Persons who may apply for issue of warrant

Investigatory Powers Bill – in the House of Commons at 4:25 pm on 7th June 2016.

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“Each of the following organisations may appoint a designated senior officer responsible for applying for a communications data retention warrant—

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

(b) the Metropolitan Police Force,

(c) the City of London Police Force,

(d) the Police Service of Scotland,

(e) the Police Service of Northern Ireland,

(f) the British Transport Police Force,

(g) the Ministry of Defence Police,

(h) the Royal Navy Police,

(i) the Royal Military Police,

(j) the Royal Air Force Police,

(k) the Security Service,

(l) the Secret Intelligence Service,

(m) GCHQ, and

(n)the National Crime Agency.” —(Stephen McPartland.)

This new Clause will restrict access to communications data to the Intelligence Agencies and law enforcement only.

Brought up, and read the First time.

Photo of Stephen McPartland Stephen McPartland Conservative, Stevenage

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

Photo of Eleanor Laing Eleanor Laing Deputy Speaker (First Deputy Chairman of Ways and Means), First Deputy Chairman of Ways and Means

With this it will be convenient to discuss the following:

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

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

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

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

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

See amendment 327.

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

See amendment 327.

Amendment 322, page 42, line 26, leave out

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

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

See amendment 327.

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

See amendment 327.

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

This amendment inserts a higher threshold for accessing communications data.

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

This amendment inserts a higher threshold for accessing communications data.

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

See amendment 327.

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

This amendment inserts a higher threshold for accessing communications data.

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

This amendment inserts a higher threshold for accessing communications data.

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

This amendment inserts a higher threshold for accessing communications data.

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

This amendment inserts a higher threshold for accessing communications data.

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

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

See amendment 327.

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

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

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

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

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

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

See amendment 327.

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

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

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

(i) the opportunity is rare,

(ii) the time to act is short, and

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

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

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

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

An amendment to clarify the description of internet connection records.

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

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

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

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

See amendment 163.

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

See amendment 163.

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

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

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

See amendment 163.

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

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

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

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

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

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

See amendment 163.

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

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

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

“shall obtain the prior approval of”.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Government amendments 49 and 50.

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

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

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

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

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

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

Government amendments 51 and 52.

Amendment 300, in clause 73, page 58, line 33, at end insert—

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

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

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

New clause 26—Retention of communications data—

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

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

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

See amendment 350.

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

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

See amendment 350.

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

See amendment 350.

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

“(1A) A notice may be considered necessary only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed in relation to the grounds falling within section 53(7).”

See amendment 350.

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

See amendment 350.

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

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

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

An amendment to restrict the retention of internet connection records.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

See amendment 350.

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

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

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

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

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

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

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

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

(a) bulk interception,

(b) bulk acquisition,

(c) bulk equipment interference, and

(d) bulk personal datasets.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(a) the case is one of great emergency,

(b) immediate action is necessary, and

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

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

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

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

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

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

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

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

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

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

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

(9) In this section—

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

(b) ‘information identifying a source’ includes—

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

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

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

(iv) personal data of journalists and their employers related to their professional work; in so far as this is likely to lead to the identification of a source.

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

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

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

See new clause 17.

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

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

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

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

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

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

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

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

(a) an Advocate

(b) a Barrister

(c) a Solicitor.”

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

Photo of Stephen McPartland Stephen McPartland Conservative, Stevenage

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

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

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

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

Photo of Robert Buckland Robert Buckland The Solicitor-General

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

Photo of Stephen McPartland Stephen McPartland Conservative, Stevenage

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

Amendments 161 to 172 deal with the filtering arrangements in the Bill. The Home Office describes the request filter as a safeguard designed to reduce the collateral intrusion produced in searching for small, specific pieces of information in a large dataset. However, its very nature means that the request filter allows huge automated searches of very large datasets, which is a highly intrusive search facility. The Bill at present contains no restrictions, so any organisation listed in schedule 4, such as the Food Standards Agency and the Gambling Commission, will have access to the request filter. My amendments try to restrict the use of the filter to exceptional circumstances, placing it under the control of the judicial commissioner, like other bulk powers, and providing greater scrutiny of how it is used and by which organisations.

The fact that we have almost no information on who will be in charge of building the request filter, other than that it will be operated by a third party on behalf of the Secretary of State, fills me with great fear. It makes me question whether the request filter will ever exist in reality, because Governments of all colours throughout the ages have been rubbish at commissioning and running large IT projects and delivering them on time, on budget and in working order.

The request filter means that some third party organisation builds a system and collects data from the communications service providers. It then analyses the data inside that system and passes that analysis over to the police. The police are not given direct access to the information, which I think the Minister has referred to as a safeguard, but I wonder why the police are not allowed access to the information, whereas a third party organisation is allowed. We do not know who those third parties are. The whole filtering process needs to be looked into and restrictions placed on it if it is not removed from the Bill completely, because we do not know enough about the mechanics of the system—who is going to build it or pay for it, how it is to be operated and what safeguards will be in place? For me, that is a huge problem.

The last group of amendments in my name arises from the fact that the Bill deals with national security and changing technological capabilities, so it should be subject to greater scrutiny by both Houses. New clause 17 and amendment 206 call for an independent review to take place within a couple years. I know that there have been numerous calls in the House for procedures to take place every 12 months or every two or three years, but under changing technological circumstances there are technologically- minded people in the House and outside who can already get round some of the provisions of the Bill. We are legislating only to catch up in some areas.

In other respects it will be difficult for the Bill to be made to work. On internet protocol 4 there is no possibility of identifying an individual IP address. For someone who is driving round the M25 and using a mobile phone, the IP address is the individual telecommunications towers as they move around the M25, so it would be impossible to identify what they were doing as long as they stayed mobile. Internet protocol 6, however, provides an IP address for each individual device. Internet protocol 6 is a long way off, so it seems to me that some of the provisions will not work technically. It is already possible to get around them. They are based on advances that may occur in 10 or 15 years’ time, but the technology will have moved forward so quickly that the provisions probably will not catch up then anyway.

There are a number of Tor browsers, as they are called, which allow an IP address to be masked. People can download a simple app on their iPhone or other device which, when they access the internet, will show their IP address as based in Munich or somewhere else, not in the UK. It is very simple to get round such details.

Finally, I understand the effort that Ministers have made to work with the Opposition and concerned Members in all parts of the House to try to ensure that the Bill gets on to the statute book by December. I appreciate that there is a sunset clause and that we must do something—we cannot do nothing. It is horrible that we live in a society in which these situations are emerging. For me, these are probing amendments designed to highlight specific areas of concern that need further scrutiny. I hope that they may be of interest to Members of the House of Lords and that they will consider the issues I have spoken about regarding the filter. I hope that the Government will take the amendments in the spirit with which they are offered, which is as probing amendments; not to be pushed to a vote, but as the basis for more negotiation.

