The home secretary, Theresa May, should not seek to give the intelligence agencies full access to an individual’s web browsing history, Labour and the former deputy prime minister Nick Clegg are both likely to say when the government publishes its draft investigatory powers bill on Wednesday.



Keir Starmer, the former director of public prosecutions and now a shadow Home Office minister, said Labour opposed giving intelligence agencies access to web browsing history since the measure was likely to give the agencies effective access to the content of an individual’s communications.

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He said: “There has been an agreed clear distinction between data and content, with data treated as the ‘who communicated with whom and at what point’, but not the content of that data.

“But by saying the agencies can collect information on pages visited, there is a sense that a difficult third category is being created that is a merger between data and content. If your browsing history is automatically accessible by the state, it is very close to granting full access to content and provides a picture of that individual’s life.

“The independent reviewer of terrorism David Anderson said the case for accessing browsing history has not yet been proven and we in the Labour party are very closely aligned to what Anderson has recommended in his report since he is the expert with the fullest access to what is required. Theresa May will have to make a very compelling case for her proposals if they differ from Anderson.”

Starmer has cleared his policy positions with the Labour leader, Jeremy Corbyn, and the shadow home secretary, Andy Burnham.

Starmer’s warning will be a blow to the intelligence agencies before a parliamentary process that will scrutinise the plans to reach a new privacy settlement between the state and the citizen in the wake of controversy generated by the revelations of the former National Security Agency contractor Edward Snowden.

All sides in the highly charged debate acknowledge that a new set laws are required to replace the outdated Regulation of Investigatory Powers Act 2000 and the dozens of other statutes authorising the collection of communications data.

The issue of access to web browsing history is likely to prove as critical a point of contention as the weekend controversy over whether ministers or judges should grant warrants to the intelligence agencies.

It is expected that Clegg – who spent a huge amount of time on the issue in government and vetoed the so-called snooper’s charter – will make the case for the government to follow the recommendations of the Anderson review. Clegg won David Cameron’s agreement to commission work from the Royal United Services Institute for Defence and Security Studies that is likely to inform the debate.

In a 300-page report, Anderson said no operational case had yet been made for the retention of web logs, pointing out that no other European Union or Commonwealth country required the blanket retention of web logs and that Australia recently prohibited this in law.

Starmer said he rejected plans for a two-stage approval of in which the home secretary would make the the initial decisions on authorising intercept warrants followed by clearance from a security-cleared judge if the intercept was to extend to the content of the communication.

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Starmer said: “If you’re going to go for contents, we should go to a judge straight off. There are roughly speaking about 2,500 warrants per year for interception. That’s a very high number for a home secretary to deal with.

“It’s a classically judge test: is it necessary, is it proportionate, is it focused on the right person? This is what’s done in other countries. I think this would settle this dispute and it would allow everybody to move on.”

Anderson proposed authorisation for all warrants be given by judicial commissioners serving in a new independent surveillance and intelligence commission (Isic). Anderson recommended that Isic should have additional powers to notify those subject to surveillance of their right to lodge an application at the Investigatory Powers Tribunal (IPT), which oversees MI5, MI6 and GCHQ.

The debate on Wednesday is likely to focus heavily on the extent to which May has backtracked since proposals were first made in 2012 and whether her concessions are substantive