary to seek new warrants each and every time it was identified that an intercepted target got a new telephone or a new phone number. I am afraid that would slow down the process, and we think there is a significant danger that investigative and intelligence opportunities would be lost.

I am not accusing anybody on this Committee of wanting to do anything to endanger an investigation or indeed lives, but we have got to think about this issue in that context. Therefore, getting the balance right is quite clearly what we all want to do.

I sat on the Joint Committee that took evidence from the professionals on the front line, so I know that that very point was emphasised time and again. To quote some of the senior police officers, they are struggling to keep up with the serious criminals and the terrorists, who change their numbers and set up new email addresses and new technological addresses and identities. It is absolutely vital that we do not tie the hands of the police even further.

I thank my hon. Friend for the work she did with other colleagues on that important Committee. Of course, the context is that applications will be made on the basis of a warrant that has itself already gone through the double-lock procedure and that has already passed the tests that we know will be applied—that it is necessary and proportionate in the particular context of the case that is being dealt with.

I wanted to emphasise that point. If a warrant has in the first instance been granted, it has met the tests of necessity and proportionality, and if a telephone number attributed to a person is added, it seems to me that the purpose of the warrant that was originally granted by the Home Secretary and the judicial commissioner does not change. Am I correct in my understanding of that?

My hon. Friend is absolutely right, and to try to manipulate this process to undermine that important procedure would be immediately spotted as a misuse of the processes and the safeguards that we are incorporating into this Bill.

I want to deal with the practicalities because, tempting though it is to impose a requirement on a judicial commissioner to authorise the day-to-day or sometimes minute-by-minute tactical operation of a warrant, it would be unnecessary and operationally damaging. There must be an element of agility when operating the system of investigation and there is real concern that we would fail to do the job of detecting crime and making sure the interests of everyone we represent are protected.

Ordinarily, such modifications will be made by a senior official in the warrant-granting Department, but when, for example, the identity of a gang member becomes apparent only in the middle of the night, it is right that the intercepting agency should be able to make the modification. That deals with the point about the fast-moving threat and the immediacy of the situation.

I will deal with as many as possible of the points the hon. and learned Gentleman raised, starting with the minor rather than major modifications in amendment 69. The amendment would prevent either the head of an agency or a senior official within that agency from making a minor amendment. We are dealing with minor modifications relating to adding a new communication address for warranted targets. An example is MI5 discovering a new mobile telephone number for a warranted target who is plotting to kill someone. The Bill enables the intercepting agency—MI5 in this case—to make the minor modification to the warrant, which will have been through the double-lock procedure, and to add that new mobile number. The danger of the amendment is that it would remove the ability to act swiftly to get coverage of the new subject’s communications. With respect, I do not think it is necessary because the Secretary of State and the judicial commissioner will already have considered the necessity and proportionality of targeting interception against the individual. I will not repeat the point, but it is important for public safety.

On parliamentary and legal privilege, I have already indicated that a major modification would not be sought to a warrant against a Member of Parliament or in relation to any warrant that names a specific individual. The code of practice makes it crystal clear that major modifications can be made only to warrants that apply to a group of persons or an organisation.

I am grateful for the way the Solicitor General is explaining how the Government intend the modifications to apply. He says they would not be used in that way for legal professional privilege and Members of Parliament, but he cannot say they could not be. If I have missed it, I will sit down sharpish, but I do not think there is anything on legal professional privilege or MPs in the modification parts of the code of practice. It is silent on that. There is no guidance.

What I am trying to do is to explain that there is no difference for any member of the public. If the warrant is specifically named, it cannot, as I have explained, use the modification procedure to try to catch other people, whether journalists, Members of Parliament or lawyers. Rather than constantly seeking carve-outs, it is far better to have a general principle about specificity and the danger that the hon. Member for Paisley and Renfrewshire North raised.

So that the position is clear in my mind—I am not entirely sure about it—is the Solicitor General saying that, if new people are added to a warrant without a fresh warrant being applied for, they would have to be related to the event, occasion or surveillance that the original warrant was about? Is it correct that 32 new people from different parts of the country could not just be added if they were not linked to the matters for which the warrant was given?

That is right. The word “thematic” gives it away. I am afraid it is clear that the sort of scenario my hon. Friend paints is just not one that would be entertained in the initial application to the Secretary of State and the judicial commissioner.

Modifications to warrants that would bring in legal professional privilege or, indeed, affect a parliamentarian, cannot, as I have already indicated, be approved unless they are made personally by the Secretary of State, and he or she must be satisfied that there are exceptional and compelling circumstances before such a modification can be made. Of course, in the case of a parliamentarian there has to be consultation with the Prime Minister, so I think that we have a very significant number of safeguards. However, in the spirit of this debate, I will consider carefully everything that has been said, and give it mature reflection.

Amendment 72 would remove the requirement that a major modification made by a senior official must be notified personally to the Secretary of State or a member of the Scottish Government. That is an important safeguard because it ensures that any major modifications to the warrant are visible to the Secretary of State, and gives them oversight.

Amendment 251 seeks to remove subsection (13), which requires a person to modify a warrant if they consider that any factor is no longer required to identify communications to or from the person subject to the warrant. For example, if someone who is subject to a warrant gets rid of a telephone and the intercepting agency knows that that person will no longer be using it, the warrant must be modified to remove that mobile phone. It is an important safeguard, because it makes sure that the agencies are not continuing to intercept a device that is no longer used by the subject of the warrant. That should be preserved in the Bill, bearing in mind the important constraints that we should place on the use of powers that we all agree are significantly and substantially intrusive.

Am I correct in understanding that there is also a further oversight provision, namely the general oversight provisions of the Investigatory Powers Commissioner and the other commissioners under part 8 of the Bill? They have main oversight functions to look at how the powers are being exercised generally, as well as in every single double lock instance.

My hon. Friend is quite right about that, and I think commissioners would be concerned if for some reason there was an inappropriate overuse of mechanisms such as the one in question, which might appear in future evidence. I believe that we are getting the balance right and therefore the review will, I think, be a useful backstop, but nothing more, I hope.

The Solicitor General has just said he thinks the Government are getting the balance right, but he has also said he will take the matter away and look at it carefully. When he does that, will he also look at the evidence of Sir Stanley Burnton, who told the Committee that he was concerned that substantial modification could be made to a warrant under the Bill with no judicial approval or even notification that names had changed?

I am very well aware of the evidence of Sir Stanley, which is why I have couched my remarks in the way I have. It is of course important to balance what he said against the view of his predecessor, Sir Anthony May, who in the 2015 annual report said:

“A case could be made however, that it would be appropriate to use thematic warrants more widely against, for example, a well-defined criminal or terrorist group working for a common purpose.”

I have said what I have said: my thoughts today are that the clause is perhaps getting an unfair battering. However, I listen to everything that is being said, including the hon. and learned Lady’s remarks.

Amendment 95 deals with the question of whether the Bill should require necessity and proportionality with respect to the consideration of minor modifications. I am going to think about it. It is a reasonable point and we may be able to return to it on Report.

To conclude, I think that, in the round, the Government have set out our position clearly. We will consider two points that have been raised, in particular, which I have addressed; but in general terms, while I will resist any amendments that are pressed to a vote today, I want more time to reflect. I hope that that will give Members an opportunity to reflect as well. For those reasons, I urge the hon. and learned Gentleman to withdraw the amendment.

I am grateful to the Solicitor General for taking the time to set out how he understands the process will work. As will be clear from our exchanges, my concern is that the comforting way in which he set out how the modifications process is intended to work is not reflected in the drafting of the Bill. Nevertheless, I have listened to what he said about considering the matter further.

At one point during the submissions he just made, he said that the word “thematic” made everything clear. My point is that the word “thematic” is not in the Bill. I would like the Solicitor General to think about whether the provisions could be improved by an amendment that made it crystal clear that the power is intended for modifications to themed warrants and not to other warrants. It may not be quite as simple as that, but that would certainly reflect the gist of what the Solicitor General said.

I am grateful for that. To be clear, I accept that in urgent cases there needs to be a process so that the security services, the police and others are not inhibited from doing what they need to do in real time and fast, but what we are discussing is not an urgent modification process. Again, it is about restricting the scope.

I was going to push the amendment to a vote, but I have been mulling it over in my mind and have decided that I am going to withdraw it in the spirit of the Solicitor General’s approach.

It is good to remind ourselves that the codes of practice have been published in draft and we have ample opportunity to revisit them to make the language even better. I hope that that helps the hon. and learned Gentleman.

I am grateful for that intervention. This is one of those matters on which we probably need to do as much of the work now as possible, because when the code finally comes back for a vote one way or the other, if there is a deficiency over an issue such as this, we will be put in the invidious position of voting down the whole code because we cannot change it. I am very happy to work with the Solicitor General to set out our concerns even more clearly and to see whether we can make improvements. I doubt that all my concerns would be met, but we might be able to draft a vastly improved model. With that, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

I was minded to push for a vote on clause stand part, but given what the Solicitor General has said and the very detailed arguments made by the hon. and learned Member for Holborn and St Pancras, I am content not to push the matter to a vote at this stage. Like the hon. and learned Gentleman, I would be very happy to work with the Solicitor General and the Government in looking at this clause.

I welcome the hon. and learned Lady’s remarks. They are noted, and I am sure we will be able to work on this constructively. I intend to make no more remarks for fear of repeating the observations I made a moment ago.

Question put and agreed to.

Clause 30 accordingly ordered to stand part of the Bill.

Clause 31

Approval of major modifications made in urgent cases

Question proposed, That the clause stand part of the Bill.

Clause 31 is linked to clause 30 and I am minded to oppose it, but I shall not do so at this stage as I would like to see what proposals the Government come back with.

I am obliged to the hon. and learned Lady.

Question put and agreed to.

Clause 31 accordingly ordered to stand part of the Bill.

Clause 32 ordered to stand part of the Bill.

Clause 33

Special rules for certain mutual assistance warrants

Question proposed, That the clause stand part of the Bill.

No amendments have been tabled, and I do not oppose the clause, but I have a question that I would like the Solicitor General to deal with now, or at some other convenient point. In any event, I understand that these warrants are not particularly common.

Clause 33(1) makes it clear that the provisions apply predominantly where the subject of interception is outside the United Kingdom, and it effectively allows for sign-off at the senior official level. Notwithstanding that the subject is outside the United Kingdom, do the measures permit interception involving individuals in the UK or the British Isles if they are in communication with the subject? I ask for clarification, because I cannot find an answer myself.

I am happy to clarify that. The position is that if the Secretary of State or a senior official acting on behalf of the Secretary of State believes that a person, organisation or set of premises named or described in the warrant as the subject of the interception is in the United Kingdom, that person must cancel the warrant. I hope that that answers the question.

It is probably my fault for not putting the question clearly enough. I accept that in relation to the target, but the warrant will cover others than the target. Can the Minister clarify what protection there is under this procedure for people in this country who, although they are not the target, might come within the warrant?

What I am trying to deal with is anybody within the warrant, whether person, premises or organisation. If they are within that, they will be covered and it will have to be cancelled. I hope that that gives the hon. and learned Gentleman some reassurance.

Question put and agreed to.

Clause 33 accordingly ordered to stand part of the Bill.

Clause 34

Implementation of warrants

I beg to move amendment 252, in clause 34, page 28, line 37, at end insert—

“(4A) Subsection (4) shall not apply where the person outside the United Kingdom is established for the provision of services in a country or territory with which the United Kingdom has entered in to an international mutual assistance agreement or is subject to an EU mutual assistance instrument.”

This amendment establishes international mutual assistance agreements—as recommended by Sir Nigel Sheinwald and currently under negotiation between the UK and US—as the primary route by which UK agencies obtain data from overseas CSPs. It would continue to enable the imposition of warrant on CSPs in non-MLA countries.

With this it will be convenient to discuss the following: Amendment 253, in clause 35, page 29, line 5, at end insert—

“(1A) Where such a warrant is to be given to a person outside the United Kingdom, the warrant shall be served at that person’s principal office outside the United Kingdom where it is established for the provision of services.”

This amendment would make the Home Secretary’s confirmation at Second Reading — that a UK agency would only serve a notice on an overseas entity that is capable of providing assistance under the warrant — clear on the face of the Bill (as well as being in the relevant code of practice) clarifying provisions in the Bill. UK agencies today routinely use secure means of communication to transmit notices directly to the main office of overseas CSPs.

Amendment 254, in clause 35, page 29, line 6, at beginning insert—

“Where it is considered unfeasible or inappropriate in the circumstances,”.

See the explanatory statement for amendment 253.

