Ukraine

Baroness Hayter of Kentish Town Excerpts

Friday 25th February 2022 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

My Lords, like others, current events ricochet around my family life. My father fought in what he believed would be the war to end wars in Europe. He fought for peace, the rule of law and democracy, and against invasions. My sister was born on 4 March 1946—one day before the Fulton, Missouri speech when Churchill stressed the need for the US and Britain to act to guarantee that resulting peace and stability against the Soviet menace which had lowered an “iron curtain” across Europe.

I was born, like NATO, in 1949; in West Germany, where my father—still in the Army—worked to help resettle displaced persons, concentration camp survivors and those made homeless or stateless or relocated during the years of conflict. They were a reminder of the long post-conflict fallout for the people of disputed lands. In the case of Ukraine, many were never to return, as the noble Lord, Lord Finkelstein, movingly described in the Times. His family was from Lwow—known to his great-grandfather as Lemberg—which is of course Lviv; those name changes are testament to the conflicts in that great land. No wonder that, for our noble colleague, this is not happening in a faraway country of which he knows nothing. It is uncomfortably close to home.

Yesterday, I received this message from Vitaliy in Lviv, after attacks had already started in the capital:

“In Lviv everything is still scarily quiet. Shops are empty, but there are queues at ATMs and pharmacies. We’re just patiently waiting for an attack. I’m worried for the safety of friends and family. It’s horrible to realize how one pathetic man could force a war.”


His Kentish Town colleague, Aidan Muller, was in near disbelief that, in 2022 in Europe, his Ukrainian friend was heading down to air raid shelters.

Sadly, as the right reverend Prelate the Bishop of Leeds wrote yesterday:

“Ukrainians are no strangers to conflict or sacrifice. This is a land which saw millions killed under the jackboot of a dictator who, to echo Putin’s line, had no greater obligation than to ‘defend the security interests of our own people’.”


That false pretext of Hitler was no more convincing than the pretexts of today’s Russian dictator. As the right reverend Prelate wrote:

“History never repeats itself, but echoes can be felt for generations.”


That explains some of the deep anguish now being felt in Ukraine. We remember Hungary in 1956 and Czechoslovakia in 1968, but also, as the noble Lord, Lord Sedwill, said, we remember what we thought was a game-changer on that other 9/11 in 1989, when the wall came down. We were clearly wrong.

An attack on one is an attack on us all—something wider than NATO, wider than any military or territorial approach—for this attack is on the precious, invaluable, democratic family, a family with a free press, free and fair elections, the rule of law and respect for sovereignty, agreed borders and self-determination.

I do not know the Ukrainian equivalent of “Ich bin ein Berliner”. But I know why we weep for Ukraine.

Exchange of Naval Nuclear Propulsion Information Agreement

Baroness Hayter of Kentish Town Excerpts

Monday 17th January 2022 Grand Committee

Moved by

[Baroness Hayter of Kentish Town]

That the Grand Committee takes note of the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland, the Government of Australia and the Government of the United States of America for the Exchange of Naval Nuclear Propulsion Information, laid before the House on 29 November 2021.

Relevant document: 14th Report of the International Agreements Committee (special attention drawn by the report)

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I am delighted to open this debate. In doing so, I thank my colleagues on the International Agreements Committee—particularly my noble friend Lady Liddell and the noble Lord, Lord Lansley, from whom we will hear shortly—together with our officials for their superlative efforts in turning round our report, which was published on Thursday, so that we could bring this agreement to the attention of the Committee and so provide the only opportunity for the Lords to consider this significant agreement prior to ratification.

The treaty in front of us may represent only a start. It is a legally binding framework for the exchange of sensitive information on nuclear propulsion between the three nations over a preparatory 18 months. However, there is no doubt that this three-way commitment providing for nuclear-propelled Australian submarines is of considerable strategic significance, with implications for our approach to the Indo-Pacific region and China. We look forward to the noble Baroness, Lady Goldie, setting out of the context in which this treaty, and the subsequent co-operation on submarines et cetera, falls. This is particularly pertinent given that the announcement of the trilateral pact was somewhat unexpected and had not been trailed in earlier discussions.

I will leave it to others, particularly the noble Lord, Lord Hannay, to comment on the response AUKUS received in France. We know that the Chinese described it as “extremely irresponsible” and representing a “Cold War mentality”, whereas Japan gave it a warm welcome.

Australia is the second-largest arms importer in the world. We will no doubt be hoping to boost our sales there, which might mitigate some of the fears that our farmers have about the Australian free trade agreement. Can the Minister outline the economic benefits that the Government think will flow from the agreement and indicate whether she envisages any other benefits, such as helping our efforts to renew Trident through support for relevant industries?

However, our involvement is not simply about arms sales, and nor does it include any military role. Rather, as Chatham House opined, AUKUS is a wider political response to “China’s growing hard power”. That is why the International Agreements Committee wanted the political scene to be properly set out by the Government before the treaty is ratified. When she replies, can the Minister touch on the Government’s assessment of the agreement’s impact on international relations, particularly with France, China and the Pacific region, as well as its effect on the Five Eyes intelligence-sharing agreement between the US, the UK, Canada, Australia and New Zealand? Can she also clarify what engagement will take place with the International Atomic Energy Agency, which I assume will be led by Australia?

I am deliberately leaving well alone the naval uses and potential of this initiative, given the expertise that we will shortly hear from the noble and gallant Lord, Lord Boyce, whose intimate knowledge of the inside of a submarine is surpassed by few others, let alone his wider defence knowledge; from my noble friend Lord West of Spithead, whose very title is testimony to his special interest—no one who has sat in our Chamber during Oral Questions can ever have doubted that; and from the noble and gallant Lord, Lord Houghton of Richmond, who may be a landlubber, but who has similarly wide and deep defence expertise.

