I beg to move amendment 30, in clause 18, page 14, line 20, after “security”, insert “or”.

With this it will be convenient to discuss the following:

Amendment 85, in clause 18, page 14, line 20, after “security” insert—

“where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed”

This amendment, and others to Clause 18, seeks to require that the grounds for an interception or examination warrant are tied to a threshold of reasonable suspicion of criminal behaviour; and that reference to a separate ground of “economic well-being, etc.” is deleted from the face of the bill.

Amendment 86, in clause 18, page 14, line 21, after “crime” insert—

“where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed”

Amendment 31, in clause 18, page 14, line 21, leave out “or”.

Amendment 32, in clause 18, page 14, line 22, leave out paragraph (2)(c).

Amendment 35, in clause 18, page 14, line 33, leave out subsection (4).

These amendments would delete the separate ground for interception of economic wellbeing from the face of the Bill and require that grounds for interception are tied to a threshold of reasonable suspicion of criminal behaviour.

The Bill re-legislates for RIPA’s three broad statutory grounds for issuing surveillance warrants. The Secretary of State may issue warrants for interception, hacking and so on

“in the interests of national security…for the purpose of preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.

That final ground can apply only where it relates to the acts or intentions of persons outside the British islands.

I support the amendments because all three main statutory grounds are, in my submission, unnecessarily vague and are left dangerously undefined. As the decision will continue to lie with the Secretary of State, the test will be met by whatever he or she subjectively decides is in the interests of the national security or economic wellbeing of the UK, having regard to popular sentiment rather than to what is necessary and proportionate, as we have now heard from the Minister’s own mouth. The tests mean that individuals are not able to foresee when surveillance powers might be used, and they grant the Secretary of State a discretion that is so broad as to be arbitrary. The Joint Committee on the draft Bill recommended that the Bill should include a definition of national security, and I call upon the Government to produce such an amendment. If the Government sprinkle the Bill so liberally with the phrase “national security”—indeed, it is the Government’s job to defend national security—they need to tell us what they mean by that phrase, so I call upon them to define it.

The Joint Committee also recommended that the phrase “economic wellbeing” should be defined, but the ISC went further and said that economic wellbeing should be subsumed within a national security definition, finding it unnecessarily confusing and complicated. I heartily endorse the ISC’s view in that regard. The third ground is an unnecessary repetition unless there is something sinister behind the definition of “economic wellbeing,” and many Members of the official Opposition, and indeed of my own party, have serious concerns about what that might be about.

Recently, the Prime Minister went so far as to say, ridiculously in my view, that the Labour party is now a “threat to national security”. I am not a member of the Labour party, although I once was when I was a student.

Join us again.

I am very happy to join Labour in many aspects of this Bill, but I have taken a slightly more radical path in middle age as an SNP MP. It is a disgrace to suggest that the Labour party is a threat to national security, and such loose language shows us that the continued undefined use of the term “national security” in enabling legislation is not sustainable.

The ISC also queried both the agencies and the Home Office on the economic wellbeing ground, and it reported that neither the agencies nor the Home Office have “provided any sensible explanation.” I hope that we might get a sensible explanation from the Government today, and I wait to hear whether we get one. Regrettably, the recommendations of the ISC and the Joint Committee have been dismissed, and the core purposes for which the extraordinary powers can now be used remain undefined and dangerously flexible within the Bill.

That is the nub of my concerns about the definitions of “national security” and “economic wellbeing.” The SNP amendments go slightly further than the Labour party is prepared to go at this stage by requiring reasonable suspicion. At the moment, the three grounds contain no requirement for reasonable suspicion that an individual has committed or intends to commit a serious criminal offence, nor even suspicion or evidence that a serious crime has been or is going to be committed. In my submission, that gives licence for speculative surveillance.

Briefly, on the national security ground, the courts have in the past responded with considerable deference to Government claims of national security, viewing them not so much as a matter of law but as Executive-led policy judgments. As a legal test, national security is meaningless unless the Government attempt to tell us what they mean by it. The second ground is similarly broad and open-ended because the Government have not sought to clarify the circumstances in which national security, as opposed to the prevention and detection of serious crime, will be in play.

I invite the Government to table an amendment to tell us what they mean by national security, to explain why it is necessary to have a ground revolving purely around economic wellbeing, to explain why they have discounted the recommendations of the Joint Committee and the ISC, and to tell us why there is no requirement for reasonable suspicion in these grounds.

In opening, let me address what I detect is the elephant in the Committee Room, as amplified by the amendment as it was. As I made clear in the July 2015 debate on the Anderson report and on Second Reading, I am not a lawyer, so I view the proposal through the narrow prism of the man on the Clapham omnibus, for want of a better phrase: a practical proposal to try to keep my constituents and others as safe as the Government possibly can. I do not view it through the perfectly proper prism of trained legal eyes and I would not be able to do that.

Coming to the breadth point that the hon. and learned Lady who speaks for the SNP has been making, it is clear to me that, from a legal point of view or from a lawyer’s point of view, the narrower, tighter and more prescriptive the language in statute, the better. It narrows, eliminates, eradicates or whatever the opportunity for a wider debate about the interpretation of this or that word, almost like Coolidge, whose immediate response when told that a senator who had always opposed him had died, was: “I wonder what he meant by that.” I think we should be rather careful. I make no apology for viewing this as just an ordinary guy—a father, a husband, a constituent and a Member of Parliament—who believes it is my duty to support any Government of the day who are seeking to keep our country safe.

Does the hon. Gentleman also accept that, as Members of Parliament, we have a duty to protect our constituents’ civil liberties and privacy? Lawyers look for narrow definitions and certainty not for their pleasure, but to protect their clients. The reason why Members of Parliament should look for narrow definitions and certainties is to protect their constituents.

Up to a point, Lord Copper. I find myself in broad agreement with the hon. Member for City of Chester. Likewise, I could not give a tinker’s cuss about most of these things as long as I can look a constituent in the eye were something horrible to happen on the streets of Shaftesbury, Blandford Forum, Gillingham or any of the villages in my constituency. They might look at me and say, “Mr Hoare, are you convinced that you supported everything you possibly could to avoid this atrocity?” I would prefer to say, “Yes, I did.” If it impinged upon or offended against the virgo intacta of civil liberties as a sort of purist academic—I use that word not in an abusive way—definition, I would side with the security argument at every step and turn.

I am not using that as the Luddite argument that someone who has done nothing wrong has nothing to be afraid of. It is absolutely right that to govern is to choose. It straddles that often imperceptible divide between the application of the rule of law and discharging the first duty of the state—to keep the realm safe—and preserving the sacred and long-cherished liberties and freedoms that we all enjoy.