Amendment 255, in clause 36, page 29, line 44, at end insert—

“which for a relevant operator outside the United Kingdom shall include—

(a) any steps which would cause the operator to act contrary to any laws or restrictions under the law of the country or territory where it has its principal office for the provision of telecommunication services; or

(b) where a warrant could be served pursuant to an international mutual assistance agreement or subject to an EU mutual assistance instrument.”

Amendment 256, in clause 36, page 30, line 1, leave out subsection (5).

This amendment clarifies the reasonableness test for overseas CSPs and establishes that international mutual assistance agreements, where they exist, should be the primary route to obtain data from these CSPs.

I will be straight and open with the Committee about where the amendments come from. I have been contacted by and have discussed the issues in the Bill with a number of service providers and tech companies in this country and in America. As the Minister will know, they are concerned about how the Bill will operate; no doubt they have been having discussions with the Government as well. They have drafted the amendments and want the Committee to consider them in relation to the operation of the provisions. The amendment have been proposed jointly by Apple, Facebook, Google, Microsoft, Twitter and Yahoo!, as well as techUK, which have clubbed together to raise their concerns through me. It seems to me that their concerns are perfectly legitimate and need serious consideration. That is the context of the amendments.

The first point that the companies make is that companies providing digital services to users are increasingly global in their corporate structure, so it will be rare for the provisions in clauses 34 to 36 to be applied to providers that are completely within the United Kingdom; it is likely that they will touch on others in other jurisdictions. For the record, the companies accept that the current legal framework is fragmented and needs modification. They also say that the mutual legal assistance treaties have not been adapted to handle the huge increase in demand, and that there are already delays and difficulties, particularly in relation to extraterritorial jurisdiction. The background is that various Governments around the world are now aggressively asserting extraterritorial jurisdiction. The word “aggressive” is not intended for this Government, I think, but a number of Governments are going down the road of asserting extraterritorial jurisdiction in different ways over service providers.

In the UK, the Data Retention and Investigatory Powers Act 2014 made explicit extraterritorial powers that the Government said were implicit in the Regulation of Investigatory Powers Act 2000. Those are restated and further extended to the avowed powers. Therefore, the provisions are important for the companies. Their concerns can be set out in the following way. First, they are concerned that if there is a model in this Bill that either does not work or goes further than is appropriate, others will look to it and adopt the same approach. Therefore, other countries and jurisdictions will assert the same extraterritorial jurisdiction, which will create overlapping and conflicting laws. One of the points that they pressed on me—if there is an answer to this, I am all ears—is that if we assert extraterritorial jurisdiction over someone in silicon valley, who is subject to various US laws, and another country does the same, that person’s main headquarters will be subject to a number of different legal regimes, which will create huge problems of conflict for the entities concerned.

The companies point to the Sheinwald review. I think that the next big challenge in this field will be how the extraterritorial provisions work in practice. Clauses 34, 35 and 36 go together and put in place a framework under which the person to whom the warrant is addressed can serve the warrant. By doing so, they require tech companies to comply with various operational demands. The failure to comply is a criminal offence, which is why the tech companies are so concerned. It is anticipated under the Bill that they will be served with warrants and be expected to carry out the required activities. If they fail to do so, they will be committing a criminal offence, notwithstanding the fact that they are not within the jurisdiction. In the end, if they are sitting in a different jurisdiction and a number of different countries assert the same sort of extraterritorial powers, there is the potential for such conflict that only international agreements will be capable of cutting through this in a way that makes it workable not only for the tech companies but for the security and intelligence services.

That is why reference was made to the Sheinwald process. The Prime Minister engaged Sir Nigel Sheinwald back in 2014—that was welcome—to examine this issue and to move it forward. So far, that review has concluded that the mutual assistance provisions have not kept pace, so we are behind on international mutual assistance.

This is just a gentle observation to those who have lobbied the hon. and learned Gentleman. It is a very great shame that they did not feel able to give oral evidence to the Joint Committee to explain those points themselves. They declined our invitation, and now they are relying on the hon. and learned Gentleman to make those points for them. Is it not a shame that they declined the opportunity to make those points themselves?

I am afraid I am not in a position to answer one way or the other. I do not know the background to that. I will make the points to the best of my ability in the time available, but I will also encourage them—

Order. The hon. and learned Gentleman tabled the amendments in his own name, and they are in order.

I am grateful for that guidance, Mr Owen. If there is any further information that the tech companies can provide, they will do so. To be absolutely clear, these concerns were raised with me by a particular company but, after reflecting on them, I put them forward in my own name because I think they are genuine concerns. The conflict of laws is a real concern.

This comes up in a later clause, so we can look at it in detail then, but the problem the companies foresee is that if they are asked to do something that puts them in breach of the law in the country in which they are based, they will have a real dilemma. The Bill as drafted does not give them a way out of that dilemma. I am raising their concerns; it is appropriate for a scrutiny Committee to know the real concerns of those who are going to be called upon to implement the warrants, and to consider them.

Amendment 252 states:

“Subsection (4) shall not apply where the person outside the United Kingdom is established for the provision of services in a country or territory with which the United Kingdom has entered in to an international mutual assistance agreement or is subject to an EU mutual assistance instrument.”

It intends to ensure that, where there is a mutual legal systems’ provision that bites, this Bill should not be the route for enforcing the requirements of the warrant. It is a perfectly practical and sensible provision; if that enforcement is provided for by an international mutual assistance arrangement, that should be the primary route, because it will, one hopes, have in-built ways of dealing with the conflict point that I articulated.

Amendment 252 is to clause 34. I will deal with the amendments to clauses 35 and 36 when we get to them, if I may. There is a theme running through.

Thank you, Mr Owen, and I welcome you to the chair.

There are two points at the outset. I am grateful to the hon. and learned Gentleman for being clear about the genesis of these amendments. I also asked my officials that question; I assumed that the amendments had come from that source. Secondly, he will be aware that extra-territorial matters regarding overseas organisations or companies are always challenging, but, equally, he will recognise that in this context it is critically important that we address that point, because the ownership of companies that have a profound effect on the matters we are debating is often outside the UK.

Mindful of those points, let me move to the amendments. Amendment 252 seeks to remove the ability to serve warrants on an overseas provider, where a mutual legal assistance agreement is in place. It is important to understand that that would have several consequences. One possible consequence would be to slow the process down. The second, more fundamental, consequence would be for us to lose the ability to serve a search warrant on a company based outside the UK that provides services to users in the UK. Contextually, many of the people who pose the greatest threat to us use services which are based in companies outside this country, especially, as the hon. and learned Gentleman suggested in his opening remarks, in the United States of America. The mutual legal assistance treaty does not provide a course for interception warrants. It is a route to secure evidence, as he will be very much aware from prosecutions. It is used to obtain communications data and store them for use in prosecution. It is of little or no use in very fast-moving counter-terrorism circumstances or in serious crimes operations, which we are frequently dealing with. I do not need to go into immense detail because, I think, the demand for brevity is such that that would be superfluous. Any number of the pieces of evidence offered in the work done so far on the Bill make it absolutely clear that, in both of those kinds of cases, communications data are absolutely central, which is true to an increasing degree, and it is often provided by companies from outside the United Kingdom.

In his report, with which you will be familiar, Chairman, David Anderson addresses that point precisely. He argues that the mutual legal assistance treaty route is

“currently ineffective. Principally this is because it is too slow to meet the needs of an investigation, particularly in relation to a dynamic conspiracy”

of the very kind I have described in relation to organised crime and terrorism. He argues that it does not address intelligence needs. He notes that progress has been made and he cites the Irish Government in the context of the EU protocols for legal assistance. The hon. and learned Member for Holborn and St Pancras made reference to the work that the Prime Minister’s envoy is doing in this regard, but the Prime Minister’s envoy has said:

“While we should improve our current Mutual Legal Assistance Treaty, it will never be fast enough or have a scope wide enough to allow for urgent counter-terrorism and similar requests.”

The final point is critical. As well as being too slow, the MLAT route is limited to a request for evidence in relation to serious crime prosecutions; it does not provide for national security or investigations that are at an intelligence-gathering stage rather than those in which the focus is on obtaining evidence. As I said, it is essentially about prosecutions, so it cannot deal with that earlier work. Other similar agreements—for example, the European mutual legal assistance convention—have similar drawbacks. Although I appreciate that the amendment is probing, relying on this route simply would not deliver the effectiveness that we need.

Clause 35 makes provision for the service of a targeted interception warrant or a mutual assistance warrant on a person outside the UK. The amendment would require a warrant to be served on an overseas communications provider at their principal overseas office in the first instance. The ways in which an interception warrant may be served on a person outside the UK are already set out in the clause, providing a number of alternative methods, to allow flexibility.

It is interesting that the hon. and learned Gentleman spoke about companies that have been deep in discussion. He will know that there is quite a difference of opinion among companies about this. Some want flexibility and some take a different view. It is a mixed picture. He will also know that we have had extensive discussions with the sector and providers over a considerable period of time about various aspects of the Bill, including this one, and there is a difference of opinion among companies about that. Service to the principal office overseas is already possible under the clause, so there is nothing added to the Bill in that sense, but stipulating a mandatory method for how a warrant is served is unnecessary and possibly even unhelpful.

On the amendments to clause 36, I have set out the importance of the need for flexibility, and I hope that I have also made the case about vital intelligence work and so on. I can see the hon. and learned Gentleman beginning to stir.

The last time I was in a Bill Committee, I moved my arm in a particular way and somebody thought it meant I wanted to intervene. On this occasion, I do.

On clause 36, there is a concern, and anything the Minister can say on the record would be helpful. The problem is subsection (5), which is an attempt to help or to get round a problem, but does not go all the way. It states:

“In determining for the purposes of subsection (4) whether it is reasonably practicable for a relevant operator outside the United Kingdom to take any steps in a country or territory outside the United Kingdom for giving effect to a warrant,”—

because it is only reasonable steps they must take—

“the matters to be taken into account include the...requirements or restrictions under the law of that country”.

The concern is about asking for something that is unlawful.

I was going to refer to that, of course, because that is the part of the Bill that explicitly deals with the legal conflict issue, as he describes.

Order. Just to help the Minister, we are still on amendments 252 to 256 to clause 34. We will come to the future clauses.

Without question, we will return to the matters in hand. The hon. and learned Member for Holborn and St Pancras is very helpful, but I appreciate your guidance, Mr Owen.

The effect of removing subsection (5) would leave the company alone to decide what reasonable steps were required to be taken for giving effect to the warrant. I do not think we should accept that position. Our engagement with overseas companies over the past few years has been clear. They require certainty of their obligations, and I know that is what the hon. and learned Gentleman is seeking. For that reason, Parliament enacted the Data Retention and Investigatory Powers Act 2014 as emergency legislation, to remove uncertainty.

I am not sure, given the threats we face, whether it is appropriate to leave a private company to determine whether it is obliged to do what is asked of it by legal instrument. The Bill already requires any requirements and restrictions under the law of the country where a company is based to be taken into account. In my view, it is wholly right that the UK Secretary of State makes that decision rather than a corporation.

The effect of the amendments in practice would be to transfer fundamental decision making to the corporation and I am not comfortable with that. I think it is right that these companies providing communications services to users in the UK should be required to comply with our law. I know that is not necessarily always their view but it is certainly mine and the Government’s. That must include UK warrants requesting the content of criminal and terrorist communications.

Members might recall the Home Secretary’s comments on Second Reading that made clear that we are working with the United States—I know the hon. and learned Gentleman wanted that assurance—to establish a new framework, which would release American companies from any perceived conflicting legal obligations.

The hon. and learned Gentleman makes a perfectly reasonable point about balancing a range of possibly competing or conflicting legal requirements but, frankly, multinational companies deal with that kind of thing all the time. These are companies dealing with all kinds of legal provisions and demands from all kinds of places in the world. This is not uncharted territory for them.

It is incumbent on me to challenge something the Minister has just said. As I understood him, as far as possible it is desirable for the law of the UK in this respect to have effect abroad. How would the Minister feel if the French passed legislation that they wanted to have effect in England and Scotland?

That would be a more appropriate question to put if we were debating different amendments. I do not want to stray too far from your guidance, Mr Owen, so I will stick strictly to the amendments, rather than being encouraged down a tributary that I would not necessarily seek or want to navigate, particularly as it is implicitly about the European Union.

Let me return to the subject in hand. I accept that this is challenging but we need flexibility in the way we go about these things, coupled with determination that everyone must play their part, including these corporations, in helping to deal with the threat we face. We are trying to do that as much as we can through co-operation, as the hon. and learned Member for Holborn and St Pancras knows. It is vitally important that we retain the ability to take action against companies that do not comply with their obligations.

