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Jane Kennedy: This is the opposite of a whistleblower's clause. The clause is necessary precisely because of the amount of secrecy that is required by the day-to-day operation of the interception regime. Parliament may debate that regime openly and rigorously, and define its structure and operation. However, the daily operation of the regime, including details of particular targets, must necessarily be shrouded in secrecy. That requirement is taken seriously in clauses 16 and 17.
Clause 18 further shores up the necessity for secrecy, which was outlined in the two preceding clauses. It applies equally to all of those who may come into the possession of information about interception, including those who work for the agencies and those who work for service providers. We have created an offence in relation to those who wilfully pass on such information. The hon. Member for Sheffield, Hallam expressed concerns about that, and about the lack of defences.
On whether the provisions are too draconian, we regard them as proportionate to the seriousness of the offence that may be committed and to be a sufficient deterrent. Failure to comply with the requirement to keep secret all matters relating to warranted interception might compromise the national security of the UK and cost lives-as the hon. Gentleman mentioned. We believe that sufficient defences are set out in subsections (5) and (9), which I invite him to study further.
I have explained about creating an offence for those who wilfully pass on information and the statutory defences. It has been suggested that the drafting of the clause is unclear as to whether individuals served with a warrant can consult within their organisation about how best to comply with it. Subsections (6) and (7) provide a defence for a person consulting their legal adviser, for example, about requirements placed on them under the Bill.
Those defences are sufficient, and I hope that the Committee will support clause 18.
Question put and agreed to.
Clause 18 ordered to stand part of the Bill.
Clause 19
Interpretation of Chapter I
Question proposed, That the clause stand part of the Bill.
Mr. Allan: During an earlier discussion about certificated material, we referred to the definition of external communication in clause 19, and the Minister said that he might reconsider it. The definition is:
a communication sent or received outside the British Islands.
On the internet, material floats around the globe merrily. It is therefore harder to pin it down so as to decide whether it can be covered by certificated warrants or has to be covered by a warrant against a named individual. Has the Minister thought any more about that?
My general view is that one should not add words to a Bill-they usually have too many words and one should try to reduce them-but I remain concerned that the definition of external communication does not reflect the reality of the ways in which messages are now transmitted around the globe at the speed of light. I suggested at the time that referring to the location of the final recipient or the first originator might be more appropriate, because a message might consist of many sending and receiving actions along the way.
Jane Kennedy: I shall respond quickly to that question. My hon. Friend tells me that we are still considering the matter and are not yet in a position to respond in detail. We shall clarify the position at a later date.
Question put and agreed to.
Clause 19 ordered to stand part of the Bill.
Clause 20
Lawful acquisition and disclosure of communications data
Mr. Allan: I beg to move amendment No. 99, in page 22, line 24, leave out
`or notice granted or given' and insert `granted or order made'.
The Chairman: With this it will be convenient to discuss the following amendments: No. 102 in clause 21, page 23, line 34, after ``(5),'' insert ``on an application by''.
No. 103, in page 23, line 34, after ``person'', insert ``, a judge''.
No. 104, in page 23, line 35, after ``for'', insert
`the designated person or for'.
No. 105, in page 23, line 37, at end insert
`; and the application shall (unless the judge directs otherwise) be-
(a) made on notice to the person providing a postal service or telecommunications service to which the proposed conduct relates, and
(b) heard in secret.'.
No. 106, in page 23, line 40, leave out ``, by'' and insert
`make an application to a judge on'.
No. 107, in page 23, line 41, leave out ``require'' and insert ``for an order requiring''.
No. 109, in page 24, line 1, leave out ``designated person'' and insert ``judge''.
No. 110, in page 24, line 2, leave out ``give a notice'' and insert ``make an order''.
No. 112, in page 24, line 4, leave out ``notice'' and insert ``order''.
No. 116, in clause 22, page 24, line 21, leave out ``granting the authorisation'' and insert
`to whom the authorisation applies'.
No. 117, in page 24, line 25, leave out ``A notice'' and insert ``An order''.
No. 118, in page 24, line 27, leave out from first ``be'' to third ``in'' and insert
`made in writing or (if not in writing) must be made'.
No. 119, in page 24, line 28, leave out ``given'' and insert ``made''.
No. 120, in page 24, line 30, leave out ``notice'' and insert ``order''.
No. 121, in page 24, leave out lines 31 to 33.
No. 122, in page 24, line 35, leave out ``notice'' and insert ``order''.
No. 124, in page 24, line 37, leave out ``giving'' and insert ``making''.
No. 125, in page 24, line 38, leave out ``A notice'' and insert ``An order''.
No. 126, in page 24, line 40, leave out ``person giving the notice'' and insert ``designated person''.
No. 127, in page 24, line 42, leave out ``notice'' and insert ``order''.
