My Lords, these amendments relate to a judicial commissioner’s consideration of a bulk warrant that is to be served on an overseas provider and what the commissioner is required to take into account when considering the Secretary of State’s decision to issue a bulk warrant. There is also a government amendment in this group which is technical in nature, and I shall address that in a moment.
Amendment 194M seeks to insert a requirement that, where an overseas telecommunications operator is likely to be required to provide assistance in giving effect to a bulk interception warrant, the Secretary of State must—before the warrant is issued—take into account the domestic law of the operator’s place of business.
I suggest that this amendment is not necessary. The Bill already provides, at Clause 139(5), that Clause 41, which deals with the duty of operators to assist with implementation, applies in relation to a bulk interception warrant in the same way as it applies to a targeted warrant. Clause 41 makes it absolutely clear that a telecommunications operator may be required only to take “reasonably practicable” steps to give effect to a warrant. It also makes clear, at subsection (5), that for an overseas operator consideration must be given to the law of the relevant country and the extent to which it is reasonably practicable to give effect to the warrant without breaching it. So I suggest that this amendment is not necessary and, in these circumstances, I invite the noble Lord to withdraw it.
Amendment 194N seeks to alter the test that a judicial commissioner applies when considering whether to approve a decision to issue a bulk interception warrant. This topic has been the subject of intense scrutiny by three committees, the other House and, in the context of the targeted powers within the Bill, this House. As a result of that debate, the Government have already made considerable amendments to the Bill.
This amendment would require the judicial commissioner to consider the reasons given for the decision to issue a bulk interception warrant. The amendment is, I think, based on a misunderstanding of how warrants operate. The Secretary of State will receive a detailed application setting out the necessity and proportionality considerations. If he or she agrees, the Secretary of State will issue the warrant. He or she does not have to give reasons for that decision beyond confirming that he or she personally considers that the warrant is necessary and proportionate.
The judicial commissioner will then review the Secretary of State’s decision based on the evidence that was provided to the Secretary of State in the application. If the commissioner thinks that the evidence in the application is not a sufficient basis for the decision that has been made, he or she will refuse to approve the decision. In these circumstances, there are no reasons per se to be reviewed by the judicial commissioner. Given that, and given the progress that has already been made on this issue, I invite the noble Lord not to press this amendment.
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Government Amendment 201 is a minor and technical amendment. It simply clarifies the considerations that must be made by a judicial commissioner when deciding whether to approve a decision by the Secretary of State to renew a bulk interception warrant. Currently, the Bill provides that the judicial commissioner must consider the same factors in relation to a renewal as are considered when deciding whether to approve a decision to issue a bulk interception warrant.
While the amendment does not change the position, it introduces one minor exception—that is, the judicial commissioner is not required to consider, in relation to a renewal, any matters taken into account by the Secretary of State in relation to additional requirements for warrants affecting overseas operators. Such matters include the technical feasibility of the relevant operator providing assistance in giving effect to the warrant, and the likely cost.
These matters will have been taken into account by the Secretary of State at the point when the decision was taken to issue the warrant in the first instance. They are not matters that are relevant in the case of a renewal, where the operator concerned will already have been providing assistance in giving effect to the relevant warrant. They are therefore not matters that the Bill requires the Secretary of State to take into account when deciding whether to renew a bulk interception warrant. The amendment simply makes it clear that a judicial commissioner is therefore also not required to consider them when deciding whether to approve the decision about renewal.