Once an agreement is reached it will be placed before Parliament under the Constitutional Reform and Governance Act 2010 in the normal way. On that basis, notwithstanding the hon. and learned Gentleman’s perfectly proper desire to probe the matter, I invite him to withdraw the amendment.

Of course, I accept the need for arrangements to be made with service providers and others in other jurisdictions. If that were not provided for, a lot of the Bill simply would not work or have any meaningful effect. I accept that proposition. I also accept that there are problems with the existing mutual legal assistance arrangements. The amendment—it was a probing amendment, so I shall not push it to a vote—envisaged further arrangements in due course. In truth, the sooner they can be progressed and agreed, the better.

I accept the proposition that we cannot necessarily leave it to the companies themselves to take decisions about which bits of any requirement they ought to comply with. The choice set up by the provisions, which may be a stark choice, is not whether to comply but which offence to commit. I am sure that, in reality, and hopefully in the consultation discussions, there will rarely, if ever, be a requirement that puts a company in breach of the law where they operate, but if it does, the company will have to make a choice: “Either we breach US law or UK law.” That is pretty invidious.

Companies do not want to be put in that position, but they will read carefully what the Minister has said. They are following progress carefully, and I know that progress is being made. On that basis, I will withdraw all three amendments, which address all three clauses, but I hope that I have made clear those companies’ concerns, which I share. Everything that can be done to fast-forward an international legal framework for this sort of requirement should be done as soon as possible. If it is not, not only tech companies but, I fear, the security and intelligence services, will be the losers. The more difficult it becomes to comply with a requirement in real time, the more likely it is that things will be lost while disputes are had about the requirements. I beg to ask leave to withdraw the amendment.

Mr Starmer has indicated that he wishes to withdraw the amendment. Ms Cherry, did you wish to catch my eye?

Yes. I do not have any amendments, but I wish to speak on these clauses.

Amendment, by leave, withdrawn.

Clause 34 ordered to stand part of the Bill.

Clause 35

Service of warrants outside the United Kingdom

Question proposed, That the clause stand part of the Bill.

I wish to speak about the service and implementation of warrants outside the UK. What I have to say applies equally to clauses 35 and 36. The genesis of my submission is not corporate concerns but strict legal principle. Violation of that principle would have important international political and commercial implications.

The Minister said a moment ago that everyone must play their part; I presume that he meant in fighting terrorism and serious crime. I wholeheartedly agree, but everyone must play their part in accordance with law. Clauses 35 and 36 seek to replicate provisions that are already in DRIPA. At the time when DRIPA was passed, the Government claimed that RIPA had always had extraterritorial effect and that the provisions in DRIPA were simply intended as clarification, but that claim was misleading and ill-founded in law.

As I tried to indicate in my intervention a moment ago—it was partly in jest, as Conservative Members frequently complain about legislation from continental Europe, but it was also serious—in general terms, legislation passed by the UK does not have direct effect in other jurisdictions, just as we would not expect the law of France to have direct effect in the United Kingdom. For the Government to claim that RIPA had extraterritorial effect without the Act even saying so makes absolutely no sense.

The Minister referred to David Anderson’s report, “A Question of Trust”. David Anderson noted at paragraph 11.17 of the report that

“overseas service providers are generally unhappy with the assertion of extraterritoriality in DRIPA 2014, which they did not necessarily accept (despite the view of the UK Government) to have been implicit in the previous law and had not encountered in the laws of other countries.”

As a Scottish nationalist, I forebear from commenting on the unique assertion of the United Kingdom that its law applies in everyone else’s country when others do not claim that, but I will move on with the quote from David Anderson:

“While legal compulsion was in principle preferable to voluntary compliance, it was thought that the unilateral assertion of extraterritorial effect would be met by blocking statutes, was not ‘scalable to a global approach’ and was viewed as ‘a disturbing precedent’ for other, more authoritarian countries.”

There is a concern that, if the United Kingdom decides to tell the world that its legislation applies in other countries, it would be a spur for more authoritarian regimes to do likewise.

David Anderson went on to note that when countries seek to enforce their legislation extraterritorially, such powers might come into conflict with the legal requirements in the country in which the company that has been asked to comply through a legal request is based or stores its information. Companies explained to David Anderson that they did not consider it was their role to arbitrate between conflicting legal systems. That must be right. The protection of human rights should not be left to the good will and judgment of a company, nor indeed should the enforcement of important powers to fight terrorism and serious crime be left to the judgment of a company.

David Anderson went on to say that principled concerns had been expressed by companies:

“They expressed concerns that unqualified cooperation with the British government would lead to expectations of similar cooperation with authoritarian governments, which would not be in their customers’, their own corporate or democratic governments’ interests.”

During discussion of David Anderson’s reports, about the draft Bill and on Second Reading on the Floor of the House, we have heard frequently that the Bill, if the British Parliament gets it right, could be an international template. That is what worries me about the clauses: the example is not a good international one to set, unilaterally to declare that our law must apply in other countries, because there is a real risk that authoritarian regimes might do likewise. We would not want that.

I am looking at the clause, which is not massively dissimilar to all the provisions in the White Paper about service on companies in or out of jurisdiction. The clause is on service, so I am struggling with the hon. and learned Lady’s talk about extraterritoriality.

As I said, I am dealing with clause 35, “Service of warrants outside the United Kingdom”, and with clause 36, “Duty of operators to assist with implementation”, which serves clause 35 and imposes a duty on operators to assist with implementation outside the UK. That is why, as I said at the beginning of my submission, clauses 35 and 36 have to be discussed together.

I want to be clear that I am not saying that we should not have provisions that deal with extraterritorial enforcement, or that we should not have allowance for it. Clearly, we have to have that, but the question is how we go about it. Mutual legal assistance agreements have already been mentioned and, in my submission, the most appropriate and probably most successful way for the British Government to seek to access information held overseas or by companies based overseas, or to have provisions that will allow the Government to do so, is to extend and improve the use of the mutual legal assistance agreements.

In “A Question of Trust”, David Anderson concluded in recommendation 24 that

“the Government should…seek the improvement and abbreviation of MLAT procedures, in particular with the US Department of Justice and the Irish authorities”—

Ministers alluded to that—

“and…take a lead in developing and negotiating a new international framework for data-sharing among like-minded democratic nations.”

David Anderson’s report also referred to the work of Sir Nigel Sheinwald, and we have heard a bit about that already. David Anderson suggested that Sir Nigel’s could be the “decisive voice” in the matter. In a written statement in response to the Anderson review on 11 June last year, the Prime Minister said:

“the Government will be taking forward Sir Nigel’s advice, including pursuing a strengthened UK-US Mutual Legal Assistance Treaty process and a new international framework. As David Anderson recognises in his report, updated powers, and robust oversight, will need to form the legal basis of any new international arrangements.”

It is most regrettable that, in the light of what the Prime Minister said, this Bill is completely silent on the promised new framework. Instead, it simply returns to what I would submit is a rather lazy and potentially dangerous assertion of extraterritorial effect. It is concerning that a piece of legislation that purports to be comprehensive on this matter is silent on the significant issue of how surveillance operates in the global communications environment, despite the fact that the Prime Minister outlined the need for reform.

My argument is that these two clauses are wholly inadequate to achieve what the Government say they want to achieve. They fly in the face of legal principle and, importantly, they could cause international political difficulties as well as international commercial difficulties.

I can deal with this in two minutes. First, of course these things are challenging. I said that at the outset. Secondly, David Anderson is very clear in recommendation 25 of his report—the recommendation after the one that the hon. and learned Lady quoted—that:

“Pending a satisfactory long-term solution to the problem, extraterritorial application should continue to be asserted in relation to warrants and authorisations…and consideration should be given to extraterritorial enforcement in appropriate cases.”

That was his consideration, and that is right. These are challenging matters, but, frankly, companies have to make grown-up decisions about where they operate. Conflicts and other issues are already dealt with in the Bill, and we are working with the US to address concerns and to negotiate a new framework.

I think it would be extraordinary, given the current state of multinational business and the increasingly global online environment, if we did not put provisions in the Bill to provide powers to take action where necessary. I commend the clause to the Committee.

Question put, That the clause stand part of the Bill.

Clause 35 ordered to stand part of the Bill.

On a point of order, Mr Owen. A Division was called and the Doorkeeper announced a Division in Committee Room 14, at which point I made my way back into the room. I am not clear on the rules for Divisions, so I seek your guidance, but I was in the room at the time that my name would have been called. It was not called. I would have abstained anyway, but I seek your guidance on why my name was not called.

You have done my job for me. I indicated to the Opposition Whips that we were ready to take the vote, and they said yes. If you have an issue, it is with your own Whip. You have it on the record.

I am grateful, Mr Owen.

Clause 36

Duty of operators to assist with implementation

Question put, That the clause stand part of the Bill.

Clause 36 ordered to stand part of the Bill.

Clauses 37 to 43 ordered to stand part of the Bill.

Ordered, That the debate be now adjourned.—(Simon Kirby.)

Adjourned till this day at Two o’clock.

Investigatory Powers Bill (Sixth sitting)

The Committee consisted of the following Members:

Chairs: †Albert Owen Nadine Dorries

† Atkins, Victoria (Louth and Horncastle) (Con)

† Buckland, Robert (Solicitor General)

† Cherry, Joanna (Edinburgh South West) (SNP)

† Davies, Byron (Gower) (Con)

† Fernandes, Suella (Fareham) (Con)

† Frazer, Lucy (South East Cambridgeshire) (Con)

† Hayes, Mr John (Minister for Security)

† Hayman, Sue (Workington) (Lab)

† Hoare, Simon (North Dorset) (Con)

† Kinnock, Stephen (Aberavon) (Lab)

† Kirby, Simon (Brighton, Kemptown) (Con)

† Kyle, Peter (Hove) (Lab)

† Matheson, Christian (City of Chester) (Lab)

† Newlands, Gavin (Paisley and Renfrewshire North) (SNP)

† Starmer, Keir (Holborn and St Pancras) (Lab)

† Stephenson, Andrew (Pendle) (Con)

† Stevens, Jo (Cardiff Central) (Lab)

† Warman, Matt (Boston and Skegness) (Con)

Glenn McKee, Committee Clerk

† attended the Committee

Public Bill Committee

Thursday 14 April 2016


[Albert Owen in the Chair]

Investigatory Powers Bill

Clause 44

Interception in immigration detention facilities

Question proposed, That the clause stand part of the Bill.

The clause deals inter alia with interception in immigration detention facilities, and it is that which leads me to oppose its inclusion in the Bill. We can see that there is some replication of previous legislation in the provisions that deal with interception in prisons and psychiatric institutions, but the provision on immigration detention facilities is new and it is deficient in several respects. The theory underlying it is deficient, because immigration detention facilities are dealt with in a part of the Bill that includes psychiatric hospitals and the facilities are defined to include immigration removal centres, which are short-term holding facilities in which people, including families with children, are held in the so-called pre-departure accommodation.

Immigration detention has been the subject of much discussion on the Floors of both Houses because it is done by administrative fiat and without limit of time. The person detained will not have been brought before a court or tribunal to have the lawfulness of their detention or entitlement to bail considered, unless they instigate such a process; and the powers to detain are very broad and cover a large number of scenarios. The Bill states that conduct is to be authorised if it is done in the exercise of any power conferred by or under the detention centre rules or the rules for short-term holding facilities.

It may help the hon. and learned Lady to abbreviate her remarks if I say that the provision is not intended and cannot be used to deal with someone’s asylum or immigration status. That is not its purpose. With that assurance, perhaps the last point she made will not quite hold the water in her mind that it currently does.

That does not really give me the assurance I seek. I was going to say that, under the clause, conduct is to be authorised if it is done in the exercise of any power conferred by or under the detention centre rules, or the rules for short-term holding facilities and pre-departure accommodation made under sections 157 and 157A of the Immigration and Asylum Act 1999 respectively. The latter sets of rules do not actually exist. Rules governing the regulation and management of short-term holding facilities were made in 2002, but it took until 2006 for draft rules to appear covering similar ground for short-term holding facilities as the detention centre rules do for immigration removal centres.

Back in 2006 the Home Office consulted on draft rules, to which various persons responded. In 2009 the Home Office consulted on another draft of the rules, to which there were further responses, many of them adverse; a number of freedom of information requests and parliamentary questions followed. In April 2012 the rules were described by the then Minister, the right hon. Member for Ashford (Damian Green), as being “still under development”.

In March 2014, during the passage of the most recent immigration Bill, which became the Immigration Act 2014, Lord Taylor of Holbeach gave a commitment to Lord Avebury, who had been chasing the rules since 2006, that

“rules governing the management and operation of short-term holding facilities and the Cedars pre-departure accommodation will be introduced before the Summer Recess.”—[Official Report, House of Lords, 3 March 2014; Vol. 752, c. 1140.]

