§ 8.41 p.m.
§ Consideration of amendments on Report resumed on Clause 13.
Viscount Astor moved Amendment No. 19:
Page 15, line 16, leave out ("an appropriate") and insert ("a fair").
§ The noble Viscount said: My Lords, this amendment and Amendment No. 20 were grouped with Amendment No. 18 with which, as the Minister may remember, we managed to scrape a lucky vote. Therefore, I beg to move.317
§ On Question, amendment agreed to.
Viscount Astor moved Amendment No. 20:
Page 15, line 32, leave out ("appropriate") and insert ("fair").
§ On Question, amendment agreed to.
§ [Amendment No. 20A not moved.]
§ Clause 14 [General safeguards]:
Lord Bach moved Amendment No. 21:
Page 16, line 30, at end insert—
("( ) The arrangements for the time being in force under this section for securing that the requirements of subsection (2) are satisfied in relation to the intercepted material or any related communications data must include such arrangements as the Secretary of State considers necessary for securing that every copy of the material or data that is made is stored, for so long as it is retained, in a secure manner.").
§ The noble Lord said: My Lords, on behalf of my noble friend Lord Bassam, I move Amendment No. 21. The noble Lord, Lord Phillips of Sudbury, raised in Committee the question of material that is lost or stolen. He expressed the view that such material would not be disclosed or otherwise made available and may, therefore, be outside the scope of Clause 14(2).
§ We have reflected on the helpful points that the noble Lord made, and now put forward this amendment in the hope that an explicit requirement to store intercepted material and data securely will reassure those who are concerned that it might otherwise not be so stored. I should add that the storage and handling of intercepted material already involves the highest levels of physical, technical and personnel security. None the less, I hope that this amendment will be welcomed by the noble Lord. I beg to move.
§ Lord Phillips of Sudbury
My Lords, I am grateful to the noble Lord for what he said and am most content with the outcome of our discussions.
§ Viscount Astor
My Lords, we, too, welcome the amendment and thank the noble Lord for introducing it.
On Question, amendment agreed to.
§ Clause 15 [Extra safeguards in the case of certificated warrants]:
Lord Phillips of Sudbury moved Amendment No. 22:
Page 17, line 19, after ("is") insert ("in an external communication and is").
§ The noble Lord said: My Lords, I have the dubious pleasure of moving this amendment. It follows one put forward in Committee. I should like to thank the noble Lord, Lord Bassam of Brighton, for the letter that he wrote to me on 4th July in response to the questions I raised on 19th June. I have to say that the letter is extremely clear—at least, as clear as it reasonably can be—and helpful in terms of the specific questions that were raised on that occasion.318
§ The amendment before the House tonight seeks simply to insert the words, "in an external communication" into Clause 15, which, itself, provides extra safeguards in the case of certificated warrants under Clause 8. The latter allow—and allow only—general trawling for communications data of different kinds for external communications. I suspect that we are dealing here with the central passage of the Bill as regards public concerns. The extent to which any government and agencies serving under the state can utilise the powers under this Bill, especially vis-a-vis warrants under Clause 5 onwards, continues to give a great deal of angst.
§ I should point out at once that this amendment is still in the nature of a probing amendment. I would apologise for that were it not for the fact that we are all grappling and groping to some extent with some of the more complex parts of this measure. Indeed, when taken in conjunction with all the other clauses to which it relates, I suggest that there is no more complex clause than Clause 15.
§ Certificated warrants, which I call "trawl warrants", are to be applied only, as I said, to external communications. The reason being that one must differentiate between the use of targeted interception warrants for domestic policing—analogous one might think to letter opening—and the use of trawling or mass-surveillance warrants used for intelligence and national security purposes which, for some, has Orwellian implications.
§ Depending on the nature of the communication link intercepted, it will be extraordinarily difficult, if not impossible, to capture simply external communications. If one takes, for example, a trunk under-sea cable or microwave beam that physically leaves the United Kingdom and is intercepted somewhere under the ocean, there is no way that one can catch in one's net external communications only; indeed, we would say that one is bound—or almost bound—to catch with it internal communications that are supposed to be proof against the trawling procedure under all circumstances. That is the basis upon which the anxiety persists. As I said, the amendment is a probing one. After hearing the Minister's response, it may be necessary to have further meetings to explore matters further.
