Duration of warrants

Investigatory Powers Bill – in a Public Bill Committee am 12:45 pm ar 21 Ebrill 2016.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 12:45, 21 Ebrill 2016

I beg to move amendment 635, in clause 102, page 80, line 21, leave out

“ending with the fifth working day after the day on which” and insert “of 48 hours after”.

With this it will be convenient to discuss the following:

Amendment 636, in clause 102, page 80, line 21, leave out

“ending with the fifth working day after the day on which” and insert “of 24 hours after”.

Amendment 281, in clause 102, page 80, line 21, leave out “fifth working day” and insert “twenty four hours”.

Amendment 282, in clause 102, page 80, line 23, leave out “6” and insert “1”.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

The clause deals with the duration of warrants, and amendment 635 deals with subsection (2), which is concerned with urgent equipment interference warrants that, because they are urgent, have not been through a judicial commissioner. Under the subsection, warrants cease to have effect at the end of five working days after the day on which they are issued. I have a number of observations on that. We touched on the urgent provision. Up until now in the Bill, the provision has been for urgent warrants to remain valid for three working days. For equipment interference, we leap to five. I would certainly like an explanation why. A warrant that allows interference with computers and laptops for obtaining communications and other information suddenly moves from three days to five—not just five days, but five working days. That means that on occasion it could be seven days, and with a bank holiday it could be eight days, so we are moving well beyond the realms of an urgent warrant.

This amendment is similar to one relating to other urgent provisions that aimed to bring the duration down to 24 hours. There is a real concern about urgent warrants and how long they last. Very strong justification is required for allowing an urgent warrant that has not gone through the double lock to continue for between five and eight days. If the Minister is not about to provide that, I hope he will accept the amendment.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

Let me make a general point about something that has punctuated our discussions; it may to some degree satisfy the hon. and learned Gentleman. The codes of practice are, of course, vitally important. They have metamorphosed over time and continue to do so, partly as a result of the scrutiny the Bill went through before it came to the House. The codes of practice are extremely detailed in respect of interference, as he will know, and on page 21 they deal with the relationship between equipment interference and privacy:

“Equipment interference agencies must not intrude into privacy any more than is necessary to carry out their functions or enable others to do so.”

The process by which an equipment interference warrant is authorised, and the subsequent use of that warrant, are properly constrained by those necessary requirements around intrusion and privacy. Notwithstanding that general point, the purpose of the amendments is twofold. As the hon. and learned Gentleman said, the first deals with the time before the judicial commissioner examines an urgent warrant. The second deals with the length of a warrant per se. Let me, for the sake of excitement, deal with them in reverse order.

The length of time that the initial warrant pertains was not challenged by any of the Committees that looked at the Bill, and there has been no great clamour or call about it, not least because of an understanding that these investigations or cases, as I said in an earlier debate, are often complex and dynamic; as they change rapidly, they require powers to pertain and continue over time. I will deal fairly dismissively—I do not mean that with undue contumely—with the second part of this short discussion.

Photo of Joanna Cherry Joanna Cherry Shadow SNP Westminster Group Leader (Justice and Home Affairs)

The Joint Committee and the Intelligence and Security Committee did deal with interception warrants and recommended 24 hours and 48 hours respectively. Given that hacking is potentially more significant and intrusive, would it not be logical to have a similar reduction in relation to hacking?

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

I think the hon. and learned Lady is probably considering a different matter from the one I am talking about. I may have been insufficiently clear, so let me briefly make my case again. I am speaking about the second aspect of the amendments, which is to change the length of time for which a warrant lasts. She will know that, on that issue of duration, David Anderson argued that a serious crime warrant should be extended to last for six months rather than three months, bringing it into line with national security warrants. He explained that, when a warrant lasts only three months, it is often necessary to start preparing a renewal application without a full understanding of the impact of the original warrant. It is important to point out in that respect that equipment interference is not necessarily more intrusive than other techniques. The amendment is out of line with David Anderson’s view in that it seeks to curtail duration of a warrant.

That brings me to the first part. I think I may have confused the hon. and learned Lady by dealing with the points in reverse order, but I come now to the first part of what the amendments will do, which is the matter to which she refers—the five days or three. She will know that there was considerable discussion about that in the earlier stages of scrutiny in the Joint Committee.

The hon. and learned Member for Holborn and St Pancras queried whether it is reasonable for a warrant to be sought, granted and actioned for a longer period before the judicial commissioner looks at it—he mentioned weekends and bank holidays. That has been the subject of considerable debate, but my view is that there has to be sufficient time to put a warrant application to the Secretary of State and in turn to the judicial commissioner. The same individuals in the law enforcement and intelligence agencies who investigated the urgent threat will of course be producing the case for the renewal application. This is really about practical and operational issues, and our judgment is that on that practical and operational basis, we have got the time right.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office) 1:00, 21 Ebrill 2016

I am curious. I understand that material has to be got together and the application made, but for other warrants it is three working days and for these warrants it is five working days. What is it about these warrants that requires the additional two days, which are not needed for other warrants where there is an urgent procedure? I am genuinely curious, because somebody drafted this deliberately.

Photo of John Hayes John Hayes Minister of State (Home Office) (Security)

Clause 102, on the duration of the equipment interference warrants, is the same as clause 28, on the duration of interception warrants. Urgent warrants must be approved by the judicial commissioner after three working days. The urgent warrant lasts for five working days, at which point it must be renewed or it will expire. My point is that is about practicality, rather than there being anything philosophical about it. It is purely an operational matter.

In his report, David Anderson, to which I drew attention and which am now struggling to find, although the Solicitor General is as ever at my service—[Interruption.] That comes as good news to him. In his report, David Anderson deals particularly with these matters on page 275, paragraph 14.69. Earlier I mentioned recommendation 37, that

“to the effect that serious crime warrants should have the same 6-month duration as national security warrants, responds to the recent comment of the IOCC that ‘there remains a strong practical case for increasing the validity period for serious crime warrants to six months’”.

That is the second of the two points that the hon. and learned Member for Edinburgh South West wanted me to address.

My view is that on duration we are in line with both sensible practice and the recommendations of the independent reviewer. On the time between the application and the engagement, we are simply dealing with practicalities.

Photo of Keir Starmer Keir Starmer Shadow Minister (Home Office)

I wish to help the Minister. One of the points I was making does not withstand scrutiny and I will not pursue it or press the amendment. I accept what is being said.

Amendment, by leave, withdrawn.

Clause 102 ordered to stand part of the Bill.

Clause 103 ordered to stand part of the Bill.

Clause 104