Hansard

9.45am

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

Division 12

Clause 61 ordered to stand part of the Bill.

Schedule 4

Relevant public authorities and designated senior officers

I beg to move amendment 105, in schedule 4, page 206, line 40, at end insert—

“An ambulance trust in England

Duty Manager of Ambulance Trust Control Rooms

All

(g)”

This amendment and amendments 106 and 108 replace the existing entry for ambulance trusts in England with a new entry containing a revised definition for such trusts and restricting the purposes for which data may be obtained.

With this it will be convenient to discuss Government amendments 106 to 108.

Welcome to the Chair, Ms Dorries.

The amendments make minor changes to schedule 4. As has already been said, schedule 4 lists the public authorities that are able to acquire communications data, the types of communications that they are able to acquire and the statutory purposes for which they can do so. Amendment 105 adds a new entry for ambulance trusts in England, amendment 106 removes the existing entry and amendment 108 introduces the definition of an ambulance trust. The changes make the definition of ambulance trusts consistent with the definition in the Policing and Crime Bill.

The amendments also remove purpose (b) in clause 53(7) from the purposes for which ambulance trusts can acquire communications data, because ambulance trusts obviously do not need to acquire communications data for the purpose of the prevention or detection of crime. In the same vein, amendment 107 restricts the purposes that the Northern Ireland Fire and Rescue Service Board can use to acquire communications data, consistent with the purposes for English fire and rescue authorities. These are uncontentious amendments designed to make the Bill consistent and coherent.

Amendment 105 agreed to.

Amendments made: 106, in schedule 4, page 207, leave out lines 24 to 35.

See the explanatory statement for amendment 105.

Amendment 107, in schedule 4, page 207, line 39, leave out—

“Group Manager (Control)

All

(b) and (d)”

This amendment prevents the Northern Ireland Fire and Rescue Service Board from obtaining data for the purpose of preventing or detecting crime or of preventing disorder, or in the interests of public safety.

Amendment 108, in schedule 4, page 208, line 10, after “Schedule” insert “—

“ambulance trust in England” means—

(a) an NHS trust all or most of whose hospitals, establishments and facilities are in England and which provides ambulance services, or

(b) an NHS foundation trust which provides such services,”.—(Mr Hayes.)

See the explanatory statement for amendment 105.

Question put, That the schedule, as amended, be the Fourth schedule to the Bill.

Division 13

Schedule 4, as amended, agreed to.

Clause 62

Power to modify section 61 and Schedule 4

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

I rise to put on the record a concern about the clause and to remind the Committee that with the wide power of retention, the safeguards on access provisions are critical to the operation of the Bill as a whole. Broadly speaking, the safeguards are: who can authorise access, what the test is, the scope of the conduct authorised and such checks and limits as are otherwise put in the Bill. The clause covers who can authorise access, and my strong feeling is that that should be in the Bill rather than left to regulations, because it is a central safeguard. I will not vote against the clause, but I want to put on the record my view that a provision as important as who can access should be in the Bill and that amendments should be made to legislation rather than through regulation.

I know the hon. and learned Gentleman is probing. He is right that the clause sets out how the Secretary of State may, by regulation, add or remove public bodies listed in schedule 4 and make modifications accordingly, but it also sets out that the Secretary of State does so by means of regulations. He will have noted that in practice that means a statutory instrument, which is subject to the affirmative procedure, as is made clear in clause 63(3).

I understand the hon. and learned Gentleman’s point, which is reasonable, but there are limits on what the Secretary of State can do in the sense that the affirmative procedure must be followed, which will give an opportunity for further consideration. I am happy to confirm that the intention in the Bill and the spirit in which it was constructed are very much along the lines he described.

I wish to oppose this clause.

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

Division 14

Clause 62 ordered to stand part of the Bill.

Clause 63

Certain regulations under section 62: supplementary

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

Division 15

Clause 63 ordered to stand part of the Bill.

Clause 64

Local authorities as relevant public authorities

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

Division 16

Clause 64 ordered to stand part of the Bill.

Clause 65

Requirement to be party to collaboration agreement

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

Division 17

Clause 65 ordered to stand part of the Bill.

Clause 66

Judicial approval for local authority authorisations

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

I wish to raise two issues for the Committee’s consideration. The first is that the test in subsection (5) for a judicial authority is very weak. We are talking about restrictions on local authorities and we have moved from a test of reviewing the decision, found in other parts of the clause, to a test whether the judicial authority, in this case a justice of the peace, considers that

“there are reasonable grounds for considering requirements of this Part would be satisfied”.

The second is that the authority in this case is a JP. I accept that this a replication of another scheme in the same words, as the Solicitor General says. I will not oppose the clause, but in a Bill that is tightening safeguards, there is nothing to prevent that test being aligned with the other tests applied when judges, magistrates or other independent judicial figures oversee authorisations by bodies such as local authorities.

In fairness, I think these clauses were put in to tighten the controls on local authorities.

They were.

That is welcome and we support them for that reason. In tightening controls, there has been a failure, perhaps deliberate, not to align this with the test in other cases. The judicial authority would be able to say, “I would not in fact authorise, but there were reasonable grounds on which somebody else could have done so.” I am making a probing point; no amendment was tabled. I support the further protection in relation to local authorities. I just wondered whether there was a deliberate intention not to align this provision with the other safeguard provisions in the Bill.

10.00am

There are two things to say. First, the measure replicates the current position under the Regulation of Investigatory Powers Act 2000, so it is established practice. Secondly, as the hon. and learned Gentleman conceded, it is an attempt to add an additional safeguard, for the reasons he gave. It seemed important that this was not used permissively. The only other thing I would add, given that he is probing, is that all of this would have to pass the tests of proportionality and necessity; that is a given. I am happy to look at whether we need to reinforce that, in the code or perhaps elsewhere, because proportionality and necessity underpin all of this; that is not specified in this part, but it is a prevailing and underpinning assumption about authorisation. I understand that he is probing and also appreciate that he understands what we are trying to do.

I am grateful to the Minister for the spirit in which he is approaching this issue. I accept that necessity and proportionality are the key tests for the application in the first place. The question for the magistrate is then whether there are reasonable grounds for considering it to be necessary and proportionate. That leaves room for the magistrate to say, “I personally do not think it is necessary and proportionate but I accept that somebody else might think there are reasonable grounds.” I do not want to take this too far because it is a relatively minor provision in the Bill and I accept that it is in the scheme of tightening the safeguards; however, I just wonder whether some thought can be given. When the other tests have been so carefully construed—and we will have further discussion on what those tests are—this is an outlier in the way that it is expressed. I accept that it reflects current practice, but I do not think that is necessarily a good reason for simply replicating that unless, on reflection, current practice is thought to be the right way forward from here.

I will test that. The hon. and learned Gentleman makes a reasonable point, so I will test our experience of current practice regarding this issue and I will also test and consider whether we need to provide further guidance. I would not want to go too far because, as he says, it is a minor matter, but he is right to say that it is important that it is consistent. I am more than happy to take a look at that, and on that basis I think we should move on.

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

Division 18

Clause 66 ordered to stand part of the Bill.

Clause 67

Use of a single point of contact

I beg to move amendment 241, in clause 67, page 53, line 8, leave out subsections (4)(a) and (b) and insert—

“(a) is an officer appointed by the Investigatory Powers Commissioner;

(b) works subject to the supervision of the Investigatory Powers Commissioner; and is responsible for advising—

(i) officers of the relevant public authorities about applying for authorisations; or

(ii) designated senior officers of public authorities about granting authorisations.”

The amendment provides for the SPoC scheme to be operated under the authority of the Investigatory Powers Commissioner.

The clause deals with the use of a single point of contact. The purpose of the amendment is to provide for the single point of contact scheme to be operated under the authority of the Investigatory Powers Commissioner. The Bill, as it currently stands, provides that authorisations shall be largely self-approved by officials and officers of public bodies, subject to the advice of a single point of contact. The single point of contact is within the organisation and is responsible for advising on the lawfulness of the authorisation. Local authorities, police forces and public bodies that are too small to have their own single point of contact are required by the Bill to enter into collaboration agreements with others and if the amendment is successful, it will necessitate leaving out clauses 69 to 71.

The Scottish National party’s preferred model would be judicial authorisation for access to communications data, as addressed in the amendments to clause 53 that we discussed in Committee last week—I have no doubt that they will be revisited on Report. But if we are to be stuck with the current model, we in the SNP think it only fair and right that the Bill should provide for the single point of contact scheme to be operated under the authority of the Investigatory Powers Commissioner. In my submission, that would give the sort of oversight that we were promised in advance of the Bill but that is absent from the Bill itself.

It is my argument that it is completely unacceptable for a public authority to be able to authorise itself to have access to revealing personal data. In making this argument, I do not seek to impugn the integrity of public officials or, indeed, senior employees of our law enforcement agencies, but rather to point out the glaring reality that the primary concern of such persons will relate to the operational capacity of their agencies. That is simply a matter of organisational culture: it is perfectly understandable, but it militates in favour of independent third-party authorisation. If we are to have an Investigatory Powers Commissioner, why not give him or her that power, so that there will be meaningful oversight?

In my argument, the value and credibility of any single point of contact model would be enhanced by ensuring its independence from the public authority that seeks to use the intrusive powers given under this part of the Bill. That would also remove the need for collaboration agreements, because the single point of contact advisers would be centralised within the IPC framework. It would lift a great deal of bureaucracy out of the public organisations and law enforcement agencies by putting oversight in the hands of the Investigatory Powers Commissioner, who would then be able to encourage, across the board, a standardised approach to the advice given and, importantly, consistency in the application of the law.

The provisions currently in the Bill consolidate existing practice on the guidance issue for single points of contact and the self-authorisation regime, but the Joint Committee on the draft Communications Data Bill recommended consolidation under the leadership of police forces. However, I would argue that, while the single points of contact remain embedded within the same organisations that seek to access this intrusive material, they cannot be considered to be independent for the purposes of the role they play in the authorisation process. If they are not independent, we risk passing legislation that conflicts with European law, which, for the time being at least, applies in the United Kingdom.

The amendment would mean that the single point of contact framework, if continued, would operate as part of an overriding single oversight body, under the auspices of the Investigatory Powers Commissioner. As I said, that would create a single consistent body of staff, capable of providing help, assistance and guidance before the final determination of any application. To my mind, that is a highly sensible and appropriate approach; I would like to know why the Government are not prepared to support it.

I am grateful to the hon. and learned Lady for her amendment and her observations, because they give me an opportunity to remind the Committee how important the single point of contact system is, and how envied it is by other parts of the world. Those are not just my words; paragraph 9.93 of David Anderson’s important report, “A Question of Trust” states:

“As to the authorisation of communications data requests, the police took a good deal of pride in the SPoC system, which was said to be ‘the envy of many friendly countries’.”

Mr Anderson makes a particularly important observation in paragraph 9.94, when he states:

“Within law enforcement generally, it was felt that SPoCs should have strong relationships with the investigators and this was more likely to happen where they were part of the same organisation, working to the same goal (albeit with distinct and independent responsibilities).”

I will finish the paragraph:

“Their effectiveness as a ‘guardian and gatekeeper’ could however diminish were they to become simply part of the investigation team”.

Here the hon. and learned Lady’s point is a strong one, but it has to be observed in the right context, which is that of the investigation. I absolutely agree with her about the importance of having an arm’s length approach, which is why the designated senior officer who is allowed to authorise an application must not be part of that operation. The draft code of practice contains helpful guidance from paragraph 4.28 to paragraph 4.47, and paragraph 4.48 then deals with the question of the designation of a single responsible officer.

Therefore, in the light of all the careful consideration that has been given to this tried and tested system, I argue that the balance is being properly struck here. Indeed, the extensive benefit and the safeguarding mechanism which the SPOC role brings to this process has been recognised by the Interception of Communications Commissioner, who in his report of March 2015 described the SPOC role as “a stringent safeguard”. These are people who are specially trained in the acquisition of communications data.

I reiterate that this point was made very clearly by Michael Atkinson of the National Police Council’s Data Communications Group. He described the role of the SPOC as being “independent of the investigation” and subject to IOCCO inspections. They would also be regularly overseen, scrutinised and challenged on their work. So there is a very robust system of oversight and review, is there not?

My hon. Friend is absolutely right. It is that oversight which I argue establishes the essential checks and balances here, to prevent the sort of abuse about which all of us on the Committee would, rightly, be worried. These are sensitive matters.

At the Scottish Bar we often use the phrase “nemo iudex in sua causa”, which means “no man should be a judge in his own cause”. I am sure that that is used at the English Bar as well. Will the Solicitor General tell me how he is able to elide this principle, as the SPOC comes from the same organisation as the initial authoriser?

I thought I had made it clear to the hon. and learned Lady that the key word here is investigation. Those officers who are responsible for the course of the investigation are not the SPOC. That person is independent and they are at arm’s length. They are therefore able to exercise the objectivity and the sense of self-discipline that is essential if public authorities are to retain our confidence. It is all underpinned by the scrutiny of the IOCCO. In my submission, to move away from a tried and tested system that is internationally recognised would be, with regret, a mistake.

With respect to the hon. and learned Lady, I do not see how the process would be enhanced if it were to be done in the way that the amendment suggests. We already have oversight, as I have indicated. In fact, my concern is that the expertise within public authorities of how best to facilitate these sort of requests could be diminished, and there could be a detrimental impact on the relationships with both the service providers and the investigators. My worry is therefore that the understandable aims behind this amendment could be frustrated in a way that is perhaps not being properly foreseen.

On a connected point, the evidence from Jo Cavan at IOCCO has expressed concern about the inclusion of subsection (3)(b), “the interests of national security”. I would like to probe this. It has been suggested that the justification for deeming the interests of national security to be almost an exceptional circumstance is unclear. What is the justification?

