I beg to move amendment 419, in clause 96, page 72, line 36, leave out

“law enforcement chief described in Part 1 or 2 of the table in Schedule 6” and insert “Judicial Commissioner”.

With this it will be convenient to discuss the following:

Amendment 420, in clause 96, page 72, line 37, leave out

“person who is an appropriate law enforcement officer in relation to the chief” and insert

“law enforcement chief described in Part 1 of the table in Schedule 6”.

Amendment 421, in clause 96, page 72, line 40, leave out “law enforcement chief” and insert “Judicial Commissioner”.

Amendment 422, in clause 96, page 72, line 42, leave out “law enforcement chief” and insert “Judicial Commissioner”.

Amendment 423, in clause 96, page 73, line 1, leave out “law enforcement chief” and insert “Judicial Commissioner”.

Amendment 424, in clause 96, page 73, line 4, leave out paragraph (d).

Amendment 425, in clause 96, page 73, line 7, leave out

“law enforcement chief described in Part 1 of the table in Schedule 6” and insert “Judicial Commissioner”.

Amendment 426, in clause 96, page 73, line 8, leave out

“person who is an appropriate law enforcement officer in relation to the chief” and insert

“law enforcement chief described in Part 1 of the table in Schedule 6”.

Amendment 427, in clause 96, page 73, line 10, leave out “law enforcement chief” and insert “Judicial Commissioner”.

Amendment 428, in clause 96, page 73, line 14, leave out “law enforcement chief” and insert “Judicial Commissioner”.

Amendment 429, in clause 96, page 73, line 17, leave out “law enforcement chief” and insert “Judicial Commissioner”.

Amendment 430, in clause 96, page 73, line 20, leave out paragraph (d).

Amendment 431, in clause 96, page 73, line 23, leave out subsection (3).

Amendment 432, in clause 96, page 73, line 29, leave out paragraphs (b) and (c).

Amendment 433, in clause 96, page 73, line 35, after “Where”, insert

“an application for an equipment interference warrant is made by a law enforcement chief and”.

Amendment 434, in clause 96, page 73, line 39, leave out subsections (6) to (10).

Amendment 436, in clause 96, page 74, line 16, leave out subsections (12) and (13).

Amendment 437, in schedule 6, page 213, line 15, leave out Part 2.

Amendment 460, in clause 101, page 78, line 2, after “service”, insert

“or to a law enforcement chief”.

Amendment 461, in clause 101, page 78, line 6, leave out subsection (2)(c)

The clause contains a power for law enforcement officers to authorise equipment interference warrants. That would be a significant power for the law enforcement chief and those officers to exercise. I have two observations to start with. First, the law enforcement chief authorises the warrant on an application from a person

“who is an appropriate law enforcement officer in relation to the chief”.

That is all set out in schedule 6, to which we will come shortly.

There is a big distinction between clause 96(1) and (2). Subsection (1) states:

“A law enforcement chief described in Part 1 or 2 of the table in Schedule 6 may…issue a targeted equipment interference warrant” in the circumstances set out in the subsection relating to a serious crime. Subsection (2) applies to a law enforcement chief described in part 1 of the table in schedule 6, and provides for a targeted equipment interference warrant to be authorised if it is

“necessary for the purpose of preventing death or any injury or damage to a person’s physical or mental health”.

We have rehearsed some of this before, in the sense of whether there should be a threshold higher than simply “any” injury or damage, because that is on the face of it a very low threshold, given, on this occasion, to law enforcement officers. That is a real cause for concern.

There is a second issue. One of the safeguards in clause 96 is that if warrants are issued under this clause by law enforcement officers, the decision to issue must go to a judicial commissioner, so there is a different form of the double lock, but in this case the argument that it should go straight to a judicial commissioner is so much more powerful.

On the first day—a Tuesday, I think—of our line-by-line consideration of the Bill, the Minister made the point that for the kind of warrants that we have hitherto been discussing, where there is a double lock, the special role of the Secretary of State as an elected Member of this House made it appropriate and right that she should consider the warrant; it should not go straight to a judicial commissioner. That is a very difficult argument to make when the double lock is being applied to a process that involves first a law enforcement officer and/or law enforcement chief and then the judicial commissioner. I do not think it is possible to mount an argument that the law enforcement chief has any of the characteristics attributed to the Secretary of State in support of the argument that the double lock should ensure that she takes the decision first, so there is a powerful argument for saying that in these cases the warrants ought to go straight to a judicial commissioner.