Lord Avebury was informed before the recess that the commitment would not be met. He continued to pursue the matter, and draft rules were finally published on 18 February this year, almost a decade after the first draft was published and some 14 years after they were envisaged. That wait does not appear to have produced a version markedly different from earlier versions or particularly tailored to short-term facilities. In those circumstances, it is very far from clear what powers are being given by the current Bill. That shall be the gravamen of my exception to the clause.

In his review of immigration detention, Sir Stephen Shaw paid special attention to the problems of short-term holding facilities and the dreadful conditions in some of them. We have all heard about that on the Floor of the House. His concerns led him to recommend that a discussion draft of the short-term holding facility rules should be published as a matter of urgency. In the meantime, after he had said that, Her Majesty’s chief inspector of prisons published a damning report on one particular facility, the Longport freight shed in Dover, describing the dire state of the facilities there. He said:

“on various occasions Home Office staff told us that they did not consider Longport to be a place of detention…despite detainees being in possession of legal authority to detain documentation and obviously being unable to leave. At this facility, the normal mechanisms of internal oversight and accountability that should apply to any form of detention were lacking.”

Under such circumstances, the notion of any lawful exercise of the powers contained in clause 44 seems fanciful.

There are also problems with immigration removal centres. The latest version of the detention centre rules dates from 2001. They were last amended in 2005 to update the name of the tribunal hearing immigration cases and bail applications, but by the time that was done the name itself was out of date because it had already been replaced by the immigration and asylum chamber of the first-tier and upper tribunals. The rules contain a broad range of powers from powers to fingerprint individuals and powers of search, to powers to identify survivors of torture or persons with a mental or physical illness; powers on medical information and notification of illness and death; powers to segregate and use force, and powers to carry out compulsory tests for drugs. There are also rules regarding visitors to centres and contractors.

My point is that the rules cover the sorts of matters that would be covered by prison rules but they apply to a different regime and to people who have not been detained by the courts or by due process of law. The overall effect is a lack of clarity. When one is working against the background of rules that do not exist or, if they do exist, lack clarity, a clause such as clause 44 potentially has a very far-reaching impact on people whose civil liberties are already severely undermined by the circumstances of their detention. The Government do not need to take just my word for that; it is a view widely held, including by a number of Government Back Benchers and peers.

We will not oppose the clause but I wish to put on record our concern about immigration detention and the intercept of communications in immigration detention facilities. There is growing concern, as has already been said, about the fact of that detention, the length of it and the conditions. There have been a number of reports, to which the Government have responded. In those circumstances, it is incumbent on the Government to justify the clause, although we will not seek to delete it.

I will be equally brief. There is a misconception about this matter. The Bill as drafted simply ensures that any interception carried out at a detention centre and under detention centre rules is lawful. No purpose is intended other than the maintenance of safety and security of the people in those centres. It is clearly right that officers should be able to intercept attempts to send contraband material, for example, such as drugs, in particularly sensitive environments. The power cannot be used to deal with the outcome of any immigration cases, asylum applications and so on.

The Immigration and Asylum Act 1999 contains the power to make rules for management of immigration detention centres. Clause 44 provides that interception, carried out in accordance with those rules will be within the law. In a sense, it is as simple as that. I can see why the hon. and learned Lady might have misunderstood this, but I can assure her that that is what is in the Bill and, I put on the record, is the Government’s position. Rather than detain the Committee now, it might help if I send copies of the detention centre rules to Committee members, as they contain the essence of the argument that I have just made.

My essential objection to the clause is that subsection (1) states:

“Conduct taking place in immigration detention facilities is authorised by this section if it is conduct in exercise of any power conferred by or under relevant rules”,

with the relevant rules described in subsection (2), and the underlying “relevant rules” are wholly inadequate. There has been a long history of problems with the rules, so the clause rests on a very shaky and unsafe foundation. I am concerned to protect the civil liberties of persons who are not criminals, who are not guilty of any violation of the law, but who are detained under immigration rules and whose civil liberties are already severely curtailed.

I have a great deal of regard for the hon. and learned Lady’s diligence, but she is tilting at windmills. The clause is pretty straightforward. The points she makes about the management of detention centres may be perfectly reasonable debating points for a different Bill at a different time, but this Bill is not really about the management of detention centres and similar places. That matter is rightly dealt with in the relevant legislation. This Bill is merely about the application of certain powers to those centres to ensure that they are lawful. It is not much more complicated than that. On that basis, I commend the clause to the Committee.

Question put, That the clause stand part of the Bill.

Clause 44 ordered to stand part of the Bill.

Clauses 45 and 46 ordered to stand part of the Bill.

Clause 47

Safeguards relating to disclosure of material overseas

Question proposed, That the clause stand part of the Bill.

We do not oppose the clause, but I am duty bound to express the concern that the Joint Committee had—there were Opposition Members on the Joint Committee too—about safeguards in the Bill for the sharing of intelligence with overseas agencies. The Joint Committee was particularly concerned about clause 47 and suggested that safeguards should address concerns about potential human rights violations in other countries with which information might be shared. My question to the Solicitor General is: why did the Government not accept that sensible Joint Committee recommendation in the light of those human rights concerns?

Regarding the Joint Committee’s recommendation, all I can say at this stage is that my understanding of the clause is that the issuing authority must also ensure that restrictions are in place that would prevent to the extent considered appropriate the material being used in any legal proceedings outside the United Kingdom, which of course would be prohibited by clause 48. There will be other obligations that the agencies will have to follow—for example, consolidated guidance. If the hon. and learned Gentleman would like any further clarification, I would be happy to write to him.

I am grateful.

Question put and agreed to.

Clause 47 ordered to stand part of the Bill.

Clause 48

Exclusion of matters from legal proceedings

Question proposed, That the clause stand part of the Bill.

I oppose the inclusion of the clause in the Bill. Clause 48, with schedule 3, broadly replicates the existing procedure in section 17(1) of the Regulation of Investigatory Powers Act 2000, whereby material obtained by way of an intercept warrant cannot be used as evidence in ordinary criminal proceedings.

Schedule 3 makes a number of exceptions to allow intercept evidence to be considered in civil proceedings where there is a closed material procedure in place—that is where a party and his or her legal team are excluded. Those proceedings would include, for example, proceedings under section 6 of the Justice and Security Act 2013, proceedings in the Special Immigration Appeals Commission or under the Terrorism Prevention and Investigation Measures Act 2011. Schedule 3 makes no exception for criminal proceedings, except in so far as material may be disclosed to the prosecution and to the judge so that the judge might determine whether admissions by the Crown are necessary for the trial to proceed in a manner that is fair. Deleting clause 48 would remove that exclusion, so that there would be an exception for criminal proceedings. It would also permit intercept material to be treated as admissible in both ordinary civil and ordinary criminal proceedings, subject to the ordinary exclusionary rules applicable to other proceedings, including public interest immunity and the provisions of the Justice and Security Act in civil proceedings.

I am indebted to Justice, the human rights group of lawyers that includes members of all parties and none, for its help in formulating my argument for deleting the clause. Justice has long recommended the lifting of the bar on the admission of intercept material as evidence in civil and criminal proceedings. In 2006, it published a document “Intercept Evidence: Lifting the ban”, in which it argued that the statutory bar on the use of intercept as evidence was “archaic, unnecessary and counterproductive”.

The United Kingdom’s ban on intercept evidence in criminal proceedings reflects long-standing Government practice, but it is out of step with the position in many other Commonwealth and European countries, and it has proved increasingly controversial over time. Importantly, the European Court of Human Rights has recognised the value placed on admissible intercept material, in countries where it is available. It has said that admissible intercept material constitutes

“an important safeguard; against arbitrary and unlawful surveillance, as material obtained unlawfully will not be available to found the basis of any prosecution”.

Has the hon. and learned Lady taken into account the Criminal Procedure and Investigations Act 1996, which ensures fairness of disclosure in English and Welsh courts, as practised by many Members of the Committee, and is at the centre of the arguments against admission of this evidence?

I have considered it, but we are not talking about disclosure, we are talking about the admissibility of evidence. As the hon. Lady will very well know, things may be disclosed to lawyers in the course of proceedings to try, as I said earlier, to make sure that there is a fair trial, but they are not necessarily admissible. I am talking about lifting the ban on the admissibility of intercept evidence.

If there is something under the code that assists the defence or may undermine the prosecution, the prosecutor is obliged to make that known to the judge. A decision is then taken as to whether the disclosure of that material is so necessary that, in effect, the trial cannot continue.

Of course the hon. Lady is absolutely right. I said that that was the case earlier, but that is not the end of the matter. As the European Court of Human Rights has recognised, where intercept material is admissible, its admissibility constitutes

“an important safeguard: against arbitrary and unlawful surveillance”.

I know many Government Members are not too keen on the European Court of Human Rights; they might find the Privy Council report published December 2014, “Intercept as Evidence”, more palatable. In paragraph 84, it confirmed that a fully funded model for the removal of the ban could result in a

“significant increase in the number of successful prosecutions.”

That report also reflected concerns of agencies and law enforcement bodies that removing the ban without full funding could reduce its effectiveness. I acknowledge there is a funding issue and I am sure the Government will want to talk about that.

What I am really saying is that the Bill is a lost opportunity to remove the ban on admissibility of intercept material in criminal proceedings, which could benefit all. The Committee has heard what the Privy Council and the European Court of Human Rights have said on that. Many other countries manage to operate effective surveillance systems in which intercept material is admissible in criminal proceedings in certain circumstances. As I said, there will always be public interest immunity and the provisions of the 2013 Act in civil proceedings to allay some of the concerns Government Members might have.

The Joint Committee on the Draft Investigatory Powers Bill recommended that the matter should remain under review, and in paragraph 675 of its report invited the Government to take note of the “significant perceived benefits” of using intercept material in criminal proceedings. There are other arguments in favour of removing this ban. Members may want to think about how the current bar on the use of targeted intercept material relates to a new focus in the Bill on expanded and untargeted access to communications data.

How would the hon. and learned Lady recommend that prosecuting counsel deal with an application from the defence to reveal the methodology used by the security services in obtaining intercept material? If the ban is removed, how is prosecuting counsel to answer that?

It is not about the methodology; it is about the admissibility of the material itself. Far be it from me to lay down rules, at this stage of proceedings, for the Crown Prosecution Service or the Crown Office and Procurator Fiscal Service in Scotland. That is something that will have to be worked out, but it will not be worked out in a vacuum, because the Privy Council has looked at this detail and many other countries have a system such as this that works.

It comes back to a continuing theme in my concerns about the Bill. Let us not be inward-looking. Members of my party are sometimes accused of being narrow nationalists, but I often think that is an allegation more accurately directed at the Conservatives. We should look at practice elsewhere in the world. Britain is not uniquely placed to decide how to have the best and fairest surveillance system. Our security services probably are world leading—I recognise that, and I mean no disrespect to them—but we are not here just to please them; we are here to protect our constituents’ interests, as well as human rights in general, and to produce legislation that is balanced and fair.

I oppose the clause because I think there are good arguments in favour of making intercept material admissible in criminal proceedings. As the hon. Lady has indicated complex procedural rules would have to be built up—we have had a ban in our two legal systems in Scotland and England for so long that we would have to go back to the drawing board and think very carefully. She is right to say that this is not an easy matter, but we are not starting with a blank slate. If we do not want to look to Europe—I know that people are not too keen on Europe at the moment—we can look to the experience of other Commonwealth countries.

The reason I keep rising when the hon. and learned Lady mentions other countries is that England and Wales have an extraordinarily thorough—I want to say “generous,” but that is not the right word—disclosure regime, which is not mirrored elsewhere in the world. Look at the United States: the disclosure tests that occur in this country have very little relationship to what happens in America, so it is not right to compare the two.

The hon. Lady makes a fair point that England and Wales have very clear disclosure procedures. Now, thank goodness, so does Scotland as a result of a number of Supreme Court decisions. We had a long way to go 10 years ago, but we have since come a long way. This is not about disclosure; it is about admissibility. Those are two very different things, as she well knows. Frequently things are disclosed that are not admissible.

If evidence is admissible, the defence is quite within its rights to ask that question of prosecuting counsel. It is a question that is asked in a different form when a defendant suspects that there is an informant. How is prosecuting counsel to argue against that?

Order. If the hon. Lady wishes to make interventions, they are to be short. She has an opportunity to make a contribution afterwards.