In a nutshell, we are talking here about rare and exceptional circumstances where it might not be possible to consult an SPOC. Where we are talking about national security, I would envisage a risk to the nation that all of us would understand if we saw it—rather like an elephant in a room. As I have said, though, it is couched with particular regard to the governing part of that clause, which is exceptional circumstances. Therefore the hon. Lady can be reassured that this is not some sort of back door by which this power would be misused. For all the reasons I have advanced, I urge the hon. Lady to withdraw the amendment.

10.15am

I am not prepared to withdraw the amendment.

Question put, That the amendment be made.

Division 19

I beg to move amendment 138, in clause 67, page 53, line 26, at end insert—

‘( ) the public interest in the protection of privacy and the integrity of personal data; and

( ) the public interest in the integrity of communications systems and computer networks.”

With this it will be convenient to discuss amendment 140, in clause 67, page 53, line 38, at end insert—

‘( ) the public interest in the protection of privacy and the integrity of personal data; and

( ) the public interest in the integrity of communications systems and computer networks.”

The two amendments can essentially be read together: they bite on clause 67(5) and (6) respectively. The purpose of this clause, as I understand it, is to provide a mandatory consultation exercise for designated senior officers, with a single point of contact. That will be particularly important where the designated senior officer has little if any experience of authorising and will therefore be particular important in some of the smaller relevant public authorities, which may not exercise this power on a regular basis, although I realise it is mandatory in all cases. The point of amendments 138 and 140 is to put in the Bill a requirement that, in the course of that consultation exercise, the single point of contact advises not only on issues such as appropriate methods, costs, resource implications, unintended consequences and so on, but, as set out in amendment 138, on

“the public interest in the protection of privacy and the integrity of personal data; and…the public interest in the integrity of communications systems and computer networks.”

Such an amendment is necessary because there is a lack of an overarching privacy provision that can be read into each of these clauses. When a designated senior officer is being advised, it would be prudent and sensible for them to be advised not only about costs and resources, but about privacy and integrity, which are critical to the operation of the Bill.

The amendments are jointly supported by Labour and the Scottish National party.

Throughout this part of the Bill, public authorities and other decision makers are placed under a duty to consider a range of factors connected to the decision to access retained communications data. Those factors include cost and other resource implications and

“any issues as to the lawfulness of the proposed authorisation.”

These amendments include a specific duty to consider the public interest and the protection of individual privacy—that is, the protection of the privacy of our constituents; and the security of communications systems and computer networks—that is, the security of our constituents’ private data. Both David Anderson, in his independent review, and the Intelligence and Security Committee, in its report on the draft Bill, emphasise the importance of privacy principles and the need to make clear the legality of the use of surveillance powers in this new legislation.

Although we are focusing on a specific amendment to increase safeguards for individual privacy and security of data, we are concerned that throughout the Bill there appear to be statutory duties on public agencies, officials and agents and on judicial commissioners, to consider factors relevant to national security and the prevention and detection of crime, and the effectiveness of powers and resources expended, but there is no specific treatment of privacy standards and the public interest.

While the clauses that these amendments are attached to refer to

“any issues as to the lawfulness”

of the powers, the vagueness of this instruction is, in my submission, very contradictory. Surely it must be the first consideration of any individual considering the exercise of powers under the Bill that they should be legal. Legality should be a first consideration; treating it as just one at the end of a list of other factors to be considered seems entirely inappropriate. In this regard, it would be of huge assistance if the Minister could give us a fuller explanation of why statutory duties in the Bill have been approached in this way, with legality as a final duty; of the objectives of including the factors as provided in the manner in which they are drafted; and of why the protection of privacy and the public interest in the integrity of communications systems and computer networks will not be mentioned unless this amendment is made.

The hon. and learned Member for Holborn and St Pancras is right about the purpose of the clause, and I understand the reason for the amendments. The single point of contact may advise the applicant and designated senior officer of the cost and resource implications for the public authority, and the communications service provider of any unintended consequences of the proposed authorisation and any issues surrounding the lawfulness of the proposed authorisation—one of the points that the hon. and learned Member for Edinburgh South West raised.

The points about cost and lawfulness that the hon. and learned Lady raised are certainly part of the advice that the applicant should receive, as well as the appropriate methods to obtain the data they are seeking, while the designated senior officer will be advised on the practicality of obtaining the data sought. Bear in mind that the single point of contact can already advise on the lawfulness of proposed authorisations. For authorisation to be lawful, it has to be both necessary for one of the statutory purposes in the Bill, and proportionate in all circumstances.

The point the hon. and learned Lady made about privacy is a reprise of the debate we had at the very beginning of our consideration, when I argued—I thought pretty convincingly, but clearly not—that privacy is woven through the Bill. For the sake of emphasis, I say again that the protection of privacy and personal data must be a key consideration in gauging proportionality.

I hear what the Minister is saying. As I understand it, he is saying that the issues highlighted by the amendments will be taken into account, so why not say so? What is the detriment in saying so and making it crystal clear? This is for the comfort of the many constituents and members of the public who are concerned about the privacy and integrity of their data, so why not say so in the Bill? What possible detriment could there be in following that course of action?

Let me rehearse the argument that I used originally, because despite what I described as its persuasiveness, it clearly was not sufficiently well articulated to convert the hon. and learned Lady to the cause of virtue. Let me rearticulate it: if privacy is separated out in the way that some argue we should have done and might do now, and it is identified in the desiccated way that those people suggest, its significance is curiously—one might even go so far as to say paradoxically—weakened as a defining characteristic of the purposes of the legislation. However, it is worth emphasising the point I made a few moments ago about the need to tie personal interests and the protection of private data in to the test of proportionality in the draft codes of practice.

I draw attention to the codes of practice at paragraph 3.18—the heading is “Further guidance on necessity and proportionality”—which says:

“An examination of the proportionality of the application should particularly include a consideration of the rights (particularly to privacy and, in relevant cases, freedom of expression) of the individual and a balancing of these rights against the benefit to the investigation.”

That could not be plainer in doing precisely what I have described, which is to look at the right to privacy—I do not like to use the word “right”; I prefer to use “entitlement”—the entitlement to privacy with the functioning nature of an investigation into the effectiveness of the process.

As I understand it, the Minister is saying that privacy is so important and so woven into the Bill that to single it out would weaken its importance. Surely lawfulness is equally important and that has been singled out by the draftsmen in subsection (6)(d).

I have already argued that lawfulness is, again, an underpinning requirement in these terms. Just to be absolutely categorical, the designated senior officer is the one who makes the final assessment of necessity and proportionality, as required by the code of practice. They must have a working knowledge of legislation, specifically that which relates to necessity and proportionality and the entitlements of individuals in those terms.

I just think that the combination of the Bill and the codes of practice render the amendment unnecessary. I emphasised previously that the codes of practice are drafts and the final code of practice will reflect some of this Committee’s considerations. If I may turn my attention momentarily from the hon. and learned Lady, if the hon. and learned Member for Holborn and St Pancras feels that the code should be strengthened in that regard—I re-emphasise that I think they are pretty clear—I would of course be prepared to hear his argument. [Interruption.] Before I move on to the amendment about system integrity, I can see that he is champing at the bit, or maybe I am misinterpreting him.

I was going to cover this in my reply, but the argument the Minister is now putting is unpersuasive, and I am afraid I found it unpersuasive a week ago. In practical reality, when a senior designated officer gets to lawfulness, they will be thinking necessity and proportionality, and they are likely to be advised about that. That is the test for restricting privacy. What we do not see is the statement of privacy, either in this subsection or an overarching clause—I have been trying to articulate what is nagging away as to why the overarching clause is needed. In the end, real people, in real time, will find that lawfulness will mean going back to check necessity and proportionality. That is welcome and right, but they are not the definition of privacy; they are the permitted restrictions of it.

That is a fair argument and that is why it is necessary to supplement what the hon. and learned Gentleman describes with the code of practice in the way that I have described. My invitation to him was that if he accepts that, he might want to focus attention on the code of practice to see whether it is as good as it might be. I drew attention to the provision on the necessity and proportionality. It might be that the draft could be further improved. After all, nothing, at least on earth, is perfect, and certainly no Government would want to claim perfection—

rose—

I was about to say that perfection was an intellectual construct, but I am happy to give way on that note.

Is it not impossible that privacy will not be considered as part of any application? Proportionality runs through the authorisation regime, and if a single point of contact has to apply a proportionality test, by definition and necessity, he will incorporate a wide-ranging consideration of the impact on privacy.

10.30am

Yes, I agree. That is an elegant re-articulation of the point that I was imperfectly making about the intrinsic relationship between a consideration of personal interest and the test of proportionality. For the exercise of the power to be proportionate, it must take proper account of the balance that I described between personal interest and investigative effectiveness.

This is a relatively minor point, but it goes to the wider question of the overarching clause.

It does.

We have to look at this issue practically, through the eyes of the people who will operate such authorisations. I know how it will work: they will be directed to look at the necessity against clause 53(7) and they will go through a list. They will then be asked to look at the proportionality against the matters set out in clause 53. That does not point them to privacy. In the vast majority of cases—in good faith, I am sure—they will go through that clause, rather like a checklist. I do not mean to demean or undermine the exercise that they will go through, but I have seen the operation of such tests many times. Those people will ask themselves, “Is it in the interests of X, Y and Z? Is it proportionate to that?” I accept the point about the code of practice, but they will not necessarily ask themselves about privacy. That point is probably more about the overarching clause than about the specific amendment, but that is our nagging concern. One has to see this issue through the eyes of how in practice the process will work on the ground in real time.

The hon. and learned Gentleman describes the concerns and says that he knows them. Of course, he will also know that it is part of the requirements that those people undertake the right training and that they are expected to have competence, in particular an understanding of all the necessary legislation, including rights legislation. It is important to understand that those people will be making an assessment based on both evidence and comprehension. I re-emphasise that the code of practice is vital. I am trying to tip him off—perhaps I am being too subtle—that he may want to press me further on those very matters in terms of the draft code of practice, which is pretty good, but such drafts can always be improved.

Let me be even more generous. I am an Hegelian, as the hon. and learned Gentleman knows, and I believe that the truth lies in the whole, as Hegel said. The emphasis on privacy that underpins the whole Bill is fundamentally important, but in this regard I take his point that those missioned to do this job need to be very clear about that balance. To be still more generous, he is right in his strong implication that the training and guidance that those people receive about the interpretation of proportionality in this regard is important. That is the purpose of the code of practice, but we might want to go still further and I am happy to be tested further on that during the course of our consideration. I want to move on to the next group of amendments, because otherwise we will do this to death, but have I signalled clearly my direction of travel?

I am grateful to the Minister. I raised this issue of how we go through this exercise with the codes of practice, to which we cannot table amendments, a week ago today. I take his comments as an invitation to draft or suggest tightening amendments—not necessarily in Committee, but outside it—where we think they are appropriate. I take it that those will be taken into consideration in any possible re-drafting of the code. I am grateful for that and we will engage with that exercise.

Yes. I think we have settled that, then. I was trying to act as an old hand to a young blood, despite our appearances and demeanour. To that end, I think the hon. and learned Gentleman has got the point.

To my simple mind, I just wondered which was which.

I would like to think I was a young blood with an old head. That is how I would see it; let us leave it there and move on.

Let me turn to systems integrity. It is important to set out the process for obtaining communications data. A public authority must require a communications provider to disclose communication data or it may engage in activity to acquire the data directly from a telecommunications system. Where data are sought from a provider, they will mostly be data that the provider has for business purposes or data retained under a retention notice. To the extent that a provider has put in place any dedicated system to provide for the acquisition of communications data, that capability and the necessary security assurances will be provided for under a data retention notice or technical capability notice.

In relation to obtaining data directly from a telecommunications system, the communications data code of practice makes it clear that communications data authorisation cannot permit the undertaking of any technique that involves interference with those systems themselves. That is quite important because, as various Committee members will know, that is an important assurance for providers. Such techniques could be authorised only under an equipment interference warrant. We will discuss those matters in the next part of the Bill.

The processes of requiring a provider to disclose data or the obtaining of data directly from a network will not have any impact on the integrity of telecommunications systems or the computer networks concerned. Accordingly, this is not an area on which the applicant or designated person will require advice. In essence, with that absolute firm assurance, the amendment is unnecessary and I invite the hon. and learned Member for Holborn and St Pancras to withdraw it.

The more I have listened to the debate on the amendment, the more convinced I have become that there is a need for an overarching privacy clause, to which I will turn our attention at a later stage. It follows from that that I will focus my energies elsewhere, and therefore I beg to ask leave to withdraw the amendment.

I hear what the Opposition spokesman says in this regard, and I have much sympathy with it. However, I wish to press the amendment, for the simple reason that if privacy and integrity are as important as the Minister acknowledges, why not have them in the Bill? That would cause no possible detriment; it can only do good. Therefore, I wish to press the amendment to a vote.

Question put, That the amendment be made:—

Division 20

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

Division 21

Clause 67 ordered to stand part of the Bill.

Clause 68

Commissioner approval for authorisations to identify or confirm journalistic sources

I beg to move amendment 141, in clause 68, page 54, leave out lines 3 to 13 and insert—

“( ) An application for an order shall be made on notice to the journalist or journalists affected unless the Judicial Commissioner determines that an application without such notice is required in order to avoid prejudice to the investigation.

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

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

( ) A Judicial Commissioner may only make an order if the person making the application has convincingly established that—

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

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

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

( ) The costs of any application and of anything done or to be done in pursuance of an order made under it shall be in the discretion of the Judicial Commissioner”.

How journalistic material and in particular journalists’ sources are to be protected under part 3 of the Bill is a substantive issue of real importance in a modern democracy.

“Issues surrounding the infringement of the right to freedom of expression may arise where an application is made for the communications data of a journalist. There is a strong public interest in protecting a free press and freedom of expression in a democratic society, including the willingness of sources to provide information to journalists anonymously.”

Those strong statements of principle that underpin our democracy are agreed across this House. I say that with confidence not only because of the strong public interest, but because they are written into the code of practice at paragraph 6.5. That suggests they are shared and important democratic principles. I argue that that expression of principle is not translated into reality in the provisions of the clause or through the Bill, and the clause is of considerable concern.

