I beg to move amendment 651, in clause 121, page 98, line 9, leave out subsection (2)(b).

With this it will be convenient to discuss the following:

Amendment 652, in clause 121, page 98, line 12, leave out subsection (3).

Amendment 653, in clause 121, page 98, line 26, at end insert—

‘(7) Where an application made by, or on behalf of, the Secretary of State includes the activities set out in section 119(4)(c) or (d), a bulk interception warrant can only be issued if the Secretary of State considers that selection for examination or disclosure is necessary—

(a) for a purpose under subsection (8), and

(b) it is necessary to obtain the data—

(i) for a specific investigation or a specific operation, or

(ii) for the purposes of testing, maintaining or developing equipment, systems or other capabilities relating to the availability or obtaining of data.

(8) The paragraph 7(a) purposes are—

(a) the interests of national security,

(b) preventing or detecting serious crime or preventing serious disorder,

(c) the interests of public safety,

(d) protecting public health,

(e) preventing death or serious injury or any serious damage to one or more person’s physical or mental health,

(f) assisting investigations into alleged miscarriages of justice,

(g) where a person (“P”) has died or is unable to identify themselves because of a physical or mental condition—

(i) to assist in identifying P, or

(ii) to obtain information about P’s next of kin or other persons connected with P or about the reason for P’s death or condition, or

(h) exercising functions relating to—

(i) the regulation of financial services and markets, or

(ii) financial stability.’.

Amendment 674, in clause 138, page 110, line 1, leave out subsection (b).

Amendment 675, in clause 138, page 110, line 4, leave out subsection (3).

Amendment 676, in clause 138, page 110, line 46, at end insert—

‘(11) Where an application made by, or on behalf of, the Secretary of State includes the activities set out in section 138(7)(b) or (c), a bulk acquisition warrant can only be issued if the Secretary of State considers that selection for examination or disclosure is—

(a) necessary for a purpose within subsection (12), or

(b) that it is necessary to obtain the data—

(i) for the purposes of a specific investigation or a specific operation, or

(ii) for the purposes of testing, maintaining or developing equipment, systems or other capabilities relating to the availability or obtaining of data.

(12) A paragraph 11(a) purpose is—

(a) the interests of national security,

(b) preventing or detecting serious crime or of preventing serious disorder,

(c) the interests of public safety,

(d) protecting public health,

(e) preventing death or serious injury or any serious damage to one or more person’s physical or mental health,

(f) assisting investigations into alleged miscarriages of justice,

(g) where a person (“P”) has died or is unable to identify themselves because of a physical or mental condition—

(i) to assist in identifying P, or

(ii) to obtain information about P’s next of kin or other persons connected with P or about the reason for P’s death or condition, or

(h) exercising functions relating to—

(i) the regulation of financial services and markets, or

(ii) financial stability.’.

We spent some time on clause 119, but it was right to take time on that important provision. We now move to the safeguards. I listened very carefully to what the Minister said a moment ago and to the observations of the hon. and learned Member for Edinburgh South West. As we move forward, there needs to be some clarity on the basis.

In essence, our position is not to seek to reduce the capabilities of the security and intelligence services, which of course currently operate the powers in question under other authorisations. We seek to ensure that there is proper justification for bulk powers—hence new clause 16, which we will vote on at the end, which would delay the provisions from coming into force until an independent evaluation has taken place. I speak only for my party in saying that there is no intention to reduce the capabilities of the security and intelligence services. I am not suggesting for a moment that there is any intention to do that on anybody else’s behalf, but I am simply making my position clear. I am not speaking for anybody else, because I should not.

Does the hon. and learned Gentleman agree that the SNP proposal to put the powers to one side while an operational case is produced would not reduce the security services’ powers for the time being, pending the outcome of the court cases? They are already operating them, as we have heard, under section 8(4) of RIPA.

The hon. and learned Lady should not read into my observations any criticism of the approach that she has taken, or any suggestion that she or her party are seeking to reduce the capabilities of the security and intelligence services. I know her background and the work that she has done, and I know that would not be her position. I do not intend to impute that it is. I am keen to speak only for myself and my party.

