I beg to move amendment 11, in clause 17, page 13, line 5, leave out “Secretary of State” and insert “Judicial Commissioners”.

This amendment, and others to Clause 17, seeks to remove the role of the Secretary of State in formally issuing interception warrants and instead requires Judicial Commissioners to issue such warrants.

With this it will be convenient to discuss the following:

Amendment 12, in clause 17, page 13, line 8, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 13, in clause 17, page 13, line 10, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 14, in clause 17, page 13, line 12, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 15, in clause 17, page 13, line 16, leave out paragraph (1)(d).

Amendment 16, in clause 17, page 13, line 20, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 17, in clause 17, page 13, line 22, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 18, in clause 17, page 13, line 24, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 19, in clause 17, page 13, line 27, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 20, in clause 17, page 13, line 31, leave out paragraph (2)(d).

Amendment 21, in clause 17, page 13, line 35, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 22, in clause 17, page 13, line 37, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 23, in clause 17, page 13, line 39, leave out “Secretary of State” and insert “Judicial Commissioners”

Amendment 24, in clause 17, page 13, line 42, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 25, in clause 17, page 13, line 45, leave out paragraph (3)(d).

Amendment 26, in clause 17, page 14, line 5, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 27, in clause 17, page 14, line 8, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 101, in clause 17, page 14, line 11, leave out “For the power of the Scottish Ministers to issue warrants under this Chapter, see section 19.”

This amendment reflects the removal of the role of the Scottish Ministers in formally issuing interception warrants sought by Amendment 36 (which proposes leaving out section 19).

Amendment 28, in clause 17, page 14, line 13, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 33, in clause 18, page 14, line 30, leave out “Secretary of State” and insert “Judicial Commissioners”.

Amendment 34, in clause 18, page 14, line 31, leave out “Secretary of State” and insert “Judicial Commissioners”.

To some extent the amendments overlap with the discussions we will no doubt have on clause 21 and new clause 5. The effect of this group of amendments is to replace the Secretary of State with the judicial commissioner as the primary and only decision-maker in relation to these categories of warrants.

This morning, the Minister said that he was surprised that we had tabled these amendments and I will give him three short answers to that. The first is that from the outset the Labour party called for judicial authorisation before the concept of the double lock was introduced. That was our primary and preferred position. Obviously, the introduction of the double lock, which involves a degree of judicial authorisation, is somewhat better than the Secretary of State being the sole determining decision-maker. Therefore the fact that we are supportive of a situation that is better than the current situation is hardly enough to knock us out from our primary position. The third position—and this is why it overlaps with clause 21—is that to some extent this all depends on what role the judges have. If they are nearer to decision-makers under clause 21, the relationship with the Secretary of State is very different from the position if they are simply long-arm reviewers. I will reserve that for the discussion we will have on clause 21.

So far as the principle in favour of these amendments is concerned, I can be clear. They have been drafted to reflect, as far as possible, the detailed proposals of David Anderson in his report. Members of the Committee have probably seen that they are deliberately drafted to reflect the approach that he suggested was right—particularly when one takes into account new clause 5. I will summarise his reasons, rather than reading them verbatim, laid out in paragraphs 14.47 and 14.57 of his report. He indicates four reasons for the proposed structure. The first is the sheer number of warrants that the Home Secretary has to sign per year. As he sets out in paragraph 14.49, there are thousands of warrants per year, details of which are in the footnotes. Dealing with those warrants is a huge imposition on the Secretary of State’s time, and they could be dealt with in a different way.

There is an important sub-issue here. Points have been made, this morning and on other occasions, about the accountability of the Secretary of State in relation to national security and foreign affairs. I understand how and why those points were made. As David Anderson points out, 70% of the warrants that the Secretary of State routinely signs off are in fact police warrants that do not raise issues of national security or matters of foreign affairs. In many respects, they are no different from the sorts of powers that the police exercise when they search and seize, or exercise other powers available to them through the usual routes of going to the Crown court. His starting point is that it is no longer sensible for the Secretary of State to handle these thousands of cases, particularly since 70% are in fact police cases, not involving national security or foreign affairs.