Let me give the background, as there is a chequered history. It is now clear that, in the case of Tom Newton Dunn, the police used the Regulation of Investigatory Powers Act 2000 to access his phone records in secret in 2014. They did not notify him that they had accessed his material or sources; the Metropolitan police obtained the phone records without notification or consent. In other RIPA cases, no journalists were informed in advance. The Interception of Communications Commissioner highlighted in a report in February 2015 that 19 police forces had accessed the communications data of 82 journalists using RIPA in that way. The point of real importance is that there is no fundamental difference between the authorities asking for a journalist’s physical contact book and footage or for their telephone and communications records; the effect on journalists and sources is exactly the same and the same legal safeguards must apply to both.

The safeguards in the Police and Criminal Evidence Act 1984 set a higher standard than those in the Bill as it stands. Under PACE, journalists are notified when the authorities want to access their material and sources, and they have the ability to defend their sources. Neither RIPA nor the Bill apply the same protections and safeguards. The RIPA interim codes of practice, published in March 2015, stated that the authorities must use the PACE procedures to apply to the court for a production order to obtain data. The Bill fails to meet that test.

10.45am

Let us consider clause 68 against that background. It applies if the purpose of the authorisation is

“identifying or confirming a source of journalistic information”.

The clause applies where the purpose is to get at protected material. My first point is that there is no provision in the clause for protection when the purpose of the authorisation is not to identify or confirm a source but that may happen incidental to other authorisations or applications. That is a huge gap in the protection.

Secondly, under subsection (4),

“the applicant is not required to give notice of the application to...any person to whom the authorisation relates, or...that person’s legal representatives.”

So unlike the PACE provision, there is no notice provision.

Then, in subsection (5), although there is a requirement for a judicial commissioner to approve an authorisation, the test is very weak and low level. It is that

“the Judicial Commissioners considers that...at the time of the grant, there were reasonable grounds for considering that the requirements of this Part were satisfied in relation to the authorisation”.

All the judicial commissioner is deciding when a journalist’s source is being targeted is the requirement of this part of the Bill that there are reasonable grounds. On reasonable grounds, the judicial commissioner may think not that the requirements were satisfied, but that there were reasonable grounds for thinking so, and there is no test. There is no higher test for journalistic sources. All the judicial commissioner must satisfy himself or herself of is that the test that applies generally has been applied. It is difficult to see, unless I am reading this wrongly, what the test adds other than that the judicial commissioner looks at the matter, because all they have to look at is whether the other tests not relating to journalists have been satisfied. That is a good thing, but it is hardly a higher level of protection for journalists.

Going back to the code of practice, the last sentence of paragraph 6.5 is very powerful. It states:

“Where an application is intended to determine the source of journalistic information, there must therefore be an overriding requirement in the public interest”.

That is a strong statement of principle that is not found in clause 68 or elsewhere in the Bill. If that is the test to be applied, it is the test that should be written into the Bill and applied by the designated senior officer, and it is the test that the judicial commissioner should be satisfied is passed. The commissioner does not have to ask himself or herself that question. The provision is disguised as protection for journalists but does not provide them with any protection at all.

The code of practice deals with the situation when the application is for the communications data of a journalist generally but is not intended to determine the source. Again, there is nothing on that in the Bill. All the Bill does is to have a title suggesting protection for journalists and then a test that just ensures that the other provisions of the Bill that are not specific to journalists are applied. It leaves out the vital test in the code of practice and set out in case law, which is too great to start going through at this stage. The clause is fundamentally deficient when it comes to protection for journalists.

I am trying to think how this will work in practice. Under the usual rules for a non-notice application, to show that it will be without notice it would be necessary to highlight a number of factors of history as to why it should be without notice rather than on notice—for example, fraud or historical events. In this case, what would the circumstance be that would make it without notice rather than on notice? There would be a significant risk that any journalist would take action. What evidence could be put to the judicial commissioner to persuade them that this should be a without-notice application? There would be no history on the journalist himself.

I am grateful to the hon. and learned Lady for that intervention. As she will know, there is a 20 to 25-year history of the evolution of protections for journalists, from the point when they were not put on notice to the point when they are now routinely put on notice. There are exceptions that have been tested in the Court of Appeal, but journalists are pretty well always put on notice and on many occasions will go and argue their corner to protect their source. Over the years, the case law has determined what the proper test is; on some occasions it has protected the source and on others it has allowed access. Under the PACE regime, there is now a clearly established way to proceed in cases in which journalists’ sources are an issue. It is well understood and it works well. It is significant that none of the law enforcement bodies to my knowledge are complaining that the on-notice PACE procedure for obtaining material that relates to journalists’ sources is not working in practice. Having battled it out over 25 years, pretty well all the sides accept that the current arrangement represents and protects their interests.

The amendment would essentially apply the same regime to communications data where communications data has been retained and is now being accessed. In the modern world, as journalists have made absolutely clear, to say that authorities have to go via PACE when they want to get a physical address book with a source in it but not when they want the virtual version through comms data is to cut right through the protection that has been so carefully crafted over the last 20 to 25 years. That does not protect journalists’ sources and is a cause of real concern.

Amendment 141 reflects current practice by providing for exceptional circumstances in which applications do not have to be on notice, whereas the Bill simply does not offer journalists any meaningful protection whatever. It is a carefully thought through, constructive amendment, intended to give journalists the protection they need without thwarting an investigation that needs to be protected. The test in paragraph (b) of the fourth subsection of the amendment puts the code of practice into the Bill. There is then a provision on costs.

The amendment is simple: it preserves PACE protections and extends them to communications data. It sets out the right test for the designated senior official and the judicial commissioner to apply. Nobody can quarrel with the test, because it is taken from the code of practice itself. It is all very well having warm words in the code of practice and warm words, which we have heard many times, about the protection of journalists’ sources, but unless they are translated into something that has real bite and effect, they remain warm words. I do not say that to underplay what the Solicitor General will say. I know that he believes in the underpinning principles I have outlined, but history shows that unless protection for journalists is written into legislation in a meaningful and effective way, it will not apply in practice as it should.

I thank the hon. and learned Gentleman for clearly outlining the kernel of his concern about the way the clause is drafted. Although in the drafting of the clause we have tried, quite properly, to address what is a sensitive occupation—I hesitate to use the word “profession” because some journalists do not like to be described in that way—we are in danger of moving the focus away from the public interest that journalists serve, which is freedom of expression in a democratic society without fear of intrusion by the authorities and in a way in which sources, and the journalists themselves, can be protected. We have to draw a very important distinction. It is tempting to try to draft amendments dealing with journalists in an ad hominem, or group, way. However, we are not talking about that; we are talking about the source material. Therefore, in a nutshell, I am afraid that the amendment does not really deal with the essential public interest, and that is why I commend the Government’s approach to the Committee.

I will say to the hon. and learned Gentleman, by way of reassurance, that if we can do better in the code of practice, we will. I am certainly open to active consideration of the ways in which we can improve the drafting to make the principles of freedom of expression, and the points that he and I agree on, even clearer to those applying these rules.

The Solicitor General is resisting this sensible and constructive amendment, which reflects the PACE approach, on the basis that one should not get too specific and one needs to understand the underlying public interest. He must accept that the points he makes apply equally to the PACE test. It does not matter whether someone is physically seizing a document that reveals a source or seizing something that serves virtually the same purpose. He must accept that the test is working well in practice and that all sides are pretty content with the way it works at the moment.

I am grateful to the hon. and learned Gentleman, but, tempting though it is to draw that comparison, I think that he is mistaken. The PACE code of practice focuses on the person who, as it appears to the judge, is in possession of the material. That is not always the journalist; for example, a journalist’s material in regards to comms data will be held by the communication service providers and not by the journalist. Under PACE, journalists are not notified in such cases.

Will the Solicitor General give way?

I will not give way at this stage because I want to explain the position. I have given way repeatedly and I want the chance to make my argument. I am sorry if people think, for some reason, that I am not listening or being reasonable. I need to explain the case because I do not think that it has been fully understood.

The hon. and learned Gentleman is right to talk about the position under PACE whereby journalists are asked to surrender data, such as in notebooks; however, under RIPA and the PACE procedures, applications are already being made to others in possession of material, journalists are not notified and the principles are very clear. I do not think it is right of him to draw such an easy comparison and to say, “It is working for PACE, therefore it should be read across the provisions of the Bill.” That is comparing apples with pears—with respect to him.

I have obviously looked carefully at what the Government said in the past on this issue and what was said in response to the pre-legislative Committees. The point has been made that, on the one hand, it is seizing from the journalist themselves and on the other hand, it is seizing from the person who holds the data; that is a material difference and we cannot compare the two schemes. I wonder whether that withstands proper scrutiny. The whole point is to give a source confidence that they can come forward and tell a journalist something and they will be protected. Otherwise, all the case law recites the fact that sources will not come forward and wrongdoing will not be exposed, which is unhealthy for democracy.

The argument that, if you seize my name in physical form from a journalist, it is to be protected, but if my name is being held by a data holder it can be given up and does not require protection, defies common sense. For the source, the question is: what is the protection for me if I come forward and try to expose someone? The argument that you are fine if it is written in a notebook and held by the journalist, but you are not protected if it finds its way into a bit of data held by someone else does not hold up.

11.00am

Yes, but with respect, the hon. and learned Gentleman is ignoring the function of this clause, which is that where you do have that list, we have a special procedure. The problem with that argument is that there is a sensitive issue here. Where someone—whether they are a journalist or not—is the subject of a legitimate investigation, that could undermine such an investigation. Getting the balance right is therefore very important—[Interruption.] I want to finish this point. That is why, both in the Bill and this clause, special procedures apply where the sort of mischief about a source being compromised is indeed a live issue.

In amendment 141, which the Solicitor General is resisting, we have deliberately and intentionally accommodated the test that notice need not be given where it is necessary

“in order to avoid prejudice to the investigation.”

He has given a powerful example, but we have catered for that by saying that notice does not need to be given in that instance. The norm is that notice is given in the usual way, but the exception is where there is prejudice to the investigation. That absolutely meets his concerns; but it does meet my point that notice should otherwise be given.

I am glad we both note that we are trying to get to the same objective. I have already said to the hon. and learned Gentleman that the combination of legislation and the code of practice will be the way in which this framework is set out. I have indicated that if we can do better on the code of practice, we will; we will work with him on that. I also reiterate the amount of care that my right hon. Friend the Minister for Security and I are taking on this particular issue. We have met with leading representatives from journalism on three occasions to discuss the Bill. We have written to the National Union of Journalists and the News Media Association about the concerns they have raised. This is part of a dialogue that is very much ongoing about the protections afforded by the Bill to journalistic material. They rightly say to us that it is not about them but about the interests that they serve. I cannot reiterate enough that we must focus on that issue when drafting the legislation.

May I deal with other Members who have considered the issue? The Interception of Communications Commissioner carefully considered it last year. He made it clear in his recommendation that, where communications data are sought that do not relate to investigation to determine the source of journalistic information, then judicial authorisation is not necessary. I know that the hon. and learned Gentleman is trying in effect to replicate that carve-out. On the proposed restrictions on the circumstances in which a communications commissioner may approve the obtaining of communications data that are journalistic in nature, where the request is for one of the legitimate aims in article 10.2 of the convention, there is an overriding public interest necessitating the order and the order is proportionate to the legitimate aim or aims being pursued, we already have the concepts of necessity and proportionality under part 3 as spelt out in the draft code of practice—as indeed they are in the code of practice for existing legislation. We already have a tightly constrained framework here, which offers a high degree of reassurance to all of us who care passionately about these issues, as I do. The Investigatory Powers Tribunal has been clear in recent authority, such as the case of News Group Newspapers Ltd and others v. Metropolitan Police Commissioner in December last year, that the 2015 code of practice drafted under the current provisions and replicated in the regime in the Bill meets the standards on freedom of expression set out in article 10.

On the proposed requirement for a judicial commissioner to ensure that all reasonable alternative measures to such an authorisation have been exhausted, I am afraid that in my view, there are problems with its practicability. There are many reasons why a particular approach to an investigation might be selected and the use of a particular power might be called for. Judicial commissioners, with respect to them, are not the experts in this consideration and should not be expected to be. It is for those with expertise in the range of investigative options available in the particular circumstances of the case to decide that. Then, of course, the tests can be applied.

I do not want to take technical points. With regard to the technicalities of the amendment, there are some drafting issues that would need to be worked on, but I accept that it is really about principle and the approach to be taken. At this stage, although I disagree with the means by which the hon. and learned Gentleman seeks to make the change, continuing dialogue on the issue is meaningful. For those reasons and in that context, I respectfully ask him to withdraw the amendment.

I have listened carefully to the Solicitor General. In the end, it boils down to a matter of principle. I think that he accepts what amendment 141 says in proposed new subsections (a), (b), (c) and (d). He criticises (c), but I will not spend time on that. The most important thing is to establish that the order is directed to one or more of the legitimate aims in article 10.2 and that an overriding public interest makes it necessary. He says that that is the framework within which the decisions should be taken, so there is no disagreement between them.

The difference, then, appears to be simply that I say it should be on the face of the statute and clear to all, and he says, “No, it can be in a code without express reference in statute.” There is a problem in principle with that. Protection of journalists’ sources should be on the face of the Bill. That is important in a modern democracy. For the Bill to be silent about the test, and for only the code of practice to apply it, is wrong in principle.

Secondly, I am afraid that there is a test spelled out in the Bill, and it is inconsistent with that test. The test for the judicial commissioner in the Bill is simply to check that there were reasonable grounds for considering something, but that the other requirements in the provisions were complied with. As a matter of statutory construction, the judicial commissioner is bound to apply the test in the Bill and cannot apply any other test, so it is wrong in principle not to put it in the Bill. It is also problematic, because there is a test in the Bill and it is not a special test. Ultimately, it says that the judicial commissioner must ensure that the other provisions of the Act are complied with. We would expect that; it is hardly an enhanced test by anybody’s standards.

