With this it will be convenient to discuss the following:
Amendment 392, page 97, line 15, leave out clause 121.
Amendment 393, page 98, line 20, leave out clause 122.
Amendment 394, page 98, line 38, leave out clause 123.
Amendment 275, in clause 123, page 99, line 10, leave out from “must” to end of line 11, and insert
“subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.
An amendment to clarify the role of judicial commissioners.
Amendment 395, page 99, line 19, leave out clause 124.
Amendment 396, page 99, line 24, leave out clause 125.
Amendment 9, in clause 125, page 99, line 33, leave out subsection (4) and insert—
“(4) The operational purposes specified in the warrant must be ones specified, in a list maintained by the heads of the intelligence services, as purposes which they consider are operational purposes for which intercepted content or secondary data obtained under bulk interception warrants may be selected for examination.”
On behalf of the Intelligence and Security Committee of Parliament, to amend the Bill to provide for a designated list of operational purposes, such that only a purpose on that list may be specified in a warrant relating to bulk powers.
Amendment 10, page 99, line 37, leave out from “issued” to end of line 39 and insert
“are specified in the list mentioned in subsection (4).
(5A) An operational purpose may be specified in the list mentioned in subsection (4) only with the approval of the Secretary of State.
(5B) The Secretary of State may give such approval only if satisfied that the operational purpose is specified in a greater level of detail than the descriptions contained in section 121 subsections (1)(b) or (2).”
To make clear that the Secretary of State must approve all operational purposes specified on the list.
Amendment 11, page 99, line 39, at end insert—
“(5C) The list of operational purposes mentioned in subsection (4) must be reviewed at least annually by the Prime Minister.”
To ensure that the list of Operational Purposes is reviewed at least annually by the Prime Minister.
Amendment 12, page 99, line 39, at end insert—
(5E) Subject to subsection 201(7), the Investigatory Powers Commissioner must include in his Annual Report a summary of those Operational Purposes which, during the period of his report, have been specified in any warrants issued under Parts 6 and 7.”
To ensure that the ISC and Commissioners are kept informed of changes to the list of Operational Purposes. To ensure that a summary of the Operational Purposes are published each year.
Amendment 397, page 100, line 2, leave out clause 126.
Amendment 398, page 100, line 10, leave out clause 127.
Amendment 22, in clause 127, page 100, line 12, leave out
“before it would otherwise cease to have effect” and insert “during the renewal period”.
See amendment 20.
Amendment 23, page 100, line 34, at end insert—
“(2A) ‘The renewal period’ means the period of 30 days ending with the day at the end of which the warrant would otherwise cease to have effect.”
See amendment 20.
Amendment 153, page 101, line 9, leave out clause 128.
Amendment 154, page 102, line 25, leave out clause 129.
Amendment 401, page 103, line 8, leave out clause 130.
Amendment 402, page 103, line 31, leave out clause 131.
Amendment 403, page 104, line 19, leave out clause 132.
Amendment 404, page 105, line 44, leave out clause 133.
Amendment 405, page 106, line 24, leave out clause 134.
Amendment 406, page 108, line 1, leave out clause 135.
Amendment 407, page 108, line 29, leave out clause 136.
Amendment 408, page 108, line 39, leave out clause 137.
Amendment 409, page 109, line 16, leave out clause 138.
Amendment 410, page 110, line 40, leave out clause 139.
Amendment 212, in clause 139, page 110, line 42, leave out
“review the Secretary of State’s conclusions as to the following matters” and insert “determine”.
Amendment 213, page 111, line 7, leave out subsection (2).
Amendment 278, page 111, line 7, leave out from “must” to end of line 8, and insert “subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.
An amendment to clarify the role of judicial commissioners. This amendment is an alternative to amendments 212 and 213 (which are a package).
Amendment 411, page 111, line 16, leave out clause 140.
Amendment 412, page 111, line 21, leave out clause 141.
Amendment 413, page 112, line 2, leave out clause 142.
Amendment 414, page 112, line 10, leave out clause 143.
Amendment 155, page 113, line 9, leave out clause 144.
Amendment 156, page 114, line 19, leave out clause 145.
Amendment 417, page 115, line 2, leave out clause 146.
Amendment 418, page 115, line 25, leave out clause 147.
Amendment 419, page 116, line 7, leave out clause 148.
Government amendments 44 to 47.
Amendment 420, page 116, line 35, leave out clause 149.
Amendment 421, page 117, line 11, leave out clause 150.
Amendment 422, page 118, line 39, leave out clause 151.
Amendment 423, page 119, line 8, leave out clause 152.
Amendment 424, page 119, line 36, leave out clause 153.
Amendment 425, page 120, line 10, leave out clause 154.
Amendment 426, page 121, line 33, leave out clause 155.
Amendment 427, page 122, line 4, leave out clause 156.
Amendment 428, page 123, line 1, leave out clause 157.
Amendment 214, in clause 157, page 123, line 3, leave out
“review the Secretary of State’s conclusions as to the following matters” and insert “determine”.
Amendment 215, page 123, line 15, leave out subsection (2).
Amendment 281, page 123, line 15, leave out from “must” to end of line 16, and insert
“subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.
An amendment to clarify the role of judicial commissioners.
Amendment 429, page 123, line 24, leave out clause 158.
Amendment 430, page 123, line 41, leave out clause 159.
Amendment 431, page 124, line 34, leave out clause 160.
Amendment 432, page 125, line 3, leave out clause 161.
Amendment 433, page 125, line 25, leave out clause 162.
Amendment 434, page 126, line 3, leave out clause 163.
Amendment 157, page 127, line 1, leave out clause 164.
Government amendments 127 and 128.
Amendment 158, page 128, line 14, leave out clause 165.
Amendment 437, page 129, line 1, leave out clause 166.
Amendment 438, page 129, line 25, leave out clause 167.
Amendment 439, page 130, line 14, leave out clause 168.
Amendment 440, page 131, line 33, leave out clause 169.
Amendment 441, page 132, line 3, leave out clause 170.
Government amendment 129.
Amendment 442, page 133, line 30, leave out clause 171.
Amendment 443, page 134, line 12, leave out clause 172.
Amendment 444, page 134, line 19, leave out clause 173.
Government amendment 130.
Government new clause 14—Health records.
New clause 3—Restriction on use of class bulk personal dataset warrants—
“(1) An intelligence service may not retain, or retain and examine, a bulk personal dataset in reliance on a class bulk personal dataset warrant if the head of the intelligence service considers—
(a) that the bulk personal dataset includes a large quantity of sensitive personal data, or
(b) that the nature of the bulk personal dataset, or the circumstances in which it was created, is or are such that its retention, or retention and examination, by the intelligence service raises issues which ought to be considered by the Secretary of State and a Judicial Commissioner on an application by the head of the intelligence service for a specific BPD warrant.
(2) An intelligence service may not retain, or retain and examine, greater than twenty distinct bulk personal datasets in reliance on any class BPD warrant.
(3) In subsection (1) ‘sensitive personal data’ means personal data consisting of information about an individual (whether living or deceased) which is of a kind mentioned in section 2(a) to (f) of the Data Protection Act 1998.”
On behalf of the Intelligence and Security Committee of Parliament, to place greater restrictions on the use of Class BPD warrants in relation to the retention/examination of sensitive personal data (relating to race, political opinions, religious beliefs, trade union membership, health, or sexual orientation). To cap the number of datasets which may be covered by any Class warrant.
Amendment 445, page 135, line 4, leave out clause 174.
Amendment 446, page 135, line 21, leave out clause 175.
Amendment 447, page 135, line 37, leave out clause 176.
Amendment 448, page 136, line 9, leave out clause 177.
Amendment 303, in clause 177, page 136, line 44, at end insert—
“(5) Subsection (6) applies where a warrant application under this section relates to ‘patient information’ as defined in s.251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012.
(6) The Secretary of State may issue the warrant only if—
(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of material referred to in subsection (5); and
(b) specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material”.
An amendment to restrict the retention of patient information obtained under provisions in this Bill.
Amendment 449, page 137, line 1, leave out clause 178.
Amendment 24, in clause 178, page 137, line 17, leave out “and” and insert—
“(aa) a statement outlining the extent to which sensitive personal data as defined by section [Restriction on use of class BPD warrants] is expected to be part of the bulk personal dataset, and”.
On behalf of the Intelligence and Security Committee of Parliament, to require specific BPD warrant applications to set out the extent to which datasets may include sensitive personal data (relating to race, political opinions, religious beliefs, trade union membership, health, or sexual orientation), in order that the Secretary of State may properly assess the proportionality of obtaining the dataset.
Amendment 304, page 138, line 2, at end insert—
“(8) Subsection (6) applies where a warrant application under this section relates to ‘patient information’ as defined in s.251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012.
(9) The Secretary of State may issue the warrant only if—
(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of material referred to in subsection (5); and
(b) specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material.”
An amendment to restrict the retention of patient information obtained under provisions in this Bill.
Amendment 450, page 138, line 3, leave out clause 179.
Amendment 216, in clause 179, page 138, line 5, leave out
“review the Secretary of State’s conclusions as to the following matters” and insert “determine”.
Amendment 217, page 138, line 22, leave out subsection (2).
Amendment 284, page 138, line 22, leave out from “must” to end of line 23, and insert
“subject a person’s decision to issue a warrant under this Chapter to close scrutiny to ensure that the objective in issuing a warrant is sufficiently important to justify any limitation of a Convention right”.
An amendment to clarify the role of judicial commissioners. This amendment is an alternative to amendments 216 and 217 (which are a package).
Amendment 451, page 138, line 31, leave out clause 180.
Amendment 452, page 139, line 4, leave out clause 181.
Amendment 453, page 140, line 1, leave out clause 182.
Amendment 454, page 140, line 15, leave out clause 183.
Amendment 455, page 141, line 4, leave out clause 184.
Amendment 456, page 141, line 26, leave out clause 185.
Amendment 159, page 142, line 13, leave out clause 186.
Amendment 160, page 143, line 22, leave out clause 187.
Amendment 459, page 144, line 7, leave out clause 188.
Amendment 460, page 144, line 25, leave out clause 189.
Amendment 461, page 146, line 2, leave out clause 190.
Amendment 462, page 147, line 5, leave out clause 191.
Amendment 463, page 147, line 21, leave out clause 192.
Amendment 305, in clause 192, page 147, line 42, at end insert—
“(4A) A direction under subsection (3) may only be made for material relating to ‘patient information’ as defined in s.251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012 if the Secretary of State considers that—
(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of such material; and
(b) that specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material.”
An amendment to restrict the retention of patient information obtained under provisions in this Bill.
Amendment 464, page 148, line 37, leave out clause 193.
Part 6 of the Bill, on bulk powers, is perhaps one of its most controversial parts. The Scottish National party is calling for part 6 to be shelved along with part 7 until such time as an argument for their inclusion has been demonstrated by an independent review of their proportionality and operative necessity—that is to say that we believe that the powers in part 6 should be removed from the Bill until a satisfactory operational case is made for them.
The review the Government have agreed to is most welcome but they must get it right. It must be conducted properly if it is to be of any value to the process of parliamentary scrutiny or is to secure the public’s confidence in its conclusions. Yesterday we had sight of some more detail about the review, in a letter from the Minister to Keir Starmer. We were particularly pleased to note that one of the review team will be a barrister who has a great deal of experience working as a special advocate acting against the Government in terrorism cases. That degree of balance is good and is to be welcomed.
The review needs to be given the time to do a thorough job, however, and we simply do not believe that three months is long enough. Even if it were, it would not be the first time we have been promised a date by which a report will be published, only then to be given another, and another.
I thank the hon. Lady for the warm words she is offering, which reflect the spirit in which this debate has been conducted throughout. The review will be conducted in the timeframe she describes because the Government are clear that it should take place while the Bill is live and is enjoying its passage through both Houses of Parliament. It would have been quite inappropriate to have a review once the Bill had passed into law.
I would argue that the review should have happened before now. Even if it is completed within three months, that will not be while scrutiny of the Bill is taking place here by elected Members; the scrutiny will be in the other place by Members of the House of Lords, who are not elected.
We are also confident that the review’s findings will not be significantly different from those of the reviews carried out by other countries, which I will come on to in a moment. In other words, it is likely to find that bulk powers are not necessary and give us no unique information that could not be garnered by other investigative techniques. Regarding those other techniques, the Government are arguing that new clause 5 will mean that bulk powers will be used only when other investigative techniques show up nothing, because the new clause recognises the importance of privacy to the individual—indeed, new clause 5 has been dubbed the privacy clause.
Although I served on the Bill Committee, the hon. Lady must forgive my ignorance. She mentioned other means aside from bulk powers. Is she going to delineate those to the House?
If the hon. Gentleman would care to exercise a little patience, he might get the answer to that. He might not, mind you. [Laughter.] No, he will. I am joking.
I understand that the Government are arguing that new clause 5 is a privacy clause, but how can we trust their commitment to privacy when between the publication of the draft Bill and the publication of this Bill the significant change to deal with the need for privacy to be of primary importance entailed simply changing the name of part 1 from “General Protections” to “General Privacy Protections”? This is not about words, but about intent, action and commitment, and inserting one word appeases no one.
First, is the hon. Lady aware that there is a sunset clause? Secondly, if the powers are not available to be exercised but it is found that they are necessary, there will be a gap in our security services’ ability to combat terrorism and in the police’s ability to combat serious crime.
I will come on to that point shortly.
The fundamental point is this: why should we as Members of Parliament be expected to vote through legislation that is to be reviewed? That seems an unprofessional way—to say the least—to do business, and I would feel very uncomfortable crossing my fingers and hoping for the best. I also appeal to Labour colleagues to be a little more circumspect about trusting this Government with their votes today.
Let us take a look at one of the countries I mentioned earlier that has already reviewed bulk powers—the USA. The Snowden revelations revealed that the National Security Agency was running a bulk domestic telephone records programme. The NSA and others put up a strong case for maintaining it. The NSA produced a dossier of 54 counter-terrorism events in which, it said, bulk powers contributed to success in countering terrorism, but two entirely independent American bodies reviewed all 54 counter-terrorism cases and determined that only 12 had any relevance to the use of bulk powers under section 215 of the USA Patriot Act 2001.