We welcome sight of this treaty, although there are shortcomings in what has been shared with Parliament, including, yet again, the failure to spell out how and when any amendments to it would be subject to parliamentary scrutiny. For its part, our equivalent committee in the Australian Parliament has noted that any such amendments to the treaty would be subject to its usual treaty scrutiny processes. We ask for nothing less. Furthermore, given the importance of the wider agreement, and given that follow-on agreements will probably be necessary, such ongoing and future scrutiny will be vital.

That same Australian Joint Standing Committee on Treaties is clear, for its part, that:

“Any transfers of equipment, materials or technology that follow would be the subject of a subsequent agreement and further Committee scrutiny.”


Can the Minister therefore confirm that any amendments to this treaty and any follow-up treaties will be laid under CRaG? Furthermore, we do slightly wonder whether everything already agreed has been fully shared with us. So perhaps the Minister could indicate whether we do have all the underlying documents, or whether there are any separate MoUs which have not yet been disclosed to Parliament. Could she also confirm that all future agreements in relation to AUKUS, either by treaty or significant MoU, will be shared with Parliament? I beg to move.

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[Baroness Hayter of Kentish Town (Lab)]

My Lords, it has indeed been stimulating. I am only sorry that it had to take place in the Moses Room. We very much welcome that we at least have a trio here—we now have my noble friend Lord Stevenson, and before we had an ex-Secretary-General of NATO. We are honoured that you are here, but it is a shame that something of such great importance has not been debated in the Chamber, because this is a pretty fundamental piece of our future.

There has been a broad and wide welcome for the principle of this agreement, which my noble friend Lord Tunnicliffe called—I do not know whether these were his words or he was quoting—“comprehensive and ambitious”. We should thank him for giving up his birthday to be with us today; I am sure we all wish him the very best for celebrating with us in this generous way.

This has been a significant debate. I am not going to try to go through all the points, as the Minister did. Basically, three things have been spoken of. One is the role of Parliament; the second is about the details of the deal; the third is the wider context. I think that the role of Parliament and the scrutiny of future agreements are significant. My noble friends Lady Liddell and Lord Tunnicliffe, the noble Lord, Lord Lansley, and other noble Lords raised this; there are some really important issues here.

When my noble friend Lord Stevenson—I am particularly glad that he has walked in—was doing the then Trade Bill, there were a lot of undertakings received from the Department for International Trade about how it would deal with future trade deals. He helped to put together what were called the “Grimstone rules” for that but there is a real question for the Minister, who is here on behalf of defence—we also have some treaties coming under the Foreign Office now—about whether her department will give the same undertakings that my noble friend was able to get out of the Department for International Trade. When I joined this committee, I am afraid that it was something of a surprise to me that we were dealing with not just trade but these very significant defence and foreign affairs agreements. I hope that that can be taken into account.

I am sure that the Minister is aware of the report on working practices by the committee that I now chair, published when it was still in the capable hands of my noble and learned friend Lord Goldsmith. I hope that we will revert to that fairly soon because there are really important questions in it about amendments to agreements. I think that the Minister slightly elided over them in her answer because, of course, some amendments may simply say “Minister” instead of “Secretary of State” and we really would not want to come back for that. In our report, we give some criteria for when amendments to agreements should be brought back; I hope that the Minister will take this point back to her department to look at it. Perhaps we could have further discussions on it because this ongoing scrutiny of such an important area will be important.

The noble Baroness, Lady Smith, suggested that we should learn from Australia. I think she was suggesting that I should fly out there—she is nodding; I thought so—and have a discussion with them. However, take the Australian example and the example of our trade deals before we left the European Union: what the European Parliament used to do by way of scrutiny was clearly much more detailed, and it had more information.

In not giving quite the answer I wanted from her, the Minister again used the words “commercial confidentiality”, but when others of us were dealing with the then National Security and Investment Bill—I know that the noble Lord, Lord Lansley, was there at the time—those issues were to be dealt with by the Business Committee in the House of Commons, not the Joint Committee on the National Security Strategy. At that stage, we asked, “How can that Business Committee in the Commons have sufficient security clearance to deal with these commercially sensitive things?” We were told, “Don’t worry, committees can do that”. If they can do it for that Bill, I must say, our committee should be able to do the scrutiny for this one. The excuse of commercial sensitivity should not be used to prevent us seeing things in such a way that we can then advise on taking out secret information and how the rest of Parliament will deal with it. I am sorry if I have gone on about this for a bit too long but the scrutiny of these significant agreements is important.

On the actual deal, both noble and gallant Lords raised some really important issues. Basically, they asked whether we have the spare capacity in terms of both personnel and expertise to be able to do that and still fulfil our own commitments here. They talked about that side of it, and the noble Baroness, Lady Smith, told us not to forget our region as well. The noble Baroness, Lady McIntosh of Pickering, also suggested that.

I remind the Minister that my noble friend Lord Tunnicliffe said that things can go wrong. He built Westminster Underground Station and ran the London Underground. He knows of which he speaks. Big projects can go wrong; the important thing, as he is always telling me, is not to worry about them going off track but what you do about it when they do. So ongoing scrutiny and thought are important. Further, from the committee’s point of view, the answer to my noble friend’s question about who will lead on this will be important when we take evidence. Will it be defence? Will it be trade? Will it be the Foreign Office? We will need to know with whom to engage; that person should be able to speak on behalf of the whole Government.