In those circumstances, I am afraid that the Solicitor General’s arguments are wholly unpersuasive. I will withdraw the amendment, partly because I think that there is room for improvement, on which I will certainly work with the Government. To be absolutely clear, partly because I want to reserve my position to propose the amendment at a later stage, as it is of such importance to the Bill, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 142, in clause 68, page 54, line 5, leave out from “data” to “and” on line 7 and insert “further to this Part”.

With this it will be convenient to discuss the following:

Amendment 143, in clause 68, page 54, line 18, leave out “considers” and insert “determines”.

Amendment 144, in clause 68, page 54, line 19, leave out subsections (5) (a) and (b) and insert—

‘( ) that the conduct permitted by the authorisation is necessary for one or more of the purposes in section 53(7); and

( ) that the conduct permitted by the authorisation is proportionate to what is sought to be achieved by that conduct.”

Amendment 145, in clause 68, page 54, line 29, leave out subsection (7) and insert—

‘( ) The Investigatory Powers Commissioner may for the purposes of approving authorisations under this Section appoint Deputy Judicial Commissioners.

( ) A “Deputy Judicial Commissioner” must be—

(a) in relation to England and Wales, a justice of the peace,

(b) in relation to Scotland, a sheriff, and

( ) An authorisation under this Section may not grant authorisation in relation to the obtaining by a relevant public authority of communications data—

(a) insofar as the communication consists of matters subject to legal privilege; or

(b) related communications data, insofar as the data relate to the communication of matters subject to legal privilege.

( ) For the purposes of subsection (1), legal privilege means—

(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;

(b) communications between a professional legal adviser and his client or any person representing his client and any other person with or in contemplation of legal proceedings or for the purposes of such proceedings;

(i) In connection with the giving of legal advice or

(ii) In connection with the contemplation of legal proceedings or for the purposes of such proceedings.

(d) communications made with the intention of furthering a criminal purpose are not subject to legal privilege.

( ) An application which contains a statement that the purpose of a warrant is to access communications data in connection with communications made for the purpose of furthering a criminal purpose, but which would otherwise attract legal privilege must be considered by a Judicial Commissioner.

( ) A Judicial Commissioner may issue an authorisation sought under subsection (3), if satisfied that—

(a) there are reasonable grounds to believe that the communications data relates to communications made with the intent of furthering a criminal purpose;

(b) that the data is likely to be of substantial value to the investigation in connection with which the application is made; and

(d) other proportionate methods of obtaining the data have been tried without success or were not tried because they were bound to fail;

(e) it is in the public interest that the authorisation is granted, having regard to—

(i) the benefit likely to accrue to the investigation and prosecution if the data is accessed,

(ii) the importance of the prosecution and

(iii) the importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege,

( ) A code of practice issued under Schedule 6 must contain provision about—

(a) the steps to be taken to minimise the risk of conduct undertaken pursuant to a warrant to which this section applies resulting in accidental acquisition of a communication, or communications data, falling within subsection (1);

(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.

( ) Where an authorisation issued under this Part would seek to authorise any activity which may involve access to special procedure material, the following subclauses apply.

( ) Special procedure material subject to subsection (1) will include—

(a) journalistic material other than material which a person holds in confidence and

(b) communications sent by, or intended for, a member of the relevant legislature.

( ) The special procedure authorisation may only be granted on application to a Judicial Commissioner.

( ) The Judicial Commissioner must be satisfied that there are reasonable grounds to believe that—

(a) a criminal offence has been committed,

(b) the material is likely to be of substantial value to the investigation of that offence,

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

(d) it is in the public interest that the warrant is granted, having regard to—

(i) the benefit likely to accrue to the investigation and prosecution if the information is accessed,

(ii) the importance of the prosecution,

(iii) the importance of maintaining public confidence in the integrity of journalists’ work product, and/or communications with members of relevant legislatures and

(iv) the public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.

( ) Where data could reasonably be obtained by means of a search and seizure order pursuant to the Police and Criminal Evidence Act 1984, a warrant under this Part will not be in the public interest.

( ) An application for an authorisation concerning journalistic material held in confidence or information for the purpose of identifying or confirming a source of journalistic information, may only be considered by the Investigatory Powers Commissioner, who must be satisfied that there are reasonable grounds to believe—

(a) a criminal offence has been committed,

(b) the communications data is likely to be of substantial value to the investigation of that offence,

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

(d) it is in the public interest that the authorisation is granted, having regard to—

(i) the benefit likely to accrue to the investigation and prosecution if the information is accessed;

(ii) the importance of the prosecution;

(iii) the importance of maintaining public confidence in the integrity of journalists’ work product and

(iv) the public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.

( ) In considering an authorisation concerning journalistic material held in confidence, the Investigatory Powers Commissioner must give notice to the journalist concerned, unless it would not be in the public interest to do so.

( ) If an authorisation is considered without notice, the Investigatory Powers Commissioner must appoint a Special Advocate to represent the interests of the journalist and the person to whom confidence is owed, and the wider public interest in the integrity of journalists sources and freedom of expression, including as protected by Article 10 ECHR.

( ) Journalistic material is held in confidence for the purposes of this section if—

(a) it is held subject to such an undertaking, restriction or obligation and

(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.”

Amendment 242, in clause 68, page 54, line 29, leave out subsection (7) and insert—

‘( ) The Investigatory Powers Commissioner may for the purposes of approving authorisations under this Section appoint Deputy Judicial Commissioners.

( ) A “Deputy Judicial Commissioner” must be—

(a) in relation to England and Wales, a justice of the peace,

(b) in relation to Scotland, a sheriff, and

( ) An authorisation under this Section may not grant authorisation in relation to the obtaining by a relevant public authority of communications data—

(a) insofar as the communication consists of matters subject to legal privilege; or

(b) related communications data, insofar as the data relate to the communication of matters subject to legal privilege.

( ) For the purposes of subsection (1), legal privilege means—

(a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client;

(i) in connection with the giving of legal advice, or

(ii) in connection with the contemplation of legal proceedings or for the purposes of such proceedings.

(d) communications made with the intention of furthering a criminal purpose are not subject to legal privilege.

( ) A Judicial Commissioner may issue an authorisation sought under subsection (3), if satisfied that—

(a) there are reasonable grounds to believe that the communications data relates to communications made with the intent of furthering a criminal purpose;

(b) that the data is likely to be of substantial value to the investigation in connection with which the application is made;

(d) other proportionate methods of obtaining the data have been tried without success or were not tried because they were bound to fail;

(e) it is in the public interest that the authorisation is granted, having regard to the—

(i) benefit likely to accrue to the investigation and prosecution if the data is accessed;

(ii) importance of the prosecution; and

(iii) importance of maintaining public confidence in the confidentiality of material subject to legal professional privilege.

( ) A code of practice issued under Schedule 6 must contain provision about—

(b) the steps to be taken if it appears that such conduct has accidentally resulted in acquisition of such a communication or data.

( ) Where an authorisation issued under this Part would seek to authorise any activity which may involve access to special procedure material, the following subclauses apply.

( ) Special procedure material subject to subsection (1) will include—

(a) journalistic material other than material which a person holds in confidence;

(b) communications sent by, or intended for, a member of the relevant legislature.

( ) The special procedure authorisation may only be granted on application to a Judicial Commissioner.

( ) The Judicial Commissioner must be satisfied that there are reasonable grounds to believe that—

(a) a criminal offence has been committed;

(b) the material is likely to be of substantial value to the investigation of that offence;

(c) other proportionate methods of obtaining the information have been tried without success or were not tried because they were bound to fail;

(d) it is in the public interest that the warrant is granted, having regard to the—

(i) benefit likely to accrue to the investigation and prosecution if the information is accessed;

(ii) importance of the prosecution;

(iii) importance of maintaining public confidence in the integrity of journalists’ work product; and

(iv) public interest in the freedom of expression enjoyed by journalists and the members of the relevant legislatures, including as protected by Article 10 ECHR.

( ) Journalistic material is held in confidence for the purposes of this section if—

(a) it is held subject to such an undertaking, restriction or obligation;

(b) it has been continuously held (by one or more persons) subject to such an undertaking, restriction or obligation since it was first acquired or created for the purposes of journalism.”

This amendment proposes special procedures for communications data, subject to legal professional privilege, and for the protection of journalistic material and the communications data of politicians. It also provides for the Investigatory Powers Commissioner to appoint Deputy Judicial Commissioners to consider applications for the authorisation of access to Communications Data.

New clause 14—Authorisations in relation to items subject to legal privilege—

‘(1) Subsections (2) and (3) apply if—

(a) an application is made by or on behalf of a relevant public authority for authorisation under this Part, and

(b) the purpose, or one of the purposes, of the authorisation is to obtain communications data which contains, or might tend to reveal the content of, items presumptively subject to legal privilege.

(2) The application must contain a statement that the purpose, or one of the purposes, of the authorisation is to obtain communications data which contains, or might tend to reveal the content of, items presumptively subject to legal privilege.

(3) The person to whom the application is made may grant the authorisation only if the person considers—

(a) that compelling evidence indicates that the items in question consist of, or relate to, communications made for a criminal purpose such that it is necessary to authorise the acquisition of the communications data in question, and

(b) that the relevant public authority has made arrangements of the kind described in section 46 (safeguards relating to retention and disclosure of intercepted material), including specific arrangements for the handling, retention, use and destruction of such items.

(4) Subsections (5) and (6) apply if—

(a) an application is made by or on behalf of a relevant public authority for authorisation under this Part,

(b) the relevant public authority considers that the relevant communications data is likely to include communications data which contains, or might tend to reveal the content of, items subject to legal privilege, and

(5) The application must contain—

(a) a statement that the relevant public authority considers that the relevant communications data is likely to include communications data which contains, or might tend to reveal the content of, items subject to legal privilege, and

(b) an assessment of how likely it is that the relevant communications data will include communications data which contains, or might tend to reveal the content of, such items.

(6) The person to whom the application is made may grant the authorisation only if the person considers that the relevant public authority has made arrangements of the kind described in section 46 (safeguards relating to retention and disclosure of material), including specific arrangements for the handling, retention, use and destruction of any communications data which contains, or might tend to reveal the content of, items subject to legal privilege.

(7) Subsections (1) to (6) of section 68 (commissioner approval for authorisations in relation to journalistic sources) apply to an authorisation to which this section applies as they apply to an authorisation in relation to the obtaining by a relevant public authority of communications data for the purpose mentioned in subsection (1)(a) of that section.

(8) In this section “relevant communications data” means any communications data the obtaining of which is authorised by the authorisation.”

Although there are numerous amendments, they will not take as long as the previous amendment, because to some extent they cover the same ground. Amendments 142 to 144 are intended to tighten up the test for journalistic material and apply a stricter test. Amendment 145 is an attempt comprehensively to redraft clause 68 to provide meaningful protection for journalist’s material and the protection of journalist’s sources. It is also an attempt to provide protection for other protected information, namely that which is subject to legal privilege and communications between MPs. This is a form that we have seen on previous occasions.

I invite interventions because I cannot now quite remember, but I do not think that in this part of the Bill there is a self-standing provision for MPs in relation to access to data. I will happily be intervened on if I am wrong, because then this would not apply. My concern when drafting this amendment was that, while in other parts of the Bill there is a specific provision—although we can argue about whether it is strong enough—for MPs’ correspondence in relation to accessing the communications data of MPs, there is no provision at this point in the Bill. That should be a cause of concern to everyone on the Committee, and it will certainly be a cause of concern to others.

I am grateful to the hon. and learned Gentleman for the typically clear and concise way in which he has approached these amendments to clause 68, on which I wholeheartedly support him. On the question of protection for parliamentarians, the wording that has been used is a “relevant” parliamentarian. That will cover Members of the Scottish Parliament and the devolved Assemblies as well.

I am grateful for that. On looking at it, it is clear that clause 94 applies generally across this—actually, I am not sure that it does. I am sorry to pause on this, Ms Dorries.

Perhaps I could assist the hon. and learned Gentleman. The phraseology that is used is “a member of a relevant legislature”, which is defined to include the Scottish Parliament and the devolved Assemblies.

I am grateful for that. The purpose of the amendment is really to cover all three protected areas—legal professional privilege, MPs’ correspondence and journalism—and to set out a comprehensive test for all three. It is similar to a provision that we have already looked at in relation to other parts of the Bill. I commend it as a constructive way to protect the interests that ought properly to be protected on the face of the Bill.

I will not revisit the arguments except to say that there are important differences between the regime for communications data and that which is contained within clause 94, for example, which deals with equipment interference. We will come on to that in due course. I remind the hon. and learned Gentleman that paragraph 6.4 of the code of practice contains specific reference to a number of sensitive occupations, including,

“medical doctors, lawyers, journalists, Members of Parliament, or ministers of religion”.

If there is any lack of clarity in the code as to whether this includes Members of the Scottish Parliament or indeed of other devolved institutions, I am sure that that could be cleared up, and it should be.

My point is not about the definition of parliamentarians but on the question of legal professional privilege. I think I am right in saying that the Government do not currently recognise that comms data come within the definition of legally privileged material. Does he not agree with me that a phone call from or to a lawyer could, for example, identify a potential witness in a case, and therefore comms data should come within the definition of legal professional privilege?

I do not want to go back to arguments that we have already had on this or to anticipate any future arguments. With regards to legal professional privilege, sometimes it might be difficult to establish precisely what comes within and without that category. However, we are talking not about the content of what has been said or done but about the fact of a communication having been made, so communications data will rarely, if ever, attract legal professional privilege; it is difficult to think of an example when it would.

11.15am

I think the guidance that we are given in declaring our interests to the House is that, for legal work, the identity of the person advised is not to be disclosed, because that comes within legal professional privilege. In other words, the fact that somebody has sought advice and who has sought advice are protected by legal professional privilege. I have never known there to be any doubt about that. This is an area where there is a need for special protection; that ought to be in the statute. I think that is common ground. That is how I have always understood it. I am not entitled to say who instructs me without the consent of the client, certainly before the matter comes to court.