One of those groups—the President’s Review Group on Intelligence and Communications Technologies, which is a very well respected, high-powered and independent body, set up under the auspices of President Obama—concluded:
“Our review suggests that the information contributed to terrorist investigations by the use of section 215…was not essential to preventing attacks and could readily have been obtained in a timely manner using conventional section 215 orders.”
The other body—the Privacy and Civil Liberties Oversight Board—concluded similarly. It said that it had
“not identified a single instance involving a threat to the United States in which the program”— meaning the use of bulk powers—
“made a concrete difference in the outcome of a counterterrorism investigation.”
It went further, saying that it was
“aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.”
Whatever I think the outcome of the review will be—none of us knows, because it has not happened—it is none the less a recognition that the Government have failed to convince both the House and wider society of the necessity of the powers.
Does my hon. Friend agree that it is vital that the independent review looks at the American experience, given that America is one of our chief allies? Does she also agree that the Opposition should seek an assurance from the Government that the independent review will do so?
It would be very helpful if the Opposition secured that. We should not just follow suit—we support the review, but will not say, “Do as America does.” We must conduct our own review. Given the extent to which the Americans have looked at this, we need the same access.
May I continue? I have already given way to the hon. and learned Lady and am conscious of the need to let other Members speak. I will possibly give way a wee bit later.
The review is welcome—of course it is, not least because it is hoped that David Anderson QC will do what Liberty and others have called for and use the opportunity properly to challenge the evidence and produce a thorough, comprehensive and unbiased examination of the necessity of all bulk powers in the Bill. However, the review was called for long ago by Liberty and other respectable organisations. The Government could and should have completed it before asking MPs to vote for the Bill.
When we are dealing with proposals that are so broad—the proposal is effectively for bulk data harvesting from mainly innocent citizens—it is incumbent on the Government to prove that there is an operational case and that the powers are necessary, and to ensure that the safeguards in place are rigorous. The Government have neither proven the operational case for the powers nor have they delivered safeguards and oversight of sufficient calibre to make the powers justifiable.
I am grateful to the hon. Lady. As I indicated when I spoke on Second Reading, I appreciate that bulk powers are controversial, but I am absolutely sure that we do not conduct data harvesting in this country. It simply does not happen. The use of bulk powers is not for that purpose, but for the purpose of examining material. Even though that may be done in bulk, it is done in a way that does not amount to the generalised harvesting of data for their examination. It simply is not.
My answer to that is simply that if the Bill allows for bulk data harvesting, it can still happen. We cannot sit here and say, “No, it will never happen.”
The SNP argument is not to do down our security services or anyone else working to keep our constituents safe. We argue that we would fail as a Parliament if we assert our power on behalf of our constituents and fail to place proper limitations on the scope of the state to interfere in the lives of innocent private citizens.
I will not give way at the moment—I have given way too many times and others want to speak.
To use an illustrative analogy, if we were to authorise the opening, scanning and retention of all mail via a particular post office in the hope that one day we could go back once we had found, via another investigative technique, a suspicion about a certain user of that post office, our constituents would rightly be marching on this place demanding that we stop such an outrage. Do the Government really believe that people using that post office would be content to believe that all was well as long as the letters were stored in a big safe to which only the good guys had the key, or that they would be read only after a warrant was required? I do not believe so—people are not that daft and, strangely, for some unknown reason, they are not that trusting—yet the Government are asking us to focus on the issue of access and examination, and to ignore the massive combine harvester in the room, meaning bulk data collection. Government Members may well groan, but we are entitled to express our opinions on the Bill and to scrutinise the legislation rigorously.
On the Government’s own terms, that abuse of public privacy is of very limited use anyway. Targeted powers are far more effective and could resolve many of the privacy concerns. If we have a justifiable case to access information, we already know who we should be targeting for data collection. Why are we wasting time and resources using bulk techniques for that collection?
I wonder how the hon. Lady believes we will do that. The evidence reviewed by the Committee showed that bulk powers are counter-productive because the sheer scale of the data makes them impossible to analyse adequately. In fact, I believe the Government used the limited capacity of the security services to analyse bulk quantities of data as a form of assurance, which was strange to say the least.
I say this to be helpful to the hon. Lady. I fear that the debate has moved on and she has not. The truth of the matter is that the bulk powers she describes were considered by the Intelligence and Security Committee, which is chaired by my right hon. and learned Friend Mr Grieve. It established that there was both validity and necessity. She is arguing a general case on bulk rather than the case for safeguards. The debate we ought to be having is about safeguards, is it not?
I thank the Minister for that advice and will pass it on to my constituents, who have the same concerns as I do and whose concerns I am expressing.
As we know, the Bill is supposed to be a basis for the use of those techniques for quite some time, and we are not future-proofing the Bill if we say that it is absolutely fine to have intrusive bulk techniques because now, in 2016, we do not have the technical capabilities to analyse all the data. Some present-day practices are reliant on 32-year-old laws—they date back to 1984, of all years. If we get the measure wrong, there is every possibility that we will enshrine in law invasive practices that will become feasible only at some point in the next 32 years.
Perhaps the most worrying powers of part 6 refer to bulk equipment interference, which the Government helpfully outline as follows:
“bulk equipment interference is not targeted against particular person(s), organisation(s) or location(s) or against equipment that is being used for particular activities”.
It is therefore an indiscriminate form of interference that leaves systems vulnerable, not only to our own security services using their powers sparingly and proportionately, but to those looking to cause harm and to profit from broken security. If the front door of someone’s house has been kicked in by the police, criminals are not prevented from entering after their departure.
Our concerns regarding the bulk powers provisions in part 6 are connected to many of our concerns regarding the use of bulk datasets. At the heart of the matter is the retention of intimate personal details regarding the tens of millions of ordinary citizens of this country who do not merit such information being held by the state. We welcome the review of the use of bulk powers and recognise that other parts of the Bill impact on part 6 —it cannot stand in isolation. If bulk datasets are acquired by other mechanisms in the Bill, how are they to be dealt with and properly handled? Therefore, as we have stressed throughout, the Bill should be easy to understand, and should clarify what is permitted and what is not. We should not provide a mechanism whereby we rubber stamp practices that were never previously debated.
Again, the offline analogy is instructive. If we were asked by the state to deposit our membership forms for various organisations—political parties, campaign groups, golf clubs—or forms with our direct debit details, health records and other such bulk information into a big safe on the understanding that only the security services would have access to it, we would rightly baulk at such a proposal. Just because such a system is being proposed online and without the consent of the individuals concerned does not make it acceptable—in many ways, it makes it much worse. I hope the Minister will address that comparison.
There are also very real dangers that the analysis of bulk personal datasets may lead to suspects being wrongly identified, based on stereotypical or discriminatory assumptions. Some of the biggest miscarriages of justice in these islands, including that of the Birmingham Six, have been carried out on precisely the assumptions that predicate the analysis of bulk datasets—people who ticked all the right boxes and yet just happened to be entirely innocent.
It is not that the Government are not aware of the problems they are creating. The principles of targeting and specific warranting appear in various guises throughout the Bill. The Government need to fully embrace both principles and apply them to the collection, storage and analysis of data. If they fail to do so—and so far they have failed—and if they still cannot prove the operational necessity of these intrusions into the private lives of everyday citizens—and so far they have not proven that—then they should not expect the support of this House for those measures. It is not acceptable, or it should not be acceptable, for any Government to ask for proposed legislation that is about to be reviewed to be nodded through.
Every year in this and the other place, these Houses play out, in all their finery, the historic role of Parliament in limiting the powers of the Executive. Let us remember that role when we vote on the unprecedented extension of powers in the Bill.
It is a pleasure to be able to participate in today’s debate. I will move the amendments standing in the name of the Intelligence and Security Committee in a moment, but I would not be doing justice to this afternoon’s debate, on a matter of great and legitimate public interest and importance, if I were not to seek briefly to respond to the perfectly reasonable fears expressed by Anne McLaughlin.
Those fears highlight the difficulty we have in this country—certainly for Members of Parliament, but I dare say also for members of the public and certainly for non-governmental organisations interested in civil liberties—in reconciling an assessment of what the agencies may be doing in relation to bulk powers, with what those of us who have become privy to classified information by virtue of our work actually see is happening in reality. I am not sure that this is a gap that is very easy to bridge. I can only do my best to explain to the House and to the hon. Lady how I see the system working.
In an ideal world, it would always be better if we used targeted interception. If we know what it is we are trying to intercept and have reasonable grounds that are necessary and proportionate for doing so, then clearly that is what we should be aiming to do. The reality, however, is that the use of the internet today, in respect of the transfer of information, is of such an order that if there were not bulk powers to enable the agencies to look to intercept bulk and then search it to find what they are looking for, it would in practice be very difficult for the agencies to defend our security against espionage and, in particular, terrorism. That is the reality.
That point has been made repeatedly, including in public by agency heads. When Sir Iain Lobban gave evidence to the Intelligence and Security Committee, the only time it held a public hearing, he explained that the idea that there is bulk harvesting of data in order to carry out a detailed examination of them is, in fact, fanciful. That is not what is happening. What is happening is that there may be the retention of a bulk group of data in which in reality the vast majority—in fact, probably over 99%—will never be looked at, except in so far as it exists as a few digits on a screen. Ultimately, the agencies are interested in the nugget—or, as he described it, the needle in the haystack—that they are actually looking for. The idea that the privacy of an individual will be compromised if it just so happens that their internet traffic is caught in that particular net is simply not real. That is the reality of what goes on.
If I may say so to the hon. Lady and to the House, I do not really think that that is very different from what was probably going on 100 years ago when somebody suspected there might be a letter in a mailbag coming down from Glasgow to London. They could identify some of the markers on it and the handwriting, so they took an entire mailbag, tipped it out and looked to see if they could find the letter they were looking for. They then put all the other letters back in the mailbag and sent it on. The only realistic difference is that at the moment we do not have to stop the mailbag, because the mail can be transferred and we can simply retain the data somewhere else.
I appreciate that this is an area where people will legitimately be anxious that this could be capable of misuse. Of course, the hon. Lady is right that it could be capable of misuse. Anybody in this House who wants to raise concerns about misuse is raising a perfectly legitimate point. The question is what safeguards we can properly put in legislation, and through the framework we create in a democratic and free society, to try to ensure that that misuse will not and does not occur. The Intelligence and Security Committee, of which I am the Chairman, is part of the process of trying to ensure that there is no such misuse.
I am listening very carefully to the right hon. and learned Gentleman, because he is very knowledgeable in these areas. Is he aware that during the currency of the Public Bill Committee, The Guardian published an internal newsletter from MI6 from September 2011, which said that individuals within MI6 had been
“crossing the line with their database use…looking up addresses in order to send birthday cards, checking passport details to organise personal travel, checking details of family members for personal convenience…check the personal details of colleagues when filling out service forms on their behalf”?
Is he aware that there is internal recognition of misuse of data within the security services?
Yes, I was aware of that. That has, I think, been public knowledge for some time. So far as I am concerned, as the Chairman of the Intelligence and Security Committee, we take that very seriously. Indeed, I believe the agencies took the matter very seriously as well, and that those involved were disciplined. The point was made that however innocent the activity of looking up one’s friend’s address might appear, it was not an acceptable thing to do. I certainly agree. That was one reason why, yesterday, I highlighted the issue of offences and was pleased to get the response from my hon. Friends on the Treasury Bench that they were taking this issue seriously. I worry that the penalties attached to some of the potential offences appear to be insufficient. I fully understand the point the hon. and learned Lady makes, but we must be a bit careful before we translate what appears to have happened in such cases into a belief that there is systematic abuse of the data sets that may be held—that is what we are talking about—by agencies, and that the material in them is being misused or put to some nefarious purpose that is not legitimate for the purposes of national security.
Is it not the case that there are many things in public life—the police, computers, firearms and so on—that have the potential for misuse, but that the potential for misuse is not a reason to eradicate them from public life? It is a reason to ensure there is a robust framework and—this is the point my right hon. and learned Friend is making—a proper system of penalties for misuse, rather than just scrapping a whole capability because of potential future misuse.
Yes, I agree entirely. I am afraid that, because human society is not perfect, eradicating every instance of misconduct by public servants is likely to be impossible. We therefore have to ensure proper safeguards and ethics. Here I simply repeat what I said before. My own experience is that the ethical standards of the agencies are very high; that is not to say that one does not have to be vigilant about maintaining those standards, or that there might not have been instances where their ethical standards slipped, but everything I and, I think, my fellow members of the ISC have seen has constantly reassured us that those ethical standards are at the heart of what they do. I recollect Sir Iain Lobban saying that if he had asked his staff at GCHQ to do something unethical, they simply would not have done it. He said they would have refused, had he made the request of them.
I simply say that about the framework. I now turn to our amendments, the first group of which consists of amendments 9 to 12 and deals with an issue that goes to the heart of bulk powers: operational purposes. In the ISC’s report on the draft Bill, we were critical of what appeared to us to be the lack of transparency around operational purposes, which are of the utmost importance—this picks up on what the hon. Member for Glasgow North East said—as they provide the justification for examining material collected using bulk powers. If it falls outside legitimate operational purposes, one cannot examine it. We therefore recommended that in some form and in a manner consistent with safeguarding security—the two things are often difficult to reconcile—the list ought, so far as possible, to be published. We also recommended that the ISC have a role on behalf of Parliament in scrutinising the full classified list of operational purposes.
We were also concerned, when we investigated the matter further, that in some cases the nature of the list of operational purposes lacked clarity, as did the procedures for managing it, which seemed largely informal, particularly those for adding an operational purpose to the list. As matters stand now, that can effectively be done by a senior officer in the organisation. Our amendments are therefore intended to give effect to our original recommendations for greater scrutiny and transparency, while also trying to create a formal mechanism for the establishment, management, modification and review of the list of operational purposes.
I anticipated that my right hon. and learned Friend would raise this matter, given that he puts such emphasis on his report. I am absolutely committed to considering the matter in the way he describes, and I am prepared to say now that we will go away and consider his amendments, with a view to introducing further amendments to the Bill to satisfy him and his Committee on this issue.
I am grateful to the Minister and will keep that in mind, but so that the House might understand, I will just take it through what we proposed.
Amendment 9 sets out:
“The operational purposes specified in the warrant must be ones specified, in a list maintained by the heads of the intelligence services, as purposes which they consider are operational purposes for which intercepted content or secondary data obtained under bulk interception warrants may be selected for examination.”