Photo of Andy Burnham Andy Burnham Shadow Home Secretary 4:30 pm, 7th June 2016

This final group of amendments covers three of the seven substantial concerns that I set out in a letter to the Home Secretary after Second Reading: first, protection of journalistic material and sources; secondly, the definition of internet connection records, and the threshold for their use; and thirdly, the independent review of the operational case for bulk powers. Let me take each in turn.

I will deal with journalistic material and the protection of sources briefly, as the matter was debated at length yesterday. Protecting the ability of whistleblowers in private or public sector organisations to speak to journalists without fear of identification is one of the important checks and balances on state and corporate power. Many journalists and the National Union of Journalists have real concerns that clause 68 weakens the existing protections in law for journalistic sources operated under the Police and Criminal Evidence Act 1984. They point to an incident in 2014 when police secretly accessed the mobile phone records and call data from a national newspaper, bypassing the PACE protections. Rightly, there are now worries that that has set a new precedent. Furthermore, they feel that the Bill might be about to enshrine that new precedent in law.

Under PACE, journalists are notified when the authorities want to access material and sources, so that they have the ability to challenge that in open court. The worry is that the Bill removes those protections. The National Union of Journalists makes the point that there is no real difference between physical notebooks and communications data held electronically; both could reveal the identity of a source. Labour shares those concerns; they were ably raised by my hon. and learned Friend Keir Starmer in Committee, and they were also raised on Second Reading.

The Government have gone some way towards addressing our concerns, tabling amendments 51 and 52, which we welcome. The amendments will ensure that judicial commissioners, when considering a warrant, must give weight to the overriding public interest in a warrant being granted for the use of investigatory powers against journalists and that they must ensure that that is in keeping with wider and more general privacy points. That is a significant move. It takes points that would otherwise have been in codes underpinning the Bill and puts them on the face of the Bill.

Labour will accept these amendments, but we will do so while being clear that they do not go far enough. Indeed, they cover only the award of warrants, not general access to communications data. We therefore support the amendments tabled by my right hon. and learned Friend Ms Harman on behalf of the Joint Committee on Human Rights—amendments 143 to 145—which seek to extend the same level of protection to journalists as is currently the case under PACE.

We accept that this is a difficult area to get right, particularly when the definition of who is and who is not a journalist is changing in the digital world. We accept the difficulty facing Ministers. However, we think that the general principle, enshrined in PACE, of allowing journalists to challenge in open court any attempt to access material that could reveal sources is a good one. It would allow those public interest arguments to be heard and tested in court. We hope that the Government will today commit to working with us and the NUJ to find a wording that in the end does the job.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

The right hon. Gentleman has made his case in a measured way. He acknowledges that it is difficult to define journalists because the modern media include many bloggers who are part time, occasional and so forth. However, he is absolutely right that a solution needs to be found, and I am happy to say that we will look at this issue with him and others in greater detail as the Bill enjoys its passage through this House and the other place.

Photo of Andy Burnham Andy Burnham Shadow Home Secretary

I am grateful for what the Minister has said. It must be possible to find a definition that excludes casual or voluntary bloggers from individuals who make their living from writing or who work for organisations regulated by the Independent Press Standards Organisation or other regulators.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

I and my hon. Friend Gavin Newlands have added our names to the amendments tabled to clause 68 by Ms Harman, and we will give them our support if they are pushed to a vote. However, does the right hon. Gentleman agree that it is regrettable that the opportunity has been lost at this stage to have uniform protection across the face of the Bill for communications with journalists, lawyers and parliamentarians?

Photo of Andy Burnham Andy Burnham Shadow Home Secretary

I made a similar point yesterday, when I said that it would have been helpful had we made more progress on these issues, and perhaps I can push the Minister on this, because I know he is meeting the Law Society and the Bar Council later this week.

The truth is that this raises quite complex issues. With all three professions, a slightly different set of issues arises, and we should not rush to legislate. We should move on the basis that we know what we are trying to achieve, which is to protect the ability of the public to go to an MP without fearing that there is any compromise on a private discussion. We want legal privilege—the privilege that belongs to the client—to be protected. We also want journalists to be able to protect their sources, as they want to do. If we work with the Government on that basis in good faith, I believe that we will be able to come to the right position.

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs)

May I, through the right hon. Gentleman, tell the Minister that, when he says he will speak to people in the House and others, those others really must include the National Union of Journalists?

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs)

Those are the people who will be better qualified than anyone else to define what a journalist is, and they do have something of a pedigree—going back to 1936—in terms of the definitions.

Photo of Andy Burnham Andy Burnham Shadow Home Secretary

The right hon. Gentleman makes an important point, which I saw was accepted on the Government Front Bench. He has tabled a detailed amendment on this issue, and he is right to do so and to press the Government on this. All of us have to apply our minds to getting these definitions right for all three professions. There is still an open question, as we discussed yesterday, about Members of Parliament and the right level of scrutiny for any warrant against them, but there is equally more work to do on other fronts.

We should not pass a Bill that weakens these professions—as I said yesterday, this is not about preserving the special status of the individuals who work in them, but about protecting the public and their ability to raise issues through those individuals.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

I have committed to writing to the NUJ and the Society of Editors, which I have met already. I have been waiting to do so until today’s debate so that my letter can be informed by it. However, I will happily write to them tomorrow, very much on the basis of taking these matters forward.

Photo of Andy Burnham Andy Burnham Shadow Home Secretary

I very much appreciate what the Minister has said. I think that any colleague in any part of the House who has read the NUJ’s briefing for today’s debate will struggle to disagree with anything in it. If we want this Bill to leave Parliament with a high degree of consensus across society, it is right that these professional bodies feel, in the end, that the Bill is something they can support. That is a prize worth working for. Given his comments, I get the feeling that the Minister agrees.

Let me turn to the area where I have the greatest anxiety, and on which I am looking for considerable comfort from the Government—internet connection records. Stephen McPartland made some strong points about the bodies that can access them, and I would certainly want to support him in his endeavours in that direction. I want to raise issues relating to the definition of internet connection records and the threshold for their use.

When the Home Secretary introduced her draft Bill in a statement to this House in November, she correctly said that ICRs would cover sites visited, not pages looked at, but then went on to say that the ICR

“is simply the modern equivalent of an itemised phone bill.”—[Official Report, 4 November 2015;
Vol. 601, c. 970.]

In my view, that comparison is neither helpful nor accurate. If a person’s itemised phone bill were to be leaked, it would not make a great deal of sense, and to most eyes it would simply be a jumble of numbers, but if an ICR were to be leaked, it would reveal a lot more personal information that could potentially be used against people. ICRs therefore need a higher standard of protection than ordinary communications data.

I recognise that in a world where voice conversations over the phone are becoming less common, there is a need to move in this direction and allow the authorities to hold different forms of information. In order to deal with the changing nature of crime, police and security services need to have new tools at their disposal, and clearly the ICR is one such tool. It is also the case that information of this kind can prove vital in locating missing children in the crucial early hours of their disappearance. However, there is still a lack of clarity about what exactly can and cannot be included in an ICR, and a risk that if that is not clearly spelled out, there could be drift over the years—they could change and mutate, and become much intrusive. As they are a new construct, it would help to build public trust if the Bill contained a clear definition of ICRs and what they can include.