While I agree with the hon. and learned Gentleman on the principle and the absolute nature of the privilege—subject to the iniquity exemption that we all know about and those of us who practise are familiar with—I am talking about a restricted area, in which we are looking at the threads of an investigation as opposed to the actual meat of the subject.

Will the Solicitor General give way?

May I just deal with this matter? As I said, I am having difficulty identifying a circumstance in which communications data—material without context or wider information—would attract that protection. In what we call the David Davis and Tom Watson case, which has been referred by the Court of Appeal to the Court of Justice of the European Union, in its judgment the court of first instance, the divisional court, said:

“No doubt such an example of privilege would rarely arise.”

I think it is important to note that, while I am not saying that it would never arise, I am having difficulty in imagining that the material itself would breach the dam, if you like, of the important safeguard of legal professional privilege.

Just in response to the hon. and learned Gentleman’s point about the identity of the person being subject to legal professional privilege: in litigation it is always known, because the solicitor is on the record as to who he acts for, and at a case management conference the barristers who are taking the matter forward will be identified.

I am grateful to my hon. and learned Friend. There might be an earlier stage, for example at a police station in a criminal investigation, when that might not be a matter that is automatically disclosed in that way.

I absolutely accept that, for litigation in open court, it is pretty clear who everybody is acting for. It is common practice in the commercial world for protection to be put around whether a client is seeking advice and from whom. That is jealously guarded by every law firm that I have ever had anything to do with, for very obvious reasons. People go to lawyers; they do not necessarily want the world at large to know that they have gone and to which lawyer they have gone. I cannot over-emphasise that, in the commercial reality of the real world, that is jealously guarded.

I am grateful to hon. Members for trying to sift their way through what appears to be something of a labyrinth at times. I do not want to overcomplicate the situation. The Government’s view is that, combined with the code of practice, we have the necessary protections in the Bill that acknowledge that the degree and nature of the interference in an individual’s rights and freedoms will of course be greater in these sort of circumstances, so considerations of the necessity and proportionality become highly germane because they draw attention to any such circumstances that might lead to an unusual degree of intrusion or infringement of rights and freedoms, in particular privacy.

The Solicitor General is very generous in taking interventions. We currently have four silks arguing about whether LPP can apply to comms data. Too many lawyers spoil the broth perhaps, but is that not an indication that a code of practice is not going to be enough to resolve this issue? It should go before a judicial commissioner, as proposed by the amendment.

The hon. and learned Lady makes her point with force. Although the concerns she has about content and the issues that we have debated and will debate in part 5 are understandable, we are talking about a different nature of material and a different regime, where considerations can be distinct from those that apply in other parts of the Bill.

I will deal as quickly as I can with the points that have been made. I would argue that we have, in effect, a particular restriction that I would regard as not striking the right balance with respect to those who need it. We have to think in the context of the operational capability of our security and intelligence services in particular.

If there is a specific requirement for the use of PACE powers in these circumstances, I am worried that the requirements of clarity, consistency and transparency that we have to abide by will be undermined. The Interception of Communications Commissioners Office was clear in its rejection of the claim that public authorities had utilised RIPA to avoid the use of PACE. In fact, under this Bill part 3 authorisations for communications data to identify or confirm a journalistic source are subject to more stringent safeguards than under PACE, because the Bill replicates those procedures but at a higher level of authorisation, with a serving or former High Court judge, as opposed to a circuit judge, making the authorisation.

Making communications data accessible to those who have a lawful need for them at the right level of authorisation is a fine balance, but it is struck most effectively in the Bill as drafted. I am sure that Opposition Members do not intend us to reach a position where communications that have been made for the intent of furthering a criminal purpose are missed or are not accessible as they would want them to be. For those reasons, I urge the hon. and learned Member for Holborn and St Pancras to withdraw the amendment.

I am afraid I simply do not follow the argument that transparency and accountability are lost if the protection that should properly be accorded to lawyers, journalists and MPs is spelled out in the Bill, with clear guidance to those who operate the authorisations on how to apply them. As I have indicated, these are matters of real concern that go to important issues in the Bill. In order to reserve my rights at a later stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 68 ordered to stand part of the Bill.

Clause 69

Collaboration agreements

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

Division 22

Clause 69 ordered to stand part of the Bill.

11.25am

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.

Investigatory Powers Bill (Eighth 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, Fergus Reid, Committee Clerks

† attended the Committee

Public Bill Committee

Tuesday 19 April 2016

(Afternoon)

[Nadine Dorries in the Chair]

Investigatory Powers Bill

2.00pm

This will be a long session: five hours. If anyone is worried about comfort breaks, I do not have the constitution of Mr Speaker, so I will call one at around 4 o’clock or 4.15 pm. We are then expecting a vote on a programme motion at around 6 o’clock. That will, I hope, break it up nicely.

On a point of order, Madam Chairman. I mentioned at the outset this morning that I had written to you and intended to make copies of that correspondence available to Committee members. In the course of the proceedings, I heard the Solicitor General report that I had also written to journalists. Hard copies of all that correspondence are available at the front of the room for collection by members, and I understand that it has also been sent to members by email.

Thank you very much.

Clauses 70 and 71 ordered to stand part of the Bill.

Clause 72

Lawfulness of conduct authorised by this Part

I beg to move amendment 246, in clause 72, page 57, line 35, leave out from “subsection (1)” to end of line 40.

This amendment ensures that if conduct cannot be justified it must remain unlawful.

With this it will be convenient to discuss amendment 148, in clause 72, page 57, line 36, leave out paragraph (b).

I think I can take this in fairly short compass. The clause deals with the lawfulness of conduct authorised by this part of the Bill. The amendment would delete clause 72(2)(b), the effect of which would be that conduct would have to remain unlawful if it could not be justified. As it is currently worded, the clause allows an exception to that principle, and that is not an appropriate exception. Conduct is either lawful or unlawful. If it is unlawful, it should be characterised as such and should not be justified. Strictly, if the amendment were to be passed, subsection (3) would have to be left out as well, for tidying-up purposes.

May I reassure the hon. and learned Lady that the provisions relating to lawfulness of conduct authorised by part 3 of the Bill replicate those that currently apply in the Regulation of Investigatory Powers Act 2000, and the Bill goes no further in providing indemnity from civil liability for conduct incidental to or reasonably undertaken in connection with a communications data authorisation? The clause is drafted to ensure that a person who engages in conduct only in connection with an authorisation cannot be subject to civil liability unless that activity could itself have been authorised separately under a relevant power. It must follow that the removal of that provision would mean that a person who was acting lawfully under an authorisation that had properly been granted under the Bill would be at risk of civil liability if some incidental or reasonably connected conduct were not expressly covered by the authorisation.

I can see the thrust of the hon. and learned Lady’s argument, but I hope that I have reassured her that the Bill does not go any further than the status quo. For that reason, I urge her to withdraw the amendment.

I beg to ask leave to withdraw the amendment for the time being.

Amendment, by leave, withdrawn.

Clause 72 ordered to stand part of the Bill.

Clause 73 ordered to stand part of the Bill.

Clause 74

Certain transfer and agency arrangements with public authorities

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

There are matters relating to this clause on which I would like to press the Minister. This is the clause that provides for what is effectively the transfer of certain functions between the Secretary of State and other public authorities. The functions to be transferred are the functions in clauses 58 to 60, at which we looked in some detail last week: the filtering arrangements for obtaining data. As set out in clause 58, it is for the Secretary of State to maintain and operate arrangements. It is then for the relevant public authority, acting through a designated senior officer, to effectively carry out the exercise, using authorisations as and where necessary and appropriate. We discussed that arrangement.

Clause 74 provides for a transfer of functions of the Secretary of State—which I take to include establishing, maintaining and operating arrangements—from the Secretary of State to another public authority. That seems to me to cut through the thrust and the purpose of clause 58, which has a clear hierarchy to it: the Secretary of State, then the designated senior officer. Subsection (1)(b) is freestanding and transfers any function exercisable by a public authority back the other way to the Secretary of State, so there is a complete provision for a swap of roles. Subsection (3) indicates that:

“Regulations under subsection (2) do not affect the Secretary of State’s responsibility for the exercise of the functions concerned”.

Then schedule 5, in the back of the Bill, is referred to, but that does not add a great deal.

The question for the Minister is: how is it anticipated that these powers are to be exercised? On the face of it, this is an odd structure for a Bill to set out. This structure goes from the Secretary of State down to the relevant public authority, with the Secretary of State having a much wider role of setting up the arrangements, only for us to find, several clauses later, that it is possible to flip the functions and have the public authority making the arrangements. That seems to remove some of the formality and the safeguards intended by clause 58.

The hon. and learned Gentleman, with his typical diligence—which is at least matched, by the way, by those on the Treasury Bench—has identified, quite properly, both the reasons for this clause and the character of the transfer of arrangements that it details. He accurately identified subsection (3), which emphasises that:

“Regulations under subsection (2) do not affect the Secretary of State’s responsibility for the exercise of the functions concerned”.

The transfer of arrangements will change neither the Secretary of State’s responsibility nor the process for authorising requests for data. It is about the technical running of the filtering capability. It is there to require flexibility; it might be appropriate at some future point for another authority to exercise the filtering function, but without responsibility moving from the Secretary of State. The Secretary of State will retain responsibility, but the operational running of the filter might change over time. This is essentially about future proofing.

I am grateful to the Minister. I am not being pernickety; I just want to be clear. Subsection (3) appears to apply only to regulations under subsection (2), which I think is about changing the powers of public authorities lest they should not have the power to carry out functions on behalf of the Secretary of State. In other words, when the Secretary of State is modifying the powers available to a public authority, that comes within subsection (3). On reflection, I wonder whether sub-clause 3 should say “regulations under subsections (1) and (2) do not affect the Secretary of State’s responsibility”, because I think that is the thrust of what the Minister said.

That is not an unreasonable point, actually. Someone who read the Bill could certainly come to the same conclusion as the hon. and learned Gentleman. I will look at that from a drafting perspective, because it is important that we are clear. First, in all these matters, filtering arrangements take effect only as the result of a lawful process; the process for permission will not change. Secondly, that permission rests with the Secretary of State; I do not want there to be any ambiguity—as the hon. and learned Gentleman suggests there might be—about which parts of this clause that affects. On re-reading the clause, I can see what he means, so I am happy to take it away and check whether the drafting needs to be amended in the way that he describes. In that spirit, and with that immensely generous offer, I hope we can move on.

I am grateful.

Question put and agreed to.

Clause 74 accordingly ordered to stand part of the Bill.

Schedule 5 agreed to.

Clause 75 ordered to stand part of the Bill.

Clause 76

Extra-territorial application of Part 3

I beg to move amendment 150, in clause 76, page 59, line 26, after “Kingdom”, insert

“the notice shall be served at that person’s principal office outside the United Kingdom where it is established for the provision of services. Where it is considered unfeasible or inappropriate in the circumstances,”.

With this it will be convenient to discuss amendment 151, in clause 76, page 59, line 39, leave out subsection (4) and insert—

“(4) Subsections (1) or (2) of section 57 shall not be applicable where the taking of any steps by a relevant operator outside the United Kingdom—

(a) would cause the operator to act contrary to any laws or restrictions under the law of the country or territory where it is established, for the provision of services, or

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

We return to familiar territory here, in relation to the extraterritorial application of authorisations under part 3. When I made my observations last week, I outlined the concerns that a number of service providers and tech companies have; I do not intend to repeat them.

Amendment 150 would tighten the service provisions in relation to the extraterritorial application of part 3. Amendment 151 would introduce a restriction that had the effect of not requiring a relevant operator outside the UK

“to act contrary to any laws or restrictions under the law of the country or territory where it is established, for the provision of services,”

or to take steps that

“could be achieved via a notice served pursuant to an international mutual assistance agreement or subject to an EU mutual assistance instrument.”

We reached this point last week in relation to provisions that were not dissimilar. The Minister made various points, both about service and about other provisions—particularly those relating to the way international mutual assistance agreements currently work. I will not press these amendments to a vote, for the same reasons as last week, but would indicate that the thrust and purpose of the amendments was to anticipate the agreements on extraterritorial application that it is hoped will be reached—particularly with the US—and that are being negotiated at the moment.

2.15pm

Let me make one or two of the wider points that came up in discussion last week and that, in fairness, I ought to deal with. When we debated equivalent provisions last week, the hon. Member for Louth and Horncastle pointed out that some of the concerned companies and service providers had not given oral evidence to the Joint Committee on the Draft Investigatory Powers Bill. She will be pleased to know that they are all listening to our proceedings or reading the transcripts and paying keen attention. They were keen to point out that it was not a refusal of principle; they were given very short notice and were asked to come as a team on the same day and at the same time, which was not available to them. I am simply putting their points. They did submit strong written evidence. They later discovered that the Committee took some evidence by Skype, but that was not offered to them.

The hon. and learned Gentleman will appreciate I was not chairing the Committee, so this is very much my own impression of what went on. Lord Murphy was, as one would expect, very keen to accommodate the service providers and the Committee Clerks proposed several dates. We were grateful for the written evidence and formed the view we did, but it would have been nice if they could have fitted us into their busy schedules.

We probably will not gain much by arguing the detail, particularly as I was not there. The point that the service providers wanted to get across was that in principle they did want to give evidence. They gave written evidence. It was simply that the dates would not work for them as a group, rather than any unwillingness to share their concerns.

The Minister for Security raised a point about the Sheinwald arrangements and the progress being made. As I said a moment ago, these amendments are intended to foreshadow the—I hope—new world of working arrangements, which will cover not only evidence for use in prosecutions but the facilitation of the exercise of powers of this Bill in much faster time than some of the current mutual assistance agreements. The Minister made a further point about the differing views of the companies concerned. There are different views about some aspects of the Bill, but on the issues of extraterritorial application they speak with one voice.

