My Lords, given that we are grouping everything together in the way we have agreed, perhaps it would be appropriate if I complete my remarks on the government amendments before addressing the noble Lord’s amendments. The amendments that I have not yet spoken to are government Amendments 221 and 222. These are related to and consequential on the government amendments introducing restrictions on the use of class warrants that I have already spoken to. They are part of a set of amendments that honour the Government’s commitments in the other place that we should provide further restrictions on the use of class BPD warrants. Amendments 221 and 222 amend Clause 186, which makes provision for specific BPD warrants. In particular, Amendment 221 adds to the circumstances in which an agency may apply for a specific BPD warrant the situation in which it is prevented from relying on a class BPD warrant by the new clause placing restrictions on the use of those warrants that we debated earlier. Amendment 222 builds on this by placing an obligation on the agency in such circumstances to include an explanation of why it cannot rely on a class BPD warrant in its application for a specific BPD warrant. These amendments thus ensure that the provisions in the Bill setting out the circumstances in which class and specific BPD warrants should be used will operate coherently together. These amendments thus also respond to the constructive engagements we have had with the ISC and the other place.
Turning to the amendments of the noble Lord, Lord Paddick, I understand that the intention behind Amendments 219A and 218B and the stand part debate is to remove the provisions allowing for class BPD warrants. Perhaps it is worth reminding ourselves that class BPD warrants provide an appropriate means of authorising the retention and use of datasets that are similar both in nature and in the level of intrusion that
their retention and use would result in. This would, for example, allow the Secretary of State to authorise a class of dataset relating to travel covering datasets that are similar in nature but refer to different travel routes, or perhaps where they were provided by different sources. The decision to issue a warrant for a particular class of data would be subject to approval by a judicial commissioner before being issued.
Removing class warrants would increase bureaucracy without increasing safeguards. It is also unnecessary because such warrants are subject to the “double lock” authorisation process by a Secretary of State and judicial commissioner. If they considered that a class bulk personal dataset warrant was too broad, they would not issue it.
It is quite true that the ISC and the Joint Committee which scrutinised the draft Bill did not endorse class BPD warrants in their original reports on the draft Bill, but the ISC’s view on this has changed. As the chair of the ISC said at Third Reading of the Bill in the other place,
“we then had further evidence—as has happened in the dialogue with the Government and the agencies—in particular from the Secret Intelligence Service, about the rationale for retaining class warrants in the Bill. In particular, the evidence highlighted the fact that many of these datasets covered the same information or type of information. In those circumstances, we considered that a class warrant would be appropriate, as the privacy considerations were identical”.—[Official Report, Commons, 7/6/16; col. 1063.]
He then made additional comments on restrictions on their use. The Government accepted in principle the ISC’s arguments for restrictions on the use of class BPD warrants, and we have already discussed amendments brought forward by the Government to reflect this. So I hope that, on reflection, the noble Lord will want to think further about those amendments that seek to excise class BPD warrants.
Amendment 219A adds to Amendment 219—the government new clause on restricting use of class bulk personal dataset warrants—that the judicial commissioner must be consulted before a decision is taken. This is an unnecessary amendment. The Secretary of State and judicial commissioner double lock will apply not only to new class and specific BPD warrants, but also to renewals of both types of warrants. This gives them effective oversight of the datasets that appear under each type of warrant. These decisions will also be subject to retrospective oversight by the Investigatory Powers Commissioner. To add another pre-consultation is not necessary or efficient. Moreover, the draft code of practice includes detailed guidance on when a specific BPD warrant should be sought. It also makes it clear, for example, that if required in an individual case, the security and intelligence agency can seek guidance from the Secretary of State or a judicial commissioner on whether it would be appropriate for a specific BPD warrant to be sought. So again, I hope that the noble Lord will want to reflect further on that amendment.
Amendment 223A would restrict the extent to which a specific BPD warrant could extend to replacement datasets. In effect, it would mean that only absolutely identical datasets could be covered by these provisions. The provision for a replacement dataset would be
relevant only where a specific BPD warrant has been authorised and is already in place. The provision is a pragmatic and sensible approach to situations where a dataset is regularly or continually updated; for example, a particular dataset may be updated weekly or monthly. These updates would, by definition, include additional information, but in these cases the necessity and proportionality case and operational purposes would not alter. To require repeated new warrants in this scenario would not be proportionate; the notion of a replacement dataset allows the agencies to use these amended and updated data in line with the existing authorisation. Again, I hope the noble Lord will find that acceptable.
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Amendment 223C would amend the definition of health records in the context of the bulk personal dataset provisions so that, instead of it covering a health record that “was obtained” by an intelligence service, it becomes a health record that “would be” obtained by the SIA. The requirement for a warrant in Part 7 of the Bill is engaged only after a bulk personal dataset is physically acquired, and the tense in the definition reflects this. Part 7 of the Bill does not provide any powers to the security and intelligence agencies to acquire bulk personal datasets. The agencies acquire such datasets through the exercise of various existing statutory powers, notably the “information gateway provisions” in the Security Service Act 1989 and the Intelligence Services Act 1994.
The only purpose of Part 7 is to ensure that, where the agencies retain, or retain and examine, bulk personal datasets, those datasets are subject to robust privacy safeguards. These safeguards are comparable to those provided for in relation to other powers under the Bill. They include introducing a double-lock so that warrants for the retention and examination of bulk personal datasets by the agencies will in future be subject to approval by both a Secretary of State and a judicial commissioner, and oversight by the Investigatory Powers Commissioner. In addition, the Bill makes it clear that an intelligence service must state on a specific BPD warrant application if a purpose of the warrant is to authorise the retention and examination of health records, and that the Secretary of State can issue such a warrant only if there are exceptional and compelling circumstances that make this necessary. All these safeguards remain applicable. The tense used in the definition is not indicative of when or how the dataset was obtained, which is not part of the Bill. Rather, the purpose of this definition is to explain what a health record is for the purposes of this clause. I hope that that explanation is helpful.
Turning to Amendment 223D, Clause 188 outlines what factors the judicial commissioner must review when deciding whether to approve a decision to issue a class or specific BPD warrant. Clause 188(1)(a) states that it must be necessary on grounds falling within the relevant clauses on specific and class BPD warrants. The amendment seeks to add a specific reference to Clause 187(3), which refers to additional safeguards for health records. Any such dataset could be held only under a specific BPD warrant; it is not a separate type of warrant in itself. These safeguards are therefore already covered by the references in place, which apply
to all warrants relating to bulk personal datasets. I hope the noble Lord will feel comfortable in not moving the amendment.