That is to formalise the process, which at the moment we think is too informal. Under amendment 10, an
“operational purpose may be specified in the list…only with the approval of the Secretary of State.”
We think that when an operational purpose is added to the list, it should go through the Secretary of State and be signed off by her. My understanding—I hope that the Minister will confirm this in due course—is that the Government do not see any significant problem with introducing such a system.
I see the Minister nodding; I am grateful to him.
Amendment 10 also states:
“The Secretary of State may give such approval only if satisfied that the operational purpose is specified in a greater level of detail than the descriptions contained in section 121”.
That is to ensure that the Minister understands what the agency is asking for in adding an operational purpose to its list.
I do not think the list should be too prescriptive. It will clearly be flexible. From my understanding of the list and what I know about the existing lists, they do have flexibility and can be added to and subtracted from. They are the day-to-day operational purposes for examining bulk data. That is what should be there. At the moment, it is something of an informal process; there is no suggestion that it is not being followed properly, but I think it needs to be formalised a bit more, which is what the amendments are intended to do. Amendment 11 states:
“The list of operational purposes…must be reviewed at least annually by the Prime Minister.”
Amendment 12, which has caused the Government greater—and understandable—difficulty, would put in place the following requirement:
“The Investigatory Powers Commissioner and Intelligence and Security Committee”— that is us—
“will be kept informed of any changes to the list of Operational Purposes in a timely manner.”
I always stress that the Committee is not there to monitor the activities of the intelligence agencies in real time; it is outside our remit to do so, as the Executive has to get on with its decision making, but we have the power to look at virtually everything we want—unless the Prime Minister denies us access, which has never happened in my time as Chairman—and the right to ask for material and to be briefed on what has happened in the past.
My impression is that the Government have no great objection to letting us see, on an annual basis, how the list has been reviewed, but we took the view that “timely” meant a bit more frequently than that. To make our position clear to the Minister and the Treasury Bench, we think that we ought to be kept informed of any changes not necessarily the day after they happen but certainly within a reasonable timeframe so that we might follow the changes that take place. The merit is that because we can, if necessary, call an evidence session and ask the head of an agency to come and explain to us what has been going on, we could provide reassurance to the House that the system was being operated correctly. I want to emphasise that that is the purpose of the amendment.
I do not expect the Minister to give me a completely positive response to amendment 12 today—he has kindly intervened already—but I would like him to provide an assurance that the Government will give this careful consideration and come up with a solution that enables the ISC to do its job. If he cannot, I might have to press the amendment to a vote, which I do not particularly want to do
My right hon. and learned Friend is right to anticipate that this is the issue that has troubled us most of all his Committee’s many sensible proposals. From what he has said, I know he will understand that the balance to be struck is between that kind of proper scrutiny and ongoing security operations, which clearly require that consideration of operational purposes be a dynamic matter. It is critical that we strike that balance, but I hear the tone and tenor of his remarks and I am happy to say that the Government will consider the matter carefully and continue our discussions with him.
Amendment 12 states that the
“Investigatory Powers Commissioner must include in his Annual Report a summary of those Operational Purposes”.
Those would likely be more limited than the full list, but it would help to have some broad understanding.
I must take a moment on new clause 3, given that it deals with such an important matter. In the ISC’s report, we recommended that class bulk personal dataset warrants be removed from the Bill on the basis that the potential intrusion into privacy was sufficient to require that each distinct dataset should require specific approval by Ministers. However, we then had further evidence—as has happened in the dialogue with the Government and the agencies—in particular from the Secret Intelligence Service, about the rationale for retaining class warrants in the Bill. In particular, the evidence highlighted the fact that many of these datasets covered the same information or type of information. In those circumstances, we considered that a class warrant would be appropriate, as the privacy considerations were identical.
However, were we to accept class warrants for bulk personal datasets, we would need safeguards to ensure that their use was limited. We therefore proposed three restrictions. The first relates to the most sensitive personal data, using the definitions in the Data Protection Act 1998, and would prohibit the retention of any dataset containing a significant quantity of data relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life. The second restriction relates to bulk personal datasets that are somehow novel or out of the ordinary. In those circumstances, we would not consider a class warrant to be appropriate, so subsection (1)(b) of new clause 3 is designed to ensure that such cases will be referred to the Secretary of State and the commissioners by way of a specific warrant.
Finally, we express concern that we should not end up with bulk personal dataset inflation and have suggested that bulk personal dataset warrants should be limited to 20 individual datasets. I emphasise to the House that that is a completely arbitrary figure in many ways. If the Government have an alternative approach, I am more than happy to listen. I accept that if we impose a limit of 20, it is possible that the Home Secretary might be asked to sign two identical bulk personal dataset warrants in one go, if they are expecting to pick up 40. However, it seems to me that there needs to be some numerical cap, above all to ensure that the Home Secretary or Foreign Secretary, depending on who it is, is aware of what is being collected.
I would emphasise that we have seen the entire list of bulk personal datasets and we have never been of the opinion that anything is being collected that is not legitimate, and some of it, I can tell the House, is pretty mundane as well. That said, it is right that the House should exercise some caution about the expansion of those datasets, because one can see that in some circumstances they could touch upon information that is regarded as highly sensitive.
I hesitate to intervene again, but I hope these exchanges are proving helpful to the House, as well as to my right hon. and learned Friend and me—and to you, Mr Deputy Speaker. My right hon. and learned Friend touches on an important issue. I think he will acknowledge that it would be undesirable to set an arbitrary figure, but it is certainly the case that the Home Secretary, the Foreign Secretary and the Northern Ireland Secretary would want to take into account the numbers. It seems to me that the numerical case that my right hon. and learned Friend is making is not without merit. I am not sure that this is a matter to be dealt with on the face of the Bill, but it certainly should be dealt with.
I am again most grateful to the Minister. I entirely accept that if he can produce, for example, an assurance before the passage of this Bill through Parliament that there will be a protocol in place—which we, for example, have access to—that sets out exactly how the process will be managed in practice and that we can provide the House with the reassurance that that is being followed, that would satisfy my concerns.
However, I do think there is an issue here, because frankly the world is made up of more and more bulk personal datasets, largely being collected in digital form, and there needs to be a process in place to ensure that what is there is legitimately held and is not just being added to in a way that could be outside Ministers’ line of vision altogether, unless they specifically started asking questions. That is the sort of approach I am talking about, so on that basis I am happy to accept the Minister’s assurance.
I am less perplexed by the arbitrary nature of subsection (1)(b) of new clause 3 and more interested in subsection (1)(a). What is meant or intended by the word “large”? Can the right hon. and learned Gentleman say what proportion or quantum would be considered large when considering a personal dataset? There may be some helpful read-across from the 1998 Act, but it would be useful in considering this amendment to know what is intended by that entirely non-arbitrary and open suggestion?
Like everything else, I tend usually to say that we give the word its ordinary English meaning. I can accept that one may collect a dataset whose content is entirely innocuous and not really sensitive personal data at all, but which for some reason might contain a nugget of sensitive personal data that has crept in in some strange and perhaps unintended way. I accept that in those circumstances the protections we introduce are unnecessary; indeed, the truth is that the agencies would not even know that that information was there at the time they were acquiring it.
However, if we focus on the points I raised earlier—the Data Protection Act describes sensitive personal data as relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life—we are probably in quite a good place. I do not think a court would have too much difficulty being able to tell what falls one side of the line and what falls the other. However, like everything else, it is all open to a degree of interpretation, so I do not offer that to the hon. Gentleman as 100% perfection, although it is a good way forward and I think most of us would understand what sort of collected bulk data are likely to contain that sort of material.
Amendment 24 concerns specific warrants for bulk personal datasets. We are far less concerned about these, but again this provision would cover data relating to a person’s race, political opinions, religious beliefs, trade union membership, physical or mental health, or sexual life, and would ensure that the Secretary of State authorising the warrant would have the sensitivity of the data highlighted for them as part of their overall consideration of the necessity and proportionality of retaining and examining the dataset. I believe this may well be completely acceptable to the Government. Amendment 24 would mean that if there was an intention, for example, to acquire a dataset that clearly contained a great deal of information about people’s religious or political opinions, that would be specifically drawn to the Secretary of State’s attention in asking her or him to sign off the warrant, so that they were aware that that was being sought.
Finally in this list, I want to mention amendments 22 and 23, which are really carryovers from yesterday and concern the renewal of warrants to prevent two warrants from extending over a 12-month period, which I believe the Government have accepted, although that could not be considered yesterday.
I apologise for taking up so much of the House’s time, but I hope these amendments may help to clarify some of these areas of the Bill.
We made good progress in the House yesterday. We now have clarity about the terms of the independent review of bulk powers, which we are looking at today; and we have an overarching privacy clause, a stricter test for the judicial commissioners, protection for trade union activities, and an undertaking from the Solicitor General to consider how to amend the Bill to make it absolutely clear that whistleblowers can make disclosures to the Investigatory Powers Commissioner without fear of prosecution. I hope we can make as good progress today.
One of the amendments made to the Bill yesterday concerned the requirement for judicial commissioners to consider necessity and proportionality with a sufficient degree of care to ensure that they comply with the general duties in relation to privacy—this is the tighter judicial review test. That amendment was made to clause 21, which relates to intercept warrants. Today we are dealing with bulk powers. The judicial commissioners have an important role in relation to bulk powers and are an important safeguard in respect of warrants involving bulk powers. It is therefore important that we have clarity in the House today that the tighter scrutiny that is now in clause 21 applies equally to all other exercises of authorisation or approval carried out by judicial commissioners, including where they are exercising their powers in relation to bulk warrants. I think that otherwise there will be a risk of two tests, one under clause 21 and one under the other clauses applying to bulk powers. There is a real danger relating to combined warrants, in respect of which judicial commissioners would be asked to carry out different tests. It is important for the bulk powers to be scrutinised every bit as closely as the intercept warrants. Perhaps, in his response, the Minister will make it clear that the test applies generally across all the functions of the judicial commissioners, whether in respect of the specific warrants referred to clause 21 or in respect of the warrants relating to bulk powers and other provisions in the Bill. That, I think, would be a helpful extension of the safeguards relating to bulk powers.
Let me now deal with the bulk powers themselves. As has been pointed out by Anne McLaughlin, they are very wide. What concerns her constituents and mine—and, indeed, many other constituents—is that inevitably the bulk powers will be applied to, and will have an impact on, people who are not themselves suspected of any wrongdoing. That worries everyone who has spoken to me, and I am sure that it worries members of the public who have spoken to many other MPs.
I sense that the hon. and learned Gentleman is about to move on to wider issues. Before he does so, let me deal with the issue of the application of the content of the manuscript amendment, which, as he said, specified a part of the Bill. He is right to say that the principles that underpin the amendment should apply to the whole Bill, and I will ensure, as the Bill proceeds, that that is the case legislatively. If we need to table further amendments to make the position categorically clear, we will do so.
I am grateful to the Minister for clarifying the position, because that is an important additional measure in relation to bulk powers. We will, of course, support whatever amendments are necessary to achieve that end.
As I have said, the bulk powers are very wide. They will inevitably have an impact on people who are not suspected of doing anything wrong, and they will inevitably have an impact—or, at least, it is impossible to ensure that they will not—on legally privileged material, or material that involves journalistic material or journalistic sources, or, indeed, MPs’ correspondence. It would be good if a way could be found of excluding such material from the operation of bulk powers, but it is not possible to do so, and that is why there is concern about bulk powers. [Interruption.] I will give way to Mr Davis in a moment.
Bulk powers involve ordinary members of the public who have never done anything wrong, and they involve the potential to capture legally privileged material, journalistic material and MPs’ correspondence. I shall come on to the safeguards, but it is important to understand first why there is that concern about the bulk powers.
I was not intending to be discourteous, Mr Deputy Speaker.
The hon. and learned Gentleman said that it was not possible to screen out the correspondence of the various privileged groups he described. The issue arose at the Investigatory Powers Tribunal in respect of one of the Wilson doctrine cases, and that was the assertion made by the Government barrister at the time. However, I consulted a number of experts, including Ross Anderson at Cambridge, and they said that it was perfectly possible. A great deal of screening is already done to take out dross—issues such as pornography—and it is perfectly possible to screen out targeted groups as well.
Obviously, I should be very interested to hear how that could be done at the outset, and I am sure that the Minister would as well.
Let me make two points to emphasise why there is such concern about bulk powers. It may well be possible, depending on the parameters that are set, to reduce the likelihood of obtaining through bulk powers material that is sensitive in one shape or form, but I do not think it is possible to eliminate it. It may well be that most of that is done at the filtering stage, rather than at the stage of the initial exercise of the bulk power. I am not seeking to explain why bulk powers inevitably capture such information, or to justify that; I am simply explaining why I think so many people are concerned about the bulk powers. That is why Labour has made it clear that, given the breadth of the powers, the operational case for them must be properly made and properly reviewed, and that is why the safeguards must be reviewed.
The issue of the safeguards may need to be revisited when the Bill is in the other place. As the right hon. Member for Haltemprice and Howden knows, the Tom Watson and David Davis case is currently midway between the Court of Justice of the European Union and the Court of Appeal. Although it touches on existing legislation and retention powers, it may have implications in relation to the Bill when it is given further consideration, and will certainly be important when it comes to consideration of safeguards. Let me also, in passing, echo the concern expressed by Mr Grieve in relation to operational purposes, an issue which also arose in Committee.
As for the review, the first stage is to ask whether the operational case has been made. I referred yesterday to an exchange of letters between the Minister and me. I hope that copies of the letters have been made available; I think that they have been made available to the House, and that every Member has them. However, I want to put on record what was being asked for, and what the response was. Let me say at the outset that this was a constructive exchange, which moved a significant issue significantly further forward.
I wrote to the Minister that the review to be carried out by David Anderson should be
“supported by a security cleared barrister, a technical expert and a person with experience of covert investigations”,
that it should
“Examine the operational case for the bulk powers in the Bill, not merely in respect of the utility of the powers, but also their necessity”,
that it should
“Have access to all necessary information as is needed to undertake the review effectively, including all information provided to the Intelligence and Security Committee”,
and that it should
“Take about three months to complete and…report to the Prime Minister in time for the findings to inform Lords Committee considerations of Parts 6 and 7 of the Bill.”