At present, in the United Kingdom intercept evidence is not admissible in criminal trials. My purpose in opposing the clause is to make it admissible in criminal trials and proceedings, but there would have to be very careful rules and procedures, and the nature of our disclosure systems both north and south of the border will need to be taken into account.

I invite Members to consider, on the one hand, how the ban on the use of such material balances the new system that the Bill seeks to introduce of expanded and untargeted access to communications data and whether lifting the ban on the admissibility of intercept evidence in criminal trials would, as the Privy Council has said, increase the likelihood of successful prosecutions and, on the other hand, whether it might also reduce the reliance on administrative alternatives to prosecution, such as terrorism prevention and investigation measures, and on the use of untargeted forms of surveillance. Members will also have to consider whether the Government’s cost base analysis is accurate and sustainable. We cannot say that the ceiling would fall down on the security surveillance system in this country if we removed the ban, because the system operates effectively in other countries.

It is of course the long-standing practice of all Governments to maintain this exclusion. The current form is effectively to continue the regime as it has operated until now. The regime has been reviewed a number of times, and the last review was probably in 2014. As has already been mentioned, the Privy Council said that the regime’s removal could lead to an increase in the number of successful prosecutions. The exclusion is frustrating, and I was frustrated in a number of cases when I was Director of Public Prosecutions where, had it been possible to deploy such evidence, individuals who could not be convicted and locked up for serious offences might have been successfully charged and prosecuted. So the ban is a source of frustration because the net result is that, where someone cannot be charged because of this rule, there are only two possibilities in serious cases. One is that they continue to be subjected to surveillance, which can be extremely expensive and resource-intensive. The other is that they are put through some preventive measure, which has advantages and disadvantages but also a shelf life, which is normally shorter than the sort of sentence they might have received if the evidence had been admissible and a conviction had been obtained.

Having said that, there are disclosure problems in two senses. The first is complying with the requirements of the CPIA. Now, I am not saying that it cannot be done but, although there have been reviews, it is time to look at it again. There are ways in which that could be accommodated. It would have to mean some adjustment of the existing rules because it is difficult to accommodate in the rules as they are. Historically, there has always been a secondary concern, which is disclosure of techniques. It would be difficult to have a regime that did not involve the risk of disclosing techniques. Those have been the most influential factors when this has been reviewed.

We have to accept that, in the past two or three years, something pretty extraordinary has happened in the field. The Bill is partly the result of that because powers and techniques that were not known are now avowed. Therefore, the risk that there once was that some of the techniques that we are now scrutinising—and which it was thought, two or three years ago, would be extremely risky to disclose—are now out there. That is why I do not support deleting the provision, but I do want to put on the record that there is now room for a review, and it is not the same old review. It is a review on a very different set of circumstances, where at least some of the disclosure arguments as to technique are not as powerful as they once were. My position is to review first. Do not delete until the review has had the chance to consider all the possible options, including keeping the rule as it is.

The hon. and learned Gentleman is right about avowal but, of course, evidence pursuant to equipment interference has always been admissible. It is a bit of a mixed picture when you look at the detail of it.

I accept that there have been different avowals at different times in the past two years. I was speaking more generally. The argument about techniques is harder to sustain in the current set of circumstances. My view is that if there were a way to get around this exclusion, being able to use the evidence would bring very many benefits. When it comes to those involved in serious crimes, my strong preference is that they should be charged, put before a jury and, if convicted, serve the appropriate sentence, rather than be dealt with in some other way. For reasons that everybody understands, this provision frustrates that process. That is why I think it is time for a review against the current set of circumstances.

I am grateful to hon. Members for giving us the chance to have this brief but important debate. The hon. and learned Lady is right to characterise the existence of the prohibition, which has been in existence since the Interception of Communications Act 1985, with good reason.

I accept the points made by the hon. and learned Gentleman about evolution of powers and the avowal of particular techniques. Of course, very often we are talking about the protection of individual capabilities and that is a slightly more nuanced argument than the general points he makes. Therefore, ground No. 2 of the objection to the adduction into evidence of intercept material still remains a strong one, and ground No. 1 has to be acknowledged.

My hon. Friend the Member for Louth and Horncastle made the point well about the need to recast disclosure because it is material and relevant to the debate, and about ensuring that what is now intelligence but what would be evidence is in a form that can therefore be handled and admitted by a court. There is a cost to that, and the estimates given in the 2014 report vary between £4.25 billion and £9.25 billion. Those are not insignificant sums and they cannot be ignored or dismissed when balancing out the merits of taking this step.

The Government take the view—this is iterated in the 2014 report—that the problems outweigh, for the present at the very least, the potential benefit. The potential benefit is not clear, save for the points that the hon. and learned Gentleman makes. As a litigator and a prosecutor myself, I share his frustration and have been in those circumstances many times. I will not repeat the points he makes: I will adopt them.

The Government’s position in that report was to say that they will keep under review any changes that might affect the conclusions of their latest review. That remains very much the position. I do not think it is appropriate in this legislation for us to depart, in the absence of any further evidence, from the position that has been iterated in no fewer than eight different reports over the past few years.

Many of us in the room are familiar with this issue. The debate is held regularly and will continue, but in the absence of compelling reasons to depart from the provisions of the 1985 Act I commend the clause to stand part of the Bill.

Question put, That the clause stand part of the Bill.

Clause 48 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 49

Duty not to make unauthorised disclosures

I beg to move amendment 77, in clause 49, page 39, line 2, after “not”, insert “, without reasonable excuse,”

With this it will be convenient to discuss amendment 78, in clause 49, page 39, line 19, at end insert—

“(3A) For the purposes of subsection (1), it is, in particular, a reasonable excuse if the disclosure is made with the permission of the person issuing the warrant or the person to whom it is issued.”

This provision adds a “reasonable excuse” defence to the “unauthorised disclosure” offence and expressly provides that the defence applies where the permission is given by the person issuing the warrant or the person to whom it is issued, the equivalent of a similar provision in clause 73(2) in relation to communications data authorisations.

I can be brief because the amendments speak for themselves. Amendment 77 is intended to insert a reasonable excuse exception to the duty not to make an unauthorised disclosure, and amendment 78 goes with it by spelling out that it is a reasonable excuse if the disclosure is made with the permission of the person issuing the warrant or the person to whom it is issued.

There are two principal arguments. One is that in this and the following two clauses flexibility is needed for disclosure made in certain circumstances. The second point is one that some of the service providers are concerned about. They want to have discussions among themselves and with others about how to make the provisions in the Bill work.

At the moment, clause 49 would prohibit them from discussing either particular warrants or steps that they may be asked to take in order to solve some of those difficulties. It is the absolute nature of the prohibition that is the concern. Amendment 78, which allows disclosure if it is made with the permission of the person issuing it or to whom it is issued, seems to me to be a sensible way of getting around that particular problem.

As the hon. and learned Gentleman says, amendments 77 and 78 would amend the duty not to make an “unauthorised disclosure” to add the defence of “reasonable excuse”. I accept that that would be on par with clause 73(2), which concerns the communications data provisions. I think that it is right that we retain the position that exists under RIPA, which itself reflects the sensitivity of the techniques of intercepting agencies, the fact that material obtained through intercept cannot be used in evidence—unlike communications data—and makes it an offence to disclose the existence of a warrant.

As clause 50 sets out, disclosure is already permitted if

“authorised by the person to whom the warrant is…addressed”.

I would therefore argue that amendment 78 is not required.

It is worth adding that clause 50 sets out four categories in which disclosure can be authorised. I will not repeat them; they are pretty self-explanatory and, for the sake of brevity, we need to move on. Those exceptions provide adequate protection and, in my judgment, collectively render this amendment unnecessary, particularly clause 50(2)(b). I see why the amendment has been tabled and why the hon. and learned Gentleman wants to probe on it, but as he has acknowledged during our deliberations, the techniques and details of the capabilities of intercepting agencies must be protected for all kinds of reasons that we do not need to rehearse once again. Disclosure of such details would potentially cause some damage to the ability of those agencies to do their job.

Having said that, I completely accept that, if there is a case of wrongdoing or impropriety, and that case is made public, it is right that justice is done. There is no doubt about that, which is precisely why we have put into the Bill the establishment of a commissioner with the power to look at any aspect of those matters. In the end, it is better that a senior impartial and qualified person should take a view than, say, a junior official or employee of a telecommunications operator.

Nevertheless, I accept that it is important that people can raise concerns without fear of prosecution, which is why—I invite Committee members to look at it—we added clause 203 to the Bill, which we will get to when the Committee considers part 8. You will not let me go into too much detail about that now, Mr Owen, but people will understand that it provides protection for whistleblowers through an information gateway, so that the commissioner that I described will receive information of the kind that I described in a straightforward way.

These clauses combined maintain an important principle: techniques and details of capabilities of intercepting agencies must be protected. Of course, it is important that we caveat that with the checks and balances that I have set out. I am not sure that these amendments would add much—or anything; I was just being polite—and I therefore invite the hon. Gentleman to withdraw them.

I listened carefully to what the Minister said about clause 50(2)(b). It may be that that provides a different route but achieves the same objective, and in those circumstances I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 49 ordered to stand part of the Bill.

Clause 50

Section 49: meaning of “excepted disclosure”

With this it will be convenient to discuss amendment 66, in clause 50, page 40, line 35, leave out

“under Chapter 1 of this Part”

and insert

“described in sub-paragraphs (2)(a)(i) and (ii) of section 49.”

There is a substantive point, but that comes under clause stand part, so I will deal with it when we get to that, if I may. Amendments 65 and 66 would bring into alignment—where are we? They are both focused on head 4. I think we have missed an Act out.

I think the hon. and learned Gentleman will find that amendment 65 would remove the exception from the duty not to make disclosures about a warrant where a postal operator or a telecommunications operator discloses statistical information about warrants in accordance with requirements set out in regulations made by the Secretary of State. Is that helpful?

That is helpful and I am grateful to the Minister. Amendment 66 is designed to align clause 50(7)(b) with clause 49(2)(a)(i) and (ii). The duty not to make unauthorised disclosures applies to both a warrant under chapter 1 of this part and a warrant under the relevant part of RIPA. The problem with head 4, unless I have misunderstood it, is that under clause 50(7)(b), it only relates to chapter 1 of this part and does not cross-relate to RIPA. I am happy to withdraw this amendment if it is catered for by other measures.

I will deal with this matter as briefly as I can. In the end, if we follow through the logic of the amendment, it would provide additional opacity rather than additional transparency. I think that if the hon. and learned Gentleman thinks through what he has just said and what I am about to say, he will realise that. In life, I am quite keen on opacity, but in legislation I am not keen on it at all.

Just to be absolutely clear, I point out that amendment 66, as the hon. and learned Gentleman said, relates to clause 50(7)(b)—disclosures of a general nature. At present, this subsection allows a disclosure of information that does not relate to any particular warrant under chapter 1 of part 2, but relates to warrants in general. As we understand the intention of the amendment, it would extend this provision to include a warrant under chapter 1 of part 1 of RIPA. Given that the disclosure simply permits disclosures of a general nature, this proposal is one that could be considered, and I think I would consider it. I am happy to take it away to ensure that there is the consistency that the hon. and learned Gentleman calls for, but I think that the amendment as drafted could be unhelpful to the cause that he has articulated. If he is happy for me to do this, I am happy to take it away, because I do take his point about ensuring that there is consistency. That seems to be the essence not quite of the amendment but of the argument that he made.

I will happily withdraw the amendment on that basis. It is intended to allow appropriate discussion of warranting in general so that all those with an interest can take part in the relevant discussions and debates. At the moment, head 4, subsection (7)(b) achieves that for warrants under chapter 1, but does not relate to other warrants. If there is a way of amending or otherwise achieving the desired objective, that would be acceptable. I will not press the amendment, but there is a need for a debate about warrants in general to make sure the systems and processes are articulated and dealt with. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

I do not oppose clause 50 stand part, but I ask the Minister to clarify how it is anticipated the clause provides for disclosure of the details of a warrant to the Intelligence and Security Committee. On Tuesday, we had a lively debate about the extent to which Committees of this House can question and protest to the Secretary of State on warrants. My understanding is that if that process is to perform the function that was claimed on Tuesday, it must be done under this provision or not at all because there is an absolute prohibition on the disclosure and that covers the existence or content of a warrant, the details and so on. That stops the Secretary of State or anyone else disclosing to the House, a Committee or anyone else, and goes to the heart of the discussion about accountability.

It was argued that the ISC can hold the Secretary of State to account and it is important that, if this Bill passes into law, we understand how that is intended to take place. It would not come under head 1, head 3 does not apply, and head 4 is for a different purpose. Head 2 may be the answer, but to assist all of us in our further scrutiny of the provisions relating to the role of the Secretary of State and the judicial commissioners, it is important to identify the legal route by which the Secretary of State can be held to account and answer questions within the territory demarcated by clause 49(4). At the moment, it would be an offence for her to disclose any of those matters. Unless there is a route that allows her to do so, that seems to be an absolute bar.