Secondly, in paragraph 14.50 David Anderson deals with improving public confidence. Thirdly, at 14.51 he deals with the position in the US, where there is a growing insistence that if warrants are to be complied with by those in the US, judicial sign-off of the warrant is required. David Anderson’s concern was that, unless we move to a different system, we might find that warrants would not be honoured when we needed them to be honoured in other jurisdictions. That is obviously a serious point that I know the Government have taken into account.

The fourth reason, in paragraph 14.52, is that there is an established and well-functioning system for judicial approval by commissioners in comparably intrusive measures, when applied for by the police. He lists them as property interference, intrusive surveillance and long-term undercover police operations. Other police activities that require to be warranted go straight to the commissioner, not via the Secretary of State. Since 70% of those cases are the police exercising not dissimilar powers of interception under warrant, there is a powerful argument to say that that category of cases, if nothing else, ought to go straight to a judicial commissioner. That would be modelled on David Anderson’s analysis, for the reasons that he has set out in those paragraphs.

I would like to highlight paragraph 14.56(a), because it has been said today and on other occasions that an important political accountability goes with the role of Secretary of State in relation to these warrants. Yes, that is the case to a certain level, but it must not be misunderstood. I have yet to find an example of any Secretary of State from any political party, certainly in recent history, ever accounting to Parliament for an individual warrant.

What I genuinely do not understand about this argument is that, given that the Secretary of State is not permitted or authorised to account publicly for a warrant, how on earth will that be any different for a judicial commissioner? The nature of the material is sensitive, regardless of whether it is reviewed by the Secretary of State or by the judicial commissioner.

The point I am making is not that that the judicial commissioner could be more accountable, or that there would be some forum in which the judge could go and explain. I completely accept that that is a limitation. I am meeting the argument against this proposal, which is that at the moment the Secretary of State has some political accountability which would be reduced or taken away if this amendment were accepted.

The point David Anderson makes is that it is of course a criminal offence to disclose that the warrant has been signed, so in fact the Secretary of State could not go to the Dispatch Box even in an extreme case. She would commit an offence if she went to the Dispatch Box to be held accountable for an individual decision. That is exactly why David Anderson writes as he does in paragraph 14.56 of his report. If any other members of the Committee have found an example of a Secretary of State ever actually being held accountable for an individual warrant, I personally would like to see the Hansard report of that taking place.

On the question of accountability, there is a clear line of accountability to the Executive in the form of the Intelligence and Security Committee. It is a body of reviewers—elected, accountable and within the parliamentary and democratic process—who have access to this confidential information and can review the actions under this function. That is a clear line of accountability, which exists and is exercised.

Again—and I will be corrected if I am wrong on this—the statutory prohibition on the Secretary of State ever saying whether or not she signed a warrant applies across the board, whether in a Select Committee or in any other parliamentary proceedings. In other words, first, she could not be asked a question about an individual warrant because there would be no basis on which it could be put and, secondly, even if it were asked she could not answer it. I take the point that is being made but, wherever the accountability is placed, to hold the idea that there is individual accountability for the hugely important decisions that are made on individual warrants is to misunderstand how the regime works.

One of the witness—I forget now who it was, but I think they were on the legal panel—said that there is accountability both ways. If the Secretary of State gets it right and there is no terrorist attack, there is nothing to be accountable for. If she gets it wrong, she is extremely accountable for the consequences of something that happened when she made the wrong judgment call about whether to issue a warrant.

I recall that evidence, but it is very difficult to see how that could work in practice, because none of us would ever know—nor could we know—whether a warrant had been put before the Secretary of State and whether she had signed it. That is prohibited for us and for the other oversight mechanisms. That is the problem. I accept the broader political accountability—if something goes horrendously wrong, one would expect the Home Secretary to make a statement about what the Government had been doing. However, the idea that on an individual, warrant by warrant basis there could be anything amounting to accountability is what David Anderson was driving at in his report, and it has never happened. That is the best evidence.

