Rt Hon Andy Burnham MP Shadow Home Secretary

House of Commons, London, SW1A 0AA t 020 7219 8250 e andy.burnham.mp@parliament.uk

Rt. Hon. Theresa May MP Home Secretary 6th November 2015 Dear Theresa Investigatory Powers Bill I want to begin by reiterating our intention to work constructively with you on the Bill but, as I said in my response to your statement on Wednesday, to strengthen the safeguards within it. As you know, the two safeguards which I consider to be most important are judicial authorisation of warrants and the threshold for use of the powers outlined in the Bill. In advance of the publication of the Bill, I was clear that full legal authorisation of warrants was the key test that Labour was setting for this Bill. I have now had the opportunity to study your proposals in detail and have taken advice from the Shadow Justice Secretary. This has given rise to concerns that the safeguards you are proposing are not as strong as it appeared when they were presented to the Commons. First, on judicial authorisation, you said in your statement that the authorisation of intercept warrants would be a two-stage process, or a ‘double-lock’. This created the impression that both the Home Secretary and a senior judge would review the evidence. Indeed, you may recall that I asked you in the House about what would happen if there was a difference of opinion between the two. On closer inspection of the wording of the Bill, it would seem that it does not deliver the strong safeguard that you appeared to be accepting. The current wording of the draft Bill requires the judge to review the ‘process’ undertaken by the Home the Secretary in the same way applied to a judicial review: 'apply the same principles as would be applied by a court on an application for judicial review.’ Legal advice we have sought confirms that the current wording does not deliver what we believed was being proposed in terms of the Home Secretary and Judicial Commissioner double-lock for warrant authorisation. I would be grateful if you could clarify this situation as a matter of urgency. If our understanding is correct, then I wanted to give you notice that we will be looking to amend the wording of the Bill in Committee to ensure it delivers what we thought was being offered - ie a judge to review the evidence and authorise, or not, the approval of a warrant, as well as the Home Secretary. This will provide the proper ‘double-lock’ that you referred to you. On the powers in the Bill, I remain of the view that there should be a clearly defined threshold justifying their use. This should also apply to the Police's ability to access internet connection records. I believe additional safeguards may be required to provide reassurance to the public. Whilst the public will understand the need for police to be able to access these records in order to investigate child sexual

Rt Hon Andy Burnham MP Shadow Home Secretary

House of Commons, London, SW1A 0AA t 020 7219 8250 e andy.burnham.mp@parliament.uk

exploitation, kidnap and similarly serious crimes, they will be concerned that police officers should not have unrestricted access in relation to the investigation of lesser offences. Therefore, I believe the Bill needs to include clearly-defined thresholds for access to internet connection records. The threshold should be based on the seriousness of the crime being investigated. This would provide reassurance that the police could not access the internet connection records of any and every individual. On this issue, further reassurance could be achieved by limiting access to internet connection records to police officers of a specified seniority. As I said on Wednesday, I believe you have produced a framework which has the potential to give the authorities the powers they need whilst also commanding public trust. But that will only be achieved by strengthening the safeguards in the areas I have identified. Yours sincerely

Rt Hon Andy Burnham MP Shadow Home Secretary