The Government’s position is that the draft code of practice makes it clear that URLs are not communications data and therefore, by definition, cannot be included. That is helpful to some degree, but it is not the same as having a single, clear definition in one place in the Bill. Our amendment 293 simply states that an ICR cannot include content. That is consistent with the position that Ministers have outlined throughout the Bill’s passage. Such an amendment would remove any lingering ambiguity. I urge the Government to accept it, or at least to commit to tabling one of their own that achieves the same thing.

Having made that point about the definition of internet connection records, I now wish to make it clear that my concern is less with the holding of data and more with the criteria under which they can be accessed. In general, communications data should not be capable of being accessed to investigate any crime, regardless of how serious the offence is and the impact on victims. For instance, we cannot justify intrusive powers for a minor driving offence, low-level antisocial behaviour or failure to pay a fine, but that, in effect, is what the Bill as drafted permits. There should be a clear and simple threshold for the use of communications data—namely, serious crime punishable by at least six months in prison, or crime where significant mental or physical harm could be caused. As I said, given the more intrusive nature of internet connection records, the threshold for their use should be even higher than that.

I understand the complexity inherent in getting the definition of that threshold right. I would not wish to rule out the use of internet connection records for cases involving online grooming, the sending of sexual communications to a child, online fraud or the location of a missing or suicidal child. I think we would all say that internet connection records should be used for those purposes, as the Home Secretary said in her response to my letter, but we need to agree a definition of serious crime that captures those activities without widening the net too much and allowing ICRs to be used in connection with the investigation of much more trivial offences.

Today, I am looking for an agreement in principle with the spirit of what I am saying: that there should be a general serious crime test for comms data and a higher threshold on top of that for the use of internet connection records. I will listen carefully to what the Minister has to say on that, but unless I am satisfied, I am prepared to press our more general amendments to a vote.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security) 4:45 pm, 7th June 2016

I am sorry to interrupt the right hon. Gentleman in his flow. I have listened carefully to what he has said, and it has been the subject of discussion, as he knows, in Committee and elsewhere. I do not want to anticipate my hon. and learned Friend the Solicitor General in his summing up, and I mean him no discourtesy, but as the Bill Minister and the Security Minister, I commit to doing what the right hon. Gentleman asked. I do so because it is really important that we have a threshold that works, particularly on ICRs.

ICRs are, as the right hon. Gentleman says, qualitatively different. He is right about cases of harassment, and so on and so forth, which is why the matter is challenging and complex. He has made a powerful case here, following the powerful case made by Keir Starmer, and I will bring the matter back to the House during our proceedings on the Bill in the form of an amendment, in the spirit that he has described.

Photo of Andy Burnham Andy Burnham Shadow Home Secretary

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

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

Photo of Suella Fernandes Suella Fernandes Conservative, Fareham

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

Photo of Andy Burnham Andy Burnham Shadow Home Secretary

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

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

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

The right hon. Gentleman has looked at these matters very closely, as is illustrated by the fact that he has rightly said that there are some crimes, such as harassment, stalking and so on and so forth, that would not neatly fit into a simple category. He is also right that the threshold must be robust. This is not about minor crimes and it is not about snooping, as the less well-informed critics have sometimes described it. I have given the commitment that we will work with him and others during the passage of the Bill to move an amendment to address this issue. He was right to raise it today. He has asked for a commitment and he is getting one.

Photo of Andy Burnham Andy Burnham Shadow Home Secretary

We have learned to admire the Minister greatly through this process, and we have learned that when he says something, it happens. I am reassured by the words that he has just put on the record.

If it helps—perhaps it does not, but I will say it anyway—I would favour quite a high test for ICRs, and significantly higher than six months. Alongside that, it might be possible to itemise the other individual occasions on which they could be used, be it online grooming or missing persons. The danger with trying to capture it all in a single time period is that we might open the net to other offences that we would not want to be included. I fully acknowledge that this is a complex area. That is why I want to give the Ministers leeway to see whether, working with us, they can find the right definition.

Photo of Andrew Murrison Andrew Murrison Conservative, South West Wiltshire

The Joint Committee spent a lot of time on ICRs and IP address resolution; then along came clause 222, which gave us some comfort because the matter can be reviewed in five years. Some of us are of the view that ICRs will not, in any event, prove to be as useful as we might hope and as Ministers certainly hope. The Danish experience was that they were not useful and their collection was therefore dropped. It is quite possible that that will come to pass here, and that in five years’ time we will review this matter. Does the right hon. Gentleman agree that clause 222 persuades some of us who are a bit doubtful about the utility and value of ICRs that we should allow the provision because it will be reviewed in five years’ time?

Photo of Andy Burnham Andy Burnham Shadow Home Secretary

The review is clearly a good idea, but it is also a good idea to tighten the definition and the threshold now, because we need to ensure that there is a degree of public confidence in what is being done here. I fully accept that the review is important. The point is that although ICRs in themselves may not necessarily solve a crime, they may let the authorities know where to go to ask for more intrusive information. They will identify the app, service or whatever it is that is being used, which might allow further lines of inquiry.

I would not be casual about this point—not that I am suggesting the hon. Gentleman was being so. If we were to publish somebody’s 12-month website visiting record, which effectively is what an ICR is, it would reveal a large amount of information about them. It would give a pretty decent profile of what kind of person they were and some of the information could be highly personal. That is why I say that we need to legislate with great care in this area if we are to carry the public with us.

Photo of Kenneth Clarke Kenneth Clarke Conservative, Rushcliffe 5:00 pm, 7th June 2016

The right hon. Gentleman is making good progress in getting very welcome undertakings from the Minister to review this whole business, in particular on serious crime and on the creation of ICRs; will he confirm that his concern also extends to the accessing of communications data by a huge range of public bodies, including every local authority? When he is discussing this matter in the near future he will have better access than anyone else, or at least than most other people, so will his concern extend not only to defining serious crime but to looking at clause 53(7)? In that subsection, any crime is relevant, as is any occasion of preventing public disorder, which could extend to difficult neighbour cases. It also allows collection of data

“for the purpose of assessing or collecting any tax, duty, levy or other imposition, contribution or charge payable to a government department”.

It seems to me that the word “serious” should be put in all that, or else certainly some threshold should be. It is extremely all-embracing, and allows a district council anywhere to start getting access to communications data. Will he take those points into account as well?

Photo of Andy Burnham Andy Burnham Shadow Home Secretary

I will certainly take the right hon. and learned Gentleman’s points into account. He is making the same case as we are in our amendments. To be clear, those amendments would create a general seriousness test for all communications data collection, which would have to be passed before any of those data could be released. The test created by my hon. and learned Friend Keir Starmer in amendment 292 relates to offences for which the sentence is imprisonment for more than six months. We felt that that was proportionate. It begins to meet some of the right hon. and learned Gentleman’s concerns, as it would knock out some of the lower-level offences he has just described.