No. 128, in page 24, line 43, leave out ``notice'' and insert ``order''.
No. 129, in page 24, line 45, leave out ``person giving the notice'' and insert ``designated person''.
No. 130, in page 25, line 1, leave out ``notice'' and insert ``order''.
No. 131, in page 25, line 4, leave out ``notice given'' and insert ``order made''.
No. 132, in page 25, line 5, leave out ``a notice'' and insert ``an order''.
No. 133, in page 25, line 9, leave out ``notice'' and insert ``order''.
No. 134, in page 25, line 12, leave out ``notice'' and insert ``order''.
No. 135, in page 25, line 14, leave out ``giving,'' and insert
`making, on an application made'.
No. 136, in page 25, line 15, leave out ``notice'' and insert ``order''.
No. 137, in page 25, line 17, leave out ``renewal notice'' and insert ``order''.
No. 138, in page 25, line 19, leave out ``notice'' and insert ``order''.
No. 139, in page 25, line 20, leave out ``given a notice'' and insert ``applied for an order''.
No. 141, in page 25, line 23, leave out ``notice'' and insert ``order''.
No. 142, in page 25, line 25, leave out ``notice'' and insert ``order''.
No. 143, in page 25, line 27, leave out ``notice'' and insert ``order''.
No. 145, in clause 24, page 25, line 45, at end insert-
(a) in England and Wales, a circuit judge;
(b) in Scotland, a sheriff;
(c) in Northern Ireland, a county court judge;'.
No. 146, in page 26, line 19, leave out ``notices'' and insert ``orders''.
No. 147, in page 26, line 20, leave out ``granted or given'' and insert ``sought''.
No. 148, in page 26, line 23, leave out
`may be granted or notices given' and insert `or orders may be sought'.
Mr. Allan: I had a little help with the amendments because we were keen to get them exactly right. This is an important part of the debate in which we shall return to some old arguments and embark on some fresh ones.
Communications data are extremely significant. The Bill is based on an old framework, in which communications data simply meant using a telephone bill from BT to find out the numbers that a person had called. Nowadays, communications data allow one to create an almost complete picture of that person's life. Knowing the websites that they have visited-merely having the communications data, not the actual content of the messages-can reveal who they bank with, who they shop with and where they travel. We must take that seriously, and ensure that there is a fairly high threshold before the Government can intervene to collect that data.
The amendments aim to ensure that judicial authorisation is given to collection of communications data. This is an old theme to which we have referred several times, but which we wish consistently to advance. Independent authority should be given for the collection of communications data.
In Malone v. the UK in 1984 the European Court of Justice decided that communications data came within the provisions of article 8-the truancy provisions-and the Telecommunications Act 1984 was amended to take account of that. We have a history in simple BT-type collecting of telephone numbers and a principle was established. We do not know how far that will go, but I understand that a fairly low level of authorisation is required from a police officer to collect numbers from a telecommunications company. We are trying to avoid maintaining a low threshold and we want the article 8 provisions to be fully respected.
In Kopp v. Switzerland in 1988 the European Court of Justice examined self-authorisation and was astonished that a member of the Post Office's legal department, who was a member of the Executive, was able to carry out the authorisation without supervision by an independent judge. The judgments of the European Court of Justice on article 8 provisions and intrusions into privacy have consistently referred to judicial authority, but have not mandated that. That judgment did not require judicial authority, but it has been suggested that that would be preferable, and the amendments would insert that form of authorisation in the Bill.
I am privileged to have been supplied with an amended text on the various amendments. We want to get the provision right. Ministers often argue that our amendments are deficient and that that is the principal reason for rejecting them. I hope that in being so comprehensive there is no deficiency in the amendments before us, and that the Government will accept them as a package and a useful route to judicial authorisation for collection of communications data. I hope that the Government will tell us that they are treating the matter seriously.
The issue of trigger points will arise in later amendments, so I shall merely ask the Government to tell us who can grant authorisation, how it can be granted and how that relates to other forms of evidence that is collected under PACE and the Police Act 1997. There seems to be increasing disparity between the level of authorisation required. When premises are to be searched or physical data is to be collected, the test is quite high and a high level of authorisation is required, but if collection of electronic data is required, the data may be just as significant, but the test is lower. That must give rise to concern. Any indication from the Minister on the extent to which communications data has been collected in the past and the extent to which it is expected to be collected in the future would be helpful. That would help us to understand how significant the burden will be on service providers who are asked for data and on citizens on whom the data is collected and whether that will be routine or exceptional. An explanation for special material under section 9 and schedule 1 of PACE requires an application to a circuit judge, and that may be more appropriate here than requiring a local police officer to request from an ISP a list of data that may describe the entire picture of a person's life, which is intrusive under article 8 on the right to privacy.
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