The hon. and learned Gentleman is so wrong about this that I have an embarrassment of riches on which to draw. He is philosophically, politically and factually wrong, but let me deal first with his factual inaccuracy. The Home Secretary can talk about specific warrants to the ISC. The ISC does conduct detailed investigations into particular cases, as it did into the murder of Lee Rigby, when it scrutinises data in considerable detail. Of course all of that cannot be made public, because of the nature of the investigation, but the hon. and learned Gentleman misunderstands—perhaps because of inexperience—the role of the ISC in those terms. I will deal with his philosophical and political problems later.

Perhaps the Minister will point me to an example of the ISC ever making public any criticism of or comment about the Secretary of State’s exercise of the powers in a way that could in any way be described seriously as politically accountable.

With respect to the hon. and learned Gentleman, he can hardly claim that the ISC is a puppet or poodle of Government given its report on the Bill. The ISC is extremely robust in its scrutiny of Ministers. It makes its views known to Ministers and is not frightened to make known to the House its views about the proposals, policies and performance of Government.

I do not think that the Minister was listening to what I said. I asked if he could point me to a single example of the Intelligence and Security Committee ever commenting publicly—in a way that could be accountable to the public—on the exercise by the Secretary of State of her powers to issue a warrant. It is all very well making generalised points, but I am asking for yes or no—the Minister must know.

The hon. and learned Gentleman said that the ISC could not ask the Secretary of State about particular warrants, but the ISC can and does ask the Secretary of State about particular warrants in pursuit of its inquiries into specific cases. Of course, because of the character of the ISC, rather like the practice of Ministers, it cannot make all that information publicly available. The whole point about the ISC is that it does not make all that it considers publicly available, but that does not mean that Ministers are not accountable to the Committee, which is made up of Members of this House from many political parties.

The answer to my question appears to be no, there has never been an example of the ISC or any Committee ever commenting publicly on the exercise by the Secretary of State of her specific powers to issue warrants or not. That is what leads David Anderson to the view that the political accountability card is overplayed in the discussion.

This is a very important aspect of the debate. On the last remark made by the hon. and learned Gentleman, about David Anderson’s potential conclusion about political accountability being overplayed, I was interested in the arguments, but the fundamental point is the source of the authority that allows the Secretary of State as a democratically elected politician to make the decisions. Also, in particular in the context of national security, it is well set out in case law, as the hon. and learned Gentleman knows, that proper deference should be paid to the Executive on important decisions of national security. That is at the top end of the scale, then we move down—or across, in a different context—and is that not the issue?

Interventions from Front and Back Benchers will all be short.

I have already accepted the general proposition that if some catastrophe occurred, the Secretary of State would be required or expected to make a statement, setting out what in general terms had been done. I accept that level of political accountability. I am talking about the specifics of signing off warrants and, therefore, what would be lost if the Secretary of State’s role were taken over by the judicial commissioner. There is a question of deference on national security and foreign affairs, but we will get to that when we reach clause 21, because that deals with the scope of review by the judicial commissioner. The point I was making before the interventions, however, was drawing attention to David Anderson’s paragraph 14.5, in which he sets out the reasons why the political accountability card is overplayed.

The hon. and learned Gentleman may recall that we had the privilege of listening to two Labour Home Secretaries, Lord Reid and Charles Clarke. I asked Mr Clarke about his relationship with the security services and his experience of warrantry in the dreadful hours following the 7/7 bombings. I asked him how useful or important that was in the vital hours thereafter and his answer—I will be quick, Mr Owen—started with the words “critically important”. Does that affect the hon. and learned Gentleman’s view in any way?

No, it does not. With all due respect, thinking on accountability and safeguards in this field is on the move. The sort of regime that was perhaps thought appropriate five, 10 or 15 years ago is now accepted as not appropriate. One of the points of this legislation in many respects is to bring it up to date and make sure that scrutiny and safeguards are more powerful. The fact that an ex-Home Secretary thinks their role was very important and need not be interfered with did not surprise me, but neither did I find it persuasive.

I have probably exhausted my point. The amendments are intended to reflect the position set out by David Anderson for the very good reasons that he draws attention to in paragraph 14.56(a): the political accountability card is overplayed in resisting this argument.