Lastly—I am sorry not to have covered all the points but I am sure that, when she has looked at Hansard, the Minister will write to all of us if there are any unanswered questions—the Minister did not answer the questions on the wider context, particularly on the implications for Five Eyes and whether it was consulted. She also did not say whether India was consulted, as the noble Lord, Lord Bilimoria, asked. New Zealand is key if it really is saying, “We won’t have those subs here”. It still remembers the “Rainbow Warrior” being blown up in Auckland by one of its own allies. We must remember the sensitivity of New Zealand; if it was not kept abreast of this—something it feels so sensitive about—that obviously has ongoing consequences.

I note the Minister slightly mumbled over the possibility of a change of Government in this country, but I have to say that some of us look forward to that. It should be noted that I am not speaking on behalf of the Labour Party. The noble Lord, Lord Tunnicliffe, who is, said that there is no need to worry because the Labour Party will continue with this if Labour is elected.

I was very reassured by what the Minister said about France. Perhaps she could advise the Prime Minister—it is still the same Prime Minister, unless he has resigned over the past hour or so—to use her choice of words rather than some of the ones he used with regard to France.

This has been a useful discussion, perhaps not on the detail of this first stage, but in saying to the Government, “We see where you’re going, we like the direction, and we like the assumption that you have made that it is important to help Australia in this theatre”. Australia is one of our oldest allies. We have been in many theatres of war alongside Australia, and therefore offering what we can to support it in that region is clearly key. However, there are hiccups that could happen here, so we look forward to a continuing debate on this.

Motion agreed.

Public Procurement (Amendment etc.) (EU Exit) Regulations 2019

Baroness Hayter of Kentish Town Excerpts

Monday 4th February 2019 Grand Committee

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, procurement by the Government and public sector bodies represents a significant sector of the UK economy. It is essential to the day-to-day running of government and is appropriately regulated. The Government are committed to ensuring the continued functioning of this important marketplace when we leave the EU. If a transitional deal is agreed with the EU then the existing procurement regulations will remain in place during the transition period. However, if no deal is reached with the EU then certain aspects of the existing regulatory scheme for public procurement will be deficient and will simply not work. The draft regulations before the Committee seek to address those deficiencies that would arise in a no-deal scenario.

The amendments made to the legislation reflect the UK’s new status outside the EU. It provides a balance between the need to maintain continuity based on established principles and the existing framework with the need to correct deficiencies to the extent permitted by the European Union (Withdrawal) Act. This will ensure the legislation is operable, effective and makes sense. This instrument primarily makes amendments to three sets of regulations—the Public Contracts Regulations, Utilities Contracts Regulations and Concession Contracts Regulations—that regulate public procurement in England, Wales and Northern Ireland. These sets of regulations implement EU directives on awarding contracts and concessions in the public and utilities sectors, outside the fields of defence and security.

This instrument amends or revokes various EU regulations and decisions relating to public procurement that will become retained direct EU legislation on exit day. It also makes small amendments to various pieces of domestic legislation, including some primary legislation, that are not primarily about public procurement but which contain public procurement references that will become deficient on exit day. These changes address the UK’s new position outside the EU while continuing to facilitate a functioning UK internal market.

As we leave the EU, the UK is working to join the WTO government procurement agreement in its own right. We are currently a GPA member through being an EU member state. I am pleased to say that the other GPA parties have agreed in principle to our market access offer and accession. We have taken precautions against the UK’s accession not being fully completed by exit day. One of the amendments to the public procurement regulations ensures continued guaranteed access, rights and remedies on current terms for suppliers from existing GPA countries for a time-limited period from exit day. Without this amendment, suppliers from GPA parties would no longer have the guaranteed access, rights and remedies that they currently enjoy in our public procurement contracts. This will mitigate the risks of a short gap in GPA membership by facilitating continued market access.

Through the amended regulations, control over public procurement is returned to the United Kingdom. All notices for public procurement opportunities will in future be published on a new UK e-notification system. Business continuity is meanwhile assured through the transitional provisions that will generally apply the amended regulations, even in relation to procurements that are already under way on exit day.

In a no-deal scenario, this instrument reflects the UK’s status as a non-member state, at the same time as ensuring a functioning internal market exists that complies with the requirements of the GPA. It provides the continuity and legal certainty required by public procurers and suppliers. I commend the regulations to the Committee and beg to move.

[Baroness Hayter of Kentish Town (Lab)]

I thank the Minister for introducing the regulations, and those who drafted them for their hard work. Shall we get the good points out of the way first? I thought there were three. The first is that any regulation-making powers under the 1958 list will be by affirmative procedure—a tick for that one. The second was the ban on convictions being carried over as grounds for exclusion—tick. Thirdly, it looks as though Gibraltar has been included, which I assume is with the agreement of the Government of Gibraltar—tick. However, I have a number of questions.

One of my major questions is about the bold statement that no impact assessment has been made, despite the regulations introducing a requirement for businesses to use a new e-notification system that might include considerable changes to their own data systems, requiring software changes and internal training. These things never just happen, and preparing for them could well be expensive for the companies involved. That is a concern, given that the Explanatory Memorandum also states that there has been “no consultation”. It is hard to see how on earth it could have been decided that there would be virtually no cost to the companies affected, particularly small and medium-sized companies. It is exactly those companies, which do not have their own sophisticated IT departments, that could therefore face quite a challenge. It would be helpful to have some explanation of why no consultation and testing took place with them, and how it was therefore possible to take the view that the change would have no impact.

