Class BPD warrants

Investigatory Powers Bill – in a Public Bill Committee at 4:45 pm on 26th April 2016.

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Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 4:45 pm, 26th April 2016

I beg to move amendment 721, in clause 177, page 136, line 21, leave out subsection (3)(a)(iii).

With this it will be convenient to discuss amendment 722, in clause 178, page 137, line 25, leave out subsection (5)(a)(iii).

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

I foreshadowed these amendments when we were discussing clause 174. The way we have sought to deal with records—“patient information”, as it is defined under the National Health Service Act 2006—is to take them out of consideration altogether, which would prevent a warrant that would cover those records being issued. Amendment 721 simply leaves out subsection (3)(a)(iii) and amendment 722 removes the corresponding subsection in clause 178. There is very little I can add to the argument that I put before in relation to those. I will say more when we get to the second group of amendments about the test that is to be applied.

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

The hon. and learned Gentleman may take it, in the spirit that I made my earlier remarks, that the Government are always happy to consider these matters carefully. All of this section of the Bill requires us to be mindful of the sensitivity of the material with which we are dealing, and I think the purpose of the amendment is to explore that sensitivity—I understand that. While I am not minded to accept the amendments, I am clear that in gauging all of those things, we are open to argument, willing to listen and determined to frame a Bill that reflects the considerations of the Committee, that is capable of uniting this House in a shared purpose, that is credible with the wider public, and that provides those missioned to keep us safe with the powers they need. With that reassurance, I hope the hon. and learned Gentleman will withdraw his amendment.

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

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment 715, in clause 177, page 136, line 43, at end insert—

“(5) No warrant shall be issued under this section for material relating to “patient information” as defined in section 251(10) of the National Health Service Act 2006, or relating to “mental health”, “adult social care”, “child social care”, or “health services” as defined by the Health and Social Care Act 2012.”

With this it will be convenient to discuss the following:

Amendment 718, in clause 177, page 136, line 43, at end insert—

“(5) Subsection (6) applies where a warrant application under this section relates to ‘patient information’ as defined in section 251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012.

(6) The Secretary of State may issue the warrant only if they consider that—

(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of material referred to in subsection (5); and

(b) specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material.”

Amendment 716, in clause 178, page 138, line 2, at end insert—

“(8) No warrant shall be issued under this section for material relating to “patient information” as defined in section 251(10) of the National Health Service Act 2006, or relating to “mental health”, “adult social care”, “child social care”, or “health services” as defined by the Health and Social Care Act 2012.”

Amendment 719, in clause 178, page 138, line 2, at end insert—

“(8) Subsection (6) applies where a warrant application under this section relates to ‘patient information’ as defined in section 251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012.

(9) The Secretary of State may issue the warrant only if they consider that—

(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of material referred to in subsection (5); and

(b) specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material.”

Amendment 717, in clause 192, page 147, line 36, at end insert—

“(5A) A direction under subsection (3) may not be made for material relating to ‘patient information’ as defined in section 251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012.”

Amendment 720, in clause 192, page 147, line 36, at end insert—

“(5A) A direction under subsection (3) may only be made for material relating to ‘patient information’ as defined in s.251(10) of the National Health Service Act 2006, or relating to ‘mental health’, ‘adult social care’, ‘child social care’, or ‘health services’ as defined by the Health and Social Care Act 2012 if the Secretary of State considers that—

(a) there are exceptional and compelling circumstances that make it necessary to authorise the retention, or (as the case may be) the examination, of such material; and

(b) that specific arrangements have been made for the handling, retention, use, destruction and protection against unauthorised disclosure of such material.”

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

These amendments are on material relating to patient information as defined in section 251(10) of the National Health Service Act 2006 or to mental health, adult social care, child social care or health services as defined by the Health and Social Care Act 2012. They would subject material in those categories to the higher test set out in amendment 718. We have had interventions on what the test should be, why people should be concerned and so on.

A number of Committee members will have had the opportunity—I have, in my work—to see mental health records, adult social care records, child social care records and health service records. Those records often contain highly confidential material and information. I will take an example from child social care. A child may be reporting and having recorded some of the most grotesque offences that have happened to them, in an environment where it is hoped that the right relationship will be built up through the process of child social care—in other circumstances, adult social care—so that they obtain the best care possible. Persuading people into that sort of relationship, so that they can get the support they need, is not easy, as anyone who has experience in this area will know.