I accept what the hon. and learned Lady says on that point, but it is not just Liberty and Amnesty and other organisations that have access to legal counsel. It is not that the statue, as it emerges through all our processes, would be available only to us and the good guys. It would be available to those who wish us well, but I am going to hazard a guess that one or two of those who wish this country ill—whether in terms of national security, serious crime or acting in an injurious way to our economic wellbeing—may just have recourse to a legally trained brain or two themselves. They, too, would be able to say, “Ah, we’ll do it that way”, because the Home Secretary, the Foreign Secretary, the Secretary of State for Northern Ireland or the Defence Secretary would be so hogtied by the narrow definitions contained in the statute of the Bill, because people sought to stand—this is a phrase I used on Second Reading—like vestal virgins, defending the flame of civil liberty, because that is the flame that must be defended above all others and national security must be secondary to it. That is a perfectly acceptable and reasonable position to take, but it is one with which I profoundly disagree. It offends everything that motivates me as a politician.

We need to be very careful about having, either in the proposed amendments or during the progress of the Bill in Committee and on Report, an obsessive regard to trying to narrow down our language. Providing that the double lock with the judicial oversight remains for all circumstances whereby these warrants and other facilities can be granted—as long as that judicial view is there—that would seem to be in order to secure the provision for the short, medium and longer term, so that we do not have to come back through the legislative process to continually update the narrow language in the Bill to reflect circumstances or address scenarios that, without sounding too much like Donald Rumsfeld, in 2016, we did not think existed or could exist.

It is not from some sort of bovine, recidivist, reactionary, “We are the law and order side of the Tory party” sentiment that I find this quest for the narrowing down of our language to be wrong. It would fetter and constrain the decisions of Ministers and those who, on a daily basis, put their lives at risk under the rule of law to keep us safe. I shall be opposing this set of amendments, just as I will any other amendment, not because my Front Bencher or my Whip advises me to, but merely because I think that there is nothing intrinsically wrong—this is the non-lawyer’s approach—in having broad definitions that provide accountable scope to those who take the decision, so that they are able to take those decisions in response to circumstances as they arise.

There has been the requisite level of jousting and debate, and sometimes temperatures have risen a little bit, but I have found Ministers at least prepared to justify their arguments and to listen to other arguments. I say that, importantly, because this clause and the amendments are of profound importance to me and to many Opposition Members. I have absolutely no doubt that there are occasions when attacks on the United Kingdom can be carried out on an economic, rather than a military or criminal, basis. Let us consider a hypothetical example of a country that is adept at undertaking cybercrime against the London stock exchange to manipulate stock market activity or shares, or to bring the stock exchange down. That, of course, would have a serious effect on the operation of the City of London. I accept that that can happen.

The hon. and learned Member for Edinburgh South West talked about criminal activity. I have no doubt that the activity in the scenario I described would be considered criminal activity, but when my good friend the hon. Member for North Dorset talked about the elephant in the room, I thought he was going to mention the real elephant in the room and he did not. The real elephant in the room, certainly for me, is that, on such a broad definition of economic activity, the activities of trade unions in the United Kingdom could be brought under the scope of the Bill. I ask Members not to try to intervene to correct me because unfortunately that is the case. That is the real elephant in the room.

I do not believe that Ministers today do not consider trade unions to be an important and relevant part of civil society, but on Second Reading my right hon. Friend Andy Burnham gave the example of the Shrewsbury pickets, whose case was examined by the Secret Intelligence Service, and made the point that their convictions still stand. Indeed, there are right hon. and hon. Members of this House today who were right hon. or hon. Members of the House or indeed the Government in the 1980s when trade unions were seen as “the enemy within” and banned from representing members at GCHQ because it was considered that trade union membership and activity was incompatible with a commitment to international security, which is a position that is as absurd as it is downright insulting. I genuinely believe that Government Members have moved on from that positon.

Government Members may well wish to point to subsection (4), which suggests that:

“A warrant may be considered necessary as mentioned...only if the information which it is considered necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.”

They may feel that that gives sufficient protection. I must say that, in my experience, unfortunately it does not.

At this point I remind the Committee that I am a member of the GMB and Unite trade unions and I was formerly a senior official with Unite. That experience gives me insight that I wonder whether Ministers and Government Members, through no fault of their own, do not have. My plea is that they bear in mind that our economy is a globalised one, employers and industries are globalising and, in response, trade unions have had to do the same. Trade unions will gather together in bilateral agreements or bilateral alliances. In the UK, they may well join international trade union organisations such as the IMF—I should point out that that is the International Metalworkers Federation rather than any large economic body—or, as I did, they may well form a globalised trade union with other trade unions so that they meet globalised employers on the same basis and cannot be picked off, one against the other.

In the past, for example—this was quite a regular occurrence—I found myself in Canada on negotiations with mining and mineral extraction employers based in Brazil, working with trade unions from outside the UK. There were disputes with British Airways, which at the time was incorporated through International Airlines Group in Spain, and I found myself in Bangladesh working with the Bangladeshi trade unions that we were trying to form to help them develop trade union strength against the exploitation of shipbreakers. Globalised trade unions pursuing genuine avenues of trade disputes with globalised employers are a modern-day reality.

When the hon. Member for North Dorset talked about the elephant in the room, I thought he was going to mention the great fears that Opposition Members have that trade union membership could be seen as damaging to the nation’s economic wellbeing. If we seek to amend the clause to give the greater clarity that I understand Government Members do not wish to see, it is for good reasons of bitter experience—reasons that Ministers are perhaps not aware of, because of their own personal experience.

There is genuine fear that trade unions in the United Kingdom undertaking legitimate trade disputes on behalf of their members may be dragged into a situation where that action is considered to be damaging to the economic wellbeing of one of our largest employers and therefore has an effect on national economic wellbeing. There is a fear that that may fall within the scope of the clause.

I ask Ministers and Government Members, in the spirit of the Committee’s conduct so far, to consider this carefully and to take away my pleas and those of Opposition Members that sufficient safeguards be written into the Bill to give genuine protection to trade unions that are simply trying to defend the wellbeing of their members and their members’ families. I am grateful for the opportunity to put this case. I remind Members of my declaration of interest, which is my membership of trade unions.

It is a pleasure to follow my hon. Friend, whose comments I endorse. I saw the Ministers nodding that they will take that away and consider it, and I am grateful for that indication. Rather than the broader points that have been discussed so far, I will concentrate my comments on clause 18(2)(c), which deals with

“the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.

The short point is this: if economic harm to the wellbeing of the United Kingdom is so serious that it amounts to a threat to national security, it is covered within subsection (2)(a). If harm to the economic wellbeing of the United Kingdom is a serious crime, it is already within subsection (2)(b). The Intelligence and Security Committee has made the point that

“if ‘national security’ is sufficient in itself, then ‘economic well-being…so far as [is] relevant to the interests of national security’ is redundant, since it is a subset of the former.”

The ISC went on to say:

“We have questioned both the Agencies and the Home Office on this matter and neither have provided any sensible explanation. In our opinion, this area is already sufficiently complex so drafters should seek to minimise confusion wherever possible. We therefore recommend that ‘economic well-being’ is removed”.

The Committee makes the same point that if economic wellbeing is already subsumed into paragraphs (a) and (b), paragraph (c) is not necessary. The Committee has asked repeatedly what paragraph (c) covers if not what is already within paragraphs (a) and (b), and I ask that question here today. I ask the Minister or anyone else to give me a single example of what it is envisaged paragraph (c) covers that does not fall within paragraphs (a) and (b).