The bulk of the amendments in this group are SNP-only amendments. I think I am right in saying that the Labour party probably supports them, but I will leave it to the Labour party to confirm that.

Put simply, the set of amendments proposed by the Scottish National party would remove the power to issue equipment interference warrants from law enforcement chiefs, immigration officers, officers of Revenue and Customs, customs officials, the chair of the Competition and Markets Authority and the Police Investigations and Review Commissioner, and instead judicial commissioners would be responsible for issuing warrants on application from law enforcement chiefs. It is a disturbing anomaly that the Bill proposes that authorisation for the most intrusive form of surveillance—hacking—should be self-issued by a range of public bodies. Could the Government clarify the reason for that anomaly?

This process would put a range of actors, from chief constables to immigration officers, in charge of issuing hacking warrants. The proposal would give these individuals greater powers of intrusion than the security services have under later parts of the legislation—they are at least required to seek the authorisation of the Secretary of State for hacking activities. It is in my argument self-evident that the process should be for law enforcement officials to make an application for a judicial commissioner to decide the application.

I mentioned immigration officers. The Immigration Law Practitioners’ Association has produced a briefing for members of the Committee, and it has drawn to our attention the fact that under clause 96 persons appointed as immigration officers under paragraph 1 of schedule 2 to the Immigration Act 1971 are among those who can apply for these warrants for a serious crime that is

“an immigration or nationality offence” as defined, or where the warrant is considered

“necessary for the purpose of preventing death or any injury or damage to a person’s physical or mental health or of mitigating any injury or damage to a person’s physical or mental health”.

The Immigration Law Practitioners’ Association has a long history of briefing, with some distinction, hon. Members on immigration matters. The issue that it identifies is that the wording of the clause does not identify which immigration offences are considered to be serious crimes or, indeed, whether they are all considered to be serious crimes, so there is a lack of transparency in the legislation.

I should address one other amendment, which is on a slightly different point. SNP amendment 435 is an attempt to import into clause 96 the proportionality and technical assessment requirements that I addressed in some detail in my argument in support of amendment 465 to clause 91. I will not rehearse that again.

To help the Minister, we have already dealt with amendment 435.

Thank you, Mr Owen. A number of points have been raised. Clearly, law enforcement agencies use equipment interference to stop serious crime, but it is important to add that they also use it to help people at risk of serious harm. That might include locating missing people or helping vulnerable children; there is a whole range of preventive measures that anticipate harm. The Bill brings into a single place the powers that are already used in those ways; there are no additional powers here.

It is also important to point out that these matters were looked at, as were all matters, during the extensive scrutiny that the Bill enjoyed before it came to the Committee. None of the reports of the three Committees of the House, for example, recommended changing the current arrangements for the way in which these kinds of warrants are authorised and used. We have modelled the arrangements in the Bill on the current system under the Police Act 1997, which authorises property interference. That is how this activity is currently dealt with.

I hear what the Minister is saying, but does he not accept the force of the argument that it is anomalous that the security services at least have to go to the Secretary of State, whereas law enforcement chiefs will be able to issue such warrants themselves?

I was coming to that argument, which was also made by the hon. and learned Member for Holborn and St Pancras. I simply say that the character of the warrants we are speaking about, which law enforcement chiefs apply for, is central to much of what happens now in the investigatory process. It is based on those chiefs’ special understanding of such investigations. They are clearly answerable for the effective policing of their area, and they certainly have the experience and expertise to make the right decisions on what equipment interference is necessary in an investigation of a serious crime. The status quo suggests that the system works and the powers that we are describing have real value in dealing with crime and in anticipating the other kinds of harm that I have described.

In drawing up a Bill, as I have argued previously, one looks to cement existing powers, but of course one also scrutinises what is not working. If we had thought that the current system was not working, we would certainly have looked to change it. The Bill is consistent with other powers in the 1997 Act, as I have described, such as property interference. It would arguably be anomalous to separate what the police do in respect of property from what they do in respect of technology. It might well, in the hon. and learned Lady’s eyes, deal with one anomaly only to create another.

rose—

The hon. and learned Lady is no doubt about to lecture me on anomalies.

Does the Minister agree that there is another anomaly? To search someone’s house, north and south of the border, one has to have a warrant issued by a judge. The clause will allow people to hack into equipment, with all the information that it contains in this modern world, without a judge-issued warrant.