I am grateful to the hon. and learned Gentleman for the question. Our answer is that, looking at clause 150(3), we say that it would come under head 2 and that the Secretary of State would have discretion to disclose—[Interruption.]

Sorry. It is clause 50(3), where we have head 2 and:

“(a) in the case of a warrant under Chapter 1 of this Part, a disclosure made to, or authorised by, a judicial Commissioner;

(b) in the case of a warrant under Chapter 1 of Part 1…a disclosure made to, or authorised by, the Interception of Communications Commissioner or a Judicial Commissioner”.

The disclosure is made by the Secretary of State. That might not be clear on the face of it, but that is the intention as I understand it of the clause.

For clarification, will the Minister explain which clause he is referring to?

May I correct the record? It is my error. I omitted a number. I was talking about clause 150(3). Page 117 of the Bill states:

“For the purposes of subsection (2) something is necessary for the authorised purposes if, and only if”,

and then we have paragraphs (a) to (f). That underpins the discretion of the Secretary of State to make that disclosure.

I am happy to pursue this matter outside the Committee if it is more convenient, but I think the provisions in clause 150 apply to bulk acquisition warrants rather than all warrants. Clause 150(1) sets out that it is expressly dealing with bulk acquisition warrants, and subsections 150(2) and 150(3) follow on from that. This is not intended as an exercise. Standing back from this, what I am concerned about is that it—

Order. That was a lengthy intervention to help the Minister, who I now think wants to get back and explain the situation to the Committee.

What I will do is write to the hon. and learned Gentleman. My initial understanding was the right one, but I hope he will forgive me if I wandered off to the bulk powers provisions within the Bill. I will write to him to clarify the position. I think it is what I have said it is, but I will put it in writing.

I will allow the hon. and learned Gentleman to ask further questions, and then the Minister may come back if he wishes.

Thank you for your indulgence, Mr Owen. I am grateful to the Solicitor General for indicating that he will write, and I am more than happy to have it in writing. That information is important because it is central to the debate about the roles of the Secretary of State and the judicial commissioner. It is not just me. Other people need to be assured on the role and accountability of the Secretary of State. It is one thing to say, “She can be asked in a Committee about it”, but it is another to point to the legal route by which that can happen in practice in a way that allows a degree of accountability. It is not intended as a trick question, and if it can be dealt with in a letter, I would be grateful.

Question put and agreed to.

Clause 50 accordingly ordered to stand part of the Bill.

Clause 51

Offence of making unauthorised disclosures

I beg to move amendment 79, in clause 51, page 41, line 18, at end insert—

“(4) In proceedings against any person for an offence under this section in respect of any disclosure, it is a defence for the person to show that the disclosure was in the public interest.”

This amendment seeks to provide a public interest defence to the offence of disclosure in relation to a warrant issued under this Part.

The amendment is about whistleblower protection and would provide a defence for the criminal offence of disclosure in relation to a warrant issued under this part of the Bill. The offence as framed in clause 51 includes disclosure of the existence and content of a warrant as well as disclosure of the steps taken to implement a warrant.

The offence is subject to a maximum penalty of five years’ imprisonment. If committed, it is clearly a serious offence—the maximum penalty reflects that—but there are strong arguments that there should be a defence of disclosure in the public interest. By their very nature, surveillance powers are used in secret, with the vast majority of those subject to them never realising that surveillance has taken place. That means it is vital that sufficient checks, balances and safeguards are in place to ensure that the powers are used appropriately. I know that is why we are here, so apologies for stating the obvious. It is part of the checks, balances and safeguards to ensure that those who, in one way or another, witness or have knowledge of abuse or mistakes are able to bring that to the attention of individuals capable of addressing it, which may on occasion include bringing information to public attention. The provisions in clause 51 that criminalise the disclosure of information relating to the use of interception powers risk shutting down a vital route of ensuring accountability for the use of surveillance powers unless there is the defence of disclosure in the public interest.

If the clause stands part of the Bill in its current form, it will help to enshrine an unnecessarily secretive culture that punishes those who seek to reveal wrongdoing, rather than encouraging a robustly honest working environment. Individuals who wish to make reports, even internally, of unlawful or otherwise inappropriate behaviour—we are talking about unlawful behaviour, not just inappropriate behaviour—will know that taking steps to do the right thing could expose them to a significant criminal sanction and a significant period of imprisonment. In a Bill that seeks to bring new levels of transparency to the UK’s surveillance regime, introducing such an offence without a defence of disclosure in the public interest is undemocratic and unacceptable.

A number of bodies have expressed concern about the lack of such a defence in the Bill. Public Concern at Work has highlighted that the channels through which intelligence services personnel may report misconduct are uncertain in the Bill, and it suggests that clarity is particularly important in that area in light of the limitations of the protections afforded by the Public Interest Disclosure Act 1998, which protects internal disclosure, disclosure to prescribed bodies and wider disclosures to bodies and organisations not prescribed, applying different safeguards in connection with each type of disclosure. There are exceptions to that, and the relevance to the Bill is that members of the intelligence services are completely excluded from the Public Interest Disclosure Act’s protection. The Act’s protection also does not extend to workers in other sectors where their disclosure would breach the Official Secrets Act 1989.

The defence would not be a licence for clypes, as we call them in Scotland—people who tell tales. It is a strongly worded defence, and the disclosure would have to be in the public interest. The defence is not just for people—we have all come across them—who want to cause problems or to rattle their employer’s cage; it would have to be disclosure in the public interest. The Joint Committee on the draft Bill recommended that it be amended to specify that any disclosure to the Investigatory Powers Commissioner for the purpose of soliciting advice on any matter, or for the purpose of supporting the duty to review, would be an authorised disclosure and not subject to any criminal penalty. The Joint Committee also recommended that a provision should be inserted in the Bill to allow for direct contact to be made between judicial commissioners and both communication service providers and the security and intelligence agencies.

Clauses 49 to 51 authorise the disclosure of information relating to certain matters, but it is unclear whether persons disclosing other information will be subject to the offence. It is far from clear where there are similar statements for whistleblowers. My purpose in moving the amendment is to create a safe route for whistleblowers where their disclosure is in the public interest.

The purpose of the amendment is to state clearly on the record what the safe route is for whistleblowers. There are similar versions in other legislation, including the Official Secrets Act, and the absolute prohibition causes great concern to those who want to expose iniquity. In certain cases and places, the safe route for a whistleblower has been explained. The challenge on the table for the Minister is recognising the concerns and anxieties of those who want to disclose wrongdoing where it is in the public interest for them to do so. There must be a safe route for them. If not this, what is the route? In support of that way of putting it, I pray in aid the Joint Committee recommendation that there ought to be amendment to make it clearer for those who need to know what the route is.

This is an interesting amendment. It deals with the tension, which I think all Committee members recognise, between allowing the proper opportunity for those who have legitimate concerns to bring them forward to be dealt with and encouraging feckless complaint. Much of what we do in this House in framing law means dealing with that dilemma, and this is a good example.

The hon. and learned Gentleman—I think that the hon. and learned Lady said it first, actually—drew particular attention to the Joint Committee report. I refer to paragraph 629, which recommends that

“the Bill should contain an explicit provision for Communication Service Providers and staff in public authorities to refer directly to the Judicial Commissioners any complaint or concern they may have with the use of the powers under the Bill”,

and goes on similarly.

That is precisely what we intend and what we have tried to set out. That said, the hon. and learned Lady will understand that it is important to create a duty, as clause 49 does, not to make unauthorised disclosures. Clause 50 sets out the exceptions to that duty, and clause 51 provides for the offence of making an unauthorised disclosure. Providing a public interest defence of the kind that she discussed is unnecessary in light of the exceptions already in the Bill. In my view, it might even encourage feckless or unlawful disclosures.

The defence would not apply to a feckless or unlawful disclosure. If somebody sought to pray in aid that defence, the jury would have to decide, under legal direction from a judge, whether what had been done was in the public interest. Something feckless—which I gather means “without good reason”—would not be in the public interest.

There is a balance to be struck, of the kind that I described. The hon. and learned Lady is right that the route to the commissioner must be clear and straightforward, allowing people of the kind that the hon. and learned Gentleman described to know how they can bring their concerns to his attention. That is why clause 203 provides the information gateway that I spoke about earlier. That is the point made by the Joint Committee. What we have done in clause 203 is essentially give life to the Committee’s recommendations about a direct route to the commissioner.

Does the Minister accept that there might be situations in which an immediate disclosure is required to prevent conduct that is seriously unlawful? That is the situation where the defence is required. Somebody might find themselves in a position of having to make a public disclosure immediately to prevent unlawful conduct. Rather than going around the houses looking for advice or being assured after the fact that what they did was all right, they need to know that there is a defence of public interest to encourage them to make a disclosure immediately to prevent unlawful conduct.

Yes, but I am not so sure that, in the modern age, we do not live in precisely the opposite circumstance to the one the hon. and learned Lady sets out. All kinds of information are put into the public domain, whether for right or wrong and whether for good or bad reasons. That information cannot then be withdrawn and it is often taken to be fair and true, when it is anything but. I am not so sure that we do not need a process that is sufficiently rigorous that the commissioner is better placed to take a view on what is, or is not, in the public interest.

I will go further than that. It seems to me that, if we are going to have the commissioner, we have to vest power in his or her hands. If we then created all kinds of other means for dealing with these issues, I suspect that would undermine the commissioner’s significance and discourage people from taking their concerns to the commissioner.

However, I think perhaps we can reach a synthesis around the way we make the route known. In clause 203, we have done what the Joint Committee asked us to do—I note that there are distinguished Members sitting behind me who were on that Committee. But I am not sure that we have thought enough about how to inform people about the route they can take under clause 203, so I will ask my officials to look at that again. There is an information challenge here, because it is all very well for the cognoscenti—there are many of them in this room—to know about such things, but I am not sure that that is good enough. So I will meet the hon. and learned Lady halfway—halfway in my judgment, at least, even if not in hers—by ensuring that we look closely at how well informed people are about their ability to go down the route I have set out. On that basis, I ask her to withdraw the amendment.

Question proposed, That the clause stand part of the Bill.

Clause 51 ordered to stand part of the Bill.

Clause 52 ordered to stand part of the Bill.

Clause 53

Power to grant authorisations

I beg to move amendment 118, in clause 53, page 42, line 14, leave out subsection (1) and insert—

“(1) A Judicial Commissioner may grant a communications data access warrant where the judicial commissioner considers—

(a) that it is necessary to obtain the data for the purposes of a specific investigation or a specific operation, and

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

(1A) The grant of a warrant is subject to restrictions set out in the rest of this Part.”

With this it will be convenient to discuss the following:

Amendment 125, in clause 53, page 42, line 25, at end insert—

“(1A) The Judicial Commissioner may grant a warrant on application from—

(a) an officer from a relevant public authority involved in the relevant investigation; or,

(b) an individual designated by the relevant public authority to make applications for warrants to the Judicial Commissioner.”

Amendment 126, in clause 53, page 42, line 25, at end insert—

“(1B) A warrant must—

(a) name or otherwise identify the person or persons, organisation, premises, or location to which the warrant relates; and

(b) describe the investigation or operation to which the warrant relates.”

Amendment 229, in clause 53, page 42, line 26, leave out from beginning to end of line and insert—

“A warrant granted by a judicial commissioner may authorise the applicant or a telecommunications operator to”.

Amendment 119, in clause 53, page 42, line 26, leave out “designated senior officer” and insert “warrant”.

Amendment 120, in clause 53, page 42, line 32, leave out subsection (3).

Amendment 121, in clause 53, page 43, line 4, leave out “authorisation” and insert “warrant”.

Amendment 122, in clause 53, page 43, line 14, leave out “authorisation” and insert “warrant”.

Amendment 123, in clause 53, page 43, line 16, leave out “authorisation” and insert “warrant”.

Amendment 124, in clause 53, page 43, line 25, leave out “authorisation” and insert “warrant”.

Amendment 130, in clause 55, page 45, line 15, leave out “authorisation” and insert “warrant”.

Amendment 128, in clause 55, page 45, line 16, leave out subsection (1)(a).

Amendment 132, in clause 55, page 45, leave out line 31.

Amendment 129, in clause 55, page 45, line 37, leave out subsection (4).

Amendment 133, in clause 57, page 46, line 20, leave out “authorisation” and insert “warrant”.