Subsection (4) has been referred to today and on Second Reading as providing some sort of comfort that subsection (2)(c) is not a matter of concern. It says:

“A warrant may be considered necessary as mentioned in subsection (2)(c) only if the information which it is considered necessary to obtain is information relating to the acts or intentions of persons outside the British Islands.”

To be clear, that does not mean the communication itself is outside the British islands, but that the communication relates to acts or intentions of persons outside the British islands. I endorse everything that was said about trade union and other activities that may be outside the British islands, but the suggestion that this provision would only catch communications outside the British islands is a wrong reading, in my submission.

The question on the table for the Minister is whether a single example can be given of something coming within subsection (2)(c) that does not come within subsections 2(a) and (2)(b). If not, how can the clause be justified?

I start my contribution to this short debate by confessing a pretty profound prejudice, which is that I am committed to and supportive of trade unions. I am a member of a trade union; my father was a shop steward; my grandfather was chairman of his union branch. I come from a long history of trade unionism, and I believe that the trade union movement in Britain has done immense good for the interests of the people. I am a Disraelian Tory, and so I believe in the elevation of the people, in which trade unions have played an important part. I could wax lyrical about one of my heroes, Joseph Chamberlain, in terms of the elevation of the people, but we do not have time for that. When I approach this clause and this subject, I do so with that profound prejudice. By the way, just as an aside, prejudice is immensely underrated in the modern age, but it is important that we balance all that is rational with all that we feel. Feelings matter.

I make it categorically clear that, as the hon. Member for City of Chester generously said, not only individual Ministers in this Government, but the Government as a whole have no intention that these powers should be used for the kind of political purposes he describes. That is not our intention. Actually—it is always good to go further than one’s officials want—I think we might need to be more emphatic about that in some form, because I want to make it crystal clear that the kind of scenario that he describes cannot happen in our country.

Our country is a free and open place where we celebrate the differences between people and the role played by the trade unions. I am prepared to go as far as necessary down the road to make that categorically clear. To that end, I suggest that I meet Frances O’Grady of the TUC to discuss this. I know her well. I went on a joint business-trade union delegation with her to Germany to look at apprenticeships when I was Skills Minister. I am more than happy to engage with the trade union movement to see what more we can do.

However, let us return to the point about economic wellbeing and these amendments. At the outset of his remarks, the hon. Gentleman rightly recognised that threats to economic wellbeing could be immensely damaging and fundamental in their effect and could be the business of a foreign potentate or another source of malevolence. He described a cyber-attack, which might be an attack on our critical infrastructure, on our financial services system or, heaven knows, on Government itself. The age we live in means that cybercrime, perpetrated either locally or internationally, is a threat that we must recognise and have the means to address, so it is right that the law—this Bill, which I hope will become an Act—includes reference to the interests of the economic wellbeing of the UK, but it is equally true, as the Opposition argued on Second Reading and elsewhere, that that interest is closely tied to national security.

One argument that has been made is that if we were to define national security more tightly, we might assuage fears of the kind the hon. Gentleman described. The trouble with defining national security more tightly is that that might of itself create additional rigidity that is unhelpful to the agencies in pursuit of their work. Successive Governments have hesitated to describe national security prescriptively, and having looked at these matters closely I understand why. Successive Governments have affirmed the idea that a small number of law enforcement agencies, the security and intelligence services and the armed forces need to be able to seek and use interception warrants for national security, for preventing and detecting serious crime and in the interests of economic wellbeing. I am reluctant, therefore, either to take economic wellbeing out of that list or to define national security more narrowly. I think that the breadth of those definitions is important for operational effectiveness.

There may none the less be more that we can do to deal with political fears, if I can put it in those terms. The existing law is clear that none of these powers can be used in the interest of a political party or in a particular political interest, but it may be that we can do more to offer reassurance. I am going a little further than we have until now because I want to create a bridge that we can cross. The Security Service Act 1989 and the Intelligence Services Act 1994 provide some protection, because they deal particularly with the issue of the interests of any political party being served by the powers. A case has been made about the Shrewsbury 24. Indeed, there was a debate in Westminster Hall on that very subject—I have the transcript here with me—promoted by Steve Rotheram, who is a very good man and a very proud trade unionist; I know him well. The events at that time preceded the legislation that tightened protection. Notwithstanding that, I have heard the argument that has been made today.

The other reason why I do not want to significantly change the language on economic wellbeing, although I understand the argument about ambiguity, is that the phrase “economic wellbeing” reflects the language in domestic legislation—as my hon. and learned Friend the Solicitor General will know—the European convention on human rights and the European Union directive that covers the scope of interception powers. It is difficult to think of a better, more appropriate or more widely recognised term. Substituting another term could be taken to imply that the agencies should not engage in certain activities in the future that they undertake now. One can easily imagine a future judicial commissioner querying why the language has changed from that used in the Regulation of Investigatory Powers Act 2000, and asking whether what the agencies do should change, too.

I am hesitant to make that fundamental change. I am not sure it would do anything for transparency. Indeed, removing economic wellbeing and placing what is done under the broader umbrella of national security might lead to less, rather than more, clarity in the process. As the hon. Member for City of Chester described, some of the events that would be included under the heading “economic wellbeing” could be sudden and of crisis proportions, such as the cyber-attack to which he and I referred, and require prompt and decisive action. Such crises are, by their nature, unpredictable and we must not limit the agencies’ ability to deal with them.

Amendments 85 and 85 seek to limit the statutory purpose for which an interception warrant may be used. They would limit the issue of warrants for national security and for the purpose of preventing or detecting serious crime to only those cases where there is a reasonable suspicion that a serious criminal offence has been, or is likely to be, committed. The problem with that is that it has always been the case that the security and intelligence agencies, the armed forces and a small number of law enforcement agencies are able to seek interception warrants for the purposes I have described. That is reinforced both in RIPA and in the statutory functions of GCHQ, MI5 and the Secret Intelligence Service.

It would not be appropriate to hinder the ability of agencies to take investigative action. Threats to the UK are constantly evolving and it would be dangerous to limit the ability to deal with those threats in the way that the amendments certainly would. Cyber-attacks of the kind the hon. Gentleman described might come from an initially unknown or uncertain source. Whether it would stand up in law if we said that a crime had been committed, or was very soon likely to be—if we were to go about the business of investigating them under the amended legislation, assuming the amendment was passed—is a matter of some doubt, so I am not convinced by the amendment.

I will return to the hon. Gentleman’s specific points, as they seem very good. If he will permit me, I will be happy to write to him and the other members of the Committee. I think he said that—if he did not, I am sure that at some point he will—clause 225 sets out the general definitions of a serious crime and the Bill already makes clear that interception can only be used in the prevention and detection of serious crime and spells out what that means. Warrants in respect of serious crime would nearly always pass the reasonable suspicion test, but in some cases intelligence derived from interception is the only means by which reasonable suspicion can be established—for example, in the investigation into an organised criminal group. I do consider the safeguards in the Bill, including strict limits on the circumstances in which these powers can be used, to be effective. I do think that is a robust framework, but I am mindful of the specific points about political and trade union activity. I will look at that again and will take any steps that I think are reasonable to provide assurance to the hon. Gentleman, his hon. Friends, and others.