I just want to address the joint amendments briefly. I want to draw attention to amendment 101, which was tabled on behalf of the Scottish National party and reflects a later amendment to delete section 19. Scottish Ministers issue warrants at present in relation to serious crime. If the amendments were taken on board, their role would be replaced by judicial commissioners, and they are comfortable with that. I simply draw attention to that consequential amendment.

I support everything that the hon. and learned Member for Holborn and St Pancras has said in support of the group of amendments to clause 17. I have just three points to make: three reasons why I support the amendments. First, I associate myself with the argument that arguments concerning Ministers’ democratic or political accountability for surveillance warrants are misconceived and misplaced. Secondly, one-stage judicial authorisation is the norm in many comparable jurisdictions. Thirdly, and picking up another point made by David Anderson, judicial authorisation would encourage co-operation from technical firms in the United States of America.

I am grateful to the hon. and learned Member for Holborn and St Pancras for exploding the myth, also exploded by David Anderson, that Ministers are democratically accountable for their role in issuing warrants, because of course it is a criminal offence to disclose the existence of a warrant, and that will remain the case under clauses 49 and 51.

What is often advanced and has been advanced by Government Members is that a corollary to this argument is that Ministers are politically accountable for the agencies and will be required to resign if things go wrong. That is incorrect. Although the Home Secretary is responsible for setting the strategic direction of the Government’s counter-terrorism policy and the Cabinet Minister is responsible for MI5, MI5 is like the police: operationally independent. MI5’s director general retains operational independence for day to day decision making. Historically, when terrorist attacks have tragically succeeded, they have not led to political resignations in this country. Despite inquests and inquiries following the terrible tragedies of the 7/7 attacks and the ghastly murder of Fusilier Lee Rigby, and despite the fact that those inquests and inquiries uncovered internal errors in the agency’s handling of information relating to those responsible for the attacks, this did not result in the political accountability that is now so strongly claimed.

The reality is that the oversight we have for such decisions and the accountability for the agency is provided by a patchwork of mechanisms, including the ISC—although I dissociate myself with the comments made by the hon. and learned Member for Holborn and St Pancras on the limitations of the ISC—and also by public inquiries and legal challenges brought against the Government. No doubt we could argue that such oversight and accountability as there is in relation to the operation of the security agencies could be enhanced, but it is simply not correct to argue that political accountability is provided by the ministerial sign-off on warrants, because it is not. I have been in the House for only nine months, but when questions around these issues are asked of Ministers, I have seen them repeatedly reply, probably quite properly, that they cannot answer for reasons of national security.

My second point is that one-stage judicial authorisation is the norm in comparable jurisdictions. It happens in America, where federal, investigative or law enforcement officers are generally required to obtain judicial authorisation for intercept. A court order must be issued by a judge of a US district court or a US court of appeals judge. In Australia, law enforcement interception warrants must be issued by an eligible judge or a nominated administrative appeals tribunal judge. In Canada, it is unlawful to intercept private communications unless the interception is in accordance with an authorisation issued by a judge. In New Zealand, police can only intercept a private communication in tightly prescribed circumstances, including requiring a warrant or emergency permit that can only be issued by a High Court judge. If the United Kingdom wants to be able to claim that it is in a world-class league for good practice in surveillance, in my submission, it should adopt one-stage judicial authorisation.

Those of us who are lawyers in the Committee or have ever dealt with the law are familiar with the concept of a judge being got out of his or her bed in the middle of the night to grant an interdict in Scotland or an injunction in England, in civil matters of far less importance than the sorts of matter the Bill deals with. In the aftermath of—God forbid—another attack in the United Kingdom such as 7/7, judges would be as readily available to deal with warrants as Ministers of the Crown are at present.

Thirdly, judicial authorisation would encourage co-operation from US technical firms. That point was pressed home by David Anderson QC in his review, when he said that given the United States tradition of judicial warrants, Silicon Valley technical firms feel uncomfortable with the United Kingdom model of political authorisation. Those firms operate in a global marketplace, which underlines the need for us to adhere to procedures fit for a world-leading democracy. The United Kingdom is alone among our democratic allies with similar legal systems in permitting political-only authorisation. The SNP supports the amendments for those three reasons.