Unless those who are most vulnerable see protection for them on the face of the Bill, there is a real likelihood that they will not feel sufficiently protected to even come forward. Getting children to engage with child social care is the devil’s own business in many difficult cases. There are many reasons why children do not engage. If children, vulnerable adults and those with mental health problems cannot see clear protection on the face of the Bill that applies to them—not in a flexible way—it would be a retrograde step in relation to all the good work going on in other parts of the forest on offences such as child sexual exploitation.

To be clear, the amendments are not intended to prevent the security and intelligence services from accessing those records if, in certain circumstances, they are needed. The amendments require that a higher threshold is applied and that a better case is made for the circumstances being exceptional and compelling. As I am sure the Minister for Security and Solicitor General have observed, the language in the amendments is borrowed from the protection in the Bill elsewhere for legally privileged material. I therefore hope the test is workable and applicable to this sensitive information.

I stress just how sensitive the material within some of these records will be and how important it is that people see on the face of the Bill protection for them. I have heard the way the Minister for Security and Solicitor General have dealt with this, and I will listen to what they say now, but I do not think that what is said about this protection in the code of practice is either in the right place or sufficient. Paragraph 4.11 is very general in its guidance, even in the code of practice. In my argument, the test should be set out in the Bill and then the code of practice would give guidance as to how the test is to be applied on a day-to-day basis as and when it arises.

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

The amendments relate to the question of whether warrants under this part of the Bill should ever allow the retention or examination of bulk personal datasets relating to various forms of medical information. The hon. and learned Gentleman qualified that to some degree by saying that he could see how there might be occasions on which health data were relevant to an investigation, but he rightly asked whether the safeguards were adequate and whether constraints on storage and use of that kind of information were in place.

Let us look first at the safeguards that are already contained in the Bill. These safeguards already ensure that no bulk personal datasets would be retained or examined unless it was appropriate to do so. Specifically, under the Bill, the security and intelligence agencies may retain and examine a bulk personal dataset only for the statutory purposes outlined in the Bill. Each warrant is subject to the double lock, and so must be approved by both a Secretary of State and a judicial commissioner. Each retention of a bulk personal dataset by the intelligence agencies is considered individually based on a strict consideration of necessity and proportionality. The Investigatory Powers Commissioner will also oversee the acquisition, retention, use or disclosure of bulk personal datasets by the agencies. The draft code of practice, as the hon. and learned Gentleman has said, makes clear that, when considering whether to retain and examine bulk personal datasets, the agencies will assess the degree or extent of the intrusiveness which retaining and examining the datasets would involve—that is to say, the degree or extent of interference with individuals’ right to privacy.

The draft code says more than that, though. It also makes clear that when considering whether to apply for a warrant in this class, agencies must consider factors such as whether the nature or the provenance of the dataset raises particularly novel or contentious issues, or whether it contains a significant component of intrusive data—I mentioned this in an earlier discussion. An agency would need to apply for a specific bulk personal dataset warrant if it sought to retain such a dataset comprised of medical records. None the less, notwithstanding those safeguards, which I felt it was important to outline, I can see why this matter warrants careful consideration. Before I go into that consideration, however, I want to say the following. I am prepared in this specific instance to confirm that the security and intelligence agencies do not hold a bulk personal dataset of medical records. Furthermore, I cannot currently conceive of a situation where, for example, obtaining all NHS records would be either necessary or proportionate.

That is where my note so far prepared ends, but I want to go further. Before I do, in order to build anticipation and excitement, I give way to the hon. and learned Lady.

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

The Minister may be about to answer this question, but I am very interested, as I am sure all hon. members of the Committee and people outwith this room will be very interested, in what he has just said—that the security agencies do not currently hold a bulk personal dataset in relation to medical information. As the Bill stands, unamended, does he not agree that there is nothing in it to prevent them acquiring such a bulk personal dataset in future, if they were able to make a case for it?

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

I may fall foul of my officials, which I would never choose or seek to do, except where I felt that it was right in the national interest, with the benefit of the wisdom of the Committee—enhanced, as I have said it is, with the addition of my right hon. Friend the Member for Chelmsford—and where I feel that the public expect us to go further. The hon. and learned Lady is right that we need to go further. Let me rehearse some of the ways in which we might do that—I will commit to none today, but I offer them to the Committee for further thought.