My second question relates to the exit date. I think that I am right that no definition is given in the regulations, presumably because they are made under the withdrawal Act of 2018, which itself defines exit day. I know that the Minister will not comment on this, but a number of us think it extremely unlikely that we will leave on 29 March and that there will very likely be a request for an extension to Article 50, and therefore a change of exit date. Should exit day be amended by statutory instrument under, I think, Section 20(4) of the Act, does that automatically amend the date on which these regulations would come into force? Would the eight months after which Regulations 6, 8 and 10 would come into force automatically follow the new exit date?

My third question is about e-notification, which I touched on earlier. I am worried about it because this is a no-deal preparatory statutory instrument, which sort of assumes that there will be no deal in seven weeks’ time. It would be helpful if the Minister could indicate when he considers that the e-notification system will be up, ready to run and fully tested; hopefully, it will be pre-tested with potential users. Some response on that would be helpful—as would some thoughts on what happens if it is not ready on exit date, particularly as another part of the regulations says that notices cannot be published on any other national portal until they have appeared on the e-notification system. Since we know that these things do not always appear quite on time, what happens if the system is not ready by 29 March? Can the Minister also tell us what sort of training and support will be given to those who need to access it? Perhaps he might know, or be given guidance on, how different this system is from the one currently used with EU procedure.

My fourth question turns to the GPA. The Minister said that the other parties have agreed in principle to us becoming a member of the WTO Agreement on Government Procurement. However, I am interested to know why, both in the regulations and in what he says, there is an indication that that might not have happened by exit date. Paragraph 7.20 of the EM suggests that it may not have happened. Can he explain why there might be a delay, given that we have applied, I assume, and he has heard that the other parties are happy? Basically, what is the problem?

My fifth question is about the CMA. The purpose of these regulations is to ensure that the “award of public contracts” is done in a market which is,

“open and competitive and that suppliers are treated equally and fairly”.

As I understand the regulations, the CMA will oversee and enforce this but that is something of a problem in that we do not yet know the nature of the state-aid regime post Brexit. We do not know the anticipated regime, nor exactly how it will oversee and enforce it. Obviously, state aid is very relevant to procurement, but the market is populated by international actors. They, and our people doing the procurement, will need to be clear about what the regime is. The relevant SI for the CMA bit of this was laid only on 21 January, and there is no indication of when the CMA will publish its policy statements. It says it will be before the end of March; should we come out on 29 March without a deal—which is what this instrument is about—there will be almost no time for anyone to know what the policy on which it will work to oversee the market is.

The Minister will be very pleased to know that I have only seven questions. My sixth question is about the financial threshold. The role of converting the GPA threshold into sterling will fall to the Cabinet Office Minister under these regulations. I was not clear about how this decision will be communicated. At the moment this is done through the normal EU channels but once that no longer happens, what is the transparency? This should be quite a simple decision and how it will happen is laid down, but it would be good to know how it will be communicated.

My last question is about something that I am sure everyone in the Room except me knows, so I ask it very much for my own benefit. It is about social obligations. A contracting authority can refuse to award a contract to the lowest bidder if the bidder,

“does not comply with certain … obligations in the field of social, environmental and labour law”.

I understand what environmental and labour law cover, but I am personally unsure whether “social law” would include consumer law, or whether it is more about social benefits and so on. For my benefit, could the Minister clarify whether consumer law would be covered? I am sorry that I have lots of questions, but that is partly why I asked my colleagues if they minded me going early. I think that gives other people in the Room a chance to find the answers before the Minister has to reply.

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[Earl Howe]

I have just alighted on my note to that effect. The noble Lord, Lord Adonis, essentially asked whether the implication of the Explanatory Memorandum is that the UK could start flouting the EU state aid regime. On leaving the EU, the UK will no longer be bound by the Treaty on the Functioning of the European Union, so economic operators will not be subject to the EU’s state aid regime any more than a third-country supplier receiving state subsidies would be. The UK has developed its own state aid regime, but it is important to remember that this instrument does not disapply the state aid rules. Rather, contracting authorities will simply no longer be required to look behind an abnormally low tender to investigate whether a bidder was in receipt of unlawful state subsidies. That is because the UK will no longer be a participant in or bound by the EU’s single market and competition rules.

[Baroness Hayter of Kentish Town]

I asked a question about whether the description of social law includes consumer law. I am happy for the Minister to write to me if he needs to check that.

There was one question I omitted to ask. It is not particularly relevant or specific to these regulations, but the Minister may know the answer anyway. It is: assuming this goes through, is approved by the House, therefore becomes law and then we get a deal, what happens? Do all these statutory instruments get repealed? What would be the status of all these no-deal statutory instruments should we get a deal?

[Earl Howe]

This statutory instrument is expressly designed for the contingency of no deal. Therefore, it will not come into force if Parliament agrees that the deal on the table, whatever that looks like, is acceptable.

Brexit: Financial Services Sector

Baroness Hayter of Kentish Town Excerpts

Tuesday 23rd January 2018 Lords Chamber

[Baroness Goldie]

I have to correct a misapprehension on the part of the noble Baroness. She will be aware of the reply that my honourable friend the Minister, Robin Walker, gave to the other place in November. He made it clear that there was extensive engagement with a number of sectors. There had been numerous round-table and bilateral meetings. In particular, he said that, at that point, there was no position paper and that we shall continue to review the situation to determine how best to set out our position, which we will do as appropriate. That continues to be the Government’s position.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, at the weekend the noble Lord, Lord Bridges, wrote that if we are not careful and do not know where we are going, the transition will be a gangplank leading to nowhere. It is over a year since the noble Baroness’s report on the financial services sector and Brexit was produced. We have no clear view of what the Government think. Is it that they do not know, that they dare not tell, or is it, as Nicky Morgan suggests, that they are not up to the task?