§ So we are talking about lawfully examining internal communications "captured" by a trawl of this kind, which will produce mixed-up, bulk information. The noble and learned Lord, Lord Lloyd, referred to the problem—it is not a new one—in his first Interception Commissioner's report. He sanctioned a non-statutory innovation that he considered would lawfully permit, first, the examination of that inadvertently captured internal material; and, secondly, the trawling for purposes broader than antiterrorism. Anti-terrorism trawls are the one exception to the rule that there shall not be trawling for internal communications. In that second category one would be trawling for purposes which include national security, serious crime and economic well-being, as listed in the Bill. The noble and learned Lord, Lord Lloyd, christened that mechanism an "overlapping 319 warrant", by which he meant an ordinary, non-certificated warrant which names the addresses or premises targeted with the interception—which is what is required—and allows the interception of any communications, internal or external, from those addresses.
§ There appears, however, to be what might be called a cart before the horse problem concerning the broader trawling. The question is: how can an overlapping warrant specify addresses, as are required by Clause 8 of the Bill, until those addresses have been identified by the broad trawl which is prevented by the Bill? That, of course, creates the paradox that you have to do that which is not permitted in order to do that which may be permitted. That is an unresolved problem whereby the practice of using these overlapping warrants is utilised.
§ The construction and meaning of Clause 15(3) in particular is, I suggest, still obscure to the House, certainly to these Benches. It seems to create a wholly new kind of certificate which one might call an "override certificate" that can be attached—admittedly for a three-month period only—to a certificated warrant: that is to say, one certificated under Clause 8. The effect of such an override certificate is in practice to sanction a trawl through bulk captured material obtained through a Clause 8 certificated warrant allowing search for an entity—the relevant words in the Bill are "referable to"—or a person inside the United Kingdom for the purposes of national security, serious crime, economic well-being and anti-terrorism.
I refer to future overlapping warrant procedures. It appears from the letter of the noble Lord, Lord Bassam, that they are to continue. The letter states:
There will he cases in which a warrant complying with Clause 8(1) cannot be put into effect in any other way, for example, when a person in the United Kingdom chooses, perhaps in an attempt to avoid interception, to use a foreign Internet service provider".
§ As I say, the totality of that remains obscure to us.
§ However, would it be correct to interpret what the Minister wrote and what is in the Bill as the following? If a target of the security or intelligence services is using a foreign Internet service provider, that Internet service provider, being foreign, cannot be served with an interception warrant but the target's communications within the United Kingdom may still be picked up by GCHQ bulk trawling, for example, on the under-sea cable. In that case, an e-mail sent by the target to a person within the United Kingdom would still he an internal communication, even though routed via a foreign ISP. The Minister made it clear in his letter that a UK-to-UK transmission via foreign parts was none the less still an internal communication. If I am correct, that would tend to fall outside the scope of a Clause 8(4) warrant which is limited to external communications. That overlapping warrant would still be required in such a case. I apologise if this is complex and difficult to follow but I am afraid that is the nature of the case.
§ Even if that is the case, several problems remain. First, would it not be better to put overlapping warrants on a clear statutory basis—the Minister's 320 letter makes it clear that those are to continue—and legitimise them on the face of the Bill? The Government may argue that, assuming overlapping warrants are lawful, there is no extension of the purposes for which the trawling of internal communications may be effectively accomplished under the Clause 15(3) procedure. However, we believe that acceptance of Clause 15(3) unamended creates statute law which broadens the allowable purposes within the Bill—which are confined to anti-terrorism—for internal trawling.
§ It is possible that overlapping warrants can lawfully be used for some kinds of internal trawling but not others, depending on interpretations of the key words, "address", "premises", "factors" and "referable to". All this is totally opaque at present. If Clause 15(3) represents either a practical or legal extension of powers, in future it will be and remain solely for the interceptions communications commissioner to ensure fair play.
§ I believe that these problems are compounded by the intention confirmed in the letter of the noble Lord, Lord Bassam, that in future under the Bill certificated warrants may be served on Internet service providers rather than just on telephone companies. I should like to know whether that is correct. If bulk collection from Internet service providers' networks is undertaken, the captured traffic will be a completely mixed trawl of internal and external communications which it will be possible to separate only by reading the whole catch.
§ If the Government do not wish to accept the amendment, which seeks to put plainly on the lace of the Bill limits and safeguards—I anticipate that the Government will face difficulties in accepting it—is there any way in which the anxieties of firms, individuals and charities can be assuaged in terms of the oversight of these mixed catches of internal and external communications? The Minister may say that the interceptions commissioner has the power and duty to ensure that there is fair play in that regard. However, the anxiety at the extent to which the Bill constitutes a Trojan horse into confidential information which should remain confidential is at its most acute over that measure. We see the problem that in a trawl you cannot select only Dover sole. However, on the other hand, how do you guard against the information which you are not seeking to collect being scrutinised by those who ought not to scrutinise it and, worse still, utilised for purposes wholly outside the ambit and intention of this part of the Bill? I apologise for my discursive and, I suspect, unfollowable attempt to explain the amendment. However, I have done the best that I can. I beg to move.