This is an important debate, as my hon. and learned Friend the Solicitor General said. The shadow Minister is wrong, as I described earlier, factually, philosophically and politically. I will try to deal with those in turn.

The factual case is this. Accountability is a much more sophisticated thing than the shadow Minister suggests. Accountability is about who makes decisions, as well as about the decisions they make. People who are elected, by their nature, are accountable to those who elect them. The judgments they make and the powers they exercise reflect that direct relationship with the electorate. It is almost undeniably true that those of us sitting in this room and others like us are bound to be more influenced and affected by the wider public because we do not do a job unless they continue to have faith and belief in us. We are elected by them; we are answerable to them.

The Home Secretaries, the Northern Ireland Secretaries and the Foreign Secretaries who make these decisions are elected constituency Members of Parliament who every day, every week and every month are communicating with constituents who have profoundly held views about the very matters over which those Secretaries exercise their judgment, in a way that people who are not elected simply do not. That line of accountability to the wider public should not be understated or underestimated.

How would a member of the public ever know, and therefore be able to judge, whether a Secretary of State had made a mistake in relation to a specific warrant?

I am prepared to acknowledge that I may not have made the argument sufficiently clearly, rather than to suggest that the hon. and learned Gentleman did not understand it. I was making the point that those who are missioned to make the decisions are likely to be more in touch with the sentiments, values, views and opinions of the public than those who are not elected, because of who they are and the job they do. That is not a particularly difficult concept to grasp, so I am amazed that he does not grasp it.

Perhaps the Minister can point me to the provision in the Bill that permits or requires the Secretary of State to take into account the wider public’s views. There are strict legal tests of necessity and proportionality, and the idea that judges could not apply them to specified organisational purposes and so on is to underplay their duty. I have done loads of control order cases and TPIM cases in front of judges and they make such decisions day in, day out.

Here is the nub of the difference between us. The hon. and learned Gentleman is a former lawyer who has happily now become a politician. I am a politician who has never had the disadvantage of being a lawyer. Luckily, I have many hon. Friends in the room who are able to supplement my skills in that regard. My fundamental point is that as a constituency Member of Parliament, with all the communications, contacts and understanding that that necessitates in respect of popular opinion—I reapply for my job, as he will, every five years—I am likely to be more in tune and in touch with popular sentiment when exercising all kinds of judgments, including judgments about the Bill, than someone who is not. That is not a particularly controversial view. It is an affirmation of the importance of representative democracy, and we are, after all, Members of a representative democratic forum.

Does the Minister understand the point my hon. and learned Friend the Member for Holborn and St Pancras is making about how a balance must be struck between being in touch with popular sentiment—the Minister made that case well—and being correct in terms of legal procedures?

Absolutely, thus the double lock. I am proud to be an elected person. I do not share the doubt-fuelled, guilt-ridden bourgeois liberal hesitation about decision making that has emasculated so much of the political class.

I thought my right hon. Friend was about to give a Tinker’s cuss, but obviously he refrained from doing so. I think he will agree that the main difference between the two Front Benches is the point made by the hon. Member for City of Chester in an earlier intervention. If the first duty of Government is the protection of the realm and Government can send troops on to our streets and into foreign battlefields and so on, suddenly passing any responsibility for or involvement in the granting of these warrants off to unaccountable judges would be an abdication.

I do take that view. The hon. Member for City of Chester did not explicitly articulate, but implied that there needed to be a balance between refusing to abdicate that duty, and indeed affirming it, alongside the affirmation of representative Government that I have already made, and taking into account the significance—as the hon. and learned Member for Holborn and St Pancras argued, David Anderson made this point clearly in his report—of judicial involvement, not least as a means of reinforcing the system. As he very honestly said, part of David Anderson’s consideration was whether we could make what we do stand up to challenge, and having a judicial involvement through the double lock is a way of creating a system that is more robust and resistant to challenge: a system that people can have greater faith in, in that respect.