There is an important broader issue to put on the table. As we move forward to international agreements, particularly with the US, it is very important that not only our Government but the US Government are comfortable with the arrangements, because whatever arrangements are put in place will be reciprocal.

Finally, may I hand a schedule to you, Ms Dorries, to the Minister and his team and to the hon. and learned Member for Edinburgh South West? I do not intend to speak at great length to this document, which was prepared for me. What it points out is the inconsistency in approach on extraterritorial jurisdiction. It is quite telling in a number of respects. It tracks whether there is extraterritorial jurisdiction, which clauses give rise to it, whether there is a reasonableness test or a reference to conflict of laws built in, whether it is enforced by overseas service providers, whether there is an international mutual assistance framework and whether there is an obligation on the Secretary of State to consult. What struck me when I went through the document was the inconsistencies. If they are intentional inconsistencies that can be defended, all well and good. I am simply bringing it to the Minister’s attention that we have found these apparent inconsistencies. If they are not intentional, it might be a good idea if somebody looked at them to tidy up the provisions and ensure that where they should be consistent, they are.

I am looking at the hon. and learned Gentleman’s amendment 150, and of course it is necessary to serve someone so that they get notice. The provisions of service are always about the substance of whether the person gets the notice. It is clear to me from the current drafting that if there were service in accordance with any of clause 76(3), the company would get notice. I have a few concerns about the amendment. I am very wary, because people often take points of service to disrupt a substantive issue. It would be unfortunate if people could take the point that they were not properly served and therefore not comply. Does “principal office” have a meaning in other jurisdictions? If there are different services, will “provision of services” cause confusion? What is the meaning of “unfeasible or inappropriate” and how will it be applied? I believe that the clause will maintain what is desired, which is that it will come to the company’s attention, so I am slightly concerned about the amendment.

I am grateful to the hon. and learned Lady for her intervention. I am not pressing amendments 150 and 151. They have been put forward to draw attention to concerns. The hon. and learned Lady made submissions last week about service in relation to civil proceedings under the White Book, which I noted and could see the sense of. I do not want to push amendment 150 and accept that “unfeasible” and “inappropriate” may not be the best way to articulate the point.

What underlies both amendments is a genuine concern on the part of those who, when the Bill receives Royal Assent, will be called on to assist in relation to warrants and who want clarity on how the procedure is to operate, what they are to do and what the safeguards are, in particular when they find themselves, as we mentioned last week, required under penalty of criminal proceedings in this country to do something that constitutes an offence in the country in which they are operating. That is a very real concern for them.

I shall deal as pithily as is possible with the points the hon. and learned Gentleman made. The first was his helpful contribution in the form of this schematic, to which I will not respond now. He would not expect me to as I have only just seen it. It might form part of my next letter to the Committee to explain why in different parts of the Bill these matters are handled in different ways. In doing so, I will implicitly consider his point about whether that is healthy eclecticism or unhappy inconsistency.

Secondly, it is important to point out that clause 76 essentially maintains provisions on extraterritoriality as they are now, replicating the arrangements under RIPA, clarified by the Data Retention and Investigatory Powers Act 2014. The hon. and learned Gentleman is right, but there is nothing new here.

Thirdly, there is a need to retain flexibility about where the notices are served. I take the hon. and learned Gentleman’s point that companies may take a view on these things, and sometimes those might be overlapping or conflicting views about different aspects of the Bill, but in those terms it is important to maintain a degree of flexibility about the communications data notice and where it can be delivered.

Fourthly, on the hon. and learned Gentleman’s point about coming more speedily to an agreement that is more satisfactory than either current arrangements or those that might be delivered through a mutual legal assistance treaty, I can offer the Committee the assurance, as I have previously, that that work is under way. We are hopeful—indeed, confident—that we can achieve the sort of outcome that he has described. He referred, as I did, to the comments of David Anderson, which were critical of the mutual legal assistance treaty process on the grounds that it is slow. It is not always the best way of achieving the objective set out in the Bill, because it is not designed for that purpose but an entirely different one.

Finally, I would say that this is really important. Although the hon. and learned Gentleman is right that this is a particular part of a particular part of the Bill and so could be overlooked, it is important to understand that, in terms of the objectives we seek to achieve—that is, those of us who want the Bill to work well, which I think applies to the whole Committee—these powers are significant. Much of what happens is now happening overseas and much of the process by which we deal with overseas organisations is vital to the work of our security services and others. Dealing with extraterritorial matters is significant, but not straightforward. It is dynamic, for the reasons that we have both offered to the Committee. In that respect, I believe we have got the Bill about where it wants to be. I do not say that these things will not evolve over time, but for the purposes we have set out, the clause works.

As with all these things, I start from the perspective of wanting to be both convivial and conciliatory; both helpful and positive. I never ignore arguments put in these Committees or on the Floor of the House, as people know who know how I operate. The House has an important function in making government as good as it can be, and that is partly about the interaction and tension between Government and Opposition. Of course I am always prepared to listen, but I think we have got this right. With the appropriate humility, I suggest that we move on.

I indicated would not press the amendments at this stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I oppose the clause. I hear what the Minister has to say, but I am not reassured by the Government’s approach. Harking back to something I said last week, I do not think that the Government have got the balance right, because in seeking to gather to themselves an extraterritorial application through United Kingdom law, there are hidden dangers.

If international companies are required to arbitrate between conflicting legal systems, it is leaving the protection of human rights to the good will and judgment of those companies. Companies such as the ones the hon. and learned Member for Holborn and St Pancras mentioned have already expressed concerns to David Anderson, for his report “A Question of Trust”, 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.”

In my view, the most appropriate way forward is to pursue the route, which I am pleased the Minister has assured us that the Government are well down, of mutual legal assistance agreements with other states. If we do not pursue that route in the way that both David Anderson and Sir Nigel Sheinwald recommended with appropriate alacrity, and instead rely simply on clauses such as this one, which are spread throughout the Bill, we will create real difficulty for corporate entities. We will also create difficulties for the international enforcement of human rights, which I consider a bit more important than difficulties for corporate entities, although we should not set the latter to one side, because they are significant. For that reason, notwithstanding the Minister’s assurances, the SNP opposes clause stand part.

2.30pm

I will not make a case again for the clause, but I shall say this, in the spirit of helpfulness and kindness. It is really important that the Committee sends out a combined message to overseas communications service providers—on which the obligations will have an important effect because their commercial endeavours have a significant relationship with the powers we are trying to cement in the Bill—so that they have a very clear impression that we as a Committee of this Parliament are clear that we expect them to do their bit to do what is right. We should not, out of a sense of good will, allow ourselves to be misled and encouraged not to have high expectations or make serious demands of those organisations.

I simply say to the hon. and learned Lady that clause 76 is about giving a clear signal, as does clause 57, with which it should be read in tandem, that telecommunications operators should comply with the notice given, whether or not they are in this country. I accept that that is difficult and challenging—I made that point at the outset—but my goodness, it is vital that we take these steps. I know that she is open-minded and a woman of great good will, but we should not allow that to dilute in any way that common message to those big companies. I do not want those companies to get away with anything that that should not get away with.

I am not so much concerned about the message we send out to the companies; I am more concerned about the message we send out internationally and potentially to authoritarian regimes. The difficulty is that if the British Government demand from these companies unqualified co-operation with British laws, that might encourage authoritarian Governments to do likewise. We clearly would not want that, so we need to be very careful about the messages we send out and think carefully about their full implications. That is why such matters should be approached by way of mutual legal agreement internationally, rather than the unilateral imposition of one Parliament’s will outwith the area where its sovereignty operates.

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

Division 23

Clause 76 ordered to stand part of the Bill.

Clause 77 ordered to stand part of the Bill.

Clause 78

Powers to require retention of certain data

I beg to move amendment 164, in clause 78, page 61, line 5, leave out subsection (1) and insert—

“(1) A Judicial Commissioner may issue a data retention warrant under this Part to authorise the retention of relevant communications data if the Judicial Commissioner considers that the authorisation is necessary and proportionate for one or more of the following purposes—

(a) in the interests of national security, or

(b) for the purpose of preventing or detecting serious crime, or

With this it will be convenient to discuss the following:

Amendment 165, in clause 78, page 61, line 10, leave out “A retention notice may” and insert “A data retention warrant must”.

Amendment 154, in clause 78, page 61, line 19, leave out “notice” and insert “warrant”.

Amendment 155, in clause 78, page 61, line 30, leave out “retention notice” and insert “retention warrant”.

Amendment 235, in clause 78, page 61, line 30, leave out second “notice” and insert “warrant”.

Amendment 156, in clause 78, page 61, line 32, leave out “notice” and insert “warrant”.

Amendment 157, in clause 78, page 61, line 33, leave out “notice” and insert “warrant”.

Amendment 158, in clause 78, page 61, line 34, leave out “notice” and insert “warrant”.

Amendment 159, in clause 78, page 61, line 36, leave out “notice” and insert “warrant”.

Amendment 160, in clause 78, page 61, line 37, leave out “notice” and insert “warrant”.

Amendment 161, in clause 78, page 61, line 38, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 162, in clause 78, page 61, line 41, leave out “notice” and insert “warrant”.

Amendment 166, in clause 79, page 62, line 26, leave out “notice” and insert “warrant”.

Amendment 220, in clause 79, page 62, line 26, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 168, in clause 79, page 62, line 28, leave out “notice” and insert “warrant”.

Amendment 169, in clause 79, page 62, line 30, leave out “notice” and insert “warrant”.

Amendment 170, in clause 79, page 62, line 31, leave out “notice” and insert “warrant”.

Amendment 171, in clause 79, page 62, line 32, leave out “notice” and insert “warrant”.

Amendment 172, in clause 79, page 62, line 33, leave out “notice” and insert “warrant”.

Amendment 173, in clause 79, page 62, line 35, leave out “notice” and insert “warrant”.

Amendment 174, in clause 79, page 62, line 35, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 176, in clause 80, page 62, line 38, leave out “notice” and insert “warrant”.

Amendment 198, in clause 80, page 62, line 40, leave out “back to the Secretary of State” and insert “to the Investigatory Powers Commissioner for review”.

Amendment 335, in clause 80, page 62, line 40, leave out “notice” and insert “warrant”.

Amendment 177, in clause 80, page 62, line 41, leave out “notice” and insert “warrant”.

Amendment 178, in clause 80, page 62, line 42, leave out “notice” and insert “warrant”.

Amendment 180, in clause 80, page 63, line 5, leave out “notice” and insert “warrant”.

Amendment 181, in clause 80, page 63, line 6, leave out “notice” and insert “warrant”.

Amendment 199, in clause 80, page 63, line 7, leave out “Secretary of State” and insert “the Investigatory Powers Commissioner”.

Amendment 182, in clause 80, page 63, line 7, leave out “notice” and insert “warrant”.

Amendment 183, in clause 80, page 63, line 8, leave out “notice” and insert “warrant”.

Amendment 200, in clause 80, page 63, line 10, leave out “Secretary of State” and insert “the Investigatory Powers Commissioner”.

Amendment 201, in clause 80, page 63, line 12, leave out subsection (b).

Amendment 184, in clause 80, page 63, line 14, leave out “notice” and insert “warrant”.

Amendment 185, in clause 80, page 63, line 16, leave out “notice” and insert “warrant”.

Amendment 193, in clause 80, page 63, line 19, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 194, in clause 80, page 63, line 24, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 202, in clause 80, page 63, line 25, leave out “Secretary of State” and insert “Investigatory Powers Commissioner”.

Amendment 249, in clause 80, page 63, line 25, leave out “and the Commissioner”.

Amendment 186, in clause 80, page 63, line 27, leave out “notice” and insert “warrant”.

Amendment 187, in clause 80, page 63, line 28, leave out “notice” and insert “warrant”.

Amendment 188, in clause 80, page 63, line 30, leave out “notice” and insert “warrant”.

Amendment 203, in clause 80, page 63, line 31, leave out “Secretary of State” and insert “Investigatory Powers Commissioner”.

Amendment 197, in clause 80, page 63, line 33, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 189, in clause 80, page 63, line 33, leave out “notice” and insert “warrant”.

Amendment 204, in clause 83, page 64, line 13, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 210, in clause 83, page 64, line 13, leave out “notice” and insert “warrant”.

Amendment 205, in clause 83, page 64, line 14, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 206, in clause 83, page 64, line 15, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 211, in clause 83, page 64, line 22, leave out “notice” and insert “warrant”.

Amendment 207, in clause 83, page 64, line 23, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 212, in clause 83, page 64, line 27, leave out “notice” and insert “warrant”.

Amendment 213, in clause 83, page 64, line 28, leave out “notice” and insert “warrant”.

Amendment 214, in clause 83, page 64, line 31, leave out “notice” and insert “warrant”.

Amendment 215, in clause 83, page 64, line 32, leave out “notice” and insert “warrant”.

Amendment 216, in clause 83, page 64, line 34, leave out “notice” and insert “warrant”.

Amendment 217, in clause 83, page 64, line 36, leave out “notice” and insert “warrant”.

Amendment 218, in clause 83, page 64, line 37, leave out “notice” and insert “warrant”.

Amendment 208, in clause 83, page 64, line 38, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 370, in clause 83, page 64, line 39, leave out “notice” and insert “warrant”.

Amendment 372, in clause 83, page 64, line 40, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 209, in clause 83, page 64, line 41, leave out “Secretary of State” and insert “Judicial Commissioner”.

Amendment 219, in clause 83, page 65, line 7, leave out “notice” and insert “warrant”.

Amendment 221, in clause 83, page 65, line 9, leave out “notice” and insert “warrant”.

New clause 7—Persons who may apply for issue of warrant—

“(1) Each of the following organisations may apply for a communications data retention warrant—

(a) a police force maintained under section 2 of the Police Act 1996,

(b) the Metropolitan Police Force,

(d) the Police Service of Scotland,

(e) the Police Service of Northern Ireland,

(f) the British Transport Police Force,

(g) the Ministry of Defence Police,

(h) the Royal Navy Police,

(i) the Royal Military Police,

(j) the Royal Air Force Police,

(k) the Security Service,

(l) the Secret Intelligence Service,

(m) GCHQ, and

(n) the National Crime Agency.”