Given what the Minister has said, I do not intend to press that amendment to a vote, but it is the bottom line from where we start. On top of the general six months test for all communications data, we want a higher threshold for the more personal data in an internet connection record. I am glad that the right hon. and learned Gentleman intervened because we have now made that explicitly clear to the House.

I turn now to the independent review of the operational case for bulk powers, which allows me to finish on a more positive note. All the bulk powers in the Bill—bulk interception, bulk equipment interference, bulk acquisition, bulk personal datasets—give rise to privacy concerns because of the more indiscriminate way in which they might be used. That is why it is important that they are granted on the basis of what is strictly needed rather than what it would be helpful to have, a point made by the Intelligence and Security Committee in its extremely valuable report. The Joint Committee on the draft Bill also recommended that there should be an independent review of the bulk powers. It was a point upon which I laid great emphasis in my letter to the Home Secretary, and my hon. and learned Friend the Member for Holborn and St Pancras has done the same throughout the passage of the Bill.

We are extremely pleased that the Government have agreed to that request. We agree that David Anderson, the independent reviewer, is the right person to lead the review. I understand that, following correspondence between my hon. and learned Friend and the Security Minister, terms of reference have now been agreed and the review can start in earnest. It will be concluded in time to inform proceedings in the other place. Crucially, it will consider the necessity of the powers and whether the same result could have been achieved through alternative methods. It will also have a balance of security expertise and human rights expertise. This is a significant move by the Government and will ultimately help build public trust in the Bill.

To hark back briefly to the debate on the last group of amendments, it is too early to say what we will do on the back of the review. We will have to see what it concludes, but our working assumption is that it will be incumbent on Members on all sides of the House to respond to the review and if necessary reassess their position on the back of it.

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs)

Does the right hon. Gentleman share my concern that at the Dispatch Box the Security Minister initially said the review would focus on necessity, but when winding up the last debate would not concede in any way, shape or form that the powers were not necessary? Does that not raise some concern in the right hon. Gentleman’s mind?

Photo of Andy Burnham Andy Burnham Shadow Home Secretary

There is an exchange of letters between the Security Minister and my hon. and learned Friend the Member for Holborn and St Pancras, which I hope is in the public domain, and which I believe allays the fears of Mr Carmichael. To be clear, it was a sticking point for Labour that the review had to consider necessity and not just utility. That is enshrined in the terms of reference, so I hope I can reassure him on that point.

Clearly, there is further to go on journalistic material and internet connection records, although it appears from what the Minister has said this afternoon that we are heading in the right direction. I stress again that progress on the ICR points that I have made are a personal red line.

That said, I thank the Home Secretary, the Solicitor General and the Security Minister for the constructive way in which they have approached our discussions. Because of the consensus we have been able to find, the legislation is more likely to succeed and to stand the test of time.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I say to Andy Burnham that, as far as the review is concerned, I have no doubt that the Intelligence and Security Committee will respond positively and provide input if David Anderson wants to discuss those matters with us. I certainly look forward to seeing his conclusions in the review on bulk powers, which I hope will be helpful to Parliament in identifying what improvements we can make.

Amendment 13, which is in my name and those of my colleagues on the Intelligence and Security Committee, concerns clause 54, on the additional restrictions on the grant of authorisations of communications data. In the Committee’s report into privacy and security published in March 2015, we recommended that, just like the police, the intelligence agencies should always ensure a separation of roles between those requesting access to communications data and those who provide the authorisation. Previously, that has not been the case. I am grateful that the Government accepted that principle, and that it is enshrined in clause 54(1). That is an important safeguard that the Government have added to the Bill.

I hope the Minister will forgive me, but notwithstanding that, the Committee, having looked carefully at the Government’s amendment, believe that, although it is 90% of the way there, 10% might do with some improvement. The Bill provides that there may be exceptional circumstances in which a separation is not required. I entirely accept that that is the case. There will be a small and probably very infrequent number of such examples where there is an imminent threat to life, which is provided for in clause 54(2) and (3). However, clause 54(3)(b) simply cites

“the interests of national security”,

which I should tell the Solicitor General is rather a broad concept, particularly as it features in all sorts of places in the Bill and can be extended to encompass almost anything that falls within the agencies’ remit.

The Committee believe that it is too vague and potentially too broad. Therefore, in amendment 13, we have proposed a measure that tries to narrow the matter down without in any way affecting operational effectiveness. The amendment would limit exceptional circumstances to those where the operation is so sensitive that knowledge of it must be kept to an absolute minimum, or where there is an unplanned, time-critical but very significant opportunity to obtain information that might be lost owing to any delay in obtaining a separate approval.

The Committee very much hopes that the Government are in a position to accept the amendment.

Photo of Robert Buckland Robert Buckland The Solicitor-General

There is more debate to be had about whether the phrase “absolute minimum”, as opposed to plain “minimum”, should be used, but I am happy to assure my right hon. and learned Friend that, in principle, we accept the amendment. We will commit to returning with a technically adequate amendment in the other place.

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

I am grateful to the Solicitor General for his comments and I will not take up any more of the House’s time. I think that “minimum” might well be acceptable. The key thing is the next subsection, which I think tries to encapsulate very clearly the sort of exceptions we are talking about.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

The right hon. and learned Gentleman and I may be on different sides of the House, but I have the highest regard for the clarity and erudition with which he approaches matters. The Intelligence and Security Committee, which he chairs, said in its recommendations on the draft Bill that the Bill did not make it clear that getting internet connection records

“through a specific request to a Communications Service Provider under Part 3” is not the only way in which the agencies may have access to internet connection records. He said that that was “misleading” and that

“the Agencies have told the Committee that they have a range of other capabilities which enable them to obtain equivalent data” to internet connection records. He said the Bill should make that clearer. Has the Bill been amended to his satisfaction on that point?

Photo of Dominic Grieve Dominic Grieve Conservative, Beaconsfield

The hon. and learned Lady raises a relevant point. The Bill has not been amended, but we received sufficient assurances from the Government that the way in which the system would be operated, in terms of the internal workings of the agency, would be such as to meet the concerns we expressed. Indeed, the Solicitor General or the Minister may be in a position to confirm that. On that basis, despite the fact that we raised the point, we did not table an amendment on it. The hon. and learned Lady is quite right to pick it up. I have not wanted to detain the House for too long, otherwise I could take her through a list of areas on which, having had further discussion, we decided amendments were not required. She is right to focus on that and I hope very much the Minister is able to provide some confirmation. I am grateful to her for having raised it.

Photo of Gavin Newlands Gavin Newlands Scottish National Party, Paisley and Renfrewshire North

Along with my hon. and learned Friend Joanna Cherry, I represented the SNP in Committee. I am grateful for the opportunity to take part on Report.