Amendment 134, in clause 57, page 46, line 24, leave out “authorisation” and insert “warrant”.

Amendment 146, in clause 72, page 57, line 27, leave out from “by” to “and” in line 29 and insert “a warrant”.

Amendment 147, in clause 72, page 57, line 30, leave out “authorisation or notice” and insert “warrant”.

We are now moving to a different part of the Bill and to a very important provision. I apologise if it takes some time, but we are moving to a significant set of matters that need to be considered together. The amendments to clause 53 have to be seen in context, and the context is the retention powers later in the Bill, which I will highlight in a moment.

I want to put the position of the Labour party on this and other provisions clearly on the record. It is accepted that there are circumstances in which it is necessary to retain or obtain the data of individuals who are not necessarily targets themselves, so that at a later stage that data can be accessed for a specific purpose or reason—so we have a broad retention power and then a much more narrowly defined access provision. Clause 53 is the access provision. The retention provision is clause 78 and I direct the Committee’s attention to that clause because that is where this all starts.

Under clause 78 the Secretary of State can require “relevant communications data” to be retained by “any description of operators”, and she can require the retention of

“all data or any description of data”

so long as they come within

“one…of the purposes falling within paragraphs (a) to (j) of section 53(7)”.

The Secretary of State’s very wide retention power is exercised by issuing a notice, the effect of which is to require the retention of potentially wide-ranging and extensive data for 12 months. That is an extensive retention provision. There is some provision for filtering the data, but the power to access the data is in clause 53.

On the face of it, the retention powers are quite wide and will necessarily involve retaining data of individuals who are not targets or subjects, never will be and were never intended to be—in fact, all of our data, in many respects. Our long-standing position is that to justify that potentially very wide power, which is a serious cause for concern to many people, it is critical that at the point of access there is a clearly defined and high threshold and clear safeguards. In other words, if one collects a lot of data, at the point of accessing it one must go through a much more rigorous set of preconditions with effective safeguards. Clause 53 allows such access.

On clause 53(1), the first thing to be observed is the person who is to grant authorisation—the holder of the keys to the gateway—to allow any of the activities in subsection (2), engaging in conduct

“for the purpose of obtaining the data from any person”,

and further action under subsection (4), is not the Secretary of State or a judicial commissioner, but a “designated senior officer” of a relevant public authority. That is an immediate cause for concern. There is a very wide power to retain, so it is necessary to have really strict preconditions before access, and the keys are held by a designated senior officer—nobody of higher rank than that.

To understand what that means, I direct Members’ attention to schedule 4, although I should perhaps go via clauses 61 to 64, which make further provision in relation to relevant public authorities and designated senior officers. The question is: who is a designated senior officer and what are the public authorities concerned? For that, we go to schedule 4 on page 204, where there is a long list of the public authorities and designated officers who can access the relevant data.

There we see some familiar bodies that one would expect to find in such a schedule, but running one’s eye down the list brings one to the Royal Navy Police, the Royal Military Police, and, further down, the Department of Health. Across the page are the Ministry of Justice, the Department for Transport, the Competition and Markets Authority, and the Criminal Cases Review Commission. I will pause there. In the Criminal Cases Review Commission, the person who can authorise access to data is an investigations adviser. With all due respect to the investigations advisers in the CCRC, that is a very low level of authorisation to access or obtain data that has been retained.

There are other examples. In the Financial Conduct Authority, any head of department in the enforcement and market oversight division has authorisation. Over the page, in a fire and rescue authority the watch manager provides authorisation, and in the Food Standards Agency it is a grade 6 employee. The Gambling Commission can access data under this provision, as long as a senior manager says so. These are really worrying levels of authorisation in relation to personal data: a senior manager in the Gambling Commission has the role of deciding whether your data or mine can be accessed. Dropping down the page, in a national health service trust it is the director of operations, or a control and communications manager, or the duty manager in ambulance trust control rooms who can authorise access to the relevant data, and so on and so forth. In the Office of Communications, it is the senior associate.

The first thing that is striking about clause 53 is the insufficiently senior level at which authorisation may be granted. Access may be authorised if

“a designated senior officer of a relevant public authority”


“that it is necessary to obtain communications data for a purpose falling within subsection (7)”

and that it is relevant for

“a specific investigation or a specific operation or…testing…The designated senior officer may authorise any officer of the authority to engage in any conduct which…is for the purpose of obtaining the data from any person”,

and so on. That is a real concern. Will the Solicitor General explain why it is thought appropriate to drop from what until now have been quite high levels of authorisation and scrutiny, with strict tests, right down to

“a designated senior officer of a relevant public authority”?

I have dealt with who can authorise access; let me turn now to the purpose of gaining access. What is it that the designated senior officer has to be satisfied about? That takes us straight to clause 53(7), which states that

“It is necessary and proportionate to obtain communications data for a purpose falling within this subsection if it is necessary and proportionate to obtain the data—”

Before I go down the list that follows in clause 53(7), I remind the Committee that the case involving David Davis, Tom Watson and others is before the Court of Appeal. We do not know the outcome of that case. Of course, it does not relate to these provisions, because they are not in force, but it relates to provisions that are not dissimilar to these. The question that arises in that case is: what is the true interpretation and effect of the Digital Rights Ireland case, in which it was found that one of the EU directives was invalid? The question before the Court of Appeal, which was critical to the European Court’s analysis in the Digital Rights Ireland case, is whether a regime for retention of data—a regime similar to the regime in the Bill—requires safeguards. The two safeguards in the Digital Rights Ireland case of most relevance to this clause are the safeguard that there must be a serious offence threshold for access and the requirement that there must be prior judicial oversight.

I am aware of the submissions and counter-submissions in that case on how those safeguards apply—whether they apply generally across the piece or whether they are case-specific. I am aware of what the divisional court said and what the Court of Appeal has said so far. In addition, I recognise that it would not be right for me to say that on the analysis of the Court of Appeal so far it is established that it is a precondition that the threshold must be a serious offence or that there must be prior judicial oversight. I do not advance an argument on that basis, because any fair reading of the Court of Appeal does not allow me to do so, and I do not do so. However, what it does is set up a challenge, which is what all of the courts have been concerned with in the Tom Watson and David Davis case, namely whether the safeguards are sufficiently rigorous and strict. The question is whether they have to be those particular safeguards or whether other safeguards could achieve the same balance.

I say that because if we now look at subsection (7), it becomes clear that it is a very long way removed from anything that could be called a serious offence threshold for accessing communications data. Paragraph (a) states that the data can be obtained

“in the interests of national security”.

That is familiar, and we have come across it already in our deliberations. Paragraph (b) states that the data can be obtained

“for the purpose of preventing or detecting crime or of preventing disorder”.

There, for the first time in the Bill, the word “serious” is gone; there is no “serious” threshold. Access to communications data by the designated senior officer is permitted if it is necessary for preventing or detecting any crime, with no threshold, and for preventing disorder. The most petty crime therefore comes within paragraph (b); there is simply no threshold. I am not making the point that it is a requirement under the Court of Appeal ruling so far—it is not final—that the crime must be serious, but to have no threshold at all for the crime in subsection (7)(b) is surprising, to say the least. We then have our old friend in the next paragraph:

“the interests of …economic well-being”.

Where we have encountered the phrase “economic wellbeing of the UK” before, there has been another subsection to say that that only applies to persons outside the British islands, but there is no such corollary in clause 53. Does the hon. and learned Gentleman agree that that is worrying? If I am wrong, no doubt I will be corrected by the Government.

I am grateful for that intervention. If the Solicitor General can point to such a provision, I would be interested to see it. On the face of it, the clause allows designated senior officers within a public authority to obtain communications data in the interests of the economic wellbeing of the UK without that further qualification.

Subsection (7) then states that data can be obtained

“in the interests of public safety…for the purpose of protecting public health”


“for the purpose of assessing or collecting any tax”.

We then come to paragraph (g), on which I want to spend some time. It states that data can be obtained

“for the purpose of preventing death”—

that would obviously be a high threshold—

“or injury or any damage to a person’s physical or mental health, or of mitigating any injury or damage to a person’s physical or mental health”.

The threshold is way, way down. There are many ways in which a person’s physical or mental health could be damaged. The Bill, if passed, will authorise access to communications data without any threshold as to the level of damage or injury.

I appreciate the hon. and learned Gentleman’s analysis, but does he agree that obtaining communications data is one of the less intrusive powers contained in the legislation, but such data are very helpful for setting the scene and planting the seed for investigations? That has to be borne in mind when looking at the authorisation regime, because this is different from other powers.

Let me take that in stages. I accept that accessing communications data is in a different category and order from, say, the interception of the contents of communications. I also accept the proposition that communications data are used in many cases involving serious crime. I will go further than that: it is rarely possible to bring and to conclude cases of serious criminality without reliance on communications data. I have no in-principle objection to communications data being made available and being used. My concern is the very low level of sign-off required to access those data and the lack of any meaningful threshold in subsection (7); there simply is not one. Whether or not a meaningful threshold is achieved by the insertion of the word “serious”, as I propose in my amendment, or some other word, if we simply say that it could be necessary and proportionate to access communications data to prevent any crime or damage, we are proceeding on a basis for which it is very hard to think of any circumstances in which it would be difficult or impossible to justify obtaining communications data. It just is not a set of thresholds.

Dealing with miscarriages of justice and situations in which a person has died and so on, and

“for the purpose of exercising functions”

are listed in the subsequent paragraphs. My central point is obvious but important. I realise how necessity and proportionality apply, but on any reading of subsection (7) there is no threshold. I think there is a risk for the Government here. I appreciate the direction of travel of the Court of Appeal, but does anybody seriously think that the jurisprudence is not going to develop to a point where there is a threshold that is thought to be appropriate? It is one thing to say that we do not necessarily have to have a threshold of serious crime, but to go from that to saying that we do not have to have any threshold at all is to invite problems, if these provisions are passed.

It appears that the hon. and learned Gentleman is dismissing the necessary hurdles of necessity and proportionality in satisfying the tests. They are obviously going to relate to and be thresholds, so is it not wrong to say that there is no threshold in the clause?

I appreciate that the necessity and proportionality test has to be applied—in any given case there will always be an argument about whether it is necessary and proportionate—but as ever with necessity and proportionality the question is: what are we assessing necessity against and how are we arguing that it is proportionate? Is it necessary to do what? We get that only from the face of the statute. In other words, necessity does not give us anything unless we have some subject matter that it bites on, which is why the subject matter that it bites on is so important. Whether it is necessary for serious crime is one question; whether it is necessary for crime is another.

There are many, many things that one could say were necessary to prevent or detect crime. I absolutely accept that in practice those two tests are applied at all times, but the question is: what are they applied to? The question that the designated senior officer has to ask him or herself is: “Am I satisfied that it is necessary to prevent crime?” That would be good enough under the clause. It is, in principle, an inadequate threshold. I also think it will invite challenge in due course, because I do not think for one moment that, in the long run, the European Court and our courts are going to be satisfied with a scheme that does not have any threshold, even though there will be and are arguments about the precise threshold. We can see what the divisional court said in the Tom Watson case, so it is not just counsel’s argument that was never accepted by anybody. In that case in the divisional court, counsel’s argument that the serious crime threshold was an important safeguard was accepted. Thankfully, the writing is therefore on the wall if the clause is not taken back and reconsidered.

I shall move on to the second “who”. The first “who” I focused on was who can issue the necessary authorisation, which is the designated senior officer. Under clause 53(2), that person can

“authorise any officer of the authority to engage in any conduct”.

It goes from a relatively low-level authorisation to somebody even further down in the authority having to get on with the job of obtaining data.

The breadth of what can be done is outlined in clause 53(5), which states:

“An authorisation…may relate to data whether or not in existence at the time…may authorise the obtaining or disclosure of data by a person who is not an authorised officer, or any other conduct by such a person, which enables or facilitates the obtaining of the communications data”—

so it goes beyond the specific authorisation to the facilitation—

“and…may, in particular, require a telecommunications operator who controls or provides a telecommunication system to obtain or disclose data relating to the use of a telecommunications service provided by another telecommunications operator in relation to that system.”

It is a very broad provision.

That enables us to see the amendments in their proper context. There are three categories of amendment. The first category is to be taken as a set and would insert some rigour and independence into the process by requiring judicial commissioners to sign off the necessary authorisations. The second set of amendments, which we will come to in due course, seeks to amend the threshold to provide a meaningful threshold for the judicial commissioner. To call clause 53 as drafted a set of safeguards is to mis-describe the words on the page.