The hon. and learned Lady is right that these things need to be consistent, as I said in the previous discussion, but we have been arguing in favour of the double-lock throughout this consideration. I am not sure it would be sensible for us to use the Bill to change existing legislation that is doing its job. That was not the view of law enforcement itself; of David Anderson, when he looked at these matters; or of the Joint Committee when it considered them. It would be curious—I put it no more strongly than that—if we were suddenly to focus on this and make a considerable change to existing practice.

The use of covert human intelligence sources under the Regulation of Investigatory Powers Act 2000 is also well-established. The current practice is subject to the chief surveillance commissioner, who has publicly affirmed that law enforcement chiefs apply themselves with due care and attention to ensure they are compliant with the law and acting in good faith. Not only has the scrutiny of the Committees I have described not made the point that the hon. and learned Lady makes, but it seems that my defence of the status quo is supported by the evidence of the commissioner.

Equipment interference warrants must be approved by the judicial commissioner, so the hon. and learned Lady’s argument that a judge deals with the search of a property, and my argument that a judicial commissioner will approve the kinds of warrant we are debating now, seem to be equivalent. Perhaps she thinks a judicial commissioner is not the best person to do that.

The position that has consistently been put forward by the Scottish National party is that the judicial commissioner should not be in a double-lock system. He or she should be looking from the outset at the merits of necessity and proportionality. That has been our consistent position in relation to all provisions related to warrantry in the Bill.

The hon. and learned Lady, with due respect, is shifting the ground. On the one hand, she says that she compares the arrangements for searching a house, the warrant for which is approved by a judge, with this system, on the grounds that there should be judicial involvement in both. On the other, when I said that there will be judicial involvement in both, she returned to the argument that the Secretary of State should be involved. I think she needs to know what she wants.

With all due respect, I have been crystal clear about this from the beginning. “Judicial involvement” is a very loose term. Judicial involvement, in which the judge is bound by the rules of judicial review, is a considerably lesser involvement than if he or she is able to look at matters purely on their merits, as in a system of pure judicial warrantry, advocated by the Scottish National party.

There were many other opportunities to consider the judicial review point that the hon. and learned Lady makes. In fairness, she has been consistent in having doubts about whether those are the appropriate terms on which a judicial commissioner should consider these matters. There has been much discussion about that, including in some of the Committees that I referred to earlier. Regardless of the terms—you will not allow us to explore those in any great detail, Mr Owen, because they are not strictly pertinent to the clause or the amendment—the process whereby a law enforcement chief, supported by a judicial commissioner, obtains a warrant is, in my judgment, sufficient to guarantee proper practice. It is certainly in line with what we know currently works. I would have to be pretty convinced at this juncture to make such a radical change to the Bill, and frankly, I am not.

I am grateful to the Minister. I do not intend to vote against the clause, but I have a nagging concern, which I will try to articulate. A communication in the course of its transmission is highly protected—the Secretary of State must sign off a warrant. The Secretary of State individually considers those warrants and we know the numbers. That is an understandably high level of protection for a communication in the course of its transmission.

We are now talking about where equipment is interfered with to get a communication. It is true to say that if a communication is in the course of its transmission, an equipment interference warrant would not allow the protection in the first part of the Bill to be bypassed. That makes perfect sense. But my nagging concern, I suppose, is that it is the communication itself that ought to be protected; all that is protected at the moment is the fact that it is in the course of its transmission. I accept that that is the current regime and I am not challenging it, but that is my nagging concern.

The hon. and learned Gentleman has offered an interesting observation. My counter-observation—perhaps it is a little more than that; it is more of a considered assertion—is that the kind of investigation I have described needs to happen with speed, and certainly with expertise. I think we agree that that is supported by the evidence I have provided and the evidence that has been made available to the commissioner. There needs to be flexibility in the system, and I think that is provided for. He is right that there should also be a legal test and a legal check on that test, which we have also provided for in the Bill. My assertion is that the amendments would provide a single lock, but we are providing a double lock. What’s not to like? On that basis, I ask the hon. and learned Member for Edinburgh South West not to press her amendment.

As the Minister will no doubt have gathered from the last few days in Committee, it is my opinion that there is a lot not to like in this Bill, but I am prepared to withdraw my amendment at this stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 96 ordered to stand part of the Bill.

Schedule 6 agreed to.

Clause 97