Failure to approve warrant issued in urgent case

Investigatory Powers Bill – in a Public Bill Committee at 5:45 pm on 12 April 2016.

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Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs) 5:45, 12 April 2016

I beg to move amendment 43, in clause 23, page 18, line 7, leave out “may” and insert “must”

This amendment, and others to Clause 23, would require a Judicial Commissioner to order that material collected under an emergency warrant which he does not subsequently authorise, be destroyed, except in exceptional circumstances.

With this it will be convenient to discuss amendment

Amendment 44, in clause 23, page 18, line 9, leave out paragraphs (3)(b) and (c) and insert—

“(3A) If the Judicial Commissioner determines that there are exceptional circumstances, the Judicial Commissioner must instead impose conditions as to the use or retention of any of that material.”

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

I will keep this fairly brief. The amendment would require a judicial commissioner to order that material collated under an urgent warrant that he does not authorise subsequently be destroyed, except in exceptional circumstances. As the Bill stands, should material be obtained under an urgent warrant that is later unapproved by the judicial commissioner, the judicial commissioner may, but is not required to, order destruction of material obtained. Once again, it is my argument that the provision, as it stands, creates a significant loophole that could be used to bypass the legal protections that purport to be provided by the judicial review mechanism.

An urgent warrant allows the relevant agency to access material that it may not be authorised to access in law. Permitting the retention of that material in anything other than exceptional circumstances creates a clear incentive to use the urgent process in inappropriate cases so, in order to ensure that the applying agencies—the agencies that apply for warrants—only use the urgent process where strictly necessary, the Bill needs to ensure that there are no advantages to be gained from seeking an urgent warrant where it is not strictly necessary. The amendment would ensure that where a judicial commissioner does not authorise the use of the warrant retrospectively, the position must be that the material collected is destroyed, except in exceptional circumstances.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I am once again grateful to the hon. and learned Lady for setting out her place clearly and with admirable succinctness. There is a problem with the amendment because it very much prompts the question of what might constitute exceptional circumstances. The question of who will determine whether the threshold had been met in a given instance is also raised. Introducing that caveat to the Bill would unnecessarily complicate the commissioners’ decision-making process. The commissioners will be extremely well qualified to decide how material should be used when cancelling a warrant. They will take into account all the relevant circumstances on a case-by-case basis, and the clause, as drafted, allows them to do just that without the necessity of introducing subjective terms.

The amendments also suggest that the only two viable options following the failure to approve a warrant issued in an urgent case are to destroy the data or, in undefined exceptional cases, to impose restrictions on their use. That is unnecessarily limiting. There may be occasions when vital intelligence is acquired that could be used to save lives or to prevent serious crime, and where using that intelligence may not involve any further undue incursions into privacy. In that situation a judicial commissioner may wish to allow the intercepting agency to continue with its work without restriction in the interests of the great benefit it might have. Of course, that is a decision for the commissioner to determine, and clause 23, as drafted, allows just that. I am afraid that the amendments would mean that a judicial commissioner could not choose, after carefully considering the facts of the matter at hand, to allow such vital work to continue unrestricted. My worry is that the unintended consequences of such a proposal could seriously inhibit the work of the intercepting agencies.

Finally, the amendments would entirely remove the ability of a commissioner to decide what conditions may be imposed upon material selected for examination. By removing clause 23(3)(c), the remainder of the clause would relate only to material obtained under a warrant. Of course, a targeted examination warrant does not authorise the obtaining of any material, but rather the examination of material obtained under a bulk warrant, which is why clause 23(3)(c), as drafted, includes a specific provision that allows a judicial commissioner to direct how material that has been selected for examination under a rejected urgent warrant should be used.

In effect, the amendments attempt to change a carefully constructed safeguard that gives judicial commissioners absolute control over the actions of the intercepting agencies. I fear that the unintended result of these amendments would be an overall reduction of the judicial commissioners’ powers. For those reasons I invite the hon. and learned Lady to withdraw her amendment.

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

I have nothing to add, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 23 ordered to stand part of the Bill.

Clause 24