We could look again at the code of practice, as the hon. and learned Member for Holborn and St Pancras invited me to do, and whether it needs to be strengthened or have parts of it incorporated into the Bill, although he knows of my hesitancy about that, given what I said about rigidity and flexibility. I certainly think—I am going well beyond my prepared brief, by the way—that we might want to ask the Investigatory Powers Commissioner to report regularly, perhaps annually, on the extent to which personal datasets hold medical records, notwithstanding what I said earlier. I think the hon. and learned Member for Edinburgh South West is right: although what I have said today was said in good faith and, given the information that I have received, is in my judgment an accurate reflection of the present circumstances, she is right—she said it previously and it pains me that she has repeated it—that I cannot bind those who hold office in the future, so it is important that we put additional protections in place.

We might go even further and look at the amendments. Although they are imperfectly drafted, their sense appears to be persuasive none the less—to get any Minister to say that an Opposition amendment is persuasive is quite an achievement, as you know, Mr Owen. We might want to build in some kind of exceptional and compelling test, some additional words that obliged applicants to jump through a further hoop or surmount a further barrier. That will be a variation on the existing amendments.

Beyond that, I want to look again at the specifics of the difference between health data and medical records—they are qualitatively different. “Health data” can mean all kinds of things. If, for example, an individual has travelled abroad and booked a wheelchair to get to the aeroplane, that is a piece of health data. A person’s treatment history is a medical record, and by its nature considerably more intimate. We might want, in the code of practice or elsewhere, to be clear about the difference between those two kinds of medical record or data.

In essence, what I am saying is that we can go further. I am prepared to go further than the advice that I have so far received. I invite Members of both the Opposition parties present to reflect on that, to see if as a Committee we can over the course of the passage of the Bill—perhaps during its later stages—agree on the appropriate tests to guarantee the protection of personal privacy, while not ruling out, as the hon. and learned Gentleman said, the possibility that some kinds of health data might be helpful or even essential in the investigative process. If we can get to that point, we may be able to move forward with a measure of agreement that was unexpected by Opposition Members before I rose and unexpected by many in the Home Office who advise me.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 5:00 pm, 26th April 2016

I am grateful to the Minister and glad he finds the amendment persuasive, although I suspect not persuasive enough to vote for it. I will therefore withdraw it, but I appreciate the spirit in which he makes his submissions in this important and sensitive area. I will withdraw it with a view to working with the Minister to see whether—

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

I think the hon. and learned Gentleman has said this, but just for the record, I think he agrees with me—I am delighted he is going to withdraw his amendment—that it is conceivable that there are circumstances in which access to some health data might be helpful to the agencies. We can agree that as a baseline against which we can chart the rest of this process.

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

From memory, the services could not at the moment envisage a circumstance in which they would need it, but they would not want to rule out the possibility that it might arise at a future date.

Photo of Robert Buckland Robert Buckland The Solicitor-General

An example could be a group of terrorists who are involved in an explosion and sustain burns. Medical evidence about where they attended—the fact that they had attended a local A&E—could be relevant to that particular operation. That is the sort of category that we are thinking of.

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

That may well be. I listened carefully to the answer that was given—

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

On the example that the Solicitor General has just given, does the hon. and learned Gentleman agree that such information could be obtained with a far more targeted warrant?

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

It may well be that it could be dealt with in a more targeted way. As a general proposition, where targeted powers can be used they should be used. That is a theme that goes through the Bill and the code.

Photo of Robert Buckland Robert Buckland The Solicitor-General

I can clarify: let us imagine a scenario where there is an unidentified individual or we do not know the identities of the people. We know that an atrocity has taken place, but we do not have names, so targeting is more difficult. It is an exceptional case, but there is that possibility.

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

These are all hypotheticals. I think the services themselves have said that they have not needed such powers yet, and we can speculate as to what the situation might be. However, I accept as a general proposition that the focus ought to be on the threshold test for accessing information. For the record, in relation to adult and child social care, there would be a concern not only for the vulnerable adult and child but among those providing the care, because they will be expressing their opinions in these reports and they would be concerned that that remained confidential. That highlights why we need to work on this position. However, for the time being, I look forward to that work and 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 8, Noes 2.

Question accordingly agreed to.

Clause 177 ordered to stand part of the Bill.

Clause 178