I beg to move amendment 385, in clause 90, page 68, line 24, leave out paragraph (b)

This amendment, and others to Clause 90, refine the matters to which targeted equipment interference warrants may relate by removing vague and broad categories including “equipment interference for training purposes”.

With this it will be convenient to discuss the following:

Amendment 386, in clause 90, page 68, line 33, leave out paragraph (f).

Amendment 387, in clause 90, page 68, line 35, leave out paragraph (g).

Amendment 388, in clause 90, page 68, line 38, leave out paragraph (h).

Amendment 456, in clause 90, page 68, line 44, leave out subsection (2)(b).

Amendment 391, in clause 90, page 69, line 1, leave out paragraph (d).

Amendment 392, in clause 90, page 69, line 3, leave out paragraph (e).

Amendment 265, in clause 101, page 78, leave out lines 21 to 27.

Amendment 272, in clause 101, page 79, leave out lines 3 to 7.

Amendment 273, in clause 101, page 79, leave out lines 8 to 12.

Amendment 274, in clause 101, page 79, leave out lines 13 to 18.

Amendment 457, in clause 101, page 79, leave out lines 31 to 36.

Amendment 279, in clause 101, page 80, leave out lines 3 to 7.

Amendment 280, in clause 101, page 80, leave out lines 8 to 12.

We move to a different topic within the same general subject matter of thematic warrants.

Clause 90(1) sets out that a

“targeted equipment interference warrant may relate to” and thereafter follows a long list from paragraph (a) to paragraph (h). Paragraph (a) specifies

“equipment belonging to, used by or in the possession of a particular person or organisation”.

Paragraph (b) deals with groups or those

“who share a common purpose or who carry on…a particular activity”.

Paragraph (c) deals with equipment

“in the possession of more than one person or organisation, where the interference is for the purpose of a single investigation or operation”.

Paragraph (d) deals with

“equipment in a particular location”.

And on it goes. In other words, the clause allows a very broad range of matters to be included in what is intended to be a targeted equipment interference warrant.

The evidence from the independent reviewer, David Anderson, was, in essence, that clause 90, or its forerunner, was so wide that he thought it was difficult to suggest anything that could not be included in a thematic targeted interference warrant. That gives rise to the suggestion that, in truth, this is a disguised bulk power. It is called a targeted equipment interference warrant, but it is so wide as to be tantamount to a bulk power. In so far as this sort of interference has been carried out in the past, it has been carried out under provisions of this sort rather than any bulk provision. It is an extremely wide and permissive thematic warrant that allows interference with equipment in a very wide range of circumstances, which of course includes monitoring, observing, listening to and so on. It is far too wide.

Amendments 385 and 386 are intended to cut out part of the wide thematic approach in subsection (1). Subsection (2) deals with a targeted examination warrant, and again there is a wide range of matters that the warrant may relate to, including

“a particular person or organisation…a group of persons” and so on. As far as subsection (2) is concerned, the examination warrant is to operate in conjunction with or following on from a bulk warrant, so subsection (2) indicates the matters to which such a targeted warrant may relate, notwithstanding the wide breadth of the bulk warrant.

The powers are far too wide and they need to be better specified. The amendments are intended to draw in and narrow the scope of the thematic warrants, because otherwise it is hard to resist David Anderson’s conclusion that it is hard to think what would not be included in one or other of the descriptions I have outlined.

I want to add my voice in support of the hon. and learned Gentleman’s suspicions—sorry, submissions! We share suspicions about this clause. The clause, unamended, permits thematic, suspicion-less warrants and these shade into general warrants. General warrants are anathema to the common law of England and Scotland and fall foul of international human rights law.