I am most grateful to the Minister for his generosity in giving way again. Having grown up in a village in rural Cheshire, I probably am quite bourgeois and certainly quite liberal, but I am finding the arguments of Government Members somewhat absurd, in that they seem to have a lack of trust in the judiciary to implement the law and understand what was meant from the original drafting of a law. I think my hon. and learned Friend the Member for Holborn and St Pancras was trying to convey the sense that the balance was not quite there.

No, the double lock will provide the judicial commissioner with the same information—the same explanation of need—as that offered to the Secretary of State: the Home Secretary, the Foreign Secretary, the Northern Ireland Secretary. What is more, they will apply the same test of proportionality and necessity, for it is indeed just that: a double lock. Unless both the judicial commissioner and the Home Secretary approve the application for the warrant, it will not happen. It is true that any party can ask for further information and the re-presentation of the warrant, and that may occur if there is uncertainty about the case that has been made, but the double lock has real effect. It is not that we do not believe in the judicial side of this deal; it has equal weight to the political involvement, but it is important that the Executive retain a role in this.

Let us be clear, the effect of these amendments will be to take the Executive out altogether—a substantial change in the Labour position. I suspected, unhappily, that the hon. and learned Member for Holborn and St Pancras might be a bourgeois liberal; I did not know he was going to be a born-again Bolshevik.

I am not sure I appreciate the tone with which the Minister is now conducting the debate, to be perfectly honest. To some extent, his comments have lost sight of the point I was making and that David Anderson made. The Minister invokes defence of the realm and national security, and so on, and has forgotten that 70% of these interception warrants are warrants for the police to exercise their powers—not particularly different to a lot of the other powers they exercise. They get search and seizure, they go into people’s houses, they get their letters and they read them, so there is nothing special about content in an intercept to say, “It must be the Secretary of State: only she is in touch with real people.” The police can get a warrant from a judge; they do so every day of the week. They go into people’s houses, they get all their documents and they read the lot, so the idea that that is a function that cannot be exercised unless someone is democratically elected is very hard to sustain.

Before the Minister continues, let me say that the shadow Minister will have an opportunity to respond.

I just say to the shadow Minister that he may not appreciate the tone, but I could be much tougher. The reason I could be much tougher is because these amendments—which I take great exception to, by the way—stand in direct contrast to the tone of the shadow Home Secretary’s remarks when the draft Bill was published, when he welcomed the idea of a double lock. Speaking of the Home Secretary, he said:

“She has brought forward much stronger safeguards, particularly in the crucial area of judicial authorisation. It would help the future conduct of this important public debate if the House sent out the unified message today that this is neither a snooper’s charter, nor a plan for mass surveillance.”—[Official Report, 4 November 2015; Vol. 601, c. 973.]

That warm welcome of the double lock was affirmed several times since. It then metamorphosed into an equal lock, as the hon. and learned Member for Holborn and St Pancras and others said that the information provided to the judicial commissioner should be equivalent to that provided to the Home Secretary, and I can even understand the argument that the process might be simultaneous. I do not necessarily agree with it, but I at least understood it, though our case was that the matter should go first to the Home Secretary and then to the judicial commissioner. I thought it might be the Opposition’s settled position that they wanted simultaneous consideration, but these amendments take the Home Secretary out of the process altogether. I can only assume that this change of heart—this about-turn—is not to the hon. and learned Gentleman’s taste, because I know that he is a very sensible chap and I cannot believe that he really believes that the Executive should be removed from the process altogether. Either there has been a command from on high—thus, my point about Bolsheviks—or, I hope, these are merely probing amendments that seek to reach one of the earlier positions I thought he might take.

The hon. and learned Member for Edinburgh South West mentioned in her opening speech and on this point the importance of international comparison. Did the Minister notice that she did not refer to paragraphs 8.46 to 8.48 of David Anderson’s report, in which he extensively analyses the comparative jurisdictions?

Order. The Minister cannot really respond to what another Member said.

I said, “Did he notice?”, not—

I notice everything.

For the sake of brevity and to make sure I do not fall out in the future, I am going to say that, yes, I did notice it.

