I beg to move amendment 384, in clause 89, page 68, line 13, leave out from “information” to end of line 15.

This amendment acknowledges that “data” relating to the fact of a communication or the existence of information has meaning and must not be exempt from privacy protections afforded to other categories of data.

This amendment deletes the words

“or from any data relating to that fact”.

It is important because an equipment interference warrant can permit interference with equipment data, as in clause 88(2)(b). As we have seen, clause 88(9) makes provision for protected material, the definition of which includes equipment data. Over the page, clause 89 deals with the meaning of “equipment data”:

“(a) systems data;

(b) data which falls within subsection (2).”

Subsection (2), broadly speaking, refers to systems data as identifying data that is included in, attached to or associated with a communication but that can be separated from it and that, if separated,

“would not reveal anything of what might reasonably be considered to be the meaning (if any) of the communication”.

That is a logical way of approaching it. It is data linked to a communication that can be separated from it, but if separated, it would not reveal the meaning of the communication. Thus, it does not undermine the special protection given to the communication.

Then the final part of clause 89(2), paragraph (c), says

“disregarding any meaning arising from the fact of the communication”.

As has been said today, the fact of the communication, in many respects, can be as revealing as the content. However, the provision goes on to say

“or from any data relating to that fact”,

which broadens even further the exclusion from protection intended for communications.

In that way, the clause undermines the very protection being given to communications, so this short amendment would omit the words that I have indicated, in order to limit the exclusion from protection for the communication.

May I add my supportive comments? This is a joint amendment from the Labour party and the Scottish National party.

Sitting suspended for a Division in the House.

On resuming—

I rise to add my support to amendment 384 on behalf of the Scottish National party. Historically, communications data were considered much less revealing than the content of the communication, and consequently the protections offered to communications data under RIPA were weaker than those existing in the interception regime. However, as communications have become increasingly digital, the data generated are much more revealing and copious than before, allowing the state to put together a complete and rich picture of what a person does and thinks, who they do it with, when they do it and where they do it.

As the Bill stands, clause 88(9) would allow for the examination of potentially vast amounts of data on people in Britain obtained under bulk equipment interference warrants, as vague categories of “data” in 88(9)(a) and (b) are asserted to have no meaning. Data relating to the fact of a communication or the existence of information do have meaning and must not be exempt from the privacy protections afforded to other categories of data.

I urge the Committee to ensure that the Bill does not treat data relating to the fact of a communication or the existence of information relating to that fact as unimportant. In fact, there is extraordinarily high value to such material, precisely because it is highly revealing. It therefore demands equal protection.

All these disruptions and delays are adding interest and variety to our affairs. There is a straightforward argument for why the amendment is unnecessary, which I will make. If that is insufficient to persuade the Committee, I will add further thoughts.

The straightforward reason why the amendment is unnecessary is that it would undermine the principle that the most robust privacy protections should apply to the most intrusive kinds of data. I simply do not agree with the hon. and learned Lady that, for example, systems data—the highly technical data that will be separated out as a result of the endeavours in this part of the Bill—are better excluded from those extra protections. The unintended consequence of the amendment—at least, I hope it is unintended—is that it would lead to disproportionate access requirements for less intrusive data. That would be unhelpful and could, through confusion, hamper the work of the services.

I want to be clear as to how clause 89 operates, because subsection (2) suggests it is an attempt to identify data associated with a communication that can be separated from the communication, but which, if separated, would not touch on the meaning of the communication, thereby protecting it. That is all good. That is a safeguard, which is supported and welcome, but after the comma, as I read it, disregarded from that protection is everything that follows on. At the moment, I do not follow how the amendment removes protection, because the last bit of clause 89(2)(c) after the comma disregards from the protection and thus leaves unprotected from the scheme of clause 89

“the fact of the communication or the existence of the item of information or from any data relating to that fact.”

If I am wrong about that, there is a problem with the amendment, but I understand that part of clause 89(2)(c) to detract from the protection that the subsection is otherwise intending to put in place.

Let me see if I can deal with that question specifically. Equipment data include identifying data. Most communications and items of information will contain information that identifies individuals, apparatus, systems and services, or events and sometimes the location of those individuals or events. Those data are operationally critical to the agencies, as the hon. and learned Gentleman understands. In most cases that information will form part of the systems data, but there will be cases where it does not.

The work that has been done to separate out and define data has been carefully designed to categorise logically the range of data generated by modern communications. Identifying data are operationally critical. It is important to be able to classify data correctly and coherently throughout the Bill. My assertion, therefore, drawing on the hon. and learned Gentleman’s question, is that the amendment would inhibit though not prevent that by making the distinction less clear.

We can talk at length if necessary, although I suspect that at this juncture it is not necessary, about inferred meaning and its importance and relevance here. Misunderstanding frequently arises on inference, but I do not think that that is critical to this particular part of our discussion. My case is that the work we have done in better categorising the difference between the kinds of data assists the application of this part of the Bill, and assists the agencies accordingly. As I said, the amendment, perversely, would afford to those bits of technical data, for example, the same protection that is deliberately granted to more sensitive data under the Bill.

I do not like to do this on every amendment, or we would drown in a sea of paper, but as I write to the Committee regularly, if it would be helpful to cement that point in my next letter, I will happily do so. I am, however, confident that what I have said to the Committee is an accurate reflection of the work that I have described and of the content of the Bill.

I am grateful to the Minister, first for spelling out in detail the intended operation of the clause and, secondly, for indicating his willingness to write on the matter. This is something that ought to be in the Bill. My clear reading is that the amendment would not ring-fence anything from examination; it would simply require a warrant under clause 88 if equipment data, having satisfied all the other provisions under subsection (2)(a) to (c), included anything where there was a meaning arising from fact communication and so on. I will therefore press the amendment to a vote.

I have nothing to add in support.

Question put, That the amendment be made.

The Committee divided:

Ayes 7, Noes 8.

Question accordingly negatived.

Clause 89 ordered to stand part of the Bill.

Clause 90