I have many concerns about the Bill, and my hon. Friends have already outlined a number of areas where the SNP is sceptical about the Government’s case. This is a wide-ranging and complex Bill and time constraints prevent me from speaking to everything I would like to. However, I will focus my contribution on communications data and internet connection records. The measures in the Bill are not limited to internet access, email or telephony and include, explicitly, communication without human intervention. As it stands, the definition of communications data can tell us an awful lot about someone’s life. Stewart Baker, former senior counsel to the NSA in the United States, states that the content of a person’s communications data is redundant when we consider the amount of metadata that is already collected.

Communications data can be key in obtaining leads, solving crimes or preventing crime. However, I have a real issue with the length of the list of public bodies that would be able to access such personal and sensitive information on an individual without sufficient oversight in place. As we heard at the end of the previous debate and again at the start of this debate, from Stephen McPartland, schedule 4 currently provides for a list of bodies that would be able to access retained data, including a range of regulatory bodies. Among them are the Food Standards Agency, the Gambling Commission, the Office of Communications, and the Health and Safety Executive. No fewer than 47 bodies are listed, a reflection of the tightly drawn nature of the Bill—or otherwise. That suggests that access to communications data may be granted for a range purposes, which will almost certainly be disproportionate and inconsistent with the guidance offered by the European Court of Human Rights.

It is only appropriate that the correct level of protection and oversight is in place. The SNP tabled amendments 320 to 327 and 328 to 350 to ensure sufficient judicial oversight. The relevant public bodies must seek a warrant from a judicial commissioner, replacing the Secretary of State in the process where necessary. They also ensure that a threshold of reasonable suspicion would be necessary before a warrant is issued.

The arguments on judicial warrantry have already been rehearsed at length and I do not intend to detain the House long on this issue, particularly as my hon. and learned Friend the Member for Edinburgh South West speaks with a lot more authority on that subject than I do. Suffice it to say, I think hon. Members should pause and reflect on the lack of oversight. Decisions concerning necessity and proportionality can only be made properly by someone who is truly independent from the operations of the organisation.

Clause 54 contains the first mention of internet connection records. Subsection (6) defines ICRs in such general terms as to render the definition pointless. In that regard, I welcome some of the comments from the shadow Home Secretary and the Minister in their courting across the Dispatch Box a little earlier.

As we have heard, the Government intend to serve notices on service providers to retain a rolling record of each and every website visited by everyone in the UK for 12 months. The SNP has listened closely to the Government’s case for ICRs, but despite having sat through all the Committee sittings, we remain deeply unconvinced about their merit. These concerns are shared by those working in the sector and, as we read this weekend, by some Tory Back Benchers who claim that the provisions provide too many organisations with too many intrusive powers. I could not agree more.

The industry has indicated a willingness to work with the Government to help implement ICRs, but the trouble is that the industry does not know what ICRs are, and it looks like the Government still do not know either. The lack of detail is not good enough, given that the Government are asking us to sign off on legislation that will have a significant impact on the industry and will impinge on the personal privacy of all our constituents. The Internet Services Providers’ Association says:

“The Investigatory Powers Bill deals with highly complex technical matters, however, our members do not believe that complexity should lead to a Bill lacking in clarity.”

For me, this sums up the situation perfectly.

The information likely to be contained in an ICR is extremely intrusive data that could be used to profile or create assumptions about an individual’s life, connections and behaviour. For example, it might reveal deeply personal information, such as visits to pregnancy advice, mental health or gay websites. The Government did not always favour such intrusive policies. In 2009, during consideration of a European directive, the current Immigration Minister said:

“Our consideration of the regulations comes against the backdrop of an increasingly interventionist approach by the Government into all of our lives, seemingly taking the maxim ‘need to know’
to mean that they need to know everything. Certainly, we need to know what the Government’s intentions are in relation to the creation of a new central database, which would create a central store of our electronic communications.”—[Official Report, Fourth Delegated Legislation Committee, 16 March 2009;
c. 6.]

In response to this point, the Solicitor General pointed out that the provision was not remotely like the 2009 directive—which, incidentally, the Minister voted against—because the retained data would not be in Government hands and that the arm’s length approach was a key difference.

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs) 5:15 pm, 7th June 2016

The point about the arm’s length retention gets to the heart of the matter. The concerns expressed by the Opposition Front-Bench team all surround the question of a threshold, but the threshold will never be of any significance to those out there waiting to hack into this information, as we have seen only too clearly with the recent experience of TalkTalk.

Photo of Gavin Newlands Gavin Newlands Scottish National Party, Paisley and Renfrewshire North

I could not agree more with the right hon. Gentleman. I will come to that point shortly.

The question of who retains the information is secondary to the fact that it will be retained and accessible in the first place. The Government have, true to form, merely contracted out data retention to the private sector. Many people share unease about the security of this information. As we have seen recently, private providers are susceptible to sophisticated hacking operations. The consequences, should this information get into criminal hands, are deeply worrying. Indeed, the Joint Committee on the Draft Communications Data Bill shared similar concerns when it said that storing weblog data, however securely, carried the risk that it might be hacked into or fall accidently into the wrong hands.

Photo of Andy Burnham Andy Burnham Shadow Home Secretary

I am listening carefully to what the hon. Gentleman is saying, and he is obviously aiming some of his comments in Labour’s direction. In a world where people are making fewer voice telephone calls—and if he is proposing that he would not want to collect this data—how would he propose the authorities go about locating a missing child in the early hours after the disappearance?

Photo of John Bercow John Bercow Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission

Order. I wish to say, before the hon. Gentleman develops his case, that although I absolutely understand that he speaks for his party from the Front Bench and is entitled to develop his case, I would gently point out that another seven Members wish to contribute, several of whom sat on the Committee, and I most certainly wish to include the Chair of the Joint Committee on Human Rights. It is not a criticism, but I am sure he will tailor his contribution to take account of that fact.

Photo of David Winnick David Winnick Labour, Walsall North

On a point of order, Mr Speaker. Will there be time for us to have a Third Reading debate and for those of us opposed to the Bill to show our opposition?

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs)

Further to that point of order, Mr Speaker. The House agreed a timetable motion yesterday, since when substantial amendments and concessions have been made by those on the Treasury Bench. The Bill is very different now. Can you confirm for me that it would still be within the Government’s competence to bring forward an amended timetable that would allow us to have Third Reading on another day?

Photo of John Bercow John Bercow Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons, Speaker of the House of Commons, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee for the Independent Parliamentary Standards Authority, Chair, Speaker's Committee on the Electoral Commission

The answer to the right hon. Gentleman, who has considerable experience in these matters, not least from when he was on the other side of the fence, as a very senior Whip, is that it is always open to the Government to table an alternative programme motion. That is not a matter for the Chair. The amendments were, of course, all on the paper at the point at which the House agreed the programme motion.

I ought just to say for the avoidance of doubt that the hon. Gentleman who has the floor is not in any way being criticised; I simply wanted to make him aware of the level of demand. I think we ought now to proceed. I would happily sit here all night for colleagues to debate these matters, but I rather doubt there would be the same enthusiasm among Government Whips for such a proposition.