The shadow Home Secretary, speaking of the Home Secretary, went on to say:

“The two-stage process that she advocates seems to have the merits of both arguments: it will provide public and political accountability, and the independence that is needed to build trust in the system.”—[Official Report, 4 November 2015; Vol. 601, c. 974.]

That is exactly the same point that I made to the hon. Member for City of Chester: it has, in the words of the shadow Home Secretary, the “merits of both arguments”.

Perhaps the shadow Minister will forgive me if I sound a little more arch than I normally do, but I feel that this is such a surprising set of amendments, which is so out of keeping with what I hoped was emerging as a settled position on the balance between the Executive and the judiciary. I thought we would end up with a debate on this, but not one between two positions—our measured, compromise position, and a much more extreme position that I did not expect the official Opposition to adopt. I urge him to think about this again, because I think we reached a good settlement in the terms that I described. That is my political point.

Returning to my original point for a moment, given the evidence provided by the former Home Secretaries, John Reid and David Blunkett, and the former Northern Ireland Secretary, my right hon. Friend Mr Paterson, I think the balance of opinion lies on our side of the argument. I note the Joint Committee’s report and the fact that the ISC was silent on this issue in its most recent report. I feel that the balance of the argument lies with the proposals in the Bill. Perhaps we can look at the detail—I am happy to do that. Perhaps, in the spirit of trying to make positive progress, we can look at the information is provided to each party under the double-lock or at how the timing works—I do not know. I am not going to make any commitments on that, but I am more than happy to have a measured and reasonable debate about this. However, to take the Executive out of the process is politically very unwise, if I might say so, of the Opposition, and it is certainly not acceptable to the Government.

On the philosophical point, the shadow Minister understands—he is an educated and interesting man—that this strikes at the very heart of the separation of powers. My right hon. Friend the Member for North Shropshire said in evidence that

“these are executive decisions. They are operational decisions and must be made by a democratically elected Minister, accountable to Members of Parliament.”

He did not want the judiciary involved at all. We did not take that route because we listened to David Anderson and others, but I take the former Minister’s point.

Finally, so that we do not have any factual inaccuracies, the ISC made a clear recommendation on warranting in the Lee Rigby report that I mentioned earlier. The ISC does comment on warranting, contrary to what the shadow Minister says. It can both interrogate the Home Secretary on specific warrants and comment on warrants in respect of a particular investigation or inquiry. There is a line of accountability, as well as one to the wider public in the general terms that I described, to a well respected Committee of this House, which was established for exactly that purpose. On that basis, and having heard the argument, I urge Opposition Members to think again about these amendments.

In the exchanges we have had, I have probably said all I needed to in response to the Minister’s points. David Anderson might be surprised to find out that he is associated with the Bolshevik opposition apparently represented in the amendments. The amendments represent and reflect his thinking, but that is as may be—I will not press the amendments to a vote. I beg to ask leave to withdraw the amendment.

On a point of order, Mr Owen, the amendments are also in my name, so will I, too, have to state my position on them?

Yes. You may object. Do you wish to object?

I would like to respond to one or two of the points made by the Minister, if I may briefly.

There is a bit of a job share going on among the Front Benchers and I am getting a little confused. The mover of an Opposition amendment is the person who finishes on behalf of the Opposition. Mr Starmer has had the opportunity to do that and you have had your opportunity to speak; we are now going to vote.

I hear what you are saying, Mr Owen. My position is that the amendments are crucial to the Bill. I am not insisting or objecting—

Order. The Question is that the Committee agrees to withdraw the lead amendment. If you do not wish that to happen, you may object and we will proceed to a vote.

I will not object.

Thank you.

Amendment, by leave, withdrawn.

I beg to move amendment 61, in clause 17, page 14, line 1, leave out subsection (4) and insert—

“(4) No warrant issued under this Part will be proportionate if the information sought could reasonably be obtained by other less intrusive means”.

With this it will be convenient to discuss amendment 93, in clause 27, page 21, line 6, at end insert—

“(2A) A warrant issued under this Chapter must state the specific purpose that is to be achieved by the warrant.

(2B) A warrant issued under this Chapter must outline the options for obtaining the relevant data and confirm that other less intrusive options have been tried but failed or have not been tried because they were bound to fail and the reasons why.”