It is with this amendment, I am afraid, that we have a strong disagreement. To say that there are no thresholds is a misrepresentation of the situation. Putting it bluntly, the Government’s worry is that creating a serious crime threshold will miss a whole panoply of crimes that are extremely serious to victims. I am thinking in particular about crimes relating to harassment, stalking and other types of offences that would not fall within the threshold of serious criminality.

It is important that we couch our remarks carefully—the hon. and learned Gentleman has tried to do that, and I respect him for it. We are not talking about targeted interception here; we are talking about the retention of evidential leads—information that could, not of itself build a case, but which, in combination with other material, could allow investigators to build a case against a suspect. The analogy is with existing comms data, namely telephonic records and mobile phone records—the sort of material that he, I and others on the Committee have regular use and an understanding of, as prescribed by the RIPA regime. We are all familiar with it. The difficulty is that, as the days go by, the reliance by criminals on conventional methods of telecommunication changes.

The old system, where the SMS message would be the way things would be done, is increasingly falling into disuse. WhatsApp, internet chat forums and all sorts of encrypted means of communication are now being used. There is no doubt that the ability of the agencies—the security and intelligence agencies, the police and other agencies—to obtain even those evidential threads is therefore becoming more difficult. We are not talking about content, nor should we be. I draw an analogy with the sort of drugs observance case where the police officers can see people coming and going from a house that is of interest, but cannot see what is going on inside that house. That is what we are talking about here. Adopting these amendments would be entirely the wrong step to take.

It is interesting that the Solicitor General chooses the example of surveillance in a drugs operation to tell us what we are talking about. That would be a serious crime, but as the shadow Minister has drawn attention to, clause 53(7) allows authorisations to obtain data not just for serious crimes, but for a whole plethora of things, including protecting public health, taxes, duties, levies and so on. Notwithstanding his opening comments, does he not accept that it is telling that the example he chooses is one of serious crime?

Not all drugs supply is necessarily serious. We might be talking about a particular class of drugs, which might not qualify within the criteria. Is the hon. and learned Lady seriously suggesting that we should not have the capability to draw evidential leads on cases of harassment, stalking or other offences that we all know are a particular problem when it comes to the abuse of victims?

Stalking is, in my respectful submission, a serious crime. The thrust of these amendments is that the authorisation should be for serious crime, and by a judge.

The hon. and learned Lady wants to have her cake and eat it. The hon. and learned Member for Holborn and St Pancras said he wants a much higher threshold. I am sorry, but we cannot play around with this. The Committee is dancing dangerously on the edge if it seeks, in an ad hoc way, to try to subjectively define what serious crime is.

I want to be clear with the Committee. In fairness to the Solicitor General, I can see the argument that, for harassment, there can be serious consequences for the individual. I had to deal with a number people in that situation and I do not underestimate for a moment the serious consequence that a series of minor actions can have. I do not think that necessarily means that we cannot have a serious crime threshold. I would be willing to work on what that threshold would look like, but I should not be taken as thinking that harassment, for example, cannot have serious consequences.

I am grateful to the hon. and learned Gentleman for that concession. It is important and it is not straightforward, and that is why I am afraid, as currently constructed, these amendments are deficient.

If I can develop my argument, I would like to give an example from Gwent police—a force that I know very well and have prosecuted on behalf of for the Gwent CPS on many occasions. Last November, a female victim returning home from a night out was approached by an unknown male who proceeded to sexually assault her. As a result of her cries, two witnesses approached and, thankfully, the male fled the scene before the offence was completed, serious though it was. An urgent press release was issued, along with CCTV footage of the offender. As a result, a member of the public called the police stating that she recognised the offender, who had given her his number. Investigators acquired subscriber data on that number and identified a suspect, who was subsequently arrested. In court, the offender pleaded guilty and received a 12-week prison sentence that was suspended for 12 months, and was placed on the sex offenders register for five years. I think we would all agree that that sounds very serious.

But is it? We have got to be absolutely clear. None of us would want that type of offence to fall outwith any of the criteria in these provisions—I am sure that would be the case.

Proportionality was a central part of the discussion on Second Reading, and we received many reassurances from the Government. My hon. and learned Friend the Member for Holborn and St Pancras has made a powerful point about the use of these powers in minor crimes. The Bill lowers the threshold to

“damage to a person’s physical or mental health”

or the potential thereof. Will the Minister tell us what crime or potential crime does not pose damage to a person’s physical or mental health, or have the potential thereof?

Of course, there are plenty of offences that do not involve violence or the threat of violence, such as fraud, although I understand that the potential consequences of some fraud can cause stress. May I reassure him that the test of necessity and proportionality in clause 53(7) remains very much at the centre of everything? I would not want him to be misled into thinking, as has perhaps been suggested by some of his Front Bench colleagues, that this is a free-for-all; far from it.

No, because I want to develop the argument. It is vital that we look at the underpinning of all this. None of the three reports that informed the drawing up of the Bill, nor the three reports arising from the pre-legislative scrutiny of the draft Bill, recommended any changes whatever to the authorisation regime for communications data. For example, David Anderson QC recommends authorisation of the acquisition of communications data by a designated person in a public authority. RUSI recommended:

“For the acquisition of communications data otherwise than in bulk, an authorisation by the relevant public authority. Communications data should only be acquired after the authorisation is granted by a designated person.”

Prior to that, the report from the Joint Scrutiny Committee on the draft Communications Data Bill 2012 looked into the authorisation regime in depth and concluded that it was indeed the right model.

I entirely accept that anything that can sensibly be done to improve the already strongly regulated regime should be done. That is precisely why we have, for instance, provided for a new criminal offence that applies to persons in public authorities who knowingly or recklessly obtain communications data from a communications service provider without lawful authority. We have made the highly regarded SPOC—single point of contact—regime, which provides expert advice and guidance to authorising officers, a mandatory requirement in the Bill.

Does the Solicitor General think that one of the reasons that David Anderson supported these clauses is the benefit of communications data in Operation Magpie, to which he refers specifically in his report, when Cambridgeshire County Council protected more than 100 elderly and vulnerable persons from attempts to defraud them by using communications data powers?

I am grateful for that powerful example provided by my hon. and learned Friend.

It is important to note that in the report on the draft Bill—I am looking at paragraph 11 of the summary of conclusions and recommendations—the Joint Committee stated:

“We believe that law enforcement should be able to apply for all types of communications data for the purposes of ‘saving life’. We recommend that the Home Office should undertake further consultation with law enforcement to determine”—

the report then makes references to various things in the draft Bill that would not necessarily read over to the Bill that is before the Committee.

The point I am seeking to make, in the round, is that we have a tried and tested system, which is being replicated—indeed, enhanced—by the Bill, that deals with a very large number of applications. According to the latest annual report by the Interception of Communications Commissioner, in 2013 there were 517,236 authorisations and notices for communications data in total. That contrasts that with warrantry and intrusive and limited interception of communications—in the same period, there were 2,795—so we are talking about a very different set of parameters, with a large volume of requests. My worry is that, however well-intentioned the amendment is, it is wholly unrealistic when it comes to fighting crime.

I rise only because this is an important point about how the powers will come to be exercised. It is of course possible to say that the precise wording of the amendment might not work in certain circumstances—all but sentences of 10 weeks or less are serious cases, and so on—but I do not want us to miss the point. The challenge to the Solicitor General is that there is no threshold. It is perfectly all right to say that the amendment does not necessarily achieve in precise terms the right level of seriousness, but it is not right simply to push back at the notion that there must be some threshold in the measure that is meaningful, which at the moment there is not.

I hear what the hon. and learned Gentleman says, but I do not agree with him about the threshold. It is set out in subsection (7). I can give another example: what about a missing person inquiry? We would not know whether it was a crime; it might well be a young person who has run away. We all have some direct or indirect experience of that.

I will address the point, but I have to be careful, because the case to which the hon. and learned Gentleman has referred is sub judice. I do not disagree with any of his characterisation, by the way, and of course I have read with care the Court of Appeal judgment of Lord Justice Lloyd Jones, but the hearing in the Court of Justice of the European Union is this week, I think. We will have to see how that develops.

I am very conscious of how case law develops in this area, and I am mindful of it, bearing in mind my duty as a Law Officer to uphold the rule of law. I am sure the hon. and learned Gentleman understands that, but where we are is in a sensible place. My worry is that if we start to get too restrictive, we will in effect end up in a position in which many serious matters—matters that are serious to the victim, but might not be serious according to other criteria—are lost or missed.

I have already mentioned necessity and proportionality. I should also pray in aid the fact that there will have to be compliance with a detailed code of practice and independent oversight and inspection of the regime by a senior judge, currently the Interception of Communications Commissioner. The current internal authorisation regime is working well. No deliberate abuse of it has been identified in any ICC reports, which speaks volumes for the integrity of the current system.

Will the Solicitor General accept that there have been severe concerns lately about what turned out to be rather destructive surveillance activities by the Metropolitan police in relation to covert human intelligence sources? Does he agree that it is highly unlikely that such practices would have occurred if there had been a system of prior judicial authorisation, rather than internal authorisations?

The hon. and learned Lady knows, of course, that that matter is now being investigated, in an inquiry led by Lord Justice Pitchford. I am not saying that she is not entitled to mention it, but it really is a different set of circumstances. That particular means—the covert use of human intelligence sources—is not what we are talking about, with the greatest respect. We are talking about ensuring that authorities prescribed by statute have the capability to continue finding the sorts of evidential lead that until now have been almost exclusively the province of conventional telecommunications.

Perhaps I can put another example to the Solicitor General. Towards the end of last year, it was revealed that, due to what a judge labelled systemic internal failings in how the National Crime Agency applied for a warrant, a number of trials were at risk of collapse. Earlier in the year, Mr Justice Hickinbottom lamented what he called an

“egregious disregard for constitutional safeguards”

within the NCA, in the case of Chatwani and others v. the National Crime Agency and others. Those are examples of where the system is not working.

I am familiar with what the hon. and learned Lady is talking about, but again, that involves a particular failure by the NCA on warrantry. Here we are talking about various agencies’ abilities. With respect to her, it is not the same. We are discussing a different regime. Tempting though it is to read over, that would be to frustrate the important work of many law, detection and investigative agencies in our country.

I do not see the purposes within the Bill as inconsistent in any way with the purposes set out in the exemptions from and limitations of the right to privacy in article 8.2 of the European convention on human rights. There has never been a serious crime threshold for the acquisition of communications data. No such limit is placed in article 8.2, which is why the Government’s position on this issue—I will not mention the case—is legally respectable and sustainable. That is why the provisions in the clause meet the challenge that faces the agencies in a way that is proportionate and necessary, and that keeps pace with the breathtaking rate of change of technology being taken advantage of by many people of good will, but also by people of less than good will. For that reason, I ask that the amendment be withdrawn.

I will not repeat the concerns that we raised. Proceeding with a clause that has no seriousness threshold, however expressed, is fraught with difficulties, but the Minister has indicated that he will consider some of the issues and I want to reserve this issue for a later stage, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 228, in clause 53, page 42, line 21, leave out subsection (1)(b)(ii).

With this it will be convenient to discuss the following:

Amendment 231, in clause 53, page 43, line 5, leave out subsection (4)(d).

These amendments to Clause 53 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 also provide for warrants to authorise conduct of a relevant public authority and require steps be taken by a telecommunications operator, removing the need for separate “authorisations” to public authorities and “authorisation notices” to telecommunications operators.

Amendment 131, in clause 55, page 45, line 24, leave out subsection (2).

I am very much in agreement with everything that the hon. and learned Gentleman said on the last group. The Scottish National party’s position is that access to communications data should be by means of a judicial warrant. We share the concerns that he articulated about the lack of a proper threshold in clause 53(7). I do not intend to press these amendments to a vote. I associate myself with his position, and I reserve my position on this matter for a later stage. This is an absolutely crucial clause, and it is extremely concerning, as he said, that there is no proper threshold in it.

I am grateful to the hon. and learned Lady for her succinct remarks. I will simply make the following observations about her amendment. It would remove the ability of the relevant public authorities to apply for communications data authorisation to test equipment or for technology development purposes. It is vital that those who are authorised to acquire communications data are able to test existing systems and to assist the development of new equipment or systems. Without that ability, we will not know whether the equipment will provide the required information in a real-life investigation, and nor will we be able to fix errors in systems where they are detected. We fear that that could have a seriously detrimental effect on our law enforcement agencies’ ability to prevent and detect crime and may lead to mistakes, which are in nobody’s interest—least of all that of the public, whom we serve. Therefore, this is a vital further safeguard. With respect, we are somewhat puzzled about why the amendment was tabled, but we heard the hon. and learned Lady and we respect her position. For those reasons, we oppose the amendment.

I beg to move amendment 110, in clause 53, page 43, line 39, after “detecting”, insert “serious”.