If I had those illustrations to hand, I would, of course, deliver them this very moment. I regret that I do not have them to hand. However, I will undertake to consider the illustrations that were given previously and write to the noble Lord. If it is necessary, I will elaborate on the examples already given by giving further examples. However, I regret that I am not in a position to cite those earlier examples.
I underline that the reference to national security in the context of the clauses to which I referred—that is, Clauses 129, 146 and 164—operates as an important safeguard. That is what has to be emphasised. In these circumstances I invite the noble Lord, Lord Paddick, not to press these amendments.
I turn to bulk personal datasets and health records and Amendment 223B. This amendment would limit the circumstances in which the intelligence agencies can retain and examine a bulk personal dataset which contains health records under a specific BPD warrant. The Bill already requires the Secretary of State and a judicial commissioner to consider whether the retention and examination of a bulk personal dataset is necessary and proportionate for certain defined operational purposes. Following consideration in the other place, the Bill was amended, limiting the test for granting a warrant for the retention and examination of a bulk personal dataset containing health records to cases where there are “exceptional and compelling” circumstances. These are already extremely high tests.
Amendment 223B would limit the Bill even further so that retention and examination is permitted only in exceptional and compelling circumstances related to national security. By their very nature, exceptional and compelling circumstances are very rare. Restricting the use of such datasets to circumstances where national security concerns are engaged would rule out their use for any other statutory purpose, including the prevention and detection of serious and organised crime. If we were to agree to this amendment, we would be signalling, in effect, that in no circumstances do we believe that it could ever be appropriate that such data should be used for serious and organised crime investigations even when the Secretary of State and a judicial commissioner consider this is necessary and proportionate and that there are exceptional and compelling circumstances. We do not consider that this is appropriate. It is long-standing government policy not to comment on intelligence matters. However, as the then Security Minister explained in the other place, in that specific instance only he was willing to confirm that the security and intelligence agencies did not hold a bulk personal dataset of medical records, which illustrates that there would need to be exceptional circumstances for an agency to do so.
However, the Minister and the Solicitor-General rightly emphasised that we would not want to rule out the possibility of there ever being such a scenario. They gave a hypothetical example in which a group of terrorists are involved in an explosion and sustain burns. Medical evidence about where they attended—the fact that they had attended a local A&E, for example—could be relevant to that particular operation and provide the only lead to find the individuals concerned. The same circumstances could arise if criminals were similarly injured in an explosion at, for example, an illegal drugs laboratory. This would not be a matter of national security but would relate to the prevention and detection of serious crime. I therefore emphasise that no Secretary of State or judicial commissioner, who would both have to approve a specific BPD warrant to retain medical records, would underestimate the seriousness of their duty in this regard. “Exceptional and compelling” is a high test to be met;
restricting this further is not regarded as necessary. Therefore, again I invite the noble Lord to withdraw this amendment.
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On operational purposes, Amendments 194K, 201C and 210C seek to limit the circumstances in which the Secretary of State may approve the addition of operational purposes to bulk interception, acquisition or equipment interference warrants. Currently, the Bill requires that an operational purpose may be included on a bulk interception, acquisition or equipment interference warrant only if the Secretary of State considers that it is a purpose for which the examination of material is or may be necessary. These amendments would change this test to a consideration that the purpose is or is likely to be necessary.
We submit that these amendments would have a detrimental operational impact. A bulk interception warrant will normally provide for the interception of communications from the physical cables that carry internet traffic. This will result in the collection of large volumes of communications. This reflects the fact that bulk interception is an intelligence-gathering capability and is essential to enable communications relating to subjects of interest to be identified and subsequently pieced together in the course of an investigation. The nature of these capabilities and the global nature of internet communications means that there will be circumstances where it will not be possible for the Secretary of State to foresee, and therefore to assess, the degree of likelihood that a particular operational purpose will be needed.
For example, if a new terrorist threat was developing overseas with implications for the United Kingdom’s national security, it may be necessary to select for examination material collected under a bulk interception, acquisition or equipment interference warrant relating to that threat. However, it could not necessarily be foreseen whether material collected under an individual warrant would be relevant to the threat. This would depend on prior knowledge of, for example, the identities and location of targets or even what cables their communications would pass over. Therefore it is vital that the Secretary of State is able to approve the inclusion of a particular operational purpose on a warrant if they consider that the examination of material may be necessary for that purpose. If this was not possible, bulk warrants would have to omit potentially vital operational purposes.
The Bill already ensures that the use of operational purposes is stringently controlled. As well as considering that each purpose is or may be necessary, the Secretary of State must also be satisfied that every operational purpose on the warrant is necessary on one of the grounds for which the warrant is issued, such as in the interests of national security. In addition, we have now proposed government amendments that will strengthen further the Bill’s provisions in relation to operational purposes. These amendments would provide that: the heads of the intelligences services must maintain a central list of all operational purposes; the inclusion of any purpose to that list must be agreed by the Secretary of State; no operational purpose can be added to a warrant unless it is included on the central list; the list
must be shared on a quarterly basis with the Intelligence and Security Committee of Parliament; and the list must be reviewed on an annual basis by the Prime Minister. Therefore these amendments would result in a degradation of operational capabilities and, in any case, we submit that they are unnecessary. Again, therefore, I invite the noble Lord, Lord Paddick, not to press these amendments.
Amendment 194L is concerned with bulk interception in the context of legal proceedings and would change the test the Secretary of State must apply when considering whether a warrant for the purpose of gathering evidence for use in any legal proceedings may be necessary. Currently, the Bill makes clear that the Secretary of State may not consider a bulk interception warrant necessary on any statutory ground—including in the interests of national security—where the warrant’s only purpose is to gather evidence. This reflects the prohibition in Clause 53 on using intercepted material in legal proceedings. This amendment would alter this test and preclude a warrant from being issued with the primary purpose of gathering evidence.
The Bill maintains the general rule that neither the possibility of interception nor intercepted material itself play any part in legal proceedings. This preserves the requirement for “equality of arms” under Article 6 of the European Convention on Human Rights. That is why Clause 53 makes clear that a warrant could not be obtained simply to circumvent this principle. However, to answer the point made by the noble Lord, Lord Paddick, the Bill sets out in Schedule 3 a number of important and tightly drawn exceptions to the prohibition on using intercepted material in legal proceedings. These exceptions include closed material proceedings, terrorist prevention and investigation measures proceedings and terrorist asset-freezing proceedings. There will clearly be circumstances in which it is vital that an interception warrant can be issued for the purpose of gathering evidence in such proceedings on a statutory ground, including in the interests of national security. In many circumstances, this amendment would prevent such warrants being issued and could therefore have a direct impact on the security and intelligence agencies’ ability to protect the public. Therefore, it is because of the existence of the exceptions in Schedule 3 that the clause is framed in the manner it is and the prohibition is expressed in these terms. Again, I invite the noble Lord not to press this last amendment.