I listened carefully to the Minister, and I noted that he said he wanted to provide a bridge on the issue of national security and can perhaps deal with issues and political fears related to that, but that he does not want to significantly change the language on economic wellbeing and is not happy with the SNP amendments in relation to reasonable suspicion. I do not want to get too bogged down on trade union rights and I certainly do not want to kick down the bridge that the Minister wants to build, but I have to say that, on trade union rights, actions speak louder than words. This Government have introduced some of the most draconian anti-trade union legislation that has been seen in this country for many years—worse than Mrs Thatcher’s. In that context, I do wonder whether we can be assured about the Government’s intentions in relation to trade unions. However, the Minister is an honourable man; I take him at his word and will listen to what he has to say in the future on this issue. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 18 ordered to stand part of the Bill.

Clauses 19 and 20 ordered to stand part of the Bill.

Clause 21

Approval of warrants by Judicial Commissioners

I beg to move amendment 62, in clause 21, page 17, line 4, leave out from “must” to “the following matters” in line 5 and insert “determine”.

With this it will be convenient to discuss amendment 89, in clause 21, page 17, line 10, leave out subsection (2).

This is where we pick up the discussion about scrutiny. As the amendments to clause 17 were withdrawn, the premise here is that of a dual function, carried out first by the Secretary of State and then by the judicial commissioners. To be clear, we welcome the involvement of judicial commissioners, and the amendments focus on their role in the process. We have had the discussion about whether the judicial commissioners should be the default decision-makers—this is a different exercise.

What is clear in clause 21(1) and (2) is that what is envisaged in the Bill is a review exercise by the commissioners. That is clear from the words “must review”. Subsection (1) states that the judicial commissioner must review the person’s—in this case, the Secretary of State’s—conclusions as to necessity and proportionality, and subsection (2) states that

“the Judicial Commissioner must apply the same principles as would be applied by a court on an application for judicial review.”

It is therefore a review mechanism, and it is a review according to judicial review principles.

Two problems arise from that. The first is that it is not, therefore, truly a double lock. A double lock denotes a decision by the Secretary of State, which survives in clause 17, and a decision by a judge—a judicial commissioner—under clause 21, but this is not that sort of double lock.

The second problem, the reference to judicial review, is equally profound. Committee members will remember my question to Lord Judge:

“Do you agree with me that as the Bill is currently drafted, it is not clear what Parliament intends”— in relation to judicial review of warrants—

“and therefore it will fall to the judges? In other words, it is broadly enough drafted to cover a longer-arm review or a closer intense review depending on what judges decide as cases evolve. It could accommodate both approaches.”

That is the problem with judicial review here.

I will quote Lord Judge’s response, because he captures the real cause for concern here:

“I think ‘judicial review’ is a very easy phrase to use. It sounds convincing, but it means different things to different people. People say, ‘Wednesbury unreasonableness’—that was a case decided by the Court of Appeal in 1948 or 1947, and it has evolved. Personally, I think that when Parliament is creating structures such as these, it should define what it means by ‘judicial review’. What test will be applied by the judicial—I call him that—commissioner, so that he knows what his function is, the Secretary of State knows what the areas of responsibility are and the public know exactly who decides what and in what circumstances? I myself do not think that judicial review is a sufficient indication of those matters.”––[ Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 67-68, Q220.]

That is one of the most experienced and well-respected judges in the country indicating that in those circumstances judicial review is not a sufficient indication of the test.

Amendment 62 would require the judicial commissioner to decide for him or herself on necessity and proportionality. Amendment 89 would take out the reference to judicial review. The scheme and structure of the Bill would therefore be retained. There would be a double lock. Both the Secretary of State and the judicial commissioner must be satisfied that necessity and proportionality is made out, at which point the warrant would come into effect, unless of course it is an urgent warrant. There would be clarity about the role of the judge.

In previous exchanges, it has been accepted that the judicial commissioner will see the material that is before Secretary of State and therefore can make that decision. The lock therefore becomes what we have termed an equal lock, where both parties make a decision on the substantive merits of the case. That gets rid of the potential ambiguity with which Lord Judge was concerned. It would then be absolutely clear that this is truly a double lock. It is a simple and straightforward amendment that would bring real clarity to the exercise.

I am listening to the hon. and learned Gentleman with interest, and I appreciate his exploration of the meaning of this term. What is his opinion of Lord Pannick’s assessment of the insertion of judicial review? He concludes that it is sufficient, flexible but clear and strikes the right balance.

I know and respect Lord Pannick hugely, but there is no guarantee in the Bill that his preferred way of approaching this under judicial review principles is the one that will be carried out in practice; he has no control over the test that will be applied. Lord Judge’s concern is that some judges may consider that this is an area where they virtually take the decision, which is what they do in certain cases involving particular human rights issues, where they get very close to the decision, while other judges will be much more deferential.

With the best will in the world, Lord Pannick puts forward the view that judicial review will work, but there is no guarantee of that. Unless it is set out in the Bill, the test will be simply left to be applied on a case-by-case basis. Nobody, in this formulation, could argue that a judge who applied long-arm reasonableness was acting in any way other than in accordance with the test.

Obviously, I respect what Lord Pannick says, but Lord Judge was making a different point that goes back to accountability, to some extent. He was alive to the fact that once judges are involved in the decision-making process, a torch will be shone on them in relation to these warrants. There will be inhibitions on what they can say and the circumstances in which anybody could hold them to account. We have rehearsed that. I read into his answer that he wanted absolute clarity and a tightness of test so that the judges knew what they were to do and could operate within those confines, thus protecting themselves from the suggestion that they had applied too close or too loose a test. It is partly about clarity, with one eye on judicial accountability in the longer term for the decisions that have to be made.

The hon. and learned Gentleman earlier cited Sir Stanley Burnton and said, pretty much verbatim, that he would encourage Government Members to look carefully at any submissions that Sir Stanley Burnton made, as he was extremely knowledgeable. On this issue, Sir Stanley said that he was happy with the test and that it might be difficult to draft it more tightly. Another experienced member of the panel who gave evidence, Lord Reid, specifically stated that he thought the judges’ role was

“about oversight…and not about decision making.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 84, Q259.]

Sir Stanley is a friend and colleague, and I have had the privilege of appearing in front of him on a number of occasions in cases involving national security, in particular control order cases. I think that what he was indicating was that, in his experience and on his own approach, as any of the cases will demonstrate, he is in favour of intense review by the judge. He anticipates that the measure allows that intense review. I have no doubt that that is the approach he personally would take, because that would be consistent with the approach that he has always taken in such cases.

