Application of Part to bulk personal datasets obtained under this Act

Part of Investigatory Powers Bill – in a Public Bill Committee at 5:15 pm on 26 April 2016.

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Photo of Robert Buckland Robert Buckland The Solicitor-General 5:15, 26 April 2016

I will deal as succinctly as possible with the amendments, which I think will gain Members’ support. They will ensure that a direction by the Secretary of State that is approved by a judicial commissioner cannot disapply the prohibition on the disclosure of an intercept warrant or any intercepted material. The clause relates to bulk personal datasets obtained by a security and intelligence agency using a capability for which a warrant or other authorisation was issued or given up under another part of the Bill: for example, via the intercept provisions.

The clause provides that, in such cases, the intelligence agency can apply to the Secretary of State for a direction, which has the effect of applying this part—part 7—to the bulk personal dataset. For example, if an agency intercepts an email that has a bulk personal dataset attached and the agency wants to retain and examine that information as a bulk personal dataset, it can apply for a direction to that effect to the Secretary of State. The judicial commissioner must then approve that before it takes effect.

Subsection (6) as drafted states that it is not possible to disapply clause 48, which excludes material identifiable as intercept, from legal proceedings, unlike schedule 3, which provides exceptions to that exclusion. Therefore, a bulk personal dataset that is acquired by interception will always be subject to those provisions, even if a direction is given to apply the safeguards in part 7. The amendments make it explicit that it is not possible to disapply clauses 49 to 51 in such circumstances, either. The clauses together mean that it is an offence to make unauthorised disclosure of the existence of an intercept warrant or any intercepted material.

The clauses relating to the restrictions around the disclosure of material obtained under interception warrants have already been considered by the Committee. The amendments ensure that the restrictions continue to be mandatory, where applicable, to a bulk personal dataset that is subject to a clause 192 direction. Although without the amendments the Secretary of State could choose not to disapply the restrictions on a case-by-case basis, we believe that it is appropriate that that is mandatory, given that they relate to authorised disclosures and criminal liability for such a disclosure.

The clause also allows the Secretary of State the power to vary directions given under the clause, but as drafted it does not explicitly require judicial commissioner approval of such a variation. We are therefore tidying that up and making it explicit that a double lock of judicial commissioner approval will apply to the varying of a direction as well as the original direction. Therefore, once again we are paying close attention and ensuring that the safeguards on the Bill are robust in every possible respect.