The Minister’s reply is important, as Members who have had an opportunity to read it will appreciate. He wrote:
“I can confirm that the basic framework for the review will be as set out in your letter…David Anderson has hand-picked this team and we are confident that together they have the range and depth of knowledge needed to undertake a comprehensive review.”
I was very anxious that David Anderson should pick as members of his team people whom he considered to have the necessary competences to help him with the review that he has been asked to carry out independently, and I am pleased that he has done so. I have been assured by him that he is very happy with his choices, and with the skills from which he will benefit as a result of that exercise.
The Minister’s letter continues:
“In relation to your second point”— this is really important—
“it is absolutely the case that this review will be assessing the specific question of whether the bulk capabilities provided for in the Bill are necessary. The review team will critically appraise the need for bulk capabilities, which will include an assessment of whether the same result could have been achieved through alternative investigative methods.”
That goes to the heart of the issue. If that is the focus of the review, it will give comfort to the Labour team—and, no doubt, to members of the Scottish National party, notwithstanding their concerns—and to all our constituents as well.
I am grateful for that intervention. I have been asking for the review for some time and my preference was always that it should have been earlier and available to us now. In fairness, and in keeping with what I said yesterday about the exercise that we have been conducting, I recognise that it was a big ask of the Government at this stage, particularly in light of the pre-legislative scrutiny. I am always inclined to look on the positive side and the fact that there is a review, under the terms for which we asked, is important. Of course, when one looks back at anything, one can always make the argument that it should have been done earlier and, usually, differently. I accept that it would have been good if we had had the review by this stage, which is why I put forward my argument as I did before, but I emphasise just how significant this is and what a significant change of position it is for the Government. It is constructive and positive, for which we are grateful.
The powers mostly already exist and this is an avowal of existing powers, so in some sense the question of Joanna Cherry is different from what it would normally be. We have powers and may not change them as result of the delay, but there is an implication for how soon we review the whole package and how soon we come back and re-legislate. It has long seemed to me that this is a piece of legislation that lends itself to almost annual review, renewal and reform. The way to deal with the problem may be to ensure that we get a relatively rapid review and reform of the legislation in another part of this business.
There is a case for frequent review, but what form that would take is a matter for us to discuss during the debate on the next group of amendments. I take the point that, in many senses, most of the bulk powers are currently available and being used. As I said yesterday, however, that does not mean that we should not scrutinise them now through the passage of the Bill. This is the first time that Parliament has had the chance to examine and scrutinise the provisions, because they simply were not avowed. The change of position on the avowal of the powers over the past three or four years and the fact that they are in statute are quite extraordinary. It would be wrong to say that as they existed and were used under more general provisions in the past, we should not ask for the operational case to be made now and have that properly scrutinised. This is the right way of doing things, even though one might say that it should have been done five, 10 or 15 years ago when things were different.
That is why the focus on necessity and not merely utility is so important. It would have been easy to have focused on utility. As the hon. and learned Gentleman emphasised earlier, this is about establishing to the satisfaction of independent people that the powers are necessary.
That word necessary is important in all of this. As I say, the review team’s ability to assess whether the same result could have been achieved through alternative investigative methods is important to that exercise and the confidence that we can have in the outcome.
Pressing on, the letter goes on to say that
“all necessary information, access and assistance as is needed for the review” will be provided. It then states:
“We are absolutely clear that there is nothing to be gained, and much to be lost, by in any way restricting the review team’s access to sensitive and classified material where this is necessary to inform the review process.”
On timing, it states
“you are correct that the review will be concluded in time to inform Parliament’s consideration of Parts 6 and 7 of the Bill at the Lords Committee.”
There is a complete and instructive response to the request in my letter and that will help a great deal in how the review is received.
The review is important. It is not just an exercise for us in this House or those in the other place; it is for the public. As the right hon. and learned Member for Beaconsfield said, some Members of this House have had access to some of the powers and have seen them in operation either in previous roles or in briefings to the members of various Committees. However, it is no longer enough, nor should it be, for members of the public for politicians to stand up and say, “I have had it demonstrated to me that these powers are necessary or have been used in a particular way.” They have the right to as much information as possible to make decisions for themselves.
I will assess that at the time. It depends on what the report says, because if it calls any of the powers into question or makes any recommendations about their exercise, we would all want to consider that. It would be difficult for anybody in this House or the other place to make a case for a bulk power that an independent review has deemed unnecessary. Let us wait until we get to that stage and let us see what the review actually says.
As for confidence in the review, there is a question of publication. It is important that the review’s report is publicly available. I obviously understand that David Anderson and his team will see highly sensitive material, to which they will have unrestricted access, so the detail that can be put in any public report will inevitably be limited. I think everybody understands that. It is important that the report is published in some form, as most of David Anderson’s report have been, so that they can be read not only by Members of this House and of the other place, but by members of the public seeking assurances about and confidence in the review.
This issue goes to the heart of one reason why the Bill is particularly difficult. This House depends on the members of the Intelligence and Security Committee, who find out in private sessions how the powers are being used, to report back to the House, in a way that ends up being redacted, about their confidence in the powers. We have a duty to ensure that the public are as well informed as possible, in concert with our need to protect national security, about how these things work. That is the challenge and is one reason why the House has found the Bill quite difficult to deal with.
I agree with those sentiments. Conventions and attitudes change. To take an example from my past, it was once a convention that a prosecuting authority would not give reasons for its decisions, but that has changed and for the better. The days of politicians with access to particular information assuring the public simply by saying that they have had access and that they are satisfied are well and truly over. That presents problems and difficulties in relation to what must be put in the public domain.
The intervention of Fiona Mactaggart has been helpful in aiding me to frame my own. She is right that operational concerns are sensitive, delicate and, of course, secret matters. Keir Starmer is absolutely right that we should put as much information as possible in the report. He is also right that there will be access to security-cleared information of a highly sensitive nature, but that should not prevent us from being as clear as we can to this House, and more widely, about why it has been decided whether certain powers are necessary.
I am grateful for that intervention, which I will take in the spirit with which it was put forward. We want maximum publicity within the constraints that apply when highly sensitive information is considered. The first point of the review is to inform their lordships so that they can perform their scrutiny function, but they will be unable to do that if the report is not available to assist them in their deliberations. The review and its terms are a material and important step forward, and I am grateful for the indication about its publication when it is complete.
That takes me to the subject of medical records, which I can deal with swiftly.
Does the hon. and learned Gentleman agree that this review on the necessity of bulk powers is welcome, not just to give the public confidence, but to give confidence to the intelligence agencies that must use them? In my experience, they are scrupulous about acting within the law, and we owe it to them to award powers that they can be satisfied are both necessary and enjoy public support.
I do agree with that, and I have emphasised to the security and intelligence services that there is value in this exercise from their perspective, in making the operational case for the powers that they exercise and wish to continue exercising. That is another good reason for the review.
There has been an ongoing concern, raised first by the Scottish National party and then by Labour in Committee, about access to medical records. The concern for Labour, which I am sure is the shared position, has been about “patient information”, as defined by section 251 of the National Health Service Act 2006. That means information relating to mental health, adult social care, child social care and health services. I do not need to spell out for the House why many members of the public—my constituents and, I am sure, those of many Members—are deeply concerned about the very notion of the security and intelligence services having bulk access to those sorts of sensitive records. We tabled an amendment in Committee proposing a high threshold for the exercise of powers in relation to those records, and this is reflected in amendments 303 to 305 before the House today.
The Government have tabled new clause 14 in response to our demands. Although it does not take the same form as amendments 303 to 305, on my analysis, because of the way subsection (6) is framed, it would cover mental health, adult social care, child social care and health service records. If, either now or at some convenient point, the Minister could indicate that his understanding is that it would cover those records, I will not press amendments 303 to 305 to a vote.
There is a golden rule in the Hoare household that when in doubt we turn to Kipling—not the exceedingly good baker, but our rather excellent writer. I pray in aid Kipling in order to summarise.
I was not intending to speak on this grouping until I heard the cases deployed by the SNP and by Keir Starmer. On the latter point, I concur and support what he said entirely, but the approach of the SNP, which we have heard since Second Reading—it was certainly a golden thread running through Committee—is one of serious annoyance to me, as I am pretty certain it is to colleagues. I am absolutely certain it is of huge anxiety to our constituents. Anne McLaughlin obviously has constituents who are very different from mine. She and I served on the Immigration Bill Committee, as did the shadow Minister, some little while ago. According to her, no constituent of hers had ever raised the issue of immigration, yet all constituents have raised with her these huge Glasgow concerns about bulk powers.
In a moment, because I want to give the hon. Lady the benefit of the words of Rudyard Kipling. I do not personalise this to her; rather I make it as a general point to her party. The SNP has demonstrated:
“Power without responsibility—the prerogative of the harlot throughout the ages.'”
The SNP is using a position of power to malign and undermine, as it has continually sought to do, the confidence of this House and of the country in the robustness and ethics of those in our security services, who, day in, day out, seek to use—I agree with the point made by the shadow Minister that they also require this—the public confidence that they have in order to make sure they have the right skills and tools to keep our constituents safe.
I very much resent what the hon. Gentleman is saying. Is he aware that one of the founding members of the SNP, Sir Compton Mackenzie, was a member of the British security services? Is he aware that in Scotland we have one of the best records of crime prevention in the world? Is he aware that we have responsibility in Scotland—we run the Scottish Government and are now into a successful third term? Will he please reconsider his remarks, which SNP Members and most people in Scotland will find deeply offensive?
All I will say to the hon. and learned Lady, once she has calmed down from her faux anxiety, is that Compton Mackenzie must be turning in his grave, because there is a significant dereliction of duty here. One would think—this may be the case in Scotland, and if so, SNP Members must forgive my ignorance—that there is no organised crime, and that there are no paedophiles, people traffickers, terrorists and drug dealers. One would think there are no people who are trying to do us ill. Perhaps, to use the analogy of my right hon. and learned Friend Mr Grieve, it is the view of the SNP that a quick rifle through a mail sack and the identification of a particular hand in a quill pen will be sufficient to interrupt some terrible deed. That may very well be, and SNP Members may be right that that will satisfy their constituents. I can tell them that it will not satisfy mine. My constituents look for the Government of the day, irrespective of the stripe, to carry out with seriousness and with democratic accountability the first duty of the state, which is to protect the realm and its citizens.
I hope that the hon. Gentleman will accept that I hold no brief for the SNP—I struggle on many days to hold any affection for it. But may I offer him the opportunity to reflect on what he has said about the duty of the SNP Members and others of us, including a substantial number on his Benches? None of us would seek to undermine the work of the security services, but it is our duty to ensure that the powers given to them by this House are necessary and proportionate. That is the work in which we are engaged here, and if we are talking about a breach of duty, it would be a breach of our duty if we were not to do that.
Order. The right hon. Gentleman wishes to catch my eye very shortly, and of course I want to hear him speak, but I do not want to hear the speech twice. We need short interventions.
The right hon. Gentleman has offered me an invitation and I hope he will not be offended if I do not accept it. I do not wish to reflect on or reconsider how I have positioned this. Everyone in this House has to be incredibly careful not only what we say and how we say it, but how it can be understood or construed. The Labour Front Benchers have been very clear, and I welcome their position. For the past 12 months, almost since we debated the Anderson report in this place on that Thursday last July, it has seemed that those who are bringing together the collective wisdom of the SNP have watched just a few too many reruns of “Enemy of the State” and have read too many books where they presuppose that those honest men and women who, under the rule of law, are trying to keep us safe are, in some way or another, insidious, acting in an underhand and duplicitous way, and wish us ill. As I understand it, that is essentially what they are saying. Whether they have said it implicitly or explicitly, that is my interpretation. We heard it in Committee, which is why I will be opposing their amendment later on.
Let me put it on the record that I and the Minister said at the end of the Bill Committee that the SNP had played a significant role in ensuring that this Bill reached this stage of its proceedings in much better shape than it was when it was in Committee. It was a very constructive exercise by the SNP. SNP Members took different approaches on issues to us, but to suggest that they have not played an important part in this is not to reflect the views at the end of the Committee stage.
I am inclined to agree with the latter point, but at every step and turn, every SNP amendment, on my reading and on my hearing and my understanding, has been designed to delay and frustrate. We have had the canard that has run through the debate that we have not had adequate time to debate and discuss these issues. I will not rehearse the times, Mr Deputy Speaker, because you know them. You know how many Committees of this House have looked at the matter. The Bill Committee stood for a long period of time. We had a long debate on Second Reading. The Government, and the Ministers in particular, have bent over backwards to ensure that they can land this Bill in a shape and form that is acceptable to the vast majority of Members of this House and, one would hope, of the other place.
If the hon. Gentleman thinks that all the amendments laid by the SNP were designed to delay or frustrate the Bill, how does he explain why his own Government accepted new clause 6 on “Civil liability for certain unlawful interceptions”—I do not know whether he was in the Chamber yesterday—which was an amendment tabled by me on behalf of the Scottish National party? I say again, perhaps he would like to reconsider his comments carefully.
Heaven rejoices when a sinner repents. Of course, Mr Deputy Speaker, it is marvellous news that there has been one amendment out of about 127,000 amendments that the SNP has tabled throughout this process that has been acceptable to Her Majesty’s Government. [Interruption.] Oh, it was just 1,000. It felt like 127,000. Forgive me. This is the fundamental point. The hon. and learned Lady is right, and that is why I find it surprising. The SNP is clearly a grown up and mature party. It is now in its third term of government in Edinburgh. It will be discharging some of these duties. It will be consulted on different things by Ministers and by those responsible for appointing commissioners and all the rest of it. There seems to be a rather peculiar disconnect between the seriousness with which the SNP takes the duties of governance north of the border and this impression of flippancy it gives when it comes to national security.
Order. May I just help the hon. Gentleman? I know that he likes to bring the Chamber alive, but he needs to start to speak to the amendments. We have heard his antagonistic bits. Now I want to hear something about the amendment, because I also want to hear his colleagues, and I am sure that he does too.
Let me reassure you that you were not in order, which is why I want you to be in order.
Order. I really do not need much advice. In fact, I will give a little bit of advice, which is that we speak to the amendment—we do not speak around it or leading up to it. It is the detail of the amendment that we want. I am sure that the hon. Gentleman wants to be back on track, and I welcome that.