New clause 10—Requirements that must be met by warrants—

“(1) A warrant issued under this Part must name or otherwise identify the person or persons, organisation, premises, or location to which the warrant relates.

(2) A warrant issued under this Part must describe the investigation or operation to which the warrant relates.

(3) A warrant issued under this Part must relate to one or more of the following purposes—

(a) in the interests of national security, or

(b) for the purpose of preventing or detecting serious crime, where there is reasonable suspicion that a serious criminal offence has been or is likely to be committed, or

(4) A warrant may only be issued under this Part if there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation or operation to which the warrant relates.”

I will not say, at this stage, that I am withdrawing all of those amendments.

That is a joke, right?

It is a joke, Ms Dorries. We now come to a very important clause. In some respects, over the last part of Thursday and today we have been working backwards through the way in which the functions will be exercised, because clause 78 is the starting point in relation to communications data. It relates to the power to require retention of data in the first place, and everything we have discussed has been about how those data can be filtered and accessed after they have been retained. It is a very important clause.

I draw attention to the breadth of the clause, which states:

“The Secretary of State may by notice…require a telecommunications operator to retain relevant communications data if the Secretary of State considers that the requirement is necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (j) of section 53(7)”.

The first thing that crops up in relation to the clause is what the test for retention is. The test is, of course, necessity and proportionality but the real question is: what does that necessity and proportionality bite on? That pushes us straight back to clause 53(7), which is problematic because it sets such a low threshold for these extensive retention powers.

There should be no doubt that this provision gives the Secretary of State the power to require the retention of a huge amount of data. There may be circumstances in which that is necessary and proportionate, but the test for whether that power is exercised is pushed all the way back to clause 53(7). To take an example that we touched on last week, extensive data can be retained

“for the purpose of preventing or detecting crime”—

any crime. Any crime of any level can trigger a power to retain data. The importance of the issue of retention over that of access is that at this stage it is about retaining the data of those who are not necessarily suspects or targets but anybody whose data come within the types that are intended to be retained. It is a very wide provision.

Sign-off is by the Secretary of State, so there is no double lock and no reference to a judicial commissioner here. The Secretary of State operates the powers, which are very wide. Clause 78(2) states that

“a retention notice may…relate to a particular operator”;

it may

“require the retention of all data or any”;

it may

“identify…periods for which data is to be retained”;

it may “contain…restrictions” and

“make different provision for different purposes,”;

and it may “relate to data” that are not even in existence at the time. These are very wide-ranging powers triggered by the test set out in clause 53(7), and that is a cause of significant concern. The retention period is 12 months, so this is an extensive hoovering-up exercise.

It is clear that the clause applies to internet connection records, because that is stated in subsection (9). We touched on internet connection records last week in relation to when internet connection records are to be accessed. Now, I touch on it for a different purpose: to highlight how all our internet connection records can be swept up in a data retention notice issued under this provision.

For that purpose, one obviously starts with the definition of internet connection record in clause 54(6)(a) and (b), which we looked at last week. I will not read it out again but just give some examples of what is intended to be included. I will do so in chronological order. The operational case for the retention of internet connection records was published in August last year. Page 3 made it clear that internet connection records are:

“a record of the internet services that a specific device connects to—such as a website or instant messaging application—captured by the company providing access to the internet”.

So that is within the scope of an internet connection record, as set out in the operational case of August 2015. An annexe setting out terminology and definitions was put in evidence before the Joint Committee in January this year, which made it clear that not only web and IP addresses are included, but names and addresses, email addresses, phone numbers, billing data, customers, users, and so on. In the explanatory notes to the Bill, paragraph 2.30, on clause 78(9) makes it clear that,

“communications data that can be retained includes internet connection records. Internet connection records, which are defined in clause 54(6), are a record of the internet services that a specific device connects to—such as a website”

That is therefore consistent with the operational case.

What is swept up under clause 78 are internet connection records, which means connections to the internet and websites to which any device has connected. When anyone uses a device to connect to a website, that is recorded by the provider and comes within the definition. It therefore comes within the retention order. That is what the clause gives the Secretary of State power to retain.

It is fair to point out that clause 54(4), which deals with accessing the data that are retained, says that the access through an authorisation can be allowed only if the purpose is to identify: which person is using the internet, which internet service is being used, where the person or apparatus whose identity is already known is, and so on. It is true to say that on the point of access there is restriction of the way in which internet connection records are accessed, but we need to be absolutely clear that for the purpose of retention, it is a record of all websites visited or accessed by a device.

I do not doubt that my hon. and learned Friend the Solicitor General will deal with these points at some length, but is it not fair to say—the hon. and learned Gentleman is in the mood to be fair—that the two subsequent clauses both build a set of safeguards into the system and provide for a review of the system? There is further work in the Bill that caveats what might be taken to be the extremes of his argument.

2.45pm

I am grateful for that intervention, and I accept that there are safeguards in subsequent provisions. I will be corrected if I am wrong, but on the face of it at least—I am not saying they are incapable of a review—the safeguards do not restrict the definition of an internet connection record in a way that would prevent websites visited being swept up in the retention order.

Yes.

The message to my and all of our constituents is that, even if they are not a target, a record of the websites they have visited can be retained under a data retention order, and if retained will be retained for 12 months—every website they have visited. But if somebody later wants to access it, there is then a tighter test for that. The chilling effect of clause 78 is that the websites visited will be retained if a retention order is issued. We need to be absolutely clear about that. The tighter definition does not kick in until a later stage of the exercise, and that is a cause of real concern to our constituents, certainly to the people who have engaged with me on the topic, and to our fellows across both sides of the House.

I note what the hon. and learned Gentleman says about web addresses being revealed. Is it not also the case that we see from the data released by the Home Office, after being pressed about its factsheet accompanying ICRs, that what will be revealed is not only web addresses and IP addresses, but the names, addresses, email addresses, phone numbers and billing data of customers—our constituents?

I cannot double check on my feet, but that sounds like the further evidence that was put before the Joint Committee when it was in the middle of its deliberations. In fairness, the Home Office did go beyond websites to include some, maybe all, of the matters to which the hon. and learned Lady just referred.

The way this will operate in practice is a cause of real concern. The Secretary of State, without the double check of a judicial commissioner, and operating against a low-level threshold—clause 53(7)—can issue a retention order that will permit the retention of a record of all the websites that somebody has visited. That record will then be kept for 12 months, albeit with a different test if it is to be accessed later.

The amendments—I think you have called them the first set of amendments, Ms Dorries—are intended to construct in the first instance a different framework around this power, because it is so extensive, and put it in the hands of a judicial commissioner rather than the Secretary of State. That would provide a greater safeguard in relation to clause 78, with independent oversight through the function of the judicial commissioner. Alternatively, amendments 152, 153 and 222 would give the Investigatory Powers Commissioner some oversight. In other words, the intention behind these amendments is to put some rigour and independence into the exercise of what is a very wide power that, in fact, is the starting point for the exercise of all the other powers under the parts of the Bill that we are now concerned with.

Anxiety has been expressed on a number of occasions about cost. Huge amounts of data could be required for retention under clause 78. The Government have estimated the cost at £170 million. That is considered to be a gross underestimate by those who will no doubt be called upon to actually retain the data. For those reasons, these amendments are intended to tighten up a clause that is very wide and very loose. It permits a huge amount of data to be retained, including websites visited by you, by me, or by our constituents.

It is a great pleasure to rise as part of this ongoing scrutiny, and to offer my hon. and learned Friend the Member for Edinburgh South West brief respite in this Committee. It is also a great pleasure to serve under your chairmanship, Ms Dorries. It is great to follow the hon. and learned Member for Holborn and St Pancras, who in his customary fastidious and engaging manner has covered in a short space of time all the aspects of many amendments. Some of that bears repeating, and I will speak to new clause 10, which is tabled in my name and that of my hon. and learned Friend the Member for Edinburgh South West.

My hon. and learned Friend spoke at length about the important role that the judiciary, in the form of judicial commissioners, should bring to this process. We do not think it is good enough that the Bill only proposes to use judicial commissioners to review the process used by the Secretary of State in making a decision. The Government may claim that it is important that the Home Secretary retains the power to issue retention notices to internet service providers, as it will ensure that democratic accountability is a salient feature of the process, but I do not accept that to be the case. In fact, I would argue that because of the political arena that any Home Secretary operates in, it is right that this power is handed to and delegated to an independent official such as a judicial commissioner.

It is also worth noting that we know very little of the various notices that the Home Secretary issues, and as such there is no possible opportunity to hold her to account for them. Building the role of judicial commissioners into this part of the process will help to ensure that we have appropriate checks and balances when it comes to the retention of communications data. This is vitally important, because it is the proper constitutional function of the independent judiciary to act as a check on the use of intrusive and coercive powers by state bodies, and to oversee the application of law to individuals and organisations. Liberty rightly points out that judges are professionally best equipped to apply the legal tests of necessity and proportionality to ensure that any surveillance is conducted lawfully.

I turn now to new clause 7. Schedule 4 provides a lengthy list of bodies that are able to access or retain data, including several Government Departments, such as the Department for Transport, and a range of regulatory bodies, such as the Food Standards Agency and the Gambling Commission. This suggests that access to communications data may be allowed for a range of purposes which may be disproportionate and inconsistent with the guidance offered by the European Court of Human Rights.

I draw the hon. Gentleman’s attention to clause 79, which we are not debating at the moment but which is directly relevant to the point he made about proportionality. Clause 79(1)(a) states:

“(1) Before giving a retention notice, the Secretary of State must, among other matters, take into account—

(a) the likely benefits of the notice”.

To me, that would be a pretty strong way of enforcing proportionality. Yet the hon. Gentleman is in his peroration claiming that that would not be taken into account, or not sufficiently so.

I am grateful for the Minister’s intervention. I appreciate that that is a safeguard, but we must ask whether those Departments should be getting access in the first place.

I do not want to be unnecessarily brutal with the hon. Gentleman, but either he is making an argument about proportionality or he is not. If he is saying that nothing is proportional, then it should not happen at all, that is hardly an argument about proportionality. Those of us who take a more measured view of these things are considering whether such collection and access to data are proportionate. Proportions by their nature require an assessment of balance, do they not? Yet the hon. Gentleman is suggesting that the scales are weighted all on one side.

The Minister did not actually address why these Departments need access to these data in the first place. I appreciate the point that he is making, but these Departments should not, in my view, require access to this information.

The Minister talked about the duty to take into account the likely benefits of the notice, but does my hon. Friend agree that something may be beneficial without being necessary?

I agree with my hon. and learned Friend. We are not opposed to every measure in the Bill. There are benefits, but unfortunately they are not covered by enough safeguards and are not drawn tightly enough. I would like to make progress but I will give way once more.

I apologise if I missed the hon. Gentleman outlining the Departments, but could he tell me which ones should be excluded and not have access to this?

That has been dealt with at length. I have already mentioned the Food Standards Agency as one of the regulatory bodies. Schedule 4 does currently provide a lengthy list of bodies that should be able to access the data. New clause 7 would ensure that only the police forces and security agencies may request a communications data warrant, except where the warrant is issued for the purpose of preventing death, in which circumstances emergency and rescue services also fall within the definition.

New clause 10 outlines the requirements that must be met by warrants.

As, for example, the Food Standards Agency cannot itself bring a prosecution, may I conjure in the hon. Gentleman’s mind a situation whereby a criminal gang, as part of its activities, seeks to bring into the United Kingdom for sale to the British public a contaminated food source? Is that not something to which the Food Standards Agency should have access to information in order to ensure that citizens and consumers are safe?

I understand the hon. Gentleman’s point, but surely the police would be interested in that scenario and would have access.

In the abstract—by golly, isn’t this debate being held in the abstract?—the hon. Gentleman is absolutely right, but we invest the powers with the agency. The police are not an infinite resource. If we have the many who are charged with multiple areas of our lives—

Order. Mr Hoare, can we keep it to an intervention, please, not a speech?

Forgive me. The hon. Gentleman knows my point.

These powers are very large and we should limit who has access to them. The police can pass on the relevant information to the agencies that can deal with that particular incident, but in my view, only the police and security forces should have access. I want to finish my point on new clause 10 but I will allow one last intervention.

I want to understand the hon. Gentleman’s understanding of how cases are prosecuted in England and Wales, if not in Scotland. Is the hon. Gentleman saying that Her Majesty’s Revenue and Customs, for example, should not have access to any of these powers? Is the hon. Gentleman saying that the investigation of economic crime that can potentially alter the GDP of another member state is not worthy of these powers? I wonder what the differentiation is between those organisations he thinks should have these powers and those that cannot. At the moment, it is not clear.

Order. May I just ask that interventions be kept short, please, or we will be here all night? Mr Newlands.

I appreciate what the hon. Lady says but, as I am not a lawyer, I am struggling to distinguish the difference between Scottish and English law. Perhaps my colleague could address that.

My hon. Friend will no doubt agree that, in Scotland at least, it is the police who investigate serious crime, under the direction of the Lord Advocate.

Will the hon. Gentleman give way?

The point has been dealt with, and I think we need to move on. The effect of new clause 10 —[Interruption.] I will finish, amid the chuntering. These new clauses require data retention notices to be issued only for specific investigative or operational purposes, to obtain specified data where those data are believed to be of substantial value. We do not believe, however, that the role of communications data in the investigation of crime justifies the Secretary of State’s mandate for blanket retention of historical communications data for the entire population for 12 months.

3.00pm

Instead of the Secretary of State imposing an arbitrary and speculative data retention notice to cover the entire population, we propose that police forces should be able to apply to a judicial commissioner for targeted data retention warrants, where data are required for specific purposes. Building the role of judicial commissioners into that part of the process will help to ensure that we have appropriate checks and balances when it comes to retention of communications data. That is vital, as it is a proper constitutional function of the independent judiciary to act as a check on the use of intrusive and coercive powers by the state.

