My Lords, in moving Amendment 194J in my name and that of my noble friend Lady Hamwee, I shall speak to a cornucopia of amendments—Amendments 194K and 194L, Amendments 201B and 201C, Amendments 210B and 210C and Amendment 223B. These amendments deal with the power to issue bulk interception warrants. The draconian nature of these powers is acknowledged by the fact that the Bill proposes that only the intelligence services can apply for such a warrant and that the warrant gives power only to intercept overseas-related communication and secondary data from such communications.
Clause 129(1)(b) states that the Secretary of State must be satisfied that,
“the warrant is necessary … in the interests of national security, or … on that ground and on any other grounds falling within subsection (2)”.
The essence of the first amendment is to probe why subsection (2) is also required, as it states that the,
“warrant is necessary … if it is necessary … for the purpose of preventing or detecting serious crime, or … in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.
Amendment 194J deletes subsection (1)(b)(ii) so as to restrict the issuing of bulk interception warrants to cases of national security only. It is relatively easy to envisage a scenario where terrorists are plotting attacks in the
UK from a hostile foreign country where the co-operation of the telecommunications operators in that country to target individuals is not possible, and the communications of all individuals in a certain geographic area may be the only option. Can the Minister explain what would happen in a scenario where the prevention or detection of serious crime which is not a national security issue would require bulk interception of overseas data?
Amendment 201B makes similar arguments applying to Clause 146 and the power to issue bulk data acquisition warrants—for example, in Clause 146(1)(a)(i), the power to retain and store telecommunications data about every telephone call made in the UK. It is the same point applied to the other power. Amendment 210B applies the same arguments to Clause 164 and the power to issue bulk equipment interference warrants, and specifically to Clause 164(1)(b)(i), the power to hack into every mobile phone within a geographic area.
Can the Minister also explain what the difference is between the “interests of national security” and,
“the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”?
If a warrant is necessary in the interests of national security, why is it necessary to state separately that those national interests have their origins in the economic well-being of the UK? The Intelligence and Security Committee found that the distinction was unnecessarily confusing and complicated. The committee had, as far as it was concerned, failed to get a satisfactory response to its question from the intelligence agencies or the Home Office. Perhaps the Minister can have a go.
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As far as Amendment 194K is concerned, bulk interception involves the acquisition of potentially vast amounts of data—mainly innocent communications. Clause 129(1)(d)(i) refers to the “specified operational purposes” that form the basis for the examination of the bulk content or secondary data, basically to concentrate the examination solely on the bad guys. The Secretary of State must be satisfied that each of the operational purposes is—or as the Bill states, “may be”—necessary. We believe that this phrase “may be” is too loose and that “is likely to be” should replace the wider “may be” necessary.
Amendment 201C makes exactly the same argument and applies it to Clause 146, on the power to issue bulk acquisition warrants, specifically subsection (1)(c)(i). Amendment 210C makes similar arguments in relation to Clause 164, on the power to issue bulk equipment interference warrants, specifically subsection (1)(d)(i).
Amendment 194L relates to Clause 129(4), which states:
“A warrant may not be considered necessary … if it is considered necessary only for the purpose of gathering evidence for use in any legal proceedings”.
We suggest that the warrant cannot be considered necessary if the purpose is “primarily” rather than “only” for the purpose of gathering evidence. It can otherwise easily be maintained that there is some minor, collateral intelligence gain that means that the
warrant is necessary as it is not only for the purpose of evidence gathering. Can the Minister explain why this sub-paragraph is necessary at all? If intercept evidence is not admissible as evidence in UK courts, whether it be from targeted or bulk interception, why would a warrant solely for the purpose of gathering evidence for use in legal proceedings be applied for in the first place?
Amendment 223B relates to Clause 187, on additional safeguards for health records as a subset of bulk personal datasets. Subsection (3) states that:
“The Secretary of State may only issue a warrant if the Secretary of States considers that there are exceptional and compelling circumstances that make it necessary to authorise … retention”.
Our Amendment 223B suggests that health records are so sensitive that the exceptional and compelling circumstances should relate only to national security and not, for example, serious crime. I beg to move.