I oppose the amendments because they would delete very significant powers that are required. I have—as I believe the Government have—confidence in our services to deploy in an accountable way. If the hon. Member for Glasgow North East presses her amendment to a Division, I will oppose her, even if no one else does. I am content with the arguments deployed by Ministers that those bulk powers are required. We cannot dodge our responsibilities on this. We may find that it infringes and impinges on the sacred flame of civil liberties but, to keep our country safe, so be it.
There are a number of matters on which I wish to touch today. I should like to speak first of all in relation to the review, which has formed so much of today’s debate. I very much welcome the appointment of David Anderson, QC. He commands respect and confidence in all parts of the House. As Keir Starmer said earlier, it is significant and important that, first of all, he has a remit that looks at the necessity of these provisions and also that he has been able to select for himself the team with which he will be working.
I very much hope that the report will be produced in time for the Bill to be given the benefit of it when it is considered in the other place. I say to the Minister that if it is a question of a week or two here or there, notwithstanding the deadlines to which we are all working, it would be proper for the Government to take the view that it is best to get this report right rather than to get it out quickly. For my part, I am disinclined to think that David Anderson would have taken on this job if he were not able to do it in the time that is allowed to him, but, as we all know with these matters, sometimes the unexpected happens and sometimes it is not always easy to get to the truth of things. I do hope that there will be a degree of flexibility among the Government’s business managers, not least if we need a Government day to debate the report, so that the House has its voice heard.
I will, if I may, suggest to the right hon. Gentleman, whom I worked with in government and whom I know very well, that the scope of the report should be a matter for David Anderson. For example, if he were to want to take into account the experience of other countries—this is something that the right hon. Gentleman and the SNP spokesperson called for—that would be a matter for David Anderson. We are not attempting to tie his hands in any way. As the right hon. Gentleman knows, it is my view that we need to get this review completed, so that we do not pass something into legislation without the information that emanates from it.
I am grateful to the Minister for that. We are now best served by allowing Mr Anderson to get on and do the job that we have given him. I merely say in passing that it would have been better if we had given him that job some time ago, so that this House might have had the benefit of his conclusions when debating this whole matter. None the less, I welcome the conversion of the Government, however late in the day it may have come, to the need and to the acceptance of what even the Labour party has said, which is that the operational case for the extent of the bulk powers that the Government have sought to introduce in this Bill has not yet been made. The operational case that they have published has been vague, to be kind to it, and it has certainly been lacking in any persuasiveness.
We will look very closely at David Anderson’s conclusion with regard to the necessity of these powers, because that should have been the first test that was set and that was required to be met. I take very little issue with Mr Grieve, or indeed the hon. and learned Member for Holborn and St Pancras, when they talk about the protections that they think should be built into the Bill. Protections are necessary only if the powers are first judged to be necessary, which comes to the very heart of the points made by the hon. Member for North Dorset. The Bill has very much been a work in progress and I wonder whether we would have had the 104 Government amendments we had yesterday and the 20 that we have today, never mind those tabled by the Intelligence and Security Committee, by those on the Opposition Front Bench and by the Scottish National party, if the House had taken the approach to the Bill and its scrutiny that was being urged on us a few minutes ago.
On the question of bulk personal datasets, I share the substantial concerns that have already been expressed. That brings me back to the objection that I have already spoken about—to the operational case. That is another aspect of the Bill that the Government have failed to explain. The operational case is perhaps even more opaque than anything else in the Bill. Although the abuses—let us use that term—outlined by Joanna Cherry and acknowledged by the right hon. and learned Member for Beaconsfield might be at the lower end of the scale, I have a strong suspicion that it was because they were at the lower end of the scale that they came into the public domain in the first place. When we are dealing with something that strikes in such a fundamental way at the relationship between the citizen and the state, there is, frankly, no such thing as a trivial abuse. Any abuse is serious, any abuse is to be taken seriously, and that is why I thought that the hon. and learned Lady was right to bring them to the House’s attention.
I thank the right hon. Gentleman for his generous and measured comments earlier about the SNP’s role in the Bill. To pick up on his point, is not the problem that once the warrants have allowed bulk data to be scooped up there is no legal regulation of how it is analysed, which is why these individuals within the security services were able to break the rules—there are no warrants; it is about internal regulation?
The hon. and learned Lady is absolutely right, and I draw on my own experience when I say that in giving power to public authority in this way it is important that we should be as specific and prescribed as possible.
To draw on my experience, I recall the passage of the Criminal Procedure (Scotland) Act 1995. At that time, I was a procurator fiscal depute in Aberdeen and one of the innovations introduced in the Act was the ability of a prosecutor to comment on previous convictions before a jury in Scotland. I have no doubt that at that time all sorts of undertakings were given at the Dispatch Box, but when we as prosecutors—and, I like to think, fairly measured prosecutors in the public interest—saw that provision, the discussion did not centre around how the undertakings had been given at the Dispatch Box but how we could use it, its extent, where the boundaries would lie and what would constitute a step over the line and a step just inside it. There were always some in the office who were quite keen for the line to be a little bit elastic.
That is a much more trivial example, because of course it was a measure for which there would have been obvious and immediate judicial scrutiny. If any depute were to overstep the mark in court, it would be immediately obvious and they would be pulled up on it. There will not be the same scrutiny, there is not the same oversight and we ask a great deal of those who serve in our security services if we give them such a wide range of powers with so little definition. The lack of definition, the lack of proportionality and the lack of necessity underpin my concerns, which, I think, are shared in other parts of the House.
It is a privilege to speak on the second day of consideration of this very important Bill and to follow hon. and right hon. Friends and colleagues, as well as the many learned friends and colleagues—[Interruption.] I did not quite expect to hear that noise from the skies during my opening comments; I do not normally have this sort of impact.
I do not wish to disappoint people, but unlike my hon. Friend Simon Hoare I sought neither inspiration nor cake from Kipling. Instead, I turned to the American scientist and author Neil deGrasse Tyson, who wrote very perceptively:
“Any time scientists disagree, it's because we have insufficient data. Then we can agree on what kind of data to get;
we get the data;
and the data solves the problem. Either I’m right, or you’re right, or we’re both wrong. And we move on. That kind of conflict resolution does not exist in politics or religion.”
Very wise words, I think.
I believe that the advantage scientists have over the rest of us who base our judgments on instinct or hope should also be available to the people who keep us safe, our security personnel and the agencies in which they so importantly serve. I appreciate the sensitivities and difficulties with this topic of bulk powers, but I feel that the Bill has had a lot of scrutiny. It has been a long time in gestation, and rightly so.
Our security services need data, the raw information—perhaps from dozens of sources. They need the hundreds, perhaps thousands of pieces with which to build a picture of the threats that face us, and they then have the knowledge to take the right action against them. In today’s world in which data are all around us, our security personnel need to be able to collect them and to have the right, with safeguards, of course, to pull them all together.
There was a good deal of discussion on Second Reading, in Committee and now on Report on the nature of bulk powers and bulk review. It saddens me that a notion seems to have developed among some that the security services, given the chance, will use new powers to hoover up all the information on us all without any control at all. I think that that perception is false. Why? As we have been told, the bulk powers referred to in this Bill are already provided for in existing legislation. The Bill brings them together and, importantly, makes them subject to robust statutory safeguards.
I am grateful to my hon. Friend for his helpful intervention. He is absolutely right; it makes sense to bring these powers together and, while doing that, to consider the safeguards.
Yes, the Bill provides our security and intelligence agencies with the ability to obtain data in bulk in order to identify new threats and to learn more about existing threats, but I feel that it does not confer on them new and sweeping powers. Our intelligence agencies have bulk collection powers but they do not conduct analysis of the data in an indiscriminate manner without reasonable suspicion—it would not be lawful for them to do so. In the modern world these powers, which already exist, are crucial. Bulk capabilities are crucial.
To investigate a target, our agents need to be able to acquire its communications in the first place. When a target is overseas, bulk interception is one of the key means, and may be the only means, by which we can obtain communications that would otherwise not be available. This is especially so if that potential threat is operating in an area where we have no strong diplomatic link or where the governing authority is not in control of all its own territory. We know from yesterday’s debate that bulk powers and their use have been instrumental in keeping us safe from threats abroad and, indeed, at home. It is worth noting that the bulk powers in the Bill have already played a significant part in every major counter-terrorism investigation of the last decade, including in each of the seven terrorist attack plots disrupted since November 2014. They have been essential in identifying 95% of the cyber-attacks on people and businesses in the UK discovered by the security and intelligence agencies over six months. Here at home the existing powers have been used to identify serious criminals who were seeking to evade detection online and could not be pursued by conventional means, supporting the disruption of more than 50 paedophiles in the UK in the past three years.
I would like to quote the words of my right hon. and learned Friend Mr Grieve, who is no longer in his place but who has been contributing to today’s debate. He is a former Attorney General and not, if I may say so, a man who lightly allows liberties to be chipped away. He said of the Bill:
“The present Committee and its predecessor are satisfied that the Government are justified in coming to Parliament to seek in broad terms the powers that the Bill contains. None of the categories of powers in the Bill—including the principle of having powers of bulk collection of data, which has given rise to controversy in recent years—is unnecessary or disproportionate to what we need to protect ourselves.”—[Official Report,
Of course, some will disagree with the former Attorney General and they rightly have the opportunity to do so, but I happen to agree with him on those points.
Finally, I want to touch on calls from Labour and the SNP on Second Reading and in the Public Bill Committee for independent validation of the operational case. We should recognise that the Government have listened and, in response to those calls, have confirmed that David Anderson QC will undertake a review to inform the passage of the Bill through the House of Lords. Parliament will then be able to decide.
I will support this Bill as one that codifies the law as much as it extends it, and that builds robust safeguards against intrusion while at the same time safeguarding the public. I believe that it is an extremely important Bill—important to our country, important to the people of our country, and important to our constituents.
It is great to follow Wendy Morton, who made a powerful speech and a lightening-inducing one, it seems, to judge from the weather outside.
I commented in the Tea Room earlier that I probably would not get the opportunity to contribute on Third Reading because the debate yesterday and today has been dominated by heavyweights. When I said that to a Government Member, he looked oddly surprised that I would not satisfy that criterion. I am pleased to have the opportunity not only to speak at this point on consideration, but to make the point that it would have been wholly worthwhile to have had just one Northern Ireland voice on the Bill Committee.
Members will have recognised just how considered and detailed the process has been. On Second Reading I focused my remarks solely on the prison officer, Adrian Ismay, who had been murdered in my constituency and died that very day. I made the point that we cannot continue to have abstract conversations about the impact of terrorism or about the protection that we as a state need on national security grounds, because in the here and now it is a matter of protecting us today, tomorrow and for every day to come.
I pay tribute to the Security Minister, the Solicitor General and all those Members who have so collegiately engaged in making sure that what, in years gone by, was a difficult process with the Draft Communications Data Bill—the snoopers charter—has been set aside during what I believe has been a very encouraging debate and thoughtful consideration of the Bill. Credit is due to the Minister and his team.
A point was made by the shadow Home Affairs Minister in arguing for amendments 303 to 305, and I would be grateful if Keir Starmer considered this issue. We have had contributions from Mr Grieve on new clause 3 and he made the point that it would not be appropriate to retain the datasets—personal data—that engage mental or physical health issues. In the light of that, I would be keen to hear from the shadow Minister on how he believes that deals with amendments 303 to 305. If new clause 3 were passed, would those amendments be necessary?
I understand that it may not be possible for the shadow Minister to respond, although I am happy to give way. It would be useful to know whether those three amendments are likely to be pressed to a Division or whether he believes that new clause 3 deals adequately with the protections for personal health data.
On bulk data collection generally, the correspondence that was shared yesterday was incredibly useful. I do not recall getting correspondence between a shadow Minister and the Minister, which was shared with us all and made available in the Vote Office so quickly. It was useful and defused many of the fears and concerns that had been raised with Members of Parliament about the consequences of passing the Bill. It is important, as Mr Carmichael said, that we let that process commence and that we engage in it thoughtfully.
Having made the point that there was no Northern Ireland representation during scrutiny of the Bill in Committee, I hope there is a mechanism whereby Members, be they Democratic Unionists, Ulster Unionists, Social Democratic and Labour party Members or others, get the opportunity to engage thoughtfully and purposefully in the conversation because, as we all know in the House, the history and legacy of Northern Ireland means that these are acutely live issues for us daily.
Just before the hon. Gentleman finishes, I am more than happy to give him the assurance that my door is open to him, his colleagues and other parties during the whole passage of the legislation. When it leaves this House it will go to the other place, but I will continue to be engaged and involved with all parties who want to contribute in the way that he has described, and I thank him for it.
I want to follow up on what the Minister said. He made the point that his door is always open and we appreciate that. That has always been the case, but it probably has more to do with the personal relationships that he has built over decades in this place with Unionists, and it is highly regarded on the Ulster Bench, if I can put it that way. However, there will come a time when members of this party and Members on this Bench should be considered all the time when it comes to selecting Members for Public Bill Committees, and it should not be matter on which we need a private arrangement.
It is a great honour to follow Gavin Robinson.
Many right hon. and hon. Members have spoken with great experience and expertise through the various stages of the Bill. Listening to the high quality of debate, especially yesterday, I was struck by the thought that if we conducted all our business in this Chamber in this manner, our stock and our currency as Members of Parliament might rise a little with our constituents and other members of the public.
I feel humbled to speak on this crucial piece of legislation and, specifically, against the amendments tabled by the SNP. This Bill is designed above all to keep our constituents safe from harm. Some hon. Members may know that I grew up in the Tehran of the 1970s. Though now fondly remembered for its nightclubs and miniskirts, it was a city pervaded by the fear of SAVAK, the brutal secret police whose agents infiltrated every factory, every school and every park, so I am compelled to say that I have witnessed, and my family has witnessed, mass surveillance, and this is not it.
The SNP amendment would effectively remove parts 6 and 7 of the Bill, which deal with bulk warrants and bulk data sets. These show our adversaries that we will use every technological tool to keep ourselves secure, but we will not compromise on our principles.
I do not know whether the hon. Lady was present at the time, but on Second Reading I made it very clear that the SNP was not calling the Bill mass surveillance; we described it as suspicionless surveillance. Does she agree that parts 6 and 7 permit suspicionless surveillance?