[Baroness Goldie]

The noble Baroness’s criticism might have more authority if it did not come from the Benches opposite, where the Labour Party’s position on Europe can only be described as shambolic, and that is a euphemism. I remind the noble Baroness of precisely what has been happening. As I said, there has been extensive engagement and consultation and we are seeking a bold and ambitious free trade agreement between the UK and the EU. In so far as the financial services industry is concerned, this will require detailed technical talks, as she is no doubt well aware. However, the UK is an existing EU member state so we have regulatory frameworks on both sides and we have standards that already match. As recently as last week, the Prime Minister, the Chancellor and my honourable friend Mr Robin Walker met senior representatives of the financial services industry to engage on exit issues, so there is an ongoing dialogue. This is a delicate and sensitive time and the Government must be the arbiter of when it is appropriate to declare their position in particular areas.

Investigatory Powers Bill

Baroness Hayter of Kentish Town Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, Amendments 180, 181, 197, 198, 205, 206, 231 and 232 relate to judicial commissioner approval of major modifications to warrants issued under Parts 6 and 7 of the Bill. They seek to provide additional clarity regarding the matters the commissioner must review when deciding whether to approve such a modification.

The Bill already provides for major modifications to such warrants. In the context of bulk interception, bulk acquisition and bulk personal dataset warrants, a major modification may be used to add or vary one of the operational purposes for which data may be examined under the warrant. As regards bulk equipment interference warrants, a major modification can additionally add to or vary any description of conduct in the warrant.

The Bill requires full double-lock authorisation from a Secretary of State and a judicial commissioner for any major modification to a bulk warrant. These amendments will not change that. Instead, they provide greater clarity about the matters that a commissioner must consider when determining whether to approve a modification to a bulk warrant.

The amendments specify that, for major modifications to add or vary an “operational purpose”, a judicial commissioner must review the Secretary of State’s conclusions as to whether the modification is necessary, applying the same principles as would be applied by a court on an application for judicial review and ensuring that the commissioner complies with the duties in relation to privacy set out in Clause 2, the so-called privacy clause.

In the context of bulk equipment interference, if a major modification proposes to add or vary a description of conduct, the judicial commissioner must also review the Secretary of State’s conclusions as to whether the conduct authorised by the modification is proportionate to what is sought to be achieved by it. The amendments are intended to ensure clarity and consistency across the Bill, and as such are to be welcomed.

The sharing of data and intelligence with our overseas partners is critical to the work of our security and intelligence agencies. Without working together with our allies, those agencies could not do their vital work of keeping us safe. Amendments 184, 185, 201, 202, 209 and 210 simply clarify the consideration that must be given by the Secretary of State before authorising the disclosure to overseas authorities of data acquired under the bulk powers in the Bill.

The Bill already places a duty on the Secretary of State to consider whether corresponding safeguards will be applied to the data that are to be shared with the overseas authority in relation to their retention and disclosure. These amendments make explicit that the Secretary of State must be satisfied that the overseas authority has in place safeguards, to the extent appropriate, that correspond to those in the Bill not only in respect of the retention and disclosure of the data shared in bulk but in relation to their selection for examination. This group of amendments therefore makes absolutely clear that proper consideration will be given to the examination safeguards that are applied whenever bulk data are shared with another country. I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I thank the Minister for moving these amendments, all of which we are happy to support and some of which respond to concerns we raised in Committee.

It may assist the House if I outline at this stage the purpose of Amendment 185A, in the names of my noble friend Lord Rosser and myself, which is about safeguards for disclosing overseas-related material for our foreign allies and agencies. That is material, possibly including information sent overseas by UK residents, obtained by our security and intelligence services under bulk interception warrants. It is an amendment which we hope the Government will feel able to accept.

In Clause 142, before any information obtained under a bulk interception warrant is disclosed overseas, the Secretary of State must ensure that arrangements and safeguards are in place regarding the retention and disclosure of such material, as the Minister has outlined. These requirements correspond to Clause 141 safeguards for domestic arrangements: that is, requiring that the number of people to whom the bulk-intercepted material is disclosed, the extent of disclosure and the number of copies made is limited to the minimum necessary. These safeguards also require the destruction of such material where there are no longer grounds for retaining it.

However, unlike Clause 141 for domestic arrangements, Clause 142 for overseas disclosure provides a wide discretion for the Secretary of State, whereby she or he must ensure equivalent safeguards only,

“to such extent (if any) as the Secretary of State considers appropriate”.

It could, therefore, be possible for the Secretary of State to decide that no safeguards are required in a particular case.

We recognise absolutely that the UK will need to share intelligence with overseas agencies and our amendment does not undermine the ability of UK agencies to do that. We also accept that overseas disclosure may be of a different nature, with particular political, diplomatic or security implications, all of which the Secretary of State must consider. However, the present wording is surely too wide and, if I have understood it correctly, would not be subject to subsequent review. Amendment 185A removes this very broad discretion and requires that it must appear to the Secretary of State that safeguards corresponding to the requirements under Clause 141(2) and (5) will apply in relation to disclosure overseas.

The Minister will not be surprised if I make reference to the Szabó v Hungary finding that minimum standards should be set out in law to avoid abuses of power and that,

“it would be contrary to the rule of law … for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power”.

The judgment notes that,

“the law must indicate the scope of any such discretion … with sufficient clarity … to give … adequate protection against arbitrary interference”.