The problem is that the clauses are of general application for all judges. I know and respect Sir Stanley greatly, and I have no doubt that he would interpret the measure as requiring him to exercise very close scrutiny, but that does not mean it is clear enough on its face or that the test is simple enough. It is a question of whether there is a double lock in the true sense of the Secretary of State making a decision and then a judge making a decision, or whether it is something less than that, where the Secretary of State makes a decision and the judge then reviews what the Secretary of State has done. According to this formula, the judge could do it according to the old-fashioned, 1948 Wednesbury test, which would involve a long-arm review even to the point where a judge would say, “I personally do not think that this is necessary or proportionate, but in the circumstances I do not think that what the Secretary of State has done is so unreasonable that no reasonable Secretary of State would have done it.” That is the danger that everyone involved in the discussion is concerned about. The amendment would make it crystal clear that nothing is lost by the simple test proposed, while a great deal would be gained for the application of the test and, actually, for the judges themselves as they carry out their new role. That is a serious consideration.

It is an important issue. Evidence to the Joint Committee from Sir Stanley Burnton and Lord Judge was unequivocal, in that Wednesbury unreasonableness would have no place in this context. That seems to be maintained by Sir Stanley Burnton in the evidence that we have received more recently. Does the hon. and learned Gentleman agree that Wednesbury unreasonableness has no role in this context, especially by virtue of reference to necessity and proportionality?

The reference to proportionality and necessity does not help in this context, because the question for the judge on this formula is not, “Is the measure necessary? Is it proportionate?” Judges often make, and are well used to making, that decision. The decision for them on this formula is whether, when the Secretary of State decided that it was necessary and proportionate, she was exercising her powers in a way that cannot be questioned, applying the principles of judicial review. That is the real difference.

Whether I think the long-arm Wednesbury test is appropriate is neither here nor there. So long as we have clause 22(2), it is open to a judge to apply the old-fashioned Wednesbury test, because that is within the principles of judicial review. The case law obviously varies. The closest possible scrutiny is usual in control order or TPIMs cases, but there are many other examples involving national security where the judges have persistently said that long-arm review applies. There are two strong lines of case law, and I am arguing that one is better than the other. The point is whether the Bill is clear enough about the test to be applied.

This is a real opportunity, as much as a challenge, for the Government. The provision is a new one, and it is a double lock if properly applied. It ought to be substantive. The judge ought to decide whether a warrant is necessary or proportionate. As long as he or she does, the warrant comes into existence and can be relied upon. In the 21st century, that is the right approach when such a provision is going into statute for the first time.

I think the hon. and learned Gentleman is saying that he favours the same test being applied by both the judge and the Home Secretary. If so, that is in conflict with Sir Stanley’s evidence. He said that he would give significant weight to the view of the Home Secretary. If he gave significant weight to the Home Secretary, necessarily he would be reviewing what the Home Secretary has done. If that is appropriate, the word should be “review”, whether it is judicial review or not. It is a review, not an assessment afresh of the same decision.

I am grateful for that intervention. There are several different positions here, and we are finding our way. The amendments would take out the review element and make it clear that it is a double lock. There would then be a separate decision by the Secretary of State and a decision by a judge on the same material. Of course, a judge would always give weight to the Secretary of State’s view, but they would still come to a decision of their own. That is position No. 1, and let me be clear that that is what the amendment is aimed at—a true and equal lock.

Does the hon. and learned Gentleman agree that amendment 89, tabled by my hon. Friend the Member for Paisley and Renfrewshire North and I, would specifically take out subsection (2) and the reference to judicial review? That would make clear what he is saying: amendment 62, which I also support, would amend subsection (1) so that the judge would determine the review in regard to necessity and proportionality, and judicial review would come out completely.

I agree. I notice that my name is not on amendment 89. I think it should have been, because amendment 62 only works if subsection (2) comes out, but that is neither here nor there at this stage. I am not quite sure what happened, but given that both amendments have been tabled, it does not matter one way or another.

To be clear, the position is that it should be a substantive decision by the judge according to necessity and proportionality, and those terms obviously have their own special application. Through amendment 89, the review, whether by judicial review principles or otherwise, would come out, making it a true double and equal lock.

It is a new approach and a new provision, so it is for Parliament to decide on the appropriate way forward, but the amendments would give clarity and a real safeguard with an equal lock. That is the position. There probably is a fall-back position, which is that if it is to be a review of some sort, amendment 89 should stand on its own feet—that the review should not be on the principles of judicial review, and something more would need to be written into the Bill.

I do not know what response the Minister will give, but this matter goes to the heart of the issue, and it may be that further consideration needs to be given to the precise test. As it stands, the test is insufficiently precise and will lead to difficulties in its application. It is a matter of real concern to the judiciary. Lord Judge does not make such comments without a good deal of thought. If he is concerned about the provision, the Government should be, too. The simple way through is to have a simple but substantive double and equal lock.

The debate has been interesting. On a point of order, Mr Owen, I want to ensure that we are dealing with both groups of amendments. The grouping that I have seeks to group new clauses 1 and 5 in one group—

I am grateful to the Minister. We are dealing with amendments 62 and 89.

That is fine. I am grateful to you, Mr Owen. I will address those amendments, rather than the new clauses, which will be dealt with in the usual way, but the purport of the argument is similar.

To summarise, amendment 89 would remove the provision in the Bill that specifies that when reviewing the decision by a Secretary of State or a Scottish Minister to issue a warrant, the judicial commissioner must apply the same principles as would be applied by a court in an application for judicial review. Instead, the amendment would require him or her to determine the necessity and proportionality of a warrant for him or herself.

There has been a lot of debate on the important report by David Anderson and the Royal United Services Institute review. They have played a huge part in bringing the Bill to germination and its current state. There is a danger here. I listened very carefully to the evidence of Lord Judge and, indeed, asked him a number of questions. The dilemma that I put to him still remains. I can see the attractiveness in seeking to narrow or prescribe the particular criteria to be applied by the commissioners in every instance, but there is a danger that, in doing so, we fetter the proper discretion of judges exercising their review function in looking at each case purely on a case-by-case basis.

The hon. and learned Member for Holborn and St Pancras set out his stall very clearly. He prays in aid the equal lock, as he calls it. In essence, he wants a different approach from that which the Government say we should take. We make no apology that the decision made by the Secretary of State is reviewed by the judicial commissioner before coming into force. That is a very simple, staged approach that clearly reflects the way in which case law is going and is also ahead of the curve when it comes to the development of judicial oversight of warrantry in these particular cases.

I will deal with the Anderson carve-out, if I may use that phrase. The problem with the genuine intention of David Anderson in trying to carve out what he recognised to be an important part of the function of Government—namely, national security and foreign affairs, where he recognised that the Executive are the part of our constitution best placed to deal with those matters—and then creating a certification process is that that, in itself, is juridicable. An Executive decision will be made that is, in itself, capable of challenge. My concern is that, however well intentioned attempts to create a hard and fast definition that creates a theoretical space for Ministers to act might be, we will end up with further difficulty, further lack of clarity and, frankly, further litigation that means that the Bill is not future-proof in the way that I want it to be.

To save time—I probably should have made this clearer an hour ago when we were rowing about other things—I had seen this certification clause, or new clause 1, as going with the amendments to clause 17. In other words, it was my acceptance that, on certain measures, there ought to be a certificate from the Secretary of State for the limited accountability that I accept is there. Therefore, if it is helpful, amendments 62 and 89 are intended to be taken on their own, not cluttered by the certification process, which possibly would have been better discussed under clause 17.