I am pleased that the hon. and learned Gentleman prayed in aid what David Anderson, QC said about clause 90. If Members have read his supplementary written evidence to the Committee, they will have seen that at paragraph 5a he expressed grave concern about clause 90, describing it as “extremely broad” and continuing:

“The ISC noted this in relation to the EI power in February 2016…The Operational Case lodged with the Bill also acknowledged…that a targeted thematic EI”— equipment interference—

“warrant may ‘cover a large geographical area or involve the collection of a large volume of data’. This matters, because as the Operational Case also acknowledged…the protections inherent in a thematic warrant are in some respects less than those inherent in a bulk warrant. The very broad clause 90 definition effectively imports an alternative means of performing bulk EI, with fewer safeguards. The Government’s explanation for this–that it will opt for a bulk warrant where extra safeguards are deemed necessary–may be argued to place excessive weight on the discretion of decision-makers.”

That concern—that it gives excessive discretion to decision makers—is one that the Scottish National party has as a thread running through the Bill. David Anderson goes on to say:

“If bulk EI warrants are judged necessary, then it should be possible to reduce the scope of clause 90 so as to permit only such warrants as could safely be issued without the extra safeguards associated with bulk.”

Even if the Minister does not consider the SNP’s and the Labour party’s concerns valid, what does he have to say about the lengthy passage that David Anderson has devoted to the matter in his supplementary written evidence?

I spoke earlier about velocity; now I will talk about breadth and speed. I emphasise that the powers in clause 90 are not new. They are existing powers used by law enforcement, for example, in a range of serious criminal investigations.

Will the Minister tell us the legal basis of the existing powers?

I have done so already, but I will repeat it for the sake of the record. The powers are contained in the Intelligence Services Act 1994 and the Police Act 1997. I am more than happy to provide more information to the hon. and learned Lady on that detail, should she want me to do so.

I am looking at the 1994 Act and it seems to me that it contains broad and vague enabling powers, which bear no resemblance to the powers in the Bill. Can the Minister contradict that?

One of the stated purposes of the Bill is to bring together those powers—to cement them and to put in place extra clarification and further safeguards. I have argued throughout that the essence of the Bill is delivering clarity and certainty. I would accept the hon. and learned Lady’s point if she was arguing that, at the moment, the agencies draw on a range of legal bases for what they do, for that is a simple statement of fact. We are all engaged in the business of perfecting the Bill, because we know it is right that these powers are contained in one place, creating greater transparency and greater navigability, and making legislation more comprehensible and more resistant to challenge. That is at the heart of our mission.

I said I would talk about breadth. The breadth of the circumstances in which equipment interference could be used reflects the fact that, at the time of making an application for a warrant, the information initially known about a subject of interest may vary considerably. Last week, we spoke about the kind of case in which there may be an unfolding series of events, such as a kidnapping, where a limited amount might be known at the outset when a warrant is applied for. The warrant’s purpose will be to gather sufficient information as to build up a picture of a network of people involved in a gang or an organised crime. That is very common and I intend to offer some worked examples in a number of areas.

Identifying members of such a gang can often come from interception arising from a thematic warrant. That might apply to interception, but frankly it might also apply to equipment interference where that is a more appropriate and more effective means of finding the information. Another example may be a group of people involved in child sexual exploitation. Frequently, partial information will allow for further exploration of a network of people who are communicating over a wide area, and who are careful about how they communicate, mindful of the activity that they are involved in. They will not be easy to discover or find, as they will very often disguise their identity. For that reason, it may be necessary to start by looking at sites commonly used to share indecent images of children and from there uncover information that leads, through the use of equipment interference, to those who are driving that unhappy practice. Those examples are not merely matters of theory; they are matters of fact. I know that in cases of kidnapping and in cases of child sexual exploitation, those techniques have been used and continue to be used.

I understand the point the Minister is making and the need for these powers to be practical and effective in real time. He says that they are not theoretical but real, and I absolutely accept that, but David Anderson is someone who will have appreciated that more than many others. He has been working in this field and dealing with those issues for many years. He is hardly likely to make the mistake of theorising about something that he knows about in great detail in the practical examination, so is he just plain wrong when he raises this concern? He has raised it not just once, but on a number of occasions, in detail, and he knows how these things work.

I will return to that point because it is important and fair, and I will return to the Anderson critique in a moment, but before I do so, I want to be clear about the second thing that I said I would speak about—speed.