I hope that the Government will feel able to accept the amendment as, if anything, extra safeguards may, indeed, be required where sensitive information is being disclosed abroad. We look forward to the Minister’s response on this.

[Baroness Hamwee (LD)]

My Lords, we, too, are happy with the government amendments in this group and we support Amendment 185A. The issue is about the discretion in the application of Clauses 141(2) and 141(5)—and, shortly, Clause 143—not their relevance. The term “appropriate” suggests to me a degree of discretion which may not be related to relevance. The term “mutatis mutandis” is not one commonly used in legislation, I think, but it is that provision that one wants to see—only changing what is necessary to be changed. I do not know the proper way of dealing with that, but “appropriate” seems to be inappropriate in the context.

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[Lord Evans of Weardale (CB)]

My Lords, there have not been very many points in the course of this legislation on which I have agreed with the noble Lord, Lord Strasburger, but on this point I do. Amendment 252A raises a very interesting and important point.

Although I am absolutely in favour, as you would imagine, of the Government having the opportunity to access the communications of anybody who is a threat to us—due to terrorism, criminal activities or anything of that sort—there is a competing national security issue here of this country having effective cybersecurity. We have seen the way in which hostile Governments have been seeking to intervene in the American elections, and we have seen all sorts of attempts by hostile states, criminal groups and others to use cyber weaknesses to take forward hostile agendas. Therefore, there is a genuine national security interest in ensuring that, as far as we can, our citizens can communicate securely and privately when they are not going about mischievous business.

The idea that we should take into consideration the requirement not to place non-targeted customers or others at additional security risk is an entirely legitimate one, and I am very interested to hear how the Minister would want to interpret this. We have competing national security issues here and it is a point well made.

[Baroness Hayter of Kentish Town]

My Lords, we have had some rather good discussions with the tech companies. In Committee, we put in some of the amendments that they suggested to us, and some of the government amendments we have been dealing with over the past few days reflect that. I thank the tech companies for their very responsible attitude in continuing discussions with the Government over this period. Certainly with us they have been open, flexible and fairly straight as to what is possible and what the dangers are for them—for example, and as we have discussed, whether a weakness in end-to-end encryption could actually undermine the security that banks and others rely on in their systems—and for their clients, public confidence and national security. The companies recognise that they have a duty of care and loyalty to their customers, while fully respecting the law of the land in which they operate and the legal demands on their staff, wherever they are located.

In their discussions with us, companies have sought clarity that they will not be asked, effectively, to create a new system that would breach end-to-end encryption. They need this clarity for their shareholders and customers’ peace of mind because the reality is that they could never be forced to create a new computer program to hack their own security. I for one cannot imagine the noble Earl, Lord Howe, or anyone else standing over a hapless computer programmer shouting, “Break into it!”, if that company did not want to do it or the computer genius was on a go-slow that day. The idea that you could force somebody to create a program that the company and the employee did not want to is probably not possible.

Given that, the reality is that the things the Government want to ask will happen only when there is a good working understanding between the security services and the company. Therefore, if the tech companies want this clarity as set out in Amendment 251—as we know they do—our interest is to hear from the Minister just what the obstacles are to giving them the clarity that they seek.

Investigatory Powers Bill

Baroness Hayter of Kentish Town Excerpts

Report: 2nd sitting (Hansard - part one): House of Lords
Monday 17th October 2016 Lords Chamber

[Earl Howe]

My Lords in moving this amendment I will speak to the other amendment in this group. They provide for the introduction of judicial approval for data retention notices given under Part 4 of the Bill. This is an important new safeguard. It means that such notices given, authorised or varied by the Secretary of State, including those requiring the retention of internet connection records, will in future also require the approval of a judicial commissioner.

The Secretary of State must already consider whether it is necessary and proportionate to issue a data retention notice to a telecommunications operator. This amendment would mean in future that the decision to give a notice would be reviewed by a Judicial Commissioner, in line with the authorisation procedures for other powers in the Bill. I hope that the House will welcome this additional safeguard and, accordingly, I beg to move.

[Baroness Hayter of Kentish Town]

My Lords, we take this opportunity to thank the Government for listening to us, to the service providers and, in this case, also to the human rights monitors—everyone is in agreement. We are happy to support the amendments.

Amendment 115 agreed.

Investigatory Powers Bill

Baroness Hayter of Kentish Town Excerpts

Report: 2nd sitting (Hansard - part two): House of Lords
Monday 17th October 2016 Lords Chamber

[Lord Paddick (LD)]

My Lords, this amendment stands in my name and that of my noble friend Lady Hamwee. It introduces to the Bill a body corporate known as the investigatory powers commission that comprises the Investigatory Powers Commissioner, judicial commissioners and staff to support the commissioners. I am relying heavily on, and am very grateful to, the Interception of Communications Commissioner’s Office in this matter.

At present the Bill creates only a chief judicial commissioner and a small number of judicial commissioners. The commissioners will be responsible for approving approximately only 2% of the applications falling within the remit of the oversight body. Most of the applications made under the Bill are likely to be for communications data, for example, individual applications for which are not subject to prior approval by a judicial commissioner. The remaining 98% will be subject only to post-facto oversight.

The post-facto oversight will be carried out predominantly by specialist inspectors, investigators, analysts and technical staff working to the Investigatory Powers Commissioner, and it is important for those individuals to have a delegated power to require information or access to technical systems. According to the Interception of Communications Commissioner’s Office:

“The creation of a Commission is crucial to achieve a modern, inquisitive oversight body that has the expertise to carry out investigations and inquiries to the breadth and depth required and the intellectual curiosity to probe and challenge the conduct of the public authorities”.

I shall expand on what IOCCO means by that.