I am delighted to see you back in the Chair, Ms Dorries, as I break my couple of sessions’ silence; it is always very reassuring. I certainly do not wish to keep the Committee here all night, but I will reiterate a point that I made earlier in our considerations, and that relates to the retention of certain data. As my hon. and learned Friend the Member for Holborn and St Pancras pointed out, we understand the need for data retention. However, on looking at the Bill, I am still not entirely satisfied that the Government have taken into account the need for additional security for data retention.

I look to the Minister for reassurance that, when telecommunications and internet providers and suchlike are obliged to retain data, there is a consequent obligation on them to maintain it securely. We know that several such providers have problems with internet security: we saw that with the TalkTalk hack, and we believe another large provider has been hacked recently. Those attacks were on personal data; the Solicitor General and I have had exchanges in this room about the potential for charging them as theft—about whether the sanctions against somebody who committed that offence would be contained in existing legislation.

This part of the Bill needs to look at obliging or maintaining a minimum acceptable level of security, to provide security and privacy for people whose data may have been accepted. I realise that it might not necessarily be covered in detail in the new clause, but now might be a good time for the Ministers to consider whether they believe internet security and the security of personal data held under the terms of clause 79 should be considered in the Bill. Do they believe guidance should be given to telecommunications providers to maintain that security, or do they feel that it is not relevant and that they are quite satisfied with the status quo? I must say that I am not. Notwithstanding the need for the retention of individual data, as described so eloquently by my hon. and learned Friend, it remains a major concern of mine that individual privacy and data are at risk: it puts a question mark over the whole clause and over the areas we are discussing.

I am grateful to hon. Members for a wide-ranging debate. I would first like to reiterate on behalf of the Government the position adopted by the Joint Committee on the draft Investigatory Powers Bill, which quite clearly indicated its conclusion that the case was made for a retention period of up to 12 months for relevant communications data. In the report from David Anderson QC, “A Question of Trust”, recommendation 14 is:

“The Home Secretary should be able by Notice (as under DRIPA 2014 s1 and CTSA 2015 s21) to require service providers to retain relevant communications data for periods of up to a year”.

There we have it: the Government are acting upon the specific endorsement of an independent reviewer and a Joint Committee of this House. There is an element of the waving of the proverbial shroud when it comes to the retention of data, because the word “relevant”, which is contained in the second line of clause 78(1), is the governing word here. It is very important to remember that this is not carte blanche for the Secretary of State to authorise communications service providers to retain everything for 12 months. That is not the case. Where there is no case of necessity and proportionality for a 12-month period, a shorter period must be adhered to. Indeed, if the material is not relevant, it falls outwith the ambit of any such authorisation.

I reassure the hon. Member for City of Chester, who makes quite proper points about the integrity of data, that he is right to make them. That issue affects all those in this room and beyond. He is also right to allude to the criminal law. I reassure him that communications service providers have to comply with the Data Protection Act 1998 and the Privacy and Electronic Communications (EC Directive) Regulations 2003, which together contain those requirements that the data is appropriately secured. When he has the time—which I am sure is as precious to him as it is to the rest of us—chapter 16 of the draft communications code of practice contains an entire set of provisions relating to the security, integrity and, indeed, destruction of retained data, which very much underpin the principles of why CSPs have to operate and will give him the reassurance that he properly seeks about the position with regard to individual data and people’s privacy.

Data retention legislation has existed in this country since the Anti-terrorism, Crime and Security Act 2001, which allowed the Secretary of State to enter into voluntary agreements with telecommunications operators so that they could retain data that otherwise would be deleted. The Data Retention (EC Directive) Regulations 2007 were the first piece of data retention legislation that provided for the Secretary of State to require the retention of such data. We currently have DRIPA 2014 and the data retention regulations of that year. We hope to replace those with the provisions in the Bill. A very important point is that there is nothing new about these proposals. Our data retention legislation has always had the Secretary of State involved in the process and there are very good reasons for that. It has worked successfully until now. As I have indicated, it has been recommended to us by David Anderson.

The amendments that have been tabled seek to drive a coach and horses through all of that. There is a simple and blindingly obvious reason why we wish to maintain the system of data retention. For example, when a crime happens or a child goes missing, it is impossible to know in advance which data would be relevant in any subsequent investigation. It is therefore important that we require the retention of all relevant communications data that matches a certain description wherever it is necessary and important. Because it is impossible to know which data will be the most relevant in advance of any crime, it is impossible to know whether a specific piece of data will be of value to MI5 in locating a terrorist, for example, or to the National Crime Agency in identifying a paedophile, or for any other legitimate purpose. For that reason it does not make sense for those authorities to apply for retention warrants individually. What makes sense is for the requirement of all relevant public authorities to be considered together. The person best placed to do that is the Secretary of State. Public authorities set out their requirements for data retention to the Home Office and they are then carefully considered. As they usually overlap, the Secretary of State is able to identify the specific telecommunications operators and specific data types that it is necessary and proportionate to make subject to data retention notices. As the full costs of data retention are covered by the Secretary of State, only he or she can decide whether or not the benefits of data retention are proportionate to the costs.

There has been some discussion about cost again today. The £170 million figure is based on the cost of our anticipated implementation, which takes into account data that is already obtained under existing legislation. We noted the evidence of BT when it talked about the costs being dictated by its implementation approach, and we continue to discuss implementation with those communication service providers likely to be inspected. Whatever the final cost, however, the important underwriting by the Government is a vital factor in giving reassurance to the industry, not only on the practicability of these measures, but on the importance therefore of involving the Secretary of State.

My worry is that if we went down the road proposed by the amendments, we would end up with a rather confused system that would not allow for the overall benefits of retaining a particular type of data, because the judicial commissioner would only ever be able to consider the benefits to the particular public authority applying for a warrant. It would therefore be impossible to judge the overall necessity and proportionality of requiring a particular company to retain a particular dataset.

We have heard about new clause 10 and its provisions. Given that it is impossible to predict in advance what data would need to be retained, this approach relies on data being retained only after a crime has been committed and/or an investigation has begun. Preservation only works if the data are there to preserve and it is of limited benefit without an existing retention scheme. Without data retention, data protection rules require that the data that are no longer needed for business purposes must be deleted. Without data retention, the data that are needed would not exist. Therefore, the regime of warrantry—the double lock, indeed the proposals put forward by Opposition Members—none of it would matter, because the material would not be there. That is particularly relevant when it comes to the increasing move of criminals and their ilk away from conventional telecommunications to the internet and internet connections.

A number of reports published by the EU Commission show the value of communications data and why the concept of data preservation, as envisaged in new clause 10, is not a viable alternative. In a Europe-wide investigation into online child sexual exploitation, of the 371 suspects identified here in the UK, 240 cases were investigated and 121 arrests or convictions were then possible. Of the 377 suspects in Germany, which does not have a data retention regime, only seven could be investigated and no arrests were made.

I have explained why the existing data retention regime that the Bill replicates is the appropriate model. May I deal with the change proposed by a set of amendments that involve changing the word “may” to “must” in clause 78(2)? That would require a data retention notice to cover certain issues. I am sympathetic to the aim of the amendment, because I am in favour of specific requirements, but the amendment is misconceived because subsection (7) already requires that a retention notice must specify the operator to whom it relates, the data which are to be retained, the period of retention, the requirements and restrictions imposed by the notice, and information on costs. Subsection (2) sets out the scope of what a notice may require and subsection (7) requires that the notice must make clear what is required. The two subsections are therefore aimed at different things.

The effect of this amendment would be to require a notice to cover issues that it might not have any reason to cover. For example, a retention notice may

“make different provision for different purposes”.

With respect, it therefore does not make sense to say it must make different provision for different purposes, because a notice may not relate to those different purposes. I would argue that there is therefore nothing to be gained by moving these amendments. That is all I wish to say, but for those reasons I urge hon. Members to withdraw the amendments.

3.15pm

Clause 78 is important for all the reasons that I have set out, but at this stage, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 303, in clause 78, page 61, line 12, leave out—

“of all data or any description of data”

and insert

“of specified relevant communications data”.

With this it will be convenient to discuss the following:

Amendment 304, in clause 78, page 61, line 14, leave out paragraph (2)(d).

Amendment 305, in clause 78, page 61, line 16, leave out paragraph (2)(e).

I will not detain the Committee for too long; these issues have already largely been addressed. Amendments 304 and 305 seek to remove paragraphs (d) and (e) from clause 78(2). In a Bill replete with vagueness, those two subsections stand out as being particularly vague. The new clause that I will come to in a moment would require a data retention notice—or warrant, as we would wish—to be issued only for a specific investigative or operational purpose. The SNP has tabled amendments that will bring greater clarity to when and why a warrant would be issued.

As we know, communications data are defined as data that would be used to identify, or assist in identifying, the who, where and how. However, instead of allowing a blanket surveillance approach that treats everyone as a suspect, the amendments would allow the police to apply to a judicial commissioner for targeted retention warrants, in which data are required for the purposes of a specific investigation into serious crime, or for the purpose of preventing death or injury. I trust that these amendments are acceptable to the Government.

I rise to address the concerns of the hon. Gentleman. It is good to hear from him; I should have said that during the last group. He has made the point about his concerns of vagueness. However, I would argue that it is very important that a notice can have a degree of flexibility within it, because a single telecommunications operator may provide a number of different communications services, such as mobile telephony and internet access. However, there may be different complexities and sensitivities about the different types of communications data that are generated by those services. Considerable preliminary work is carried out between the Government and telecoms operators in advance of the service of a retention notice. That covers a number of issues, including the type of data that will be retained, the complexities of the operator’s systems, and the relevant security requirements. Flexibility is needed to ensure that the notice can appropriately reflect those issues, and that it imposes the minimum requirements necessary to meet the operational requirements.

What we are counter-intuitively getting at is to make sure that there is necessary give and take within the system to prevent what the hon. Gentleman and I would regard as an overweening approach from the Secretary of State, which would impede the ability of communications service providers to carry out their operations. For that reason, I respectfully urge him to withdraw the amendment.

I hear what the Solicitor General has said, but I do not wholly agree with him. I reserve the right to bring this back at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 306, in clause 78, page 61, line 18, at end insert—

‘(2A) A retention notice may not require a telecommunications operator to retain any data belonging to a third party data, unless that third party data is retained by the telecommunications operator for their own business purposes.”

With this it will be convenient to discuss amendment (a) to amendment 306, leave out “notice” and insert “warrant”.

Amendment 306 would insert at the end of clause 78(2) a provision in relation to third party data. Third party data are defined in the code of practice as data that a communications service provider is able to see

“in relation to applications or services running over their network…but does not process that communications data in any way to route the communication across the network”.

To its credit, the Home Office has been unequivocal that such third party data would not be covered in the Bill; the Home Secretary informed the House on 4 November 2015 that the Bill

“will not include powers to force UK companies to capture and retain third party internet traffic from companies based overseas”.—[Official Report, 4 November 2015; Vol. 601, c. 969.]

The draft code of practice for communications data states at paragraph 2.61:

“A data retention notice can never require a CSP to retain the content of communications or third party data”.

The overly broad definition of relevant communications data, which now extends to 16 different definitions and sub-definitions, could however be interpreted as giving the Secretary of State the power to require a communications service provider to retain third party data, since the definition does not expressly exclude third party data unless this amendment is agreed. There are currently no clauses in the Bill that explicitly state that communications service providers will not be required to retain third party data. That is the purpose of the amendment. Given that they have been so clear on the Floor of the House and in the code of practice that that is their intention, if the Government will not accept the amendment, the Minister must tell us why. Where we are dealing with such potentially intrusive powers, we must be as clear as possible.

Amendment 306 is tabled, quite properly, to tease out from the Government the more detailed reasoning behind the important statement made by the Home Secretary on Second Reading. The hon. and learned Lady is quite right to refer to that statement. I once again reiterate the Government’s position that we will not be requiring the retention of third party data through these provisions.

The question is how best to achieve that; therein lies the tension. Attractive though the approach advanced by the hon. and learned Lady might be, there are some drafting issues and problems about legal certainty, which mean that putting those provisions in the Bill with suitable detail is problematic.

One of the main functions of the Bill—and one of my desiderata—is to ensure that it is resilient and stands the test of time. My concern is that if we end up with a definition that is too technologically neutral, it will either fail the test of time in this place, or be subject to challenge. As a Law Officer, legal uncertainty is something I have to take very seriously when considering how legislation is presented. That is why I commend the detailed provisions within the draft code of practice on third party data—paragraphs 2.68 to 2.72—that the hon. and learned Lady referred to. That is not only an explicit reiteration of our commitment but the sort of detail needed for those operating the provisions, which could not be properly put in the Bill.

It is generally well understood what third party data are, but perhaps I should briefly explain the important areas of detail that could not be covered on Second Reading. Where one communications service provider is able to see the communications data in relation to applications or services that run over their network, but does not process that communications data in any way to route the communication across the network, then that is regarded as third party data. For example, an email provider, such as Yahoo or Gmail, knows that a certain internet access service, such as BT Internet, was used to send email, but that fact is not needed or used to send it. So it is in everybody’s interest, not least that of the service providers themselves, that there is sufficient clarity about the data that can be retained under the provisions. As I have said, I think the code of practice is the right vehicle for this. It is also the appropriate vehicle for ensuring that there can be a sufficiently detailed definition of third party data for the reasons I have outlined. In those circumstances, I respectfully ask the hon. Lady to consider withdrawing her amendment.

I am not happy about withdrawing the amendment in the absence of elaboration of what the Solicitor General means by drafting issues and problems of legal certainty. I am not clear at the moment why we cannot have both the amendment and the further elaboration that will be provided in the codes of practice.

Amendment proposed to amendment 306: (a), leave out “notice” and insert “warrant”.—(Gavin Newlands.)

Question put, That the amendment be made.

Division 24

Question put, That amendment 306 be made.

Division 25