I am afraid that I have to disagree with the hon. and learned Lady. Again, as I mentioned in an intervention, these bulk powers are absolutely crucial for our security and intelligence agencies. Let us remember that they are the only agencies that are allowed to use these powers. The reason is that some of these things are unknown. I do not want to sound like Donald Rumsfeld, but there are unknowns out there, and bulk powers are the way to deal with them.
My hon. Friend is making an extremely powerfully argument. Of course, one of the elements we constantly remind ourselves of when looking for terrorism or for these forms of abuse is that we are looking for a needle in a haystack. That is true, but without the haystack there is no possibility of even starting the search. These bulk powers are essential for building up that network in order to be able to search.
I thank my hon. Friend for that intervention; he speaks with great experience.
Bulk powers are not novel. The powers already exist, but they are being given better oversight, scrutiny and transparency here. Some Opposition Members have spoken about the lack of necessity for these powers, but the necessity arises from an absolute obligation on our intelligence services to be as flexible and nimble as our enemies. Other Members, including my hon. Friend Wendy Morton, have set out the operational necessity of bulk data collection. It is about collecting information on overseas targets and providing that first sift of information—like a haystack, as my hon. Friend Tom Tugendhat mentioned—so that it is possible to drill down to the necessary data and discover new threats from people who were previously unknown and identify patterns of behaviour. That would then exclude innocent citizens and facilitate more targeted searches.
The effectiveness of collecting bulk data is borne out by the fact that it has been used in every major counter-terrorism operation in the past decade. It has prevented 95% of cyber-attacks and disrupted 50 paedophiles. It is clear that the UK does not undertake mass surveillance, first because of the existing legal framework in which the intelligence services already operate, and secondly because of resource constraints. I know that the Bill Committee heard evidence about that.
I want to speak briefly about the wrong hands argument to which Joanna Cherry referred. My right hon. and learned Friend Mr Grieve quite rightly said that if we worried about the wrong hands everywhere, we would never pass any legislation. Only the security and intelligence agencies will be given the powers set out in the Bill. Those are people who have an interest in disrupting plots and bringing suspects to justice. Very little evidence is being brought forward to suggest that they are motivated by prying into innocent citizens’ private lives or that they use information wrongly. Millions of us, including all of us sitting here, handle sensitive data every day and are subject to rules, and to a large extent we obey that. Are we honestly saying that intelligence agents, having gone through rigorous vetting and appraisal, are less trustworthy than our bank managers, our GPs’ receptionists and our council officials?
The safeguards in the Bill pertaining to bulk powers are manifold and robust: the Secretary of State has to authorise bulk warrants; there is a double-lock authorisation procedure; the warrants are time-limited; there is a code of practice for the security and intelligence agencies on handling the data; and of course there is the review, which right hon. and hon. Members have expanded on at great length.
In conclusion, the proposed amendments would remove from the Bill the powers that are necessary for our security services to react to the evolving dangers that face our constituents today, here and now. Our security services do that while respecting our nation’s values. For that reason, I will oppose the amendments.
I welcome the opportunity to speak in this debate and to follow Seema Kennedy. I fully support this legislation. If anything, I am beginning to worry that it is already being watered down. I want to make it even stronger. That is why I oppose the Scottish National party’s amendments. I heard the point made by Keir Starmer about health records; I appreciate that thought process and will support it if relevant amendments are proposed.
I have to say that I and some of my colleagues from Northern Ireland, and indeed on other Benches, have lived through the troubles and seen what terrorism has done. But we face a different type of terrorism now, and a different type of world criminality, much of which is conducted through technology—for example, via mobile phone signals and satellites and on the internet. We now have a totally different perspective. We therefore need a different mechanism, and we need it to be proactive, which is what I believe the Bill will do. It is about being much more proactive.
With regard to bulk capabilities, I do not see what the problem is. We have to have trust and faith in the people doing that surveillance and collecting that intelligence. If we do not have trust and faith in them to have the bulk capabilities, why do we have trust and faith in them to do other things? I think there is a real challenge out there for the wider public to realise what is actually going on in society. I do not realise everything that is happening, and I know that the wider public do not. That is why I have to have trust in those people who are carrying out these actions.
I am also aware that there needs to be a balance; I accept that. There needs to be a balance for the public, to avoid snooping and going into too much detail with these investigatory powers. However, that must be balanced against the wider public information that is required to deal with terrorism, criminality and the fraudsters in our society. For me, the priority in that balance is to deal with those people effectively. If that means people using those investigatory measures to look into some of my details, so be it. If I have nothing to hide, then I have nothing to fear. I have no difficulty with people looking at the details that are held on me, and that should be the same for the wider public if they have nothing to hide. There must be real opportunities here for the Government and the people who are carrying out the investigatory work to deal with those details. That is why I think the amendments we are debating overstep the mark and would reduce the effectiveness of the people dealing with those causes. My speech has been brief, but I think that it has dealt with the amendments succinctly.
It is a privilege to speak in this debate, and indeed to have participated in the Committees that have considered the Bill: I was a member of the Joint Committee that scrutinised the draft Bill in February, and I was also a member of the Bill Committee earlier this year. I want to put on the record my appreciation of the Labour party’s constructive and fruitful contributions. This vital legislation has come far since its first iteration. It is an example of cross-party collaboration, so I am glad that party politics has been put aside in the name of national security. I urge all Members of the House to act in such a manner when we go through the Lobbies later today. However, judging by the words of Anne McLaughlin, I do not think that will be the case.
I rise to speak against amendment 309 and the others relating to bulk powers. The Scottish National party Members says that those powers are disproportionate, that they have no utility and that they are therefore unlawful. The amendments propose removing most of parts 6 and 7, from clause 119 onwards, and with them the three types of bulk power afforded to our security and intelligence services—bulk interception, bulk acquisition of communications data and bulk equipment interference. Those powers allow for the collection of large volumes of data and are set out in clause 119 onwards. Further warrants are required before those data can be examined. The purposes of such examination, which are set out in the Bill, may be to pursue more information about known suspects and their associates or to look for patterns of activity that may identify new suspects. Crucially, those powers are not afforded to law enforcement services.
I have a few points to make. First, these powers are founded on a clear and robust legal basis. They are all available to the agencies in existing legislation. Bulk interception is covered in section 20 of the Regulation of Investigatory Powers Act 2000. Bulk communications data are covered in section 94 of the Telecommunications Act 1984. Bulk equipment interference is covered in sections 5 and 7 of the Intelligence Services Act 1994. If amendment 390 and the others were passed today, we would remove the vital powers on which our agencies rely to do their jobs and we would prevent them from acting on those powers.
Secondly, these powers are not novel or a quirk of the modern age; they have been around for decades. Back in world war one, our intelligence services tracked the worldwide network of German cables under the sea by using secret sensors. They were able to intercept telegraph messages on a bulk basis, looking for patterns in communications and signals from the enemy.
When cables ended, radio surveillance was necessary to break codes during world war two. That involved bulk interception of data by hand. That work was famously based at room 40 of the Admiralty. Alan Turing and his team at Bletchley Park would never have cracked Enigma were it not for the bulk interception of cyphers. That advanced cryptanalysis changed the course of history by enabling the allies to pre-empt enemy planning, saving countless lives and shortening the war.
Does the hon. Lady agree that the difference is that, in the days of Bletchley Park, we were at war? We are not at war now. What we are concerned to do here is not to assist this country’s enemies, but to protect the privacy of the people who live here, who include her constituents.
I am astonished by the hon. and learned Lady’s suggestion that we are not at war. Paris, Brussels, Jakarta—I do not need to go on. We are engaged in a worldwide conflict against Daesh, and it is a threat to our security every day and every night.
My hon. Friend is right to draw attention to the terrorists, but let us not forget those who wish to wage war on the safety of our children through paedophilia and those who wish to wage war on the safety of women through people and sex trafficking. Those important elements are at the nub of the Bill, alongside terrorism, and we should not forget them.
I totally agree. We are waging a foreign policy and international security war, but we are also waging war on the online fraudsters and the paedophiles. We are in a constant state of threat, and it is easy to delude ourselves if we do not face that threat directly.
Big data are presented to us as a modern phenomenon, but they are actually something that has been used before and that is quite old, and they lie at the heart of our heritage on national security.
Thirdly, the utility of bulk powers is clear. In its report, the Joint Committee made that clear after taking extensive evidence. At paragraph 340, we reported:
“We are aware that the bulk powers are not a substitute for targeted intelligence, but believe that they are an additional resource. Furthermore, we believe that the security and intelligence agencies would not seek these powers if they did not believe they would be effective and that the fact that they have been operating for some time would give them the confidence to assess their merits.”
The Committee concluded:
“we are content that the safeguards proposed by the Home Office, buttressed by authorisation by Judicial Commissioners and oversight from the Investigatory Powers Commissioner will be sufficient to ensure that the bulk powers are used proportionately.”
Therefore, after taking evidence from all sides of the debate, and from all the coalitions involved in this discussion, that was the considered conclusion of the cross-party Committee.
The operational case was clearly made by the Government, who put forward clear examples of the utility of bulk powers. In 2014, analysis of bulk data uncovered a previously unknown individual who was in contact with Daesh-affiliated extremists in Syria. The investigation allowed our agents to identify that he was based overseas, which meant that they would have been unlikely to identify his patterns of movement without bulk information. They saw that he had recently travelled to a European country and that he was planning an attack. That led to their being able to disrupt that attack.
In 2013, our agents used analysis of patterns of behaviour among paedophiles online. Our agents identified a UK national who had been visiting a website that sold images of child sexual exploitation. That website was hosted in a country that rarely co-operated with UK law enforcement agencies, rendering bulk powers absolutely essential in that investigation too. That individual was prosecuted and sentenced.
Lastly, bulk interception has been used to detect cyber-attacks against the UK, including large-scale thefts of data and serious fraud by cyber-criminals and hostile individuals. That was done using electronic signatures, which are similar to electronic fingerprints. Using those signatures, the agencies can scan the technical detail of internet communications for evidence of incoming attacks on the UK. They have been able to identify known forms of computer malware and new forms of cyber-attack. Cyberspace is so large, and technological change is so rapid, that bulk interception is the only way that our professionals are able to monitor them.
In conclusion, the terrorists, the paedophiles and the serious fraudsters all scheme in cyberspace these days. Technology that empowers us also, sadly, empowers them. Yes, we want world-class encryption and privacy, but we also want world-class security. We should trust the skill and restraint of those unsung heroes—the analysts, the cryptographers, the mathematicians and the codebreakers—who have used their genius to safeguard our security and who have maintained confidence and discretion in relation to the secrets they have seen. We, as elected Members, have a duty to explain their role to the public, but we must also trust their judgment, which is subject to weighty safeguards, checks and balances. These people have proved their heroism in our moments of need throughout history. Let us not further tie their hands and just hope that our enemies, who are plotting night and day to destroy our societies, do not, by chance, hit us; instead, let us empower our agencies. That is why I will be voting against the amendments.
Like yesterday, I want to make my usual declaration that I am not a lawyer. It is always dangerous to follow lawyers, particularly the excellent contribution of my hon. Friend Suella Fernandes.
The amendments are clear, and I approach them from the same point of view of economic cybercrime and the importance of bulk data which I took in my comments on Second Reading and yesterday.
Understandably, Joanna Cherry raised concerns. I understand the resolve of her and her party on the central point about potentially using less targeted and less intrusive means, rather than bulk data. However, the Minister rightly made the point that there is a review, and he mentioned not only the necessity of the review, but that it would look at the necessity of these powers. If we consider the bulk powers in relation to economic cybercrime, their necessity becomes increasingly clear.
Over the past few years, our economy has been transformed by advances in technology, backed by encryption, with huge changes in how business is conducted. E-commerce is a reality not for the few but for the many. Given the parcels that arrive on my doorstep from my daughter every day, it is a huge thing that has reached everybody. More than that, there are new business opportunities for the growing IT sector. The use of big data, which my hon. Friend the Member for Fareham discussed in an historical context, is becoming increasingly evident in the context of the internet economy in looking at patterns of behaviour to determine new product design and identify new customer opportunities.
Equally, those opportunities are extended to economic cyber-criminals and terrorists. My hon. Friend Wendy Morton spoke about 95 cyber-attacks that have been identified through the use of bulk data. To choose one specific example, Apple has publicly accepted that the existing bulk data powers detected a vulnerability in its operating systems that, had it been exploited, would have affected the modification of the software being used on iPads and iPhones. It might have been used for all sorts of purposes, but one purpose could well have been the removal of data about bank accounts and other personal data. In the open world that we see at the moment, there are myriad threats, particularly in the dark web through password-protected information. Much of what happens is valid. The existence of encryption and anonymity protocols is a huge benefit to people, but criminals and terrorists have embraced this dark world as well. The power to acquire and analyse bulk data is therefore essential. My right hon. and learned Friend Mr Grieve said that we have to trust our security services. Those who have some experience have very clearly made the case that we should look at the whole issue of the existence of data harvesting.
I believe that the bulk data powers are essential because they allow for intelligence-gathering on overseas subjects of interest. They identify the “needle in the haystack” threats that my hon. Friend Tom Tugendhat talked about by identifying small displaced fragments of information, establishing the investigation of links between subjects of interest, understanding patterns of behaviour and communication methods, and looking at pieces of information that are acquired through new and varying sources. Bulk interception focuses on foreign intelligence. Criminality and terrorism is international, and it is therefore only right that we should have access to the data so that we can detect aspects of that criminality. The importance of bulk data acquisition is clear. Detailed and directed searches of bulk data communications can establish the fact that there is communications content between subjects of interest and reveal where attacks are planned. Bulk acquisition can help to direct where a warrant for more individual targeted data, such as interception, is essential and complementary. It also allows for searches of traces of activity where previously unknown suspects may be taking part in patterns of behaviour that are well known but not yet identified.
The Bill codifies and pulls together the powers that are already in place and puts in place some consistent safeguards. As my right hon. and learned Friend the Member for Beaconsfield said, none of these powers is unnecessary or disproportionate. Through the safeguards that they are putting in place in their amendments, the Government will ensure the review of valid lines of operation by Mr David Anderson. More importantly, a number of cases will involve not just the Secretary of State but the judicial commissioner—the double lock that several Members have spoken about. In terms of the content acquired under the warrant that was initially going to look out for people internationally, if those data then pertain to people in the UK, another, more targeted examination warrant is needed. That is another protection and additional safeguard that was not there before. The statutory code of practice that is being put in place secures the safeguards that we need.