First, it means that the specialists do not have to wait to be tasked by the commissioner but can use their initiative and expertise to follow the evidence and conduct post-facto scrutiny where they believe it is most needed. Secondly, other commissions, such as the Independent Police Complaints Commission, are bodies corporate whose investigators have all the powers of their commission. This prevents police officers saying, “I’m not talking to you, Mr Investigator. I am only going to talk to a commissioner”. The Government may say that there is no direct parallel here but they would be wrong.

The Intelligence Services Commissioner was asked by the then Home Secretary, Theresa May, to carry out an investigation into what the security services knew about those involved in the murder of Fusilier Lee Rigby. In his supplemental report to his 2015 annual report, Sir Mark Waller, at paragraph 5.3(4), talks about his attempts to have counsel, Mr Sanders, who was carrying out the investigation on the commissioner’s behalf, present during the interviews of some of those involved:

“Prior to these interviews taking place, SIS told me that Desk Officer 1 and Intelligence Officers 1 and 3 objected to Mr Sanders being present and so he did not attend. I have since been told by SIS that this objection in fact came from its senior management. I very much regret that this was not made clear to me at the time as I would have challenged it” "

The fact is that, unless those carrying out post-facto scrutiny are part of a body corporate, as in the case of the IPCC, those whom they are supposed to be scrutinising can refuse to co-operate with them and demand that they deal with the Investigatory Powers Commissioner alone.

The IOCCO says:

“Putting the oversight Commission on a statutory footing will be a huge step towards guaranteeing independence, capability and diversity within the organisation which will inspire public trust and confidence”.

It goes on to say:

“Creating an oversight Commission would also help make a distinction between the approval and post-facto audit elements of the oversight body, addressing a concern raised by a number of witnesses to the Joint Committee that the Judicial Commissioners should not be perceived to be ‘marking their own homework’”.

This of course refers to the fact that in the 2% of cases where a warrant was approved by a judicial commissioner, without the establishment of a commission it could understandably be perceived by the public that the judicial commissioners were post-facto auditing the decisions of other judicial commissioners. Although this may be an accepted practice in the legal profession—in the courts and so forth—it is likely to be lost on the general public. The Interception of Communications Commissioner’s Office concludes:

“We urge the Government to implement this recommendation which was also made by the RUSI Independent Surveillance Review, David Anderson QC and the IP Bill Joint Committee”.

The amendment seeks to implement that recommendation. I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we are satisfied that the speedy and effective establishment of the office of Investigatory Powers Commissioner will provide the staff, expertise and structure to implement the Bill. As the noble Earl will know, we have queried whether the resources will be made available and we will continue to keep an eye on that. However, we see no rationale as to why a body corporate, with all the governance, other requirements and bureaucracy, would be better at achieving the balance that we seek, which is the timely, appropriate and thorough oversight of the powers in this Bill, taking full account of civil liberties and the need to prevent or apprehend crime, and dealing with threats from those who wish us harm.

It is possible that I have misunderstood what the noble Lord, Lord Paddick, said, but it seemed that he wanted the staff to have some of the commissioner’s authority. For ourselves, we have relied very much on the judicial commissioners, with the powers given to them under the Bill, and the IPC himself or herself to do this, and we would certainly not want to detract from their authority in any way.

Investigatory Powers Bill

Baroness Hayter of Kentish Town Excerpts

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

Like other noble Lords, I thank the Minister and the Bill team for the detailed discussions—perhaps negotiations is a better word—that they have had not only with us but with other interested parties. We have sought to balance our strong desire to protect clients’ confidentiality—their ability to speak openly and honestly with their lawyer, safe in the knowledge that information will go no further —with the need to safeguard the security of citizens and free them from the threat of terrorism or other risks to life. It would be wonderful if there were a nice, absolute and clear division between those two objectives but, sadly, in the real world there seldom is.

The Bill as drafted had not got the balance right. It was tipping towards the state’s ability to access or use legally privileged information. Since then, as the Minister outlined, the amendments to Clause 2, an overriding clause which should circumvent all the powers in the Bill, will significantly safeguard privileged material. It is not an absolute, but we acknowledge movement here and in other amendments, such as the public interest test needed before approving a warrant. It would require both the Secretary of State and a judicial commissioner to be satisfied that the public interest in obtaining the information outweighed that long-standing public interest in maintaining the confidentiality of legally privileged communications, but also, importantly, that there were no other reasonable means of obtaining the required information.

Similarly, we welcome Amendment 25, by which, when a warrant is requested to prevent or detect serious crime, the exceptional compelling circumstances have to relate to national security or preventing death or significant injury, and do not, as with some of the other powers, include being in the interests of the UK’s economic well-being. We are also pleased that the commissioner would have to be informed when any privileged material is retained by an agency and note that, as has just been mentioned, it can be ordered to be destroyed or for conditions to be imposed on its disclosure.

We are, however, sympathetic to the desire of the noble and learned Lord, Lord Mackay of Clashfern—I cannot believe he really called himself less luminous—to allow the commissioner to differentiate between advice and, for example, the time when a phone call was made, which could be incredibly important but irrelevant to the content of the phone call. If there is a way to enable the commissioner to differentiate in that way, we hope that the Government will respond to that positively.

Finally, with regard to the so-called inequity exception, we note that any application for a warrant under this provision would have to set out the grounds for believing that communications are being made with the intention of furthering a crime, and we welcome that.