The kind of cases that I have outlined can move rapidly. The information that becomes available from the kind of initial inquiries that I have described, when the character or names of individual actors may not be known but will become known through these techniques, may require law enforcement agencies to act very quickly to avert further serious crime. Owing to the need for speed, it is vital that those missioned to protect us are able to exercise all the powers when they need to, with confidence and lawfully. The Anderson critique is why the codes of practice limit specifically how thematic warrants can be used. I draw the Committee’s attention to page 25 of the draft code of practice, which deals with such warrants and defines again, in some detail, exactly how they should be as specific as possible, given the breadth and speed requirements that I have set out.

I hear what is said about the David Anderson criticism. I think that we have gone further in being specific in the code of practice than we might have been expected to by our critics, but, rather as I said in relation to our consideration of an earlier group of amendments on warranting, I do not want to inhibit what is currently done; I do not want the Bill to leave the agencies and law enforcement with fewer powers; I do not want to leave them emasculated as a result of our consideration. It is right that we should have safeguards, definition, constraints and, where necessary, specificity, but these powers are vital to protect us from those who want to exploit our children and do us harm. Criminals are increasingly adaptable and sophisticated, rather like terrorists. We must outmatch them at every turn and I believe that those powers are vital for us to be able to do so. So I am unapologetic about making the case for them to the Committee and to Parliament.

I am grateful to the Minister for setting out his case in that way. To be clear, particularly in relation to his last point, I do not think that anyone is suggesting that those powers should not be available. The discussion is about whether they are rightly described as thematic warrants or whether they are, in truth, bulk warrants, which operate in different ways and have different safeguards, procedures and processes to go through. I do not want our challenging and probing to be portrayed as somehow to undermine the work that has to be done by law enforcement and others in real time, often in difficult circumstances.

That said, this is an important issue. I have listened to what has been said and I want to preserve the position. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

I beg to move amendment 389, in clause 90, page 68, line 40, at end insert—

“(1A) A targeted equipment interference warrant may only be issued in relation to any of the matters that fall under subsection (1) if the persons, organisations or location to which the warrant relates are named or otherwise identified.”

With this it will be convenient to discuss the following:

Amendment 458, in clause 90, page 69, line 4, at end insert—

“(2A) A targeted examination warrant may only be issued in relation to any of the matters that fall under subsection (2) if the persons, organisations or location to which the warrant relates are named or otherwise identified.”

Amendment 266, in clause 101, page 78, line 18, leave out

“or a description of the person or organisation” and insert

“or another identifier of the person or organisation”.

Amendment 474, in clause 101, page 78, line 27, leave out

“or a description of, as many of the persons or organisations as it is reasonably practicable to name or describe” and insert

“or another identifier of, each person or organisation”.

Amendment 473, in clause 101, page 78, line 28, at beginning insert “The name and”.

Amendment 268, in clause 101, page 78, line 31, leave out

“or a description of, as many of the persons or organisations as it is reasonably practicable to name or describe” and insert

“or another identifier of, each person or organisation”.

Amendment 269, in clause 101, page 78, line 36, leave out “description” and insert “specification”.

Amendment 270, in clause 101, page 78, line 38, at beginning insert “The name and”.

Amendment 271, in clause 101, page 78, line 40, leave out

“a description of as many of the locations as it is reasonably practicable to describe” and insert “specification of each location”.

Amendment 276, in clause 101, page 79, line 29, leave out

“or a description of the person or organisation” and insert

“or another identifier of the person or organisation”.

Amendment 278, in clause 101, page 79, line 40, leave out

“or a description of, as many of the persons or organisations as it is reasonably practicable to name or describe” and insert

“or another identifier of, each person or organisation”.

Ms Dorries, you have been indulgent in allowing me to trespass on the territory of some of these amendments in my general remarks on the clause. That probably applies to the Minister in reply as well. In those circumstances, it is not necessary for me to say any more about this group.

I have little to add, except to reassure the hon. and learned Lady and the hon. and learned Gentleman that the Investigatory Powers Tribunal has looked at this issue and supported the use of targeted thematic warrants. The Bill strengthens the safeguards.

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 90 ordered to stand part of the Bill.

Clause 91