This amendment, and others to Clause 27, seek to preserve the capacity of a single warrant to permit the interception of multiple individuals but would require an identifiable subject matter or premises to be provided (in similar vein to the amendments to Clause 15).

I mentioned amendment 61 this morning. The interception of communications draft code of practice—at paragraph 4.7, as I indicated this morning—states:

“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means.”

That is a clear and correct statement of principle.

Subsection (4), as drafted, is not so clear. It simply suggests that, if the information can reasonably be obtained by other, less intrusive means, that is a factor to be taken into account, but is not decisive, as set out in the draft code of practice. In our view, the Government cannot have it both ways: if the code is right, it should be elevated and put on the face of the Bill. That is what the amendment seeks to achieve, replacing subsection (4) and replacing it with what is, in essence, paragraph 4.7 of the draft code of practice, which in our view is the right way to articulate necessity in such circumstances.

Joanna Cherry, do you wish to speak?

I have not put my name to the amendment.

If you wish to speak to any amendment, you may make your position clear at that time, even if you are not the mover of the amendment—

My name is not on amendment 61, but is on amendment 93, but that is an amendment to clause 27.

Amendment 93 is in this group, so you may wish to make a contribution.

I am not going to at this stage, thank you, Mr Owen.

It is a pleasure to serve under your chairmanship, Mr Owen, for the first time in what I am sure will be a number of important sittings.

May I address the amendment moved by the hon. and learned Member for Holborn and St Pancras? I am grateful to him for rightly pointing our way to paragraph 4.7 of the draft code. Indeed, by reference, paragraph 4.8 gives a clear basis for the decision maker to assess the nature of the proportionality. Therein lies something of the problem with regard to the approach to be taken in the clause. It is tempting, on the face of it, to include the test in the primary legislation, but it might provoke more questions than answers.

Naturally, when one makes a bald statement about proportionality, people want to know more, so where does one end in terms of adding to the primary legislation the detail that is necessary for decision makers to reach a considered conclusion? My simple argument is that the amendments therefore are not necessary. What makes this the right balance is the combination of the primary legislation that sets out the framework and a living document—the code of practice—that will be more easily amendable and accessible in terms of any changes that need to be made in the light of experience and practice.

We do not want to end up with a situation where this type of warrantry can only be obtained when all other avenues have been exhausted, a bit like the position when one comes to an ombudsman. That would be an artificial scenario to end up with and would cause problems operationally. I can think of examples where the exhaustion of other avenues will just not be practicable. For example, in a kidnap situation where an individual’s life might be in danger, this type of warrantry would probably be the most appropriate step to take before any other type of intervention. Of course, there are occasions where other means of intelligence gathering, such as live human intelligence sources, might be high-risk or result in a higher degree of collateral inclusion.

I am concerned that we do not end up, despite the best intentions of the hon. and learned Gentleman, with an inflexible approach on the face of primary legislation. It is far better, in my submission, to keep the balance as it is, as clearly outlined in the code of practice and the framework within the clause.

I echo everything that the Solicitor General says. Is not the amendment trite, in that it is clear for any practitioner, judge or decision maker that the question in the amendment—whether the information sought could reasonably be obtained by other less intrusive means—is part and parcel of, and essential to, the proportionality test?

My hon. Friend makes a powerful point. There is a danger when dealing with primary legislation of gilding the lily. I mean that in the spirit of co-operation that I know we have managed to engender in these debates, in the main. For those reasons, I respectfully ask the hon. and learned Gentleman to withdraw his amendment.

I am grateful to the Solicitor General for the way he has approached this, but it misunderstands the amendment. Of course, whether information could be reasonably obtained by other means is relevant to the assessment of proportionality and necessity. The amendment proposes that, having taken all the factors into account, if it transpires at the end of that exercise that the information could have been reasonably obtained by other less intrusive means, it is not proportionate—that is the end of the exercise. That, in our submission, is the right test that should be on the face of the Bill. At this stage, I will withdraw the amendment with a view to raising it at a later stage if it is appropriate to do so. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 17 ordered to stand part of the Bill.

Clause 18