Particularly with regard to economic cybercrime, I hope that when the House considers the amendments on bulk data powers proposed by the SNP, it will conclude that Mr Anderson’s review is appropriate. Many Government Members are making an overwhelming case that these powers are necessary. I hope that the vast majority of colleagues will join us in rejecting the amendments.
It is a pleasure to speak in this debate. On Second Reading, I said that much of this can be dealt with in two ways: first, by making quite a sensationalist argument; and secondly, by looking at what is actually being proposed. Many of these powers, particularly on bulk data, are already being used, but they are now being avowed, put into legislation, and given a consistent framework. The legislation that already regulates much of this activity is from an era well before smartphones and the idea that a phone could do anything other than take a phone call. This Bill provides a much more modern piece of legislation, subject to clear safeguards.
While I appreciate the sentiments expressed by Tom Elliott, I would always be tentative about using the argument, “If you have nothing to hide, you should have nothing to worry about.” I understand his point of view, certainly in terms of the bulk data powers, but we should always be rather careful about that being an argument for absolutely anyone being under surveillance at any time. That is not what is proposed in this Bill or these powers, given that there would need to be a warrant concerning how information is gathered.
It has been a pleasure to sit through the debate this afternoon, which has convinced me that the amendments are not justified and should be opposed. The speech given by Keir Starmer was thoughtful. He adopted a responsible position, as a member of the Opposition, in teasing out some of the legitimate concerns about the Bill and making some genuine progress in getting reassurances from the Minister. It was encouraging to see that level of exchange on things that genuinely cause some concern.
I did not find allusions to the idea that we will take every letter from the Post Office particularly helpful or constructive. Neither did I find helpful the suggestion that if the police kick a door in, it will no longer be secure. When the police conduct a raid, they secure the property again afterwards, so that was not a particularly good analogy. I would never cast aspersions on any area of the country in particular, but it was a novelty to get a lecture on heckling from SNP Members, who regularly give me a good old heckle during my speeches. It is quite strange to be talking without being heckled, although perhaps that will change at any moment. [Interruption.] Absolutely; I am only too happy to have it all the time. To be fair, some legitimate points have come out of one or two interventions, and we will need to work with Scottish law enforcement authorities on many of the powers that are exercised at a UK level.
A balance has to be struck. If we accept the amendments, we will remove the proposed powers completely. We will not modify them, make them slightly more secure or include extra protection. We will remove them completely, and I do not think that that is an appropriate step to take.
If the review shows that the bulk powers are not necessary, as the reviews in the USA showed, would the hon. Gentleman expect the powers to be taken out of the Bill?
I thank the hon. Lady for that helpful and interesting intervention. First of all, I would not want to prejudge the review. In addition, if the review came back to us and said that these powers were absolutely right, and that they were vital for national security, I hope that we could look forward to the SNP’s immediate and wholehearted support. I have a funny feeling that we might not, however.
Let us not prejudge the review. As the Front-Bench spokesmen touched on in their exchange at the Dispatch Box, it is highly unlikely that if the review stated that something specific was not needed, such a measure would be proceeded with. How do we know what an independent review will come back with? If I knew, and I stood here and said so, the next accusation would be that the review was not independent because we already knew what it would come out with. That point does not support making the amendments, which remove these powers completely.
I have been satisfied by the changes that have been made throughout the process, as the Bill has come out of Committee into Report. Judicial safeguards have been strengthened, and there is now a stronger and more consistent judicial test for review of these warrants. Powers have been increased, as have the offences that apply if someone misuses data. The Government are striking the right balance between what we need in order to get hold of data that could keep our country safe, and the legitimate expectation of privacy. If data have been collected that are of no use, they can be removed and they will not be used for purposes beyond the original basis of the warrant.
Ultimately, in any unjustified use of a warrant, the Secretary of State remains answerable to this Parliament. If, for example, someone decided for some unknown reason that it would make sense to go into detail about political or trade union affiliation, they would be answerable to this House, and a Secretary of State would be most unlikely to survive that.
Does the hon. Gentleman agree that the Secretary of State would be answerable to the House only if such activity came to light? It might not come to light.
I take on board the point that the hon. and learned Lady makes. However, as my right hon. and learned Friend Mr Grieve mentioned, the Intelligence and Security Committee would almost certainly oversee what was happening. As was touched on with the Minister, although the Committee is not involved in live intelligence work, it carries out reviews and, as discussed in relation to one of the probing amendments tabled by my right hon. and learned Friend, there is an understanding of an exchange of information. I think it is highly likely that such activity would come to light eventually. Clearly, a Secretary of State who had sanctioned that would know that, bluntly, their job was over.
The powers in the Bill are proportionate to their aims. They have appropriate safeguards, and more work will be done following the review. It is wrong to prejudge an independent review by constantly asking, “What happens if they say no?” To put it the other way around, what happens if they say yes? I do not think that the amendments are right at this stage. It is appropriate to retain these parts of the Bill, and that is certainly what I will vote to do.
I am honoured to take part in this debate, as I was to serve on the Bill Committee. I waited with much anticipation to hear my hon. Friend Simon Hoare quote Rudyard Kipling, but I am not sure that the quote was forthcoming. At first, I thought he might say, as Kipling did:
“A woman’s guess is much more accurate than a man’s certainty.”
On reflection, I thought perhaps he would say that,
“words are…the most powerful drug used by mankind.”
That would have been an apt quote in the context of the Bill, because communication can be revolutionary. We saw that with printing. Printing established the first mass medium for transmitting information, and some historians said that it played a role in the unrest that characterised the devastating thirty years war. They say that because although the doctrines set out by Luther in the 16th century were formulated two centuries earlier, they did not spread until the printing revolution.
We are now in the midst of a technological revolution. It has never been easier for terrorists to spread hatred and devastation across continents and recruit others to do so. Our security services need the tools to keep up with the technological developments.
I will deal with two matters: first, the background to the bulk powers and the reasons we need them; and secondly, the safeguards that exist in the Bill in respect of bulk powers.
The threats that we face are real. MI5 has said that the number of terrorism offences has risen by 35% since 2010. David Anderson, the independent reviewer of terrorism legislation, has said that at the time of his report, MI5 explained to him that it had
“disrupted two…plots by lone actors in the past nine months”.
It explained to him that,
“identifying such individuals is increasingly challenging, exacerbated by the current limitations in their technical capabilities”.
David Anderson was saying the same thing as the director of Europol, who in evidence to the Home Affairs Committee in January 2015 said:
“Given that a majority of those communications run by these networks are moving online, there is a security gap there.”
He thinks that that is
“one of the most pressing problems that police face across Europe.”
The bulk powers are an important part of our toolkit. The Home Office has said that the bulk capability has
“played a significant part in every major counter terrorism investigation of the last decade, including in each of the seven terrorist attack plots disrupted since…2014”.
There are safeguards in the Bill. I have counted at least seven in relation to bulk interception. Bulk interception relates only to overseas communications; it needs to be activated in the interests of national security, in cases of serious crime or in the interests of the economic wellbeing of the UK; a warrant can be issued only by the Secretary of State; it can be issued only if the action is necessary and proportionate; the action of the Secretary of State is reviewed by a judge; there are restrictions on copying, disseminating and retaining the material that is collected; and there is a panoply of offences for cases of misuse.
During the Bill’s passage we have heard about additional safeguards. The Home Secretary has committed to providing a further operational case for bulk powers. We saw yesterday, with the passing of new clause 5, that the decision on whether a bulk power is allowed will be subject to the additional safeguard of a test of whether the result could be achieved by less intrusive means.
Like printing, the internet is improving our ability to communicate. We need to give our security forces the means to keep pace with these developments, because a country that cannot protect its citizens provides no freedom at all.
I will speak to the amendments that stand in my name, amendments 153 to 160, which would remove clauses throughout the Bill that allow for the modification of bulk warrants. I will not press them because, like the rest of my amendments, they are probing amendments designed to tease out information from Ministers and ensure that there is further debate in the other place.
As I said in yesterday’s debate, I am not a lawyer, but in my humble opinion, major modifications of a warrant have the potential to completely change the key components of that warrant. I would like to understand at what point it becomes reasonable for a new warrant to be drafted.
I listened carefully to the Minister for Security yesterday and he said clearly to the House:
“I entirely accept the point that it would be completely unacceptable to have a robust system for issuing warrants and a less robust system for modifying them. Warranting has to be consistent throughout, and there can be no back-door way of weakening the process. That is not what the Government intend and not what we would allow.”—[Official Report,
That is very reassuring and greatly welcome. I look forward to seeing how the robust system for modifications will be introduced as the Bill progresses. I accept that the Government have tabled a number of amendments to try to help in this area and, as I said, I will not press any of my amendments to a vote.
On a final point, I am not a particular fan of the bulk powers in the Bill. I have listened with great interest to the debates today and yesterday, and to the points that the Chairman of the Intelligence and Security Committee has made about how bulk powers are used at the moment. In my view, surveillance should be targeted and the subjects of that activity clearly identified. That may well be naive in some senses, and I appreciate that there may be some areas where we require bulk powers, to identify the haystack, as has been said. But the carte blanche on bulk powers should not be the first resort; it should always be the last resort.
There has been a lot of talk about postbags, and whether the country is at war and so on. The debate in general has been very conciliatory and Members on all sides have tried to get a Bill that, at the start of this Parliament, was very difficult to a place where most people can stomach most elements of it. I am still not in a position where I feel I can support it, but, realistically, a lot of people now feel it has been greatly improved and there is a lot of trust in the Minister for Security and the Solicitor General because of their work in listening to people and accepting amendments.
I am also very grateful that the Home Secretary has tried to alleviate concerns and agreed to an independent review of the bulk powers in the Bill, led by David Anderson, the independent reviewer of terrorism legislation. I look forward to his recommendations and what comes forward from them.
It is a pleasure to serve under your chairmanship, Madam Deputy Speaker, particularly as you are appropriately attired in something that may indeed be collecting bulk data.
We are talking about amendments that would fundamentally undermine the very Bill that we have come to support, and would change the very tone of the debate. I speak very much in support of my right hon. and learned Friend Mr Grieve, who has gone through various aspects in quite significant detail, explaining to us time and again why the controls over the collection of bulk data are entirely appropriate. I also speak in support of Keir Starmer, who has been through the Bill with the eye he has as a former Director of Public Prosecutions, seeing both the loopholes and the potential abuses, and covering them off.
I also speak in support of the Solicitor General, who has done exactly the same for us, and the Minister for Security, who has brought forward a Bill that answers the very questions that this state must always ask itself: how we guard our citizens and keep them safe while also keeping them free. This Bill does exactly that.
My first encounter with bulk data collection came in the constituency of my right hon. and learned Friend the Member for Beaconsfield, where the Defence School of Languages was sited. I was going through vast amounts of Arabic text. Although I was doing so in a most junior and rather ineffective manner, I learned how it was done properly. I was only a student; the masters have learned from that great Scots mathematician John Napier, who in the 17th century developed the logarithm, and whose lesson to us all, through mathematics, is how to build the pattern, understand the shape and break the code. That is why bulk data matter. We cannot build patterns without data and without volume, and we cannot make shapes without substance.
The bulk data are not themselves intelligence. As an intelligence officer in Her Majesty’s armed forces I was very proud to work on intelligence. It is not the raw product. It is what is analysed, what is useful and what decisions can be made from. That is not the bulk or the mass—the intelligence is the product. I am sorry to say that there appears to be a slight misunderstanding as to what is the intrusion. The intrusion is surely not the clay from which the form is made, but only the detail on the individual that could be used against them. The Bill does not allow that without the tightest of safeguards, both from former judges and from serving Ministers.
Is the hon. Gentleman aware that once the bulk data are collected by warrant there is an intermediate stage in which they are analysed in the way that he describes, but there is absolutely no legal regulation of how that analysis is carried out? That is our objection. How can I make it any clearer?
The hon. and learned Lady speaks with her usual eloquence, but I am afraid I am going to refer her to schedule 4, part 1, which is a table containing a list of authorities and officers. The people who analyse are listed there. They are inspectors and superintendents of the Prison Service; lieutenant commanders and commanders of the Royal Navy; majors and, as in my case, very junior lieutenant colonels of the Army; squadron leaders and wing commanders; general duties officers of grade 4 and above; and Secret Intelligence Service officers.
There is a list—a catalogue—in schedule 4 of people in our country, men and women across these islands, whom we have trusted with the intelligence procurement for our nation to keep us safe. It is they who will be doing the analysis, under supervision. It is only when they have got something that is worth taking that they will be allowed to use it. That is the provision we are talking about and the type of supervision. People will not be allowed simply to collect and analyse. They will be allowed to collect and analyse only under warrant. That is absolutely essential.
I repeat again: does the hon. Gentleman accept that no warrant is required to carry out the initial computer analysis? Does he understand that that is what those of us who were on the Bill Committee and who have worked on the Bill for months uncovered? Unlike some of his colleagues, who shout from a sedentary position that we do not understand this, we do understand it—we have been analysing it for months. Does he understand that there is no regulation by warrant of the analysis carried out by the individuals that he describes? That is the nub of the matter.
The hon. and learned Lady is, I am afraid, picking on a hole in the Bill that is simply not there. [Interruption.] It is not there because the collection of bulk data is entirely categorised by the Bill. The Bill supervises entirely the ability to collect bulk data. The analysis is then done by trusted officers of the state. To accuse them of anything other than the highest forms of integrity would be an extraordinary statement to make in the House.
No, I am afraid I will not. I have given way enough.
It would be baffling to look at that list and accuse people of such integrity of having anything other than the best intentions. The important thing, however, is that we not only trust them, but supervise them. We trust but verify, as the old diplomatic phrase goes. The verification comes from the commissioners, which were listed yesterday, with their explanations, which Mr Howarth was talking about yesterday. The supervision also comes from the Minister, and ultimately and eventually from the House.