§ 9 p.m.
§ Lord Cope of Berkeley
My Lords, the explanation of the amendment was slightly lengthy but, I think, absolutely necessary. It is a hideously complicated provision. It is difficult to understand how we got into the position we are now in, let alone how it is proposed to develop it in the future and in particular through this Bill.
321 My underlying assumption is that the distinction between internal and external communications goes back to the days when people were primarily concerned about spying. It was quite all right then to have a powerful scrutiny of external communications because they might contain spying items, whereas with internal communications we were spying on our own people, which was not done—or, at least, done to a much lesser degree. That subsequently became extended so that we could spy on our own people for counter-terrorist purposes because we are all against terrorists and terrorism is a growing threat. I do not mean that idly—it is quite true—but one can see how, historically, we have got to the position where external communications can be much more thoroughly scrutinised, and communications being examined for anti-terrorist purposes can be much more thoroughly scrutinised, than ordinary internal communications. There is a considerable acceptance that this is the rationale behind it.
But now, of course, we live in a different age—an age when it is possible to trawl over vast numbers of communications exceptionally easily for key words, for addresses, for people's names and so on. The power of computers is basically such that it enables us to do this. There must be a great temptation, a great desire, on the part of those whose job it is to catch criminals—whom we all support—to use these powerful mechanisms for the purposes we all want to see.
But, at the same time, we do not want to reach a position where people are being monitored all the time. It is 16 years since 1984; the book of that name was obviously written a good while before that, but it gives an insight as to how things might be if governments are allowed to monitor our lives too much.
The first question arising out of these provisions, and the one to which the amendment draws attention, is whether it is regarded by the Home Office as lawful to use overlapping warrants. It seems to be accepted that they have no statutory basis; on the other hand, they seem to have an excellent legal pedigree in the form of, among others, the noble and learned Lord, Lord Lloyd. I assume that the answer is, yes, they are regarded as lawful at the moment.
But, on the face of it, as the noble Lord, Lord Phillips, said, this part of the Bill represents an extension of the powers beyond what they are at the moment, either statutorily or non-statutorily. Is that the Government's intention? Are the Government attempting by the phrases used in the Bill to extend the powers beyond what they are now and not only to extend them to different forms of communications—to e-mail and so on—but to extend them in nature beyond what they are now? What is the intention of this?
I do not think that anyone would object to the powers being extended from what they are now—even if it is legally a bit uncertain—to cover different forms of communications such as e-mail and so on, but we would be concerned at a different level if the Government were setting out to extend the powers 322 beyond those currently available for telephones and more conventional means of communications. That is the importance of this.
I am not entirely convinced that the amendment is necessary. The Bill is so complicated that it is difficult to be sure whether trawling is intended by the Bill to be confined to the same things that it is confined to now for telephones and so on. If not, at the very least we should be told. We should then give consideration to whether that is what we want to do and whether Parliament is prepared to give that authorisation to the agencies which do such sterling work on our behalf.
§ Lord Lucas
My Lords, I have enjoyed listening to the contributions from the Opposition Front Benches. Both noble Lords seemed to be striving extremely hard to give the Government the benefit of the doubt and to find some way in which what is written plainly and clearly in the Bill should not be true. It is absolutely obvious what is in the Bill—at least it is to me—and that is, yes, trawling becomes legal. The Home Secretary has to renew the warrant every three months, but he can trawl on grounds of economic well-being and serious crime, as well as terrorism, to any extent that he wishes.
I do not think that this particular Home Secretary is going to go after a police state in a big way, but we can be certain that we are going to go after the people who start the riots in the City and the football hooligans. That is exactly what the clause permits. It is absolutely obvious that the economic well-being of the UK is affected by both groups. We have lost the ability to stage a major football tournament because of football hooliganism, and the economic well-being of the UK is affected. The reputation of the City suffers from these annual riots, and the economic well-being of the UK is affected. Under those conditions the Secretary of State can go trawling for any group of people that he chooses as long as such a group is reasonably rationally coherent—and certainly the people indulging in both those activities must come under that category. Under this Bill we have the ability to trawl in any way at all as long as it is referable to that kind of thing.
If this is not what the Government intend, I have got the wording wrong. But as they have defended the wording through quite a long parliamentary process, one has to assume that that is what they mean to do. Sometimes this Government do things they do not mean to do—I do not suppose they meant to get Mr Livingstone as mayor of London—but this is an occasion when what they are doing and what they are intending to do must surely coincide.