I am grateful to the hon. and learned Gentleman. I remind myself that we will be able to debate those new clauses but I thought it important to look, in essence, at the full picture of David Anderson’s recommendations, bearing in mind that we had quite a lively debate about the role of the Executive. It would be a mischaracterisation of Mr Anderson’s view about the role of the Executive to say that somehow there was a wholesale move away from the Executive’s position with regard to warrantry and what Government Members certainly strongly feel is the important role of the Executive.

Coming back to where we are with regard to the judicial review test, we have already heard reference to the noble Lord Pannick. The intervention he has made is powerful and it is important that he thinks the test is robust. The criticism is, perhaps, not justified. Of course, that is not the only basis on which we have reached that conclusion. We all know—those of us who are lawyers and those who are not—the growing importance of judicial review in our public life—it is a concept that has evolved and that will continue to evolve. It is flexible, too.

It is so general. I have advised people on the potential for judicial review. Does the Minister agree that it is difficult to advise a client on the potential for judicial review in the absence of a reasoned decision? In this Bill, there is no duty on the Secretary of State to give a reasoned decision, so judicial review scrutiny will be happening in a vacuum in the context of a decision for which no written reasons have been given because the Bill does not demand it.

Herein lies the problem. We have the judicial lock—the commissioners, of course, will be giving reasons—so that there is a check and balance upon the decision of the Executive. The hon. and learned Lady makes a proper point, because Executive decisions are administrative decisions that are judicable. I want to avoid further unnecessary and, frankly, unhelpful litigation that will get in the way of the important work of warrantry, which has to be undertaken, bearing in mind not only the interests of national security but, looking down the scale, the various scenarios that will confront commissioners, such as serious crime cases. The flexible scrutiny will allow differing approaches to be taken. Returning to the main point, I am worried that we might end up creating something that is too inflexible, which will create injustice rather than solve the problem.

But how will the judicial commissioner scrutinise the Secretary of State’s decision, having regard to judicial review principles, when she is under no duty to give reasons for it? How will they do it practically?

They will have access to all the material that the primary decision maker has. The hon. and learned Lady is right to ask the question but, simply speaking, the judicial commissioner will have access to the material that the Secretary of State has. In fact, the judicial commissioner will be able to ask for more material, so there should not be any fear that the vacuum she mentioned will exist in relation to the judicial lock.

Returning to the obvious experience of judicial commissioners, I am keen to ensure that we end up in a position where commissioners feel that, on a case-by-case basis, they are not only free to agree with the Secretary of State, but are absolutely free to disagree. If there is not that element of flexibility, this double lock will be meaningless. Again, without casting any imputation upon the good intentions of those who have tabled amendments, my concern is that, first, this amendment is based on a difference of opinion on the nature of the judicial commissioner stage. Secondly, there is a danger that we might end up in a position where decisions are being second-guessed in a way with which the judiciary would feel uncomfortable, and where the balance between the actions of the Executive and proper scrutiny by the judiciary is not clearly delineated.

Does my hon. and learned Friend agree that a similar inclusion of a reference to judicial review has worked well in other legislation and in other regimes, such as in relation to control orders and terrorism prevention and investigation measures? We have a history of such references not causing major problems.

I entirely agree with my hon. Friend. It would not be right for me to make an easy draw-across to the TPIM regime. The hon. and learned Member for Holborn and St Pancras has experience of TPIMs, and I was on the Bill Committee that passed the TPIM law back in 2011, so I have a keen interest in the evolution from what were control orders to TPIMs. The point is staring us all in the face: myriad different circumstances will confront judicial commissioners. It would be too easy for the Committee to come to a conclusion that, somehow, we should create an artificially hard and fast set of criteria that would prevent the judicial commissioners from exercising their duties when considering the varying scale and nature of the applications that they will receive.

My understanding of what the Solicitor General is saying—perhaps he will confirm this—and my reading of the Bill is that the bar is being set a lot higher than the hon. and learned Member for Edinburgh South West seems to imply. The onus in the first instance will be on those who will be making the case for the warrant. The Home Secretary, for example, will then review it to see whether it passes the tests in the Act and will do so, as will the author of the case before the Minister, in the knowledge that they will be, for want of a better phrase, peer reviewed by a commissioner. Therefore, the review of the review of the review is almost a triple lock of the case made by the authority seeking the warrant.

That is an interesting way of putting it. I want to make it clear that the review is on an appeal. There is a danger that we will end up mistakenly looking at some sort of a de novo application entirely on its merits, not an appeal. There are other mechanisms by which this matter could be taken further up. At this stage, it is part and parcel of the decision being made. That is an important point of clarification.

Can the Solicitor General point me to the words in clauses 1 and 2 that would make it wrong for a judge to apply long-armed judicial review principles to a decision?

I am not going to point to that because, as I have said, it is important to have wide discretion. But equally, as Sir Stanley Burnton said, there will be other approaches and judges will be compelled to take a much closer look or hands-on approach—I think Sir Stanley said “stringent approach”—when looking at the case. But that will depend on the case before the commissioner. For example, a case of extreme importance with potentially draconian impacts deserves a very close look under the microscope. That is important. What I want to get across is that there should be not a sliding scale, but a gradation and wide discretion in the test that allows differing approaches to be taken.

In response to the hon. and learned Gentleman, I would be surprised to see bald decisions on Wednesbury unreasonableness. Bearing in mind that, most of the time, European convention on human rights points will have to be engaged, and, by dint of that, necessity and proportionality will have to come into play anyway. Perhaps the point is too axiomatic to be made, but it is important that we do not get too fixated by a worry that judges will take an old-fashioned clubbish approach to whether the Home Secretary is totally out or order. I do not believe that will be the case, bearing in mind the calibre and experience of the commissioners who have done the work up to now and who I expect will carry on doing it in the unified commission that we will create.

In a nutshell—the point does not improve on repetition—there is a danger that in going down the seductive line of seeking greater clarity, we may end up fettering the reviewer’s discretion, which I do not think is in anyone’s interest and does not support the thrust of what all hon. Members want: an effective lock mechanism that properly involves the judiciary in a way that is unprecedented but welcome in our mature democracy.

I have heard nothing that answers what in my submission is a knockout point about lack of reasons. I am not tooting my own trumpet because it was not my idea. I got the point from my learned devilmaster, Laura Dunlop QC, a distinguished silk at the Scottish Bar and former law commissioner. I asked her to look at this and she said the first thing that occurred to her was how can there be scrutiny under judicial review principles when there is a vacuum of any reasoning. I have not heard any answer to that question in what the Solicitor General has said, with all due respect to him.

On that basis, I remain of the view that amendments 62 and 89 will be essential in due course, but following the course of action we have taken today, I will not insist on them at this stage. I reserve the right to bring them forward at a later stage, about which the Chairman has advised me.

I am grateful to the Solicitor General. I have listened carefully to what he has said. There is a difference between us, because I seek to ensure through the amendment that the judicial commissioner is a proper decision maker.