The Bill brings a legal framework and definition to the powers, and a set of safeguards to go with the exercise of those powers. I think that is important. If the powers are to be exercised, I would rather they were exercised within a proper legal framework, with more effective safeguards than under the current framework. I think that is the only real difference of approach between us.

What we all have to bear in mind is not whether we personally have been persuaded by the case that the powers are justified, because we all have different experiences and backgrounds—I worked with the security and intelligence services for five years on very serious terrorist cases—but whether members of the public can have confidence that they are. That is why we have been pressing for further consideration and independent assessment of the operational case.

Clause 121 deals with the first part of the safeguards on the exercise of the bulk powers—the test of necessity and proportionality. The clause is in familiar form. Subsection (1) states that the Secretary of State has to consider

“that the main purpose of the warrant is one or more of the following…the interception of overseas-related communications, and…the obtaining of secondary data” and then that

“the warrant is necessary…in the interests of national security,” or on

“grounds falling within subsection (2)”

Subsection (2) adds that the warrant can be

“for the purpose of preventing or detecting serious crime, or…in the interests of the economic well-being of the United Kingdom”.

I will not test the Committee’s patience by going over the same ground about the economic well-being of the United Kingdom being relevant to the interests of national security. The point that I have made consistently on that applies just as much to clause 121, but I will not repeat it.

It is important to appreciate that the necessity of proportionality test set out in subsections (1)(b) and (2) has very broad criteria. When the Secretary of State is considering a warrant, clause 121(1)(d) requires him or her to consider that

“each of the specified operational purposes…is a purpose for which the examination of intercepted content or secondary data obtained under the warrant is or may be necessary”.

On the face of it, that provides some comfort. That is the examination part of the exercise, and it is important because it recognises the distinction that I have made between collating or bringing together data and accessing it. It relates to accessing, because it involves

“a purpose for which…examination…under the warrant is or may be necessary”,

which brings us into the territory of what the test is for examining the data that has been collected. As I said, the Bill states that the Secretary of State will consider

“each of the specified operational purposes”.

However, in clause 125(4), we get into a circular argument. It states:

“In specifying any operational purposes, it is not sufficient simply to use the descriptions contained in section 121(1)(b) or (2)”,

the two provisions to which I have just referred. It is not enough to say, “It is necessary for the operational purposes of national security or preventing serious crime,” or “It is in our economic interests.” That is not enough,

“but the purposes may still be general purposes.”

That is all there is on the subject in the Bill. At the vital stage when we move from hoovering up or collecting communications to accessing them, the test of necessity and proportionality bites on something that is not quite as general as national security, which would not be much of a test at all, but could be not much more than that—“general purposes”. That is a cause for concern, which has prompted our amendments to tighten it up.

In crafting the amendments, we have had one eye on the code. I refer to paragraph 6.19, which suggests that some detail should be put in the application, stating:

“Each application, a copy of which must be retained by the applicant, should contain the following information:

Background to the operation in question:

Description of the communications to be intercepted and/or from which secondary data will be obtained, details of any CSP(s) and an assessment of the feasibility of the operation…

Description of the conduct to be authorised, which must be restricted to the interception of overseas-related communications…

The operational purposes for which the content and secondary data may be selected”.

What is envisaged in the code includes:

“An explanation of why the interception is considered to be necessary…A consideration of why the conduct to be authorised by the warrant is proportionate…An assurance that intercepted content and secondary data will be selected for examination only so far as it is necessary” under section 134. Paragraph 6.26 of the code adds further guidance on necessity and suggests, at the bottom of page 43:

“For example, if a bulk interception warrant is issued in the interests of national security and for the purpose of preventing or detecting serious crime, every specified operational purpose on that warrant must be necessary for one…of these two broader purposes.”

So the code operates on the basis that the detail will be provided in the application, even though it is not necessary under the Bill. I would therefore have thought it would be hard for the Minister and the Government to resist the amendments, which would simply lift the requirement to include the detail in the application from the code and put it into the Bill, so that we and the public could be assured that the test would be stricter than the combined effect of clauses 121 and 125(4).