Photo of Gavin Newlands Gavin Newlands Scottish National Party, Paisley and Renfrewshire North

Thank you very much, Mr Speaker; I have almost forgotten what the intervention was—[Interruption] I do not doubt that, but to answer it, we do not know what ICRs are at the moment. They are not clearly defined—the shadow Home Secretary made that point himself earlier; nor do we know how effective they will be. People in the industry tell me that current technology, such as Tor, virtual private networks and what have you, may render them useless. We do not know what ICRs are at the moment, so I have to be honest with the shadow Home Secretary: I do not have all the answers.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

My hon. Friend sat on the Bill Committee with me and will remember that we heard evidence that if, for example, he wanted to see whether a missing child had been on Facebook, all that the internet connection record would show was whether they had been on Facebook, not whom they had been in contact with. Does he therefore agree that the utility of internet connection records for tracing missing children, which we all recognise is of the utmost importance, is perhaps being rather overblown?

Photo of Gavin Newlands Gavin Newlands Scottish National Party, Paisley and Renfrewshire North

I wholeheartedly agree with my hon. and learned Friend.

Before I was intervened on the first time, I was saying that the Joint Committee on the draft Communications Data Bill said that

“storing web log data, however securely, carries the possible risk that it may be hacked into or may fall accidentally into the wrong hands, and that, if this were to happen, potentially damaging inferences about people’s interests or activities could be drawn.”

It is clear that the intelligence services and the police need powers that befit the digital age in order to keep us safe and to catch perpetrators. However, when seeking to introduce powers as intrusive such as ICRs, it is incumbent on the Government to ensure that their case is watertight. As my hon. and learned Friend said in Committee, we very much hope to be an independent country writing our own security policy, so we do not take our opposition to such measures lightly.

In drafting such a proposition, with such a loose definition, the Government are asking us all to trust them and to sign a blank cheque to allow the wide use of such powers without knowing what their full impact, costs or consequences will be. The Home Office has said that companies will be reimbursed for the additional costs placed on them, but that commitment does not appear in the Bill. The Government have earmarked £175 million to reimburse companies for the costs of meeting their new responsibilities. However, most in the sector believe that is a vast underestimation of what the true costs will eventually amount to. Owing to uncertainty about the extent and definition of ICRs and the extension of communication service providers that will be affected by the proposed provision, the cost is difficult to estimate, but industry figures have told me that they expect it to be anywhere between £1 billion and £3 billion.

I appreciate that the Minister, in a letter to the Committee, reiterated the Government’s intention to bear the cost of implementation, but without clearer information we cannot expect Parliament to sign a blank cheque. Between £175 million and £3 billion is a rather large range, and at a time when disabled people are losing benefits and the WASPI women cannot get the pension they were promised, this seems a rather anomalous and large black hole in potential Government spending. I have said in the past that the Government know the cost of everything and the value of nothing, but in this case they do not even know the cost.

This is a global problem and as such requires a global solution, and it is important that we reflect on what other countries have done to address the issue and that we learn any lessons from their experiences. It is unfortunate, therefore, that a similar scheme of logging data in Denmark has recently been abandoned. That scheme operated for seven years, and although I accept that there were differences in that scheme, there were many similarities. Upon its abandonment, the Danish security services expressed their view about the difficulty of being able to make proper and effective use of the large amount of data that had been gathered. It seems that, instead of spending their valuable time locating criminals, the security services will spend most of it working on spreadsheets and filtering out the useless from the useful. It should be noted that the Danish ICR model was proving too expensive and the cost spiralled out of control, that Australia considered the proposal but decided not to pursue it, and that, as we have heard, the United States is rescinding many of its intrusive powers and moving in the opposite direction.

It is for those reasons that we believe the case for ICRs has simply not been made. The Government have failed to convince us, and those working in the industry, that ICRs are necessary, proportionate and in accordance with the law. We tabled an amendment to remove them from the Bill, but it was not accepted, which leaves us no option but to vote against the Bill in its entirety. That is not a step that we take lightly, but, ultimately, it is a necessary step.

In the event that we are unsuccessful in bringing down the Bill, we will still attempt to ameliorate aspects of it in order to protect smaller companies, especially those that supply lifeline and low-profit services to rural communities. New clause 26, which I tabled along with SNP colleagues, would exclude the providers of rural or community access communication services and small service providers from the obligation to collect and retain data. I have mentioned the deep concern in the sector about the expense that the Bill will impose on industry. I am sure that the Government will not want to put any businesses in a perilous situation, particularly those that operate with smaller cash flows and tighter margins in rural Scotland in order to provide a vital service for their local communities.

The Committee was provided with written evidence stating that smaller internet service providers were still subject to the same demands as the much larger organisations that operate on the world stage. Organisations such as HUBS are supplying vital internet connections to some of the most remote communities. If the Government railroad these clauses through the House without proper regard for the impact they will have, they will seriously endanger those small businesses and restrict internet use for some of our rural communities.

Photo of Gavin Newlands Gavin Newlands Scottish National Party, Paisley and Renfrewshire North

I am afraid not, because I do not have time. Plenty of other Members want to speak.

You will pleased to hear, Mr Speaker, that I am nearing the end of my speech. [Hon. Members: “Hear, hear.”] Thank you.

We live in a digital age. I therefore welcome the Government’s proposed digital economy Bill, and, indeed, the Chancellor’s commitment to match the Scottish Government’s commitment to universal broadband provision. The digital economy Bill is intended to make the United Kingdom a world leader in digital provision. However, according to many in the industry, this Bill will completely undermine that goal before the draft Bill has even been printed.

It is only right and proper for the Government to consider and propose new powers that our security agencies can use to keep us safe, but in many parts of the Bill the Government fail to make the case that the powers they want to introduce will be effective, are necessary, are in line with our right to privacy, and cannot be challenged in the courts. It is for those reasons that the SNP are still unconvinced of the merits of the Bill, and will vote against its Third Reading later this evening.

Photo of Will Quince Will Quince Conservative, Colchester

I rise to support new clause 19, which stands in my name. It is a scoping amendment, which I do not intend to press. A large number of amendments have been tabled so I will be extremely brief, but I want to pay tribute to my hon. and learned Friend the Solicitor General, who has been incredibly receptive to the concerns that I have raised throughout this process.

We all remember the examples of local authorities using powers inappropriately, whether that has involved rummaging through our bins or spying on paper boys to determine whether they have the right to work. I welcome the steps that the Government have taken to try to address that, including the creation of a new criminal penalty for the misuse of these powers. However, I believe that more needs to be done to ensure that the wider public can be confident that we will not see a repeat of history, and will not see councils misusing the powers in the future.

New clause 19 would introduce a requirement that when a judicial commissioner approves an authorisation for telecommunications data for a designated senior officer of a local authority, that senior officer must notify his or her chief executive before the authorisation has taken effect. I believe that that will help for two reasons. It will discourage over-zealous officers from applying for authorisations if they know that their chief executives will see those authorisations before they take effect, and, in the event that a council officer is found to have misused the powers, the chief executive will be accountable. Chief executives will never be able to say that they did not know what was happening in their authorities.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I have listened carefully to what my hon. Friend has said. The Government wish to consider the matter further, and return to it in the other place. I hope that that gives my hon. Friend some reassurance.