To make the argument that the judges might be fettered is really to misunderstand the amendment that I have tabled. The duty of the judge is to apply the test that Parliament sets out in statute. That is straightforward, and if Parliament is clear about the test, the judge is exercising his or her duties properly in applying the test. There is no question there, but there is this fundamental point between us as to whether it should be review or decision making. I think that is clear enough.

In light of the argument, at this stage I will not push this amendment to a vote, but I will reserve it for a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 2, in clause 21, page 17, line 13, leave out from “a” to “grounds” and insert

“decision of the Secretary of State to issue a warrant,”.

This amendment makes a minor drafting change to take account of the fact that Clause 21 may also apply in a case where a warrant has already been issued (see Clause 22).

With this, it will be convenient to discuss Government amendment 3.

These are minor drafting changes, to take account of the fact that clause 21 may also apply in cases where warrants have already been issued by the Secretary of State, and that urgent procedures are covered in clause 22, and that clause 21 may also apply in a case where the warrant has been issued by Scottish Ministers. They are uncontentious changes, and I beg to move the amendment on that basis.

Amendment 2 agreed to.

Amendment made: 3, in clause 21, page 17, line 15, leave out from “a” to “grounds” and insert

“decision of the Scottish Ministers to issue a warrant,”.

This amendment makes a minor drafting change to take account of the fact that Clause 21 may also apply in a case where a warrant has already been issued (see Clause 22).—(Mr Hayes.)

I beg to move amendment 102, in clause 21, page 17, line 23, at end insert—

“(6) In consideration of any warrant pursuant to this Part, a Judicial Commissioner may instruct a special advocate to represent the interests of any person or persons subject to the warrant or the wider public interest.

(7) A Judicial Commissioner must instruct a special advocate when considering applications for a warrant—

(a) in the interests of national security; or

(b) involving the consideration of items subject to legal professional privilege.

(8) For the purposes of these proceedings special advocates are persons appointed by the relevant law officer.

(9) The ‘appropriate law officer’ is—

(a) in relation to warrants in England and Wales, the Attorney General,

(b) in relation to warrants in Scotland, in relation to (7)(a), the Advocate General for Scotland, and in relation to (7)(b), the Lord Advocate, and

(c) in relation to warrants in Northern Ireland, the Advocate General for Northern Ireland.

(10) A person may be appointed as a special advocate only if—

(a) in the case of an appointment by the Attorney General, the person has a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990,

(b) in the case of an appointment by the Advocate General for Scotland or the Lord Advocate, the person is an advocate or a solicitor who has rights of audience in the Court of Session or the High Court of Justiciary by virtue of section 25A of the Solicitors (Scotland) Act 1980, and

(c) in the case of an appointment by the Advocate General for Northern Ireland, the person is a member of the Bar of Northern Ireland.”

With this it will be convenient to discuss the following:

Amendment 38, in clause 21, page 17, line 23, at end add—

“(6) In considering a warrant pursuant to this Part, a Judicial Commissioner may instruct a special advocate to represent the interests of any person or persons subject to the warrant or the wider public interest.

(7) In considering a warrant pursuant to this Part which is being sought—

(a) in the interests of national security;

(b) in the interest of the economic well-being of the United Kingdom in so far as those interests are also relevant to the interests of national security; or

(c) involving the consideration of items subject to legal professional privilege, a Judicial Commissioner must instruct a special advocate to represent the interests of any person or persons subject to the warrant or the wider public interest.

(8) For the purposes of this section a special advocate is a person appointed by the appropriate law officer for the country of the United Kingdom to which the warrant relates or mostly relates—

(a) for England and Wales, the Attorney General,

(b) for Scotland, the Advocate General for Scotland, and

(c) for Northern Ireland, the Advocate General for Northern Ireland.

(9) A person may only be appointed as a special advocate by the—

(a) Attorney General, if the person has a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990,

(b) the Advocate General for Scotland, if the person is an advocate or a solicitor who has rights of audience in the Court of Session or the High Court of Justiciary by virtue of section 25A of the Solicitors (Scotland) Act 1980, and

(c) the Advocate General for Northern Ireland, if the person is a member of the Bar of Northern Ireland.”

Amendment 39, in clause 21, page 17, line 23, at end insert—

“(6) In consideration of any warrant pursuant to this Part, a Judicial Commissioner may instruct a special advocate to represent the interests of any person or persons subject to the warrant or the wider public interest.

(7) For the purposes of this section a special advocate is a person appointed by the appropriate law officer for the country of the United Kingdom to which the warrant relates or mostly relates—

(a) for England and Wales, the Attorney General,

(b) for Scotland, the Advocate General for Scotland, and

(c) for Northern Ireland, the Advocate General for Northern Ireland.

(8) A person may only be appointed as a special advocate by the—

(a) Attorney General, if the person has a general qualification for the purposes of section 71 of the Courts and Legal Services Act 1990,

(b) the Advocate General for Scotland, if the person is an advocate or a solicitor who has rights of audience in the Court of Session or the High Court of Justiciary by virtue of section 25A of the Solicitors (Scotland) Act 1980, and

(c) the Advocate General for Northern Ireland, if the person is a member of the Bar of Northern Ireland.”

Amendment 45, in clause 23, page 18, line 22, after “addressed”, insert—

“(c) any Special Advocate appointed.”

Amendment 46, in clause 23, page 18, line 23, after “warrant”, insert

“, or any Special Advocate appointed,”.

I am very happy to speak, particularly on amendments 38 and 39. May I just be clear with Committee members about the difference between the amendments? They are alternatives. They are provisions that are intended to allow the judicial commissioner to instruct a special advocate to represent the interests of any person or persons subject to the warrant, or the wider public interest.

The difference between the two amendments is that amendment 39 is purely permissive, so that, if a judicial commissioner thinks that he or she wants the assistance of a special advocate, amendment 39 allows that. Amendment 38 is more prescriptive, because it sets out certain circumstances in which a special advocate should be appointed. However, they are deliberately put in alternative form.

I will speak predominantly to amendment 39. There will be circumstances, no doubt, where the judicial commissioner wants assistance from somebody other than the Secretary of State in conducting the exercise that he or she is conducting. If the test remains as set out in clause 21, there may be points that the judicial commissioner wants to hear about, to hear upon and to take into account. This amendment provides a mechanism for him or her to do so.

Experience in the past has shown that, if a clause such as this, or similar to this, is left out, problems arise. Then, there is an attempt, usually by the court, to find its own inherent jurisdiction to allow an amicus or somebody else to be instructed. And it is not straightforward, because some courts and tribunals have inherent jurisdiction and others do not. There are many arguments about that, which we probably do not need to rehearse this afternoon.

This amendment cuts through all that by saying that, if in any given circumstances, a judicial commissioner wants to hear submissions from “A.N. other party”, it allows him or her to have someone make those submissions, either in writing or in person.

I am not personally wedded to the special advocate scheme. If the Solicitor General thinks there is any merit in that argument, I am very happy to work with the Government on a proposal to achieve the same end, but I think that the fall-back of relying on inherent jurisdiction is inherently risky.

