Power to issue bulk equipment interference warrants

Investigatory Powers Bill – in a Public Bill Committee at 2:30 pm on 26 April 2016.

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Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 2:30, 26 April 2016

I beg to move amendment 695, in clause 156, page 122, line 34, leave out subsection (2)(b).

With this it will be convenient to discuss the following:

Amendment 696, in clause 156, page 122, line 37, leave out subsection (3)

Amendment 697, in clause 156, page 122, line 47, at end insert—

“(6) Where an application for the issue of a bulk equipment interference warrant includes the activities set out in section 154(4)(b) it may only be issued if the Secretary of State

(a) a specific investigation or a specific operation, or

(b) testing, maintaining or developing equipment, systems or other capabilities relating to the availability or obtaining of data.”

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

These amendments are intended to tighten up clause 156. I will not take up a great deal of time on them. These amendments go to the intervention that I was making which was too lengthy to do justice to the point, but it was such an important point that I want to go through it one more time. If I am right about it, I hope that others will listen and take this away. If I am wrong about it, I will not repeat the argument. The proposition about which I am concerned is as follows. If one looks at subsection 156(1) then, as set out in the “Operational Case for Bulk Powers”, the test that the Secretary of State is applying at the outset will be applied in some,

“circumstances where the Secretary of State or Judicial Commissioner is not able to assess the necessity and proportionality to a sufficient degree at the time of issuing the warrant.”

So that is the test. To issue a bulk equipment interference warrant, the Secretary of State must be satisfied that it is to “obtain overseas-related communications”, as set out in paragraph 156(1)(a); that it is necessary on the broad grounds—of which the Minister just reminded me—of national security, preventing crime and promoting economic wellbeing, as set out in paragraph (b); and, as paragraph (c) sets out, that it is proportionate. Paragraph 156(1)(d) continues the stages that the Secretary of State must carry out, and requires that the Secretary of State considers that,

“(i) each of the specified operational purposes (see section 161) is a purpose for which the examination of material obtained under the warrant is or may be necessary, and

(ii) the examination of such material for each such purpose is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary”.

So at the outset the Secretary of State is considering necessity against the broad canvas of national security. She is also considering the operational purposes and asking herself whether such a warrant is necessary against those operational purposes, and going on to the examination of whether it is necessary on any of the grounds on which the Secretary of State considers the warrants to be necessary. The Secretary of State is taking into account the operational purposes and applying a necessity test to this. That is the test applied at the outset, and that is the test that the operational case understandably says may be difficult to apply in certain circumstances. I do not quarrel with that, and I understand why that might be the case.

Going on to clause 161, what are the operational purposes which the Secretary of State is to take into account and test necessity against? There the operational purposes are requirements of the warrant, and they go beyond the provisions in clause 156(1)(b) or (2) and may be general. So the Secretary of State has in mind a very broad national security issue, and then the operational purposes, and asks herself whether it comes under both of those heads. The second head can be a general one. We have quarrelled about that—or argued about it or made points about it—but those points remain as good or as bad as they were the last time they were made. The point I am seeking to make is that the “Operational Case” suggests—and this may indeed be the case in practice—that at the examination stage some higher or different test is applied, and that that adds a safeguard. Again, if there is something in that then I hope that somebody will take this away and think about it, and if there is not then I will not repeat it. My concern is that subsection 170(1), on the safeguards relating to examination of materials, states:

“For the purposes of section 168, the requirements of this section are met in relation to the material obtained under a warrant if—” which is followed by a number of requirements, including:

“(b) the selection of any of the material for examination is necessary and proportionate in all the circumstances”.

Clause 170(2) states:

“The selection of material obtained under the warrant is carried out only for the specified purposes if the material is selected for examination only so far as is necessary for the operational purposes specified in the warrant in accordance with section 161”.

So the test for selection for examination is curtailed by the provision in sub-paragraph (ii) that it is only so far as is necessary for the operational purposes specified in the warrant, as set out in clause 161. I accept that “specified” means the warrant at the time of selection of material, as set out underneath. For the record, I therefore acknowledge the possibility that the operational case may be differently described at the time of the second test. However, on the face of it, the same test is being applied at the examination stage as was applied by the Secretary of State. That is the cause of my concern and the reason why, in my argument, some further thought must be given to strengthening the threshold when it comes to the access provision. Because the only way that the operational case can be different at the point of selection of material from the point at which the Secretary of State is involved, is if it has been modified, which means it has not gone through the same procedure as the warrant in the first place. That is the real cause of concern. I have labelled it that but I do not think that on the intervention I made it as clear as I should have done.

If there is a material difference in the test, that ought to be spelled out in the Bill and it is not. The amendments are intended to tighten up the specifics in clause 156. I will not press them to a vote but I have read this into the record because it is a matter of concern. There is either an answer, which means I am wrong about this and should stop repeating my submission, or it is something that others need to take away and have a serious look at in terms of the test.

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

I am not sure that we need to rehearse the general arguments in respect of bulk again—they have been well covered in earlier considerations—except to say this. It is critically important that the agencies maintain the ability to use these powers for economic wellbeing. We debated that on previous days: where, according to the Bill, are these tied to national security? That was a point that was made by my hon. and learned Friend the Member for South East Cambridgeshire at a very early stage on Second Reading.

On that basis alone, one would want to resist the proposed amendment. However, the hon. and learned Gentleman has made some more tailored arguments that deserve an answer. Let us just deal with the tests. There are two tests. There is the test contained in clause 158, where the Secretary of State and the commissioner must be satisfied that it is necessary for data required under the warrant to be examined for specific and specified operational purposes.

In clause 170, the analyst examining the data must be satisfied that the examination of a particular piece of data is necessary for a particular operational purpose. So there are two tests that are designed to be appropriate at different points in the process. That is why the list is written as it is. Does that satisfy the hon and learned Gentleman?

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I hear what the Minister says and I will be brief. The only reference to operational purposes in clause 170 is to the operational purposes on the warrant. Therefore, they will be the same operational purposes as were before the Secretary of State, unless the warrant has been modified. Maybe I should just have said that in the first place and made it a lot shorter, but that is the nub of the problem as I see it.

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

Yes, the point of that further analysis is that the analyst must be confident that the particular work relates to those specified operational purposes. The reason that that further work is done down the line, as it were, is to ensure that there is no digression from the stated operational purposes, and that in that sense this is an important further safeguard.

Let me give an example to illustrate. The Secretary of State may consider that it is necessary for the data required under the warrant to be examined for two or three purposes. The analyst needs to say which particular purposes relate to a particular search. Therefore this is a refinement of the work of the analyst to ensure that it is true to the intention of the Secretary of State in authorising the process. This is an illustration of Committees of this House at their best: we are digging deep down, in very fine-grained detail. With those assurances, I hope that the hon. and learned Gentleman will be convinced by what we are trying to achieve.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 2:45, 26 April 2016

I will reflect on what the Minister has said and in the meantime will not press the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

The Committee divided:

Ayes 9, Noes 2.

Division number 71 Christmas Tree Industry — Power to issue bulk equipment interference warrants

Aye: 9 MPs

No: 2 MPs

Aye: A-Z by last name

No: A-Z by last name

Question accordingly agreed to.

Clause 156 ordered to stand part of the Bill.

Clause 157