Photo of Will Quince Will Quince Conservative, Colchester

I am greatly comforted by that response, and, in the interests of time, I am happy to sit down now.

Photo of Harriet Harman Harriet Harman Chair, Human Rights (Joint Committee), Chair, Human Rights (Joint Committee) 5:30 pm, 7th June 2016

I rise to support amendments 143, 144 and 145, which were tabled in my name and those of the other members of the Joint Committee on Human Rights and relate to the protection of journalists’ sources. Since they were tabled, they have been supported by Labour’s Front Bench and the SNP, for which I am grateful.

Yesterday, we considered additional protections for MPs and lawyers and the question of legal professional privilege. Journalists are in the same group. We extensively considered protections for everybody against the abuse of power and the invasions of privacy by the state, which is right, but there are particular issues about protecting a part of the constitution from abuses of power by the Executive. The legislature obviously holds the Government to account, so it is wrong for the state to abuse its power to prevent us from doing that. The same goes for lawyers and the rule of law. Journalists are in a parallel situation in that it is vital in our democracy that the media are free to hold the Government to account, which is an important aspect of the right of freedom of expression that is guaranteed in article 10 of the European convention on human rights.

I appreciate from the start that there is a difficulty here. It is easy to work out what a lawyer is. It is easy to work out what an MP is. It is not quite so easy with journalists. Some people are evidently journalists and some people are evidently not journalists, but some people might or might not be journalists, so I say “Good luck” to the Solicitor General with that one. However, that difficulty must be surmounted, because we must ensure that the press’s ability to go about their business and to hold the Government to account is protected.

Photo of Robert Buckland Robert Buckland The Solicitor-General

The right hon. and learned Lady is absolutely right to talk about the difficulty of definitions, but we should be focusing on journalistic material. That is the question at hand and that is what the Bill addresses. Focusing on that might actually help us to come to a solution.

Photo of Harriet Harman Harriet Harman Chair, Human Rights (Joint Committee), Chair, Human Rights (Joint Committee)

It sounds as though the Minister is well under way to solving that problem, so that is encouraging.

My next point was considered by the Joint Committee on Human Rights and has been echoed throughout the House. We do not want the provisions in this legislation to contain less protection for journalistic material than the Police and Criminal Evidence Act 1984 did. That Act relates to a very different world and refers to the journalist’s notebook, whereas we are considering communications data, but a key point is that the relevant journalist or media organisation is given notice when a warrant is being applied for so that they can make representations as to why one should not be granted in order to protect their sources. We are not talking about journalists who are up to their necks in criminal activity—that is not the issue. The issue arises from applications for material that relates not to any criminal activity but to a journalist’s work. Can we ensure that journalists are put on notice, because of the special status of journalistic material, so that the authorising authorities have the benefit of hearing from journalists or media organisations before a warrant is granted?

I appreciate that the Minister has already responded to those issues and has put in additional protections, such as taking the non-statutory code and putting it on the statute, but the issue of notice still remains, which is why we tabled our amendments and why they have gathered support. I welcome the Minister’s confirmation that he will look further at the matter, but other members of the Joint Committee on Human Rights in the House of Lords, and many other Members of the Lords, will want to consider it. Nobody wants an unjustified fettering of the ability of the security services and the police to keep us safe. The point in the intervention of my right hon. Friend Andy Burnham was absolutely spot on. We are all in favour of the same thing here, but we must ensure that, at the end of the process, we have the right balance not only for journalists but in many other respects.

Photo of Victoria Atkins Victoria Atkins Conservative, Louth and Horncastle

I shall speak to new clause 18 and amendment 207. I note that these are probing measures tabled by my hon. Friend Stephen McPartland, and I also note the assurances given by the Solicitor General. However, given the concerns raised by the SNP, I thought it may be helpful to give some examples of how the organisations in schedule 4 need these powers and how they contribute towards the criminal justice system in our country.

We are speaking about communications data, not about bulk warrants or intercept warrants; we are discussing the who, what and when of communications between suspects. The criminal justice system sees thousands of prosecutions brought each year by the organisations listed in schedule 4. The Department for Work and Pensions prosecutes benefit fraud, and I am sure we all support it on that. It conducted approximately 600,000 investigations last year, and communications data can be invaluable, particularly in dealing with conspiracies to defraud, in showing links between conspirators and the timing of their communications.

New clause 18 excludes one of the largest and most important investigating agencies: Her Majesty’s Revenue and Customs. It investigates a huge range of offences, from tax fraud to cigarette smuggling and the criminal exploitation of HMRC’s repayment system. The seriousness of some of these offences can be summed up in the offence that I prosecuted many times on its behalf: cheating the Revenue, which attracts a maximum sentence of life imprisonment. The Joint Committee heard evidence from HMRC that last year it made 10,000 requests for communications data, which supported 560 investigations, in cases involving a loss to the Treasury of £2 billion. If that is not a serious investigating organisation that deserves our help in investigating and prosecuting criminal activity, I do not know what is.

The injustice does not end with HMRC, and I will give just two more examples, as I am conscious of the time. The Financial Conduct Authority regulates the financial markets, and the banking, financial and insurance industries, among others. In a £10 million insider dealing fraud case, in which I was instructed, we were able to build an electronic reconstruction of a day in the life of an insider dealer. It went from the moment when a memory stick was inserted into a computer to download the price-sensitive information, to the handover of the stick to a co-conspirator at another bank, to the material being uploaded on to webmail and messages being sent out to the defendants to get trading on these stocks. The FCA operates in the digital world, by definition, and it made more communications data requests last year than 20 police forces that are cited in new clause 18.

The second example, mentioned by Gavin Newlands, is the Health and Safety Executive. It prosecutes employers who kill and maim employees and members of the public in the workplace. These are highly specialised cases, which could encompass any workplace, from building sites to chemical factories and care homes. Last year, the HSE conducted 3,280 investigations, resulting in 535 prosecutions in England and Wales.

I know that these are probing measures and that my hon. Friend the Member for Stevenage is raising important issues, particularly on access for child protection units and others, but we must not lose sight of the important role that many of these organisations play in the criminal justice system and their need for their power to prevent and detect crime.

Several hon. Members:

rose—

Photo of Matt Warman Matt Warman Conservative, Boston and Skegness

I rise to talk briefly about both journalists and internet connection records. I have heard an awful lot of comments about journalism, and I agree with all of them. Indeed, had the Government not moved some of the material from the codes of practice into the Bill, I might have struggled to support it. At every stage, we will struggle to construct anything useful unless we define what a journalist is, and I find it hard to see how that is possible. In this modern age, I am painfully conscious that, in some senses, we are all journalists ourselves. Almost all of us write columns for our local paper. Arguably, we could all be regarded as journalists simply because we commentate via Twitter on what is going on in politics. I struggle to see what more the Government can do—as much as I would like them to do it and as much as I would like to support new clause 27. Unless we come up with a workable definition of what journalism is, I struggle to see how we will make what I regard as genuinely very necessary and very helpful progress on a hugely important issue.