§ Lord Bassam of Brighton
My Lords, all noble Lords who have spoken in the debate have done so with great knowledge of the subject. At least they sound as though they have. I shall try from the Dispatch Box to equal that, though I am not sure I shall succeed. I should like to try to respond to the points raised in the debate. With due deference to the noble Lord, Lord Phillips, he asked a whole range of questions with which, frankly, had I managed to follow them in close 323 text form, I would have struggled. Outside the arena of the House I shall undertake to look at Hansard, work through them with my officials and provide him with answers. He helpfully said that he saw this as a probing amendment. What I may be able to add to the debate will probably explain in plain terms what we are trying to do.
As we understand it, the amendment—I will be frank about this—would render unworkable the arrangements for interception and selection of external communications. It is just not possible to ensure that only external communications are intercepted. That is because modern communications are often routed in ways that are not all intuitively obvious. Noble Lords who have contributed to the debate understand that. An internal communication say, a message from London to Birmingham—may be handled on its journey by Internet service providers in, perhaps, two different countries outside the United Kingdom. We understand that. The communication might therefore be found on a link between those two foreign countries. Such a link should clearly be treated as external, yet it would contain at least this one internal communication. There is no way of filtering that out without intercepting the whole link, including the internal communication.
Even after interception, it may not be practicably possible to guarantee to filter out all internal messages. Messages may well be split into separate parts which are sent by different routes. Only some of these will contain the originator and the intended final recipient. Without this information it will not be possible to distinguish internal messages from external. In some cases it may not be possible even if this information is available. For example, a message between two foreign registered mobile phones, if both happened to be roaming in the UK, would be an internal communication, but there would be nothing in the message to indicate that.
It is still the intention that Clause 8(4) warrants should be aimed at external communications. Clause 8(5) limits such a warrant to authorising the interception of external communications together with whatever other conduct is necessary to achieve that external interception. Whenever such a warrant is signed, the Secretary of State must be convinced that the conduct it will authorise as a whole is proportionate—my favourite word—to the objects to be achieved. His decision to sign will be overseen by the interception of communications commissioner.
The next layer of protection is the certificate. Anything that is not within the terms of the certificate may be intercepted but cannot be read, looked at or listened to by any person. Beyond that are the safeguards set out in subsection (2) of Clause 15. Except in the special circumstances set out in later subsections, or if there is an "overlapping" Clause 8(1) warrant, selection may not use factors which are referable to an individual known to be for the time being in the British Islands.
Amendment No. 23 would extend the prohibition on selection by factors referable to individuals in the British Islands to cover also premises in the British 324 Islands. It would occasionally have perverse consequences. For example, let us suppose that a foreign terrorist group was planning to blow up a prominent London building—say, the House of Lords. In the absence of any other leads, the agencies would no doubt be searching for any messages mentioning the House of Lords. But that would clearly be a selection factor referable to premises in the British Islands. It does not seem right for that, which would not involve intercepting any communications to or from the House, to need special authority.
As noble Lords can judge from that response, it is a very complex matter. Other points were raised in the debate. The noble Lord, Lord Cope, asked whether the intention is to extend the powers. The simple answer is from existing new communications, yes, but beyond that, certainly not, no. I hope that clarifies that point. The noble Lord, Lord Phillips, sought some reassurance for himself, and the public perhaps, about the commissioner's role. I can say that the commissioner has the responsibilities to which the noble Lord referred. That much is clear. The commissioner will also be anxious to reassure the public that his oversight of the matter has been both effective and thorough. He has to discharge his duties in those terms.
We would be very concerned if these amendments were passed. As I said at the outset, they would render the arrangements unworkable both for interception and the selection of external communications. They would provide a very difficult situation for those agencies that need to undertake that work. I urge noble Lords not to press their amendments. The noble Lord, Lord Phillips, said that he would perhaps like to have further discussions on these matters. I am certainly happy to facilitate that outside the Chamber. We view these matters very seriously indeed.
§ Lord Phillips of Sudbury
My Lords, I listened with great interest, as I am sure did other noble Lords, to what the Minister had to say. I accept that I cannot fairly expect the issues raised in the debate to be answered here and now in all particulars. I welcome the noble Lord's agreement to discussions outside the Chamber. In all the circumstances, it would be best to proceed by that route. I am therefore happy to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Cope of Berkeley had given notice of his intention to move Amendment No. 23:
Page 17, line 32, at end insert—
("or otherwise than according to a factor which is referable to premises in the British Islands").
§ The noble Lord said: My Lords, I omitted to refer to Amendment No. 23. It is grouped with Amendment No. 22. Fortunately, it did not matter because the Minister replied anyway to what I might have said.
§ [Amendment No. 23 not moved.]325
§ 9.15 p.m.
Lord Cope of Berkeley moved Amendment No. 24:
After Clause 18, insert the following new clause—