SNP amendment 102 is very similar to amendment 39, which the hon. and learned Member for Holborn and St Pancras spoke to, but there are two differences. First, on the areas in which a judicial commissioner must instruct the special advocate, I have deleted

“in the interests of the economic well-being” in line with an earlier amendment. Secondly, in relation to the appropriate Law Officer who appoints special advocates, I have inserted, for the purposes of subsection (7)(b), the Lord Advocate as opposed to the Advocate General. The reason for that is that subsection (7)(b) deals with

“the consideration of items subject to legal professional privilege”,

which would relate to devolved rather than reserved matters in general terms. In my submission, it would be respectful for the Lord Advocate as well as the Advocate General to be consulted about special advocates.

I am wedded to the notion of special advocates. I do not have a huge amount to add to what the hon. and learned Gentleman said, other than to point out that David Anderson QC, in paragraph 18 of his written evidence to this Committee submitted following his oral evidence, states that he would

“like to confirm my view that the right of the Judicial Commissioners under the dual lock system should be clearly acknowledged” and

“use standing counsel to act as amicus where appropriate in relation to applications for the approval of warrants”.

The special advocate scheme that I advocate goes a bit further than that. The purpose of the special advocate would be

“to represent the interests of any person or persons subject to the warrant or the wider public interest” in the protection of privacy. The amendment would place a judicial commissioner under a duty to appoint a special advocate in a case involving a claim of national security or one that is subject to legal professional privilege. The appointment of the special advocate would ensure that the material produced to support an application is subject to adversarial testing as far as possible. That is the broad thrust of the amendment.

I am grateful to the hon. and learned Member for Edinburgh South West and the hon. and learned Member for Holborn and St Pancras. The hon. and learned Lady was very clear about the different basis of her amendment. My concern is that there are two schools of thought here. There is the amicus curiae school of thought, with which I have a great deal of sympathy. One of the roles of the Law Officers is, when we are approached by various jurisdictions, to consider whether the attorney himself should intervene or whether the court should have an amicus appointed. The hon. and learned Gentleman is right to talk about some of the confusion that can exist in regard to inherent jurisdiction. I am going to take that point away and consider it.

I am concerned about a full-blown replication of the important special advocate system that we have to assist, for example, the Special Immigration Appeals Commission, or of the genesis of the Justice and Security Act 2013 and the closed material procedure. There is an important difference between the public interest in having special advocates and this type of scenario. In such cases, there are affected parties—usually respondents to important applications—for whom huge issues are at stake and who need that sort of quality representation within what we accept are exceptional and unusual departures from the principle of open justice. That is why special advocates were created. They perform an invaluable and important role.

I do not see the read-across from that to this scenario. What we have here is an investigatory procedure. It takes place at the early stages—to take a case example—of the investigation of a crime or a threat to national security. There may not be at that stage an identifiable suspect; there is, therefore, a difference and a difficulty in identifying the prejudice that could be caused to the interest of an individual who is a party to the proceedings. It is a different scenario and, tempting though it might be to introduce that type of regime, it would serve only to introduce delay, bureaucracy and extra expense with no tangible benefit to the integrity of the system.

In a nutshell, I will consider carefully the amicus curiae point, but I have wholly to reject a wider approach and the creation of a special advocate system which, frankly, would go beyond even the American jurisdiction, with which comparison is often made—in the foreign intelligence surveillance court in the US they have amici curiae available to assist the court. On that basis, I urge the hon. and learned Member to withdraw the amendment.

I have nothing to add. In the light of what the Solicitor General has said I will not press the amendment. I look forward to what he produces and to further discussing that. I beg to ask leave to withdraw the amendment.

I have nothing to add either.

Amendment, by leave, withdrawn.

Question proposed, That the clause, as amended, stand part of the Bill.

With this, it will be convenient to discuss:

New clause 1—Power of Secretary of State to certify warrants—

“(1) The Secretary of State may certify a warrant in those cases where—

(a) The Secretary of State has reasonable grounds to believe that the conduct authorised by the warrant is necessary pursuant to section 18(2)(a) (national security) and relates to—

(i) the defence of the United Kingdom by Armed Forces; or

(ii) the foreign policy of the United Kingdom.

(b) The Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(2) A warrant certified by the Secretary of State under subsection (1) is subject to approval by a Judicial Commissioner.

(3) In deciding whether to approve a warrant certified by the Secretary of State under subsection (1), the Judicial Commissioner must determine whether—

(a) the warrant is capable of certification by the Secretary of State under subsection (1); and

(b) in the opinion of the Judicial Commissioner, approving the warrant is necessary on relevant grounds under section 18(2)(a) and subsection (1)(a) or (b) of this section.

(4) Where a Judicial Commissioner refuses to approve a warrant certified by the Secretary of State under this Section, the Judicial Commissioner must produce written reasons for that decision.

(5) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a warrant under subsection (3), the Secretary of State, or any special advocate appointed may ask the investigatory Powers Commissioner to decide whether to approve the warrant.”

This new clause is intended to replace existing Clause 21 and provides for the Secretary of State to certify warrants in cases concerning defence or foreign policy before they are considered by a judicial commissioner.

New clause 5—Power of Secretary of State to certify warrants—

“(1) The Secretary of State may certify an application for a warrant in those cases where the Secretary of State has reasonable grounds to believe that an application is necessary pursuant to section 18(2)(a) (national security) and involves—

(a) the defence of the United Kingdom by Armed Forces; or

(b) the foreign policy of the United Kingdom.

(2) A warrant may be certified by the Secretary of State if—

(a) the Secretary of State considers that the warrant is necessary on grounds falling within section 18; and

(b) the Secretary of State considers that the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(3) Any warrant certified by the Secretary of State subject to subsection (1) is subject to approval by a Judicial Commissioner.

(4) In deciding to approve a warrant pursuant to this section, the Judicial Commissioner must determine whether—

(a) the warrant is capable of certification by the Secretary of State subject to subsection (1);

(b) the warrant is necessary on relevant grounds subject to section 18(2)(a) and subsection (1)(a) or (b); and

(c) the conduct authorised by the warrant is proportionate to what is sought to be achieved by that conduct.

(5) Where a Judicial Commissioner refuses to approve the person’s decision to approve a warrant under this section, the Judicial Commissioner must produce written reasons for the refusal.

(6) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, approves or refuses to approve a warrant under this Section, the person, or any Special Advocate appointed, may ask the Investigatory Powers Commissioner to decide whether to approve the decision to issue the warrant

We have dealt admirably with many of the issues in the clause and I will not speak to the stand part debate.

I do not wish to speak to new clause 1. It stands or falls with the clause 17 amendments and is to that extent withdrawn along with them.

My new clause 5 is in the same category as new clause 1, the ground of which I think we have covered. The new clauses are slightly different, in that they followed David Anderson’s initial recommendation, but we will obviously revisit the matter at a later stage so I will not take up time unnecessarily to labour the point.

Question put and agreed to.

Clause 21, as amended, accordingly ordered to stand part of the Bill.

Clause 22