On the second point on internet connection records, it strikes me that although they have frequently been compared with a telephone record or an itemised phone bill, it is simply not a sensible comparison in the modern world when we make far fewer voice calls. That sense of an ICR telling us simply that a user has gone to Facebook misunderstands the fact that knowing that someone has gone to Facebook if they are a missing person, for example, allows us then to go to Facebook and make that crucial next step to find that person. Although an ICR does not tell us a huge amount of information, it tells us enough. We in this House have a duty to do everything that we possibly can in this regard and to bear it in mind that it is not us but communications providers who hold that information. I very much welcome what Andy Burnham said about having concerns about access, rather than about the principle of what I hope we can all agree is a potentially vital tool in this vital battle against both crime and missing persons.

Several hon. Members:

rose—

Photo of Alistair Carmichael Alistair Carmichael Liberal Democrat Spokesperson (Home Affairs)

I rise to speak to the amendments standing in my name, particularly amendment 3. Gavin Newlands said that the amendments tabled by the SNP that sought to remove internet connection records from the Bill had not been selected. I notice that he and Joanna Cherry have also added their names to amendment 3. It was not my intention at the start of this debate, but I have heard so little by way of comfort from the Government Front-Bench team that I intend to press amendment 3 to a vote. It is surely unacceptable, at this stage in proceedings, that we still have no proper definition of what exactly is an internet connection record. Others have touched on that during the course of our debates.

It is 15 years to the day since I was elected at the 2001 general election. I have seen a few things in this House in that time, and one thing that I have learned to recognise is a well-rehearsed line exchanged between the two Front-Bench teams. I think we saw that when the shadow Home Secretary was getting his assurances from the Minister for Security. I have to say that he has got assurances which, frankly, miss the whole point. The assurances on threshold, for example, do absolutely nothing to address the problems that are inherent in the riskiness of retaining such data in the first place. I cannot improve on the definition or the expression that was used by the Joint Committee when it reported on the draft Bill. It said that the collection of internet connection records would be a

“honeypot for casual hackers, blackmailers, criminals large and small from around the world, and foreign states.”

David Anderson QC described the expanded data collection by internet service providers as “overstated and misunderstood”—to the point and understated. There is no other “Five Eyes” country in which operators have been forced, or are being forced, to retain similar internet connection data. That surely tells us all that we need to know. The case has not been made. It is always open to the Government to come back on some future occasion to make a case and to put these provisions in another Bill. They have not made the case, and the provisions should not be in this Bill.

Photo of James Berry James Berry Conservative, Kingston and Surbiton

That was a very disappointing reaction from Mr Carmichael to what I thought has been the very constructive way in which Andy Burnham has dealt with the Government both today and yesterday.

I support the Bill and the amendments that the Government have accepted, and I draw the House’s attention to the fact that I have represented the police on a number of occasions. What has always struck me in cases about warrantry is that if the police want to search someone’s house, their shed or even their car, they have to go and get judicial authorisation from a magistrate, yet for more intrusive and covert surveillance they did not have to do that. That is why the Bill is a welcome step towards proper independent scrutiny of the intrusive powers of the state. I am also pleased that the Bill brings up to date the powers that the police have long had and been granted by this House on the interception of mail and phone calls, bringing them into the digital age in which most criminals today operate.

In the time available, I want to speak briefly about communications data, because in my experience as a barrister, and as my hon. Friend Victoria Atkins ably demonstrated, communications data are essential to many cases. In some cases in which I have been involved, it has been the main evidence and in some the only evidence that led to the perpetrator being identified and ultimately convicted. It is essential in identifying the perpetrator, the link they have to the co-accused and the links they have to the victim.

It is telling that in the last decade every single security service counter-terrorism case involved communications data and 95% of serious and organised crime investigations in which the CPS was involved concerned locations data. Those facts speak for themselves. Opposition Front Benchers have been very constructive in dealing with this and in the amendments they have tabled, and those on the Government Front Bench have responded in the same way. For these reasons—I will not add to the very good reasons already given by my hon. Friend the Member for Louth and Horncastle—I support the Bill and the amendments that the Government have accepted.

Photo of Chris Philp Chris Philp Conservative, Croydon South 5:45 pm, 7th June 2016

I want to speak briefly about clause 68, Government amendment 51 and amendment 145. Clause 68 is welcome and delivers the manifesto commitment to introduce judicial oversight of these investigatory powers over journalists. As the noble Lord Falconer has pointed out, no such protections exist under the Regulation of Investigatory Powers Act 2000. These new requirements for judicial consent by the commissioner are very welcome.

I very much welcome Government amendment 51, which explicitly acknowledges the public interest in protecting a journalist’s sources and makes it clear that the commissioner must weigh that against any other public interest, which must be overriding. I hope that gives Ms Harman at least some comfort. Were we to adopt her amendment 145, I think the implication would be that the judgment would have to be made in open court, and given the difficult and potentially wide definition of journalistic material that now exists, that might impose a rather onerous requirement. Were the Government so minded, they might at some later time fine tune clause 68 to say that if the judicial commissioner found the situation slightly ambiguous, they could go to the journalist to seek clarification; if there were cases in which they were finding it difficult to make that judgment, they could seek further and better particulars. However, I think that Government amendment 51 is extremely helpful in addressing many of the concerns expressed about that important issue.

Photo of Robert Buckland Robert Buckland The Solicitor-General

It is a pleasure to speak at the end of a wide-ranging but important debate about the new power on internet connection records. It is right to remind ourselves of the context of the debate. Only last week, two individuals received significant prison sentences in Britain’s biggest known gun smuggling operation. It was analysis of communications data that provided vital evidence in that case. It allowed the investigative team to attribute telephone numbers and SIM cards to the defendants and to identify key locations.

However, communications data are changing. The world in which Keir Starmer and I started out practising is no longer the world as it is today. Telephone calls are very often not the means by which criminals and terrorists conduct their activity. Much of that has moved on to the internet via WhatsApp, via internet chatrooms and via the electronic internet communications that have become the mainstay of many criminal enterprises. It is vital that the legislation that we pass in this House not only attempts to keep pace with this breathtaking change, but tries to get ahead of it as far as possible.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

The Solicitor General will be aware of an exchange that I had earlier with Mr Grieve about the fact that there are other ways in which law enforcement agencies can obtain internet connection records. Does the Solicitor General agree that that includes getting the data retrospectively for specific targets from operators who already temporarily store such data for their own business purposes? It would therefore be misleading to imply that the provisions in the Bill are the only way of getting at internet connection records for the purpose of solving specific crimes.

Photo of Robert Buckland Robert Buckland The Solicitor-General

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

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

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

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

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

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

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

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

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

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

Photo of Stephen McPartland Stephen McPartland Conservative, Stevenage

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

Clause, by leave, withdrawn.

Clause 53