I am therefore reassured that the Bill is not a snoopers charter or a grubby attempt to procure the information of the private citizens of these islands. On the contrary, this is an extremely effective Bill. It has been through months of discussion, and hours of detailed and deliberate interrogation. It has satisfied the extremely demanding standards of the Chair of the Intelligence and Security Committee, and the exemplary work of the former Director of Public Prosecutions, the hon. and learned Member for Holborn and St Pancras, whom I am pleased to see on the Opposition Front Bench.
The Bill comes to the House as a nigh-on complete work. Even so, the Government have considered and accepted amendments and further changes. We have not only a final but a polished copy of a Bill that is designed to do exactly what this country vitally needs. It does exactly what the Government are here to do. It keeps the people of these islands safe, whatever their background, origins, occupation or duties.
Fundamentally, it also protects the freedoms that we enjoy. Those freedoms are not, as the Americans put it, free. They are fought for every day, by the people on the list in schedule 4 that I have identified—our armed forces and our intelligence services. That is why I am so proud to be here today to speak up for the intelligence services who have asked for those powers; for the armed forces who require them; for the police who use them; and most importantly for the Government and, in this case, the official Opposition, who have so carefully crafted a legal document that will hold water today and for long into the future.
What an interesting and important debate we have had. This group of amendments addresses bulk powers. It is right that we should consider these matters in considerable detail because, as has been said by Members from across the Chamber, they are matters of profound importance and public concern. The public want to be assured that the safeguards we put in place for these vital powers are right, adequate, properly considered and properly reviewed. Many hon. Members have contributed to the debate. Tellingly, Gavin Robinson, my hon. Friend Seema Kennedy and Tom Elliott spoke with personal experience of terror.
We all know the scale and nature of the threat we face, but though we know it, that does not mean that it should not be explored again and again in this House. For to explore it is to realise what we need to counter it. That is precisely what was done in speeches by hon. Members from all sides of the House. The threat is real, imminent and unprecedented in character. Our opponents are increasingly adaptable and flexible. Although their aims may be barbarically archaic, their means are up to date. They are entirely modern. They are prepared to use every device and every kind of communications medium to go about their wicked work, which is precisely why the Bill does what it does, why bulk powers matter and why the amendments that stand in the name of Joanna Cherry, which I will deal with in a moment, are not ones I can accept—that will not come as any surprise to her, by the way.
An argument has been made that the operational case for bulk powers needs to be fleshed out more fully. Hon. Members will know that the Government did just that when they published the operational case for bulk. That informed the Committee consideration, which has been referred to several times during our short debate today, and has been a helpful way of establishing why bulk powers really count.
We are dealing with powers that have played a significant part in every major counterterrorism investigation over the past decade, including in each of the seven terror attacks disrupted since November 2014. These powers enabled over 90% of the UK’s targeted military operations during the campaign in south Afghanistan, and they have been essential to identifying 95% of the cyberattacks on people and businesses in the UK discovered by the security and intelligence agencies over the past six months. My hon. Friend Tom Tugendhat is right to say that this is about real life operational necessity. I congratulate my hon. Friend Suella Fernandes on the role she played both on the Joint Committee and the Bill Committee. The threat she described so vividly is, as she said, worldwide and of a kind that would allow us to do nothing other than take the necessary steps to counter it in the defence of our freedoms.
I was perhaps a little unkind to Anne McLaughlin who spoke for the Scottish National party, although I make no apology for reprising what I said. Frankly, her contribution missed the point. The point is not whether the powers are necessary, it is whether we can put in place sufficient safeguards to ensure that they are used only when, how and where they should be. That was the point made by the Chair of the ISC and by the ISC when it had the chance to consider these matters. As the Chair of the ISC said, it then also had a chance to reconsider them, having been given further information of a secure kind—that is its function after all—and its members were persuaded that the powers were indeed necessary. It is right to have an informed, thoughtful debate about safeguards, checks and balances, and constraints, but we cannot have a grown-up debate about whether the powers count, because they are not new; they are existing powers. The Bill simply introduces additional safeguards, which I would have thought any reasonable Member would welcome.
I gently suggest to the Minister that, as we have seen already this afternoon, patronising those of us who have taken the trouble to scrutinise the Bill, speak on it in detail and try to understand it does not get us anywhere. If the Government’s operational case for investigatory powers is so convincing and overwhelming, why have they now conceded the need for an independent review?
Let me repeat two things I said yesterday. First, the members of the Bill Committee all made a useful contribution, and the hon. and learned Lady is of course one of them. Secondly, the Government, in wanting to get the Bill right, are prepared to listen and learn, as Governments should be. I have been in the House for a number of years, and there has not been a single piece of legislation that has not been better for having received proper scrutiny, that has not altered during its passage and that has not been a better Act as a result of consideration by the House. We should be proud of that. I was simply saying that to focus on some of the detail around safeguards seems to be absolutely right, whereas the debate about the necessity of the powers has already been had. I think there is a general acceptance that the powers are necessary.
I do not know if the hon. and learned Lady was listening, but I read out three things: 90% of operations in Afghanistan, 95% of cyber-attacks, every single major counter-terrorism investigation over the last decade. I cannot be plainer about the necessity, but because the Government are so determined to ensure adequate safeguards, we have agreed to a further review. As Keir Starmer, generously said, the review is to be completed in exactly the form that emerged as a result of the discussions between the Opposition and the Government—an illustration of the House behaving at its best. The review, chaired by David Anderson, will be able to look not just at utility—the point I made to the Chair of the ISC—but at necessity, and it will be independent.
So the Minister is saying that all these counter-terrorism activities were helped by bulk powers, but now we are going to have a review to see whether that is true. As I said, there were two independent reviews in the US. The NSA argued—much as he is arguing now—that all 54 counter-terrorism events had relied on bulk powers, but both independent committees said, “Absolutely not. Not at all. There were other techniques.” What will he do if this review finds the same as the two reviews in the US? Will he then remove the bulk powers from the Bill?
It is a bit rich to say, “We want a review and we want the Government to listen and agree”, and then, when they do listen and agree, to say, “You haven’t agreed enough or soon enough.” I accept that the review should be entirely independent—I made that clear in my letter to the shadow Minister. I accept that it will be for David Anderson to decide exactly how he goes about his work. I have further accepted today that he should look at international comparisons, which I think is perfectly reasonable. It will be for David Anderson to decide whether he does that; if he wants to, that will certainly be within his scope. This will be an independent review, with as much information as possible made public, and it will be able to range, in the way the hon. Lady has described, across these powers.
I have no doubt at all that the review done by David Anderson will be valuable and I hope it will also inform the House about how bulk powers work. In that context—and because I have picked this up—there has been a suggestion that the examination of material under a bulk warrant is somehow a free-for-all that is left to the discretion of the official, and it plainly is not. It is subject to the operational purposes in clause 125, and if they are departed from, the official concerned would be acting unlawfully.
My hon. and learned Friend Lucy Frazer made the point, which my right hon. and learned Friend has now amplified, that these powers are subject to a range of safeguards. Let me be clear: the analysis of data intercepted in bulk is subject to automated filtering to ensure that data not of intelligence value are automatically discarded. This is a safeguard set out in the code of practice. There are rigorous safeguards in the Bill for examination, and the suggestion that there are not is, frankly, simply wrong and based on a confusion between the collection of material, as my right hon. and learned Friend has implied, and its examination.
It is right, therefore, that we emphasise—as my hon. and learned Friend, who is about to intervene on me, did—that the safeguards are clearly set out both on the face of the Bill and in the supporting material; and, indeed, that they have evolved as a result of the scrutiny we enjoyed in Committee and through the pre-legislative scrutiny.
My right hon. Friend is responding to a point, which the SNP has made on a number of occasions, about the US. Does he, like me, remember when Joanna Cherry put that point to David Anderson on the very first day of our Committee? He said:
“It is difficult, of course, to read across from section 215 in the US to what we have here, which is rather different…I cannot speak for the US…different power, different circumstances”.––[Official Report, Investigatory Powers Public Bill Committee,
My hon. and learned Friend, with an assiduity that is matched by her intellect, has identified the fundamental flaw in the argument of our critics, which is that those who have looked at these matters most carefully have concluded both that these powers are necessary and that the safeguards we are introducing in this Bill—and by the way, these powers have existed for a long time; this is the first chance we have had to debate the legislative safeguards—are not only numerous but rigorous, in the way she has described. That was precisely the point that David Anderson made.
However, the hon. and learned Member for Holborn and St Pancras, in Committee and since, has said we need to do more. There are two ways for Governments to handle Oppositions, just as there are two ways for Oppositions to handle Governments: we can either do it antagonistically or we can do it co-operatively. The way I go about my work is inspired perhaps by Samuel Johnson—the great Dr Johnson, the man who said, by the way, that the devil was the first Whig, and I agree with him on that. Samuel Johnson said:
“Life cannot subsist in society but by reciprocal concessions.”
This Bill has been a model of that kind of reciprocal approach. And by the way, these concessions have not been climbdowns. They have not been given reluctantly, they have not been turnarounds and they have not been in any sense wrung out of the Government. Nevertheless, they have been given on the basis of the proper pressure exerted by the hon. and learned Member for Holborn and St Pancras and other hon. Members for the Government to do more. Good government is about listening and learning, as I said yesterday, and that is precisely what we have done in respect of this review. I look forward to it and I anticipate its outcome with the same kind of interest that I know the hon. and learned Gentleman and others share.
I thank the hon. and learned Gentleman for his support. I know that the Government Whips will take careful note of it. [Laughter.]
We have debated at some length, today and previously, the amendments tabled by the Chairman of the Intelligence and Security Committee, my right hon. and learned Friend Mr Grieve, which contain a number of proposals. I am grateful for his contribution to the debate, generally and, more specifically, today. I am pleased that my right hon. and learned Friend has explained the purposes behind new clause 3 and amendment 24. The Government certainly accept in principle the argument that we should provide further restrictions on the use of class bulk personal dataset warrants. We also accept much of the detail contained in the ISC’s draft clause, including reference to the need for restrictions relating to sensitive personal data.
I have dealt with the issue about which—as my right hon. and learned Friend knows—we are least happy, namely the timescale within which these matters are reported to the ISC. I think that more could be done, and I think that a protocol of the kind that my right hon. and learned Friend described in his brief contribution might provide a way of doing it. We will take that suggestion away and do further work, in the spirit to which he referred.
My hon. Friend Stephen McPartland, who is no longer present but who is an old friend of mine, raised issues relating to modifications. I want to make it absolutely clear that in all modifications, a warrant will require the same double lock. Yesterday and in Committee, the hon. and learned Member for Holborn and St Pancras argued that a double lock that applies when a warrant is originally sought must apply to modifications. I entirely accept that point. My hon. Friend made it again today, and I can assure him that the double lock will apply to bulk powers as well.
The hon. and learned Member for Holborn and St Pancras raised the issue of medical records. It is right for particularly sensitive data to be handled in a particularly sensitive way, and I am pleased that he Gentleman noted the Government amendment which, I think, deals with that. We will consider the technical points that he raised about social care and mental health, but I am confident that we can find a way forward.
I do not want to delay the House unduly—as you know, Madam Deputy Speaker, that is not my habit, and we have other important matters to consider—but I do want to say that one of my regrets is that we have not had more Proust today, or during our consideration of the Bill more generally. Marcel Proust said:
“The only real voyage of discovery consists not in seeking new landscapes, but in having new eyes”.
The consideration of this Bill has been extensive. Three reports before its publication in draft, three parliamentary Committees once the draft Bill was published, and a very thorough examination in Committee following Second Reading have allowed us to have “new eyes”, and to see more clearly both the need to secure our people and counter the very real threats that we face, and the need to deal with the checks and balances which ensure that the powers we give those who are missioned to keep us safe are used proportionately, and only where necessary. Achieving that balance—a balance that lies at the heart of the Bill—has required the House to take a balanced approach. As I said a few moments ago, Parliament is at its best when it puts national interest beyond party interest, and this is common ground for the common good.
I have to say that the Minister’s tone does not really reflect that which some of his hon. Friends used when addressing this debate. I have felt completely patronised at times today, because people on the Government Benches have been shouting, “You don’t understand this Bill.” Just because we take a different view or come at things from a different angle does not mean that we do not understand. Sir Alan Duncan shakes his head, but it was offensive to have to listen to that nonsense, particularly when it was directed at my hon. and learned Friend Joanna Cherry, who is a learned QC and certainly does know what she is talking about.
May I just say to the hon. Lady and her hon. Friends that there was no intention whatsoever to be patronising? If she wants to take it in that vein, may I apologise and do so graciously? Our view is simply that bulk interception and bulk powers involve a poor use of the word “bulk”. The intrusion on the individual compared with the collective gathering of information is misunderstood in many cases. That is our point, and I hope that she can accept it in that spirit.
I most certainly will accept the right hon. Gentleman’s apology, but I reiterate that just because we come at this from a different angle does not mean that we are wrong. These are our opinions, and Government Members have their opinions.
I also want to mention Simon Hoare, who was utterly offensive in his suggestion that we in the SNP quarter—[Interruption.] And the Lib Dem quarter, and everybody else on this side. The hon. Gentleman suggested that we do not care about terrorism or about people affected by paedophilia. Of course we care! He suggests that we do not just because we do not believe that this is the way to go about tackling those things, but we are not the only ones who believe that. It was really, truly offensive and below the belt, and I think the hon. Gentleman should apologise. I will accept it in writing if he is not going to do it here.
I’ll wait a long time, will I? Okay.
To sum up, we will be pressing the amendment because we have heard nothing today that reassures us. The legislative process in the House of Commons is coming to an end, but how can we be expected to vote when there is to be a review? On that note, I appeal to dear and learned friends in the Labour party to think again about trusting this lot with the review, because not one Government Member—I know that the Labour party has not done this either—will say what they will do if the independent review shows that the bulk powers are unnecessary, as has been shown in the United States—[Interruption.] No, I gave the Minister an opportunity, but instead of answering the question, he took an intervention from the Government Benches. He has not said what the Government will do if the review shows what he is not expecting it to show.
Question put, That the amendment be made.
The House divided:
Ayes 66, Noes 285.
Question accordingly negatived.
More than three hours having elapsed since the commencement of proceedings on consideration, the proceedings were interrupted (Programme Order,
The Deputy Speaker put forthwith the Questions necessary for the disposal of the business to be concluded at that time (