I have been considering the hon. and learned Gentleman’s point about clause 125. Let me reassure him that the purpose of subsection (4) is to create, in the modern phrase, a greater granularity of approach when it comes to the basis of the application. That provision is in the Bill to prevent the authorities from just relying on generalities; the point is for them to go into greater specificity. I hope that gives the hon. and learned Gentleman some reassurance.

I am grateful for that indication, but I suppose it invites the comment that if that is the intention, it would surely be better to amend clause 125(4) to make it clear that the application must be specific, as set out in amendment 653, which would require the specific operation to be referred to. The amendment would take the spirit of the requirement in the code to set out the specific operational purposes and put it into the Bill so that everyone can see it.

Perhaps I am not making my point clearly enough. If in the end the necessity and proportionality requirements in the Bill for the bulk power and for access are no different, then no real distinction is being made between the two. I think a real distinction should be made in the Bill, to make it clear to everyone that at the point when material is to be accessed or examined, there is a higher threshold and a higher requirement to be specific. That would reflect what is in the code, and that is the spirit in which we tabled the amendments.

The spirit that the hon. and learned Gentleman describes is right. It is important that we specify the reasons for the use of these powers, as well as looking at specific operational cases in the way he set out in an earlier debate. The difference between us boils down to this: should that requirement be in the Bill or in the codes of practice? He has drawn attention to codes of practice, which are clear. He might also want to take a look at the operational case for bulk powers, paragraph 6.13 of which gives examples of operational purposes. They might include counter-terrorism operations to detect and disrupt threats to the UK, counter-terrorism operations to detect and disrupt threats overseas, cyber-defence operations, serious crime, security of agencies’ and allies’ operational capability, or security assurance to provide security awareness to the Government, members of the armed forces, Departments and so on. Therefore, there is more detail about what the purposes might be and why these powers are necessary. The hon. and learned Gentleman is right to say that there is more coverage of that in the draft codes of practice, so the discussion we are having is not about the spirit—I think he is right about that, as I said—but about where the details should be specified.

As I predicted, this is a perennial debate. David Anderson said in his report, “A Question of Trust”, in recommendation 5, under the heading “General”:

“The new law should cover all essential features, leaving details of implementation and technical application to codes of practice to be laid before Parliament and to guidance which should be unpublished only to the extent necessary for reasons of national security.”

Of course, there is a balance to be struck. I think we have got the balance right, and I will therefore resist the amendment, not because I do not understand the thinking behind it or its purpose but because I err on David Anderson’s side of the argument and think that these matters should be in the codes of practice.

However, as I have said repeatedly—I make no apology for amplifying this—the codes are, at this juncture at least, a moveable feast. We have published draft codes with the intention that they should be refined over time on the basis of the arguments we hear here and elsewhere. It may be that we can strengthen the wording in the codes if the hon. and learned Gentleman feels that is the right thing to do. I would have no objection to doing that, but on the basis I have outlined, I will resist his amendment.

I listened carefully to what the Minister said. In the end, this comes back to a debate we have touched on a number of times in this Committee. I hope we have been clear and consistent in the view that safeguards should be set out in the Bill. The code of practice is the proper place for the detailed implementation and guidance on those safeguards. Therefore, for the same reason as in our previous debate, I wish to press the amendment to a vote.

Before the hon. and learned Gentleman does so, I might be able to dissuade him. I am not against what he said as a principle. Of course, it has to be gauged on a part-by-part basis, but the principle he has just outlined seems pretty persuasive to me. I will talk about it with my colleagues and my officials. He makes an interesting distinction between safeguards and other technical matters of the kind Anderson describes, and I am not unpersuaded by that.

I am grateful for that intervention, which was persuasive. Rather than pressing the amendment to a vote that I am not confident we would carry, I would rather continue dialogue that may lead to a changed approach, in whatever form, to how safeguards are dealt with in the Bill and the codes. I will say no more than that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question put, That the clause stand part of the Bill.

The Committee divided:

Ayes 9, Noes 2.

Question accordingly agreed to.

Clause 121 ordered to stand part of the Bill.

Clause 122