We are mindful that representatives of lawyers—speaking on behalf of their clients, because it is their interests that we are discussing—feel that the Government have not gone far enough to meet their concern. We acknowledge that, on paper, an enormous amount of progress has been made. Our concern is whether the resources, culture and mindset of the IPC will allow for the scrutiny and challenge that the words now on paper will require. I am reassured by the fact that the judicial commissioners are not just lawyers but very experienced and senior ones, so they will have a background of understanding the legal profession’s fears and long-standing views about this matter. Perhaps, when replying, the Minister, in addition to responding to the wider points made, can give an assurance that the commissioner and judicial commissioners will be appointed with a view to guaranteeing their complete independence and with sufficient resources to be able to look at these significant and demanding issues with due care and attention.

[Lord Keen of Elie]

My Lords, I am obliged to noble Lords. I begin by looking at Amendments 27 and 88, which seek to insert the word “clearly” in the public interest test. On this point I concur with the observations of the noble Lord, Lord Carlile of Berriew, that there is a danger that this would simply muddy the waters and not clarify.

The test as set out in the government amendment is straightforward. The public interest in obtaining the information sought either outweighs the public interest in maintaining the confidentiality of privilege or it does not. If the word “clearly” were inserted, that certainty would be lost. We would have to try to define what we mean by “clearly”. Logic suggests that it means that one public interest test should outweigh the other by a certain amount, as indicated by the noble Baroness, Lady Hamwee, but it is not apparent what that amount would be. This would undoubtedly lead to confusion and uncertainty. Given that such a warrant can be sought only in exceptional and compelling circumstances, where national security or life and limb are at risk, confusion and uncertainty are one thing that we cannot afford.

The government amendments set out in detail what is intended by “exceptional and compelling”. The test is explicit on the face of the Bill and it is one that works. We are also introducing a requirement for the codes to include additional information about when circumstances are to be considered exceptional and compelling, and requiring the Investigatory Powers Commissioner to keep that language under review. It is in these circumstances that I invite the noble Baroness not to press her amendments.

The second set of amendments in this group—Amendments 56, 57, 192 and 193—seek to change the power of the Investigatory Powers Commissioner to determine what happens to legally privileged material when it has been obtained by an agency and the agency wishes to retain it. First, they would provide that the commissioner has the power to impose conditions on the use of the item as well as its disclosure. Secondly, they would also require the commissioner to direct that any privileged material that has been obtained must be destroyed unless there are exceptional and compelling circumstances that justify its retention. These amendments raise important issues in respect of legally privileged material that is inadvertently obtained and where the agency wishes to retain it. I would like to reflect further on our consideration of these points today and to return to this issue at Third Reading.

Amendment 107 deals with communications data and seeks to provide for judicial approval of authorisations for the communications data of a person who is or is likely to be a practising legal professional. It seeks to reflect the protections provided in Part 3 of the Bill for the identity of a journalistic source, but in practice this amendment goes much further by attaching the protections to the profession rather than to the sensitive information they manage. The debates in the House of Commons and at previous stages in this House have been clear that Parliament’s view is that protection should attach to the sensitive communication or to the function being carried out and should not simply apply to the person because they are a member of some profession. For example, there was consensus that protection should apply to the journalist’s communications with a source or the client’s communications with a lawyer. This amendment would go against that consensus by providing protection to a lawyer simply because he is a lawyer.

The Bill takes a reasoned and balanced approach. It applies additional protections where appropriate; provides for judicial authorisation of the most intrusive powers and for the use of less intrusive powers in the most sensitive circumstances; and provides a powerful and robust oversight regime to ensure that powers cannot be misused. The protections provided are specific to each power under the Bill, applying protection which is appropriate to the level of intrusion represented by each power. The draft Communications Data Code of Practice sets out the additional considerations that must be taken into account when any data relate to a member of a profession which routinely holds items subject to legal provision. Indeed, Schedule 7 to the Bill requires that the code shall include such detail. In addition, the current amendment to Clause 2 puts beyond doubt the importance of taking particular care in relation to sensitive information, such as items subject to legal privilege.

Our debate has already shown the importance that the Government place on the protection of legally privileged material, but I would suggest that it is not appropriate to introduce these additional protections within the context of authorisations for communications data. I invite the noble Baroness not to press Amendment 107.

Amendment 55A, tabled by the noble and learned Lord, Lord Mackay of Clashfern, seeks to amend government Amendment 55. This amendment would require the Investigatory Powers Commissioner to direct that any material obtained that is subject to legal privilege must be destroyed and allow the agency to retain only material that is incidental to that which is privileged.

I have already indicated in response to Amendment 57, proposed by the noble Baroness, Lady Hamwee, that I am minded to look again at whether there is more we might provide on the face of the Bill regarding the test that the commissioner should apply when making a decision about whether material can be retained. However, I would respectfully suggest that what the noble and learned Lord proposes with this amendment is not appropriate in the circumstances. It is the case that the vital intelligence that an agency may require could intrude not only on incidental material in a legally privileged communication but on the legally privileged communication in general.

I take up the example which the noble and learned Lord gave of the individual communicating with a lawyer and asking, “Can I be extradited from Greece?”. One might say, in a very straightforward fashion, that the relevant intelligence there is Greece, not that he may or may not be extradited. But what if the communication goes like this: “Can I be extradited from Greece or Albania?”, and the answer is, “You can be extradited from Greece but you cannot be extradited from Albania”. Just giving them Greece and Albania will not assist the intelligence services very much. On the other hand, the legally privileged information that he can be extradited from Greece but cannot be extradited from Albania might lead the reasonable intelligence officer to infer that the individual was more likely to be found in Albania than in Greece. It is in those circumstances that I suggest that one cannot easily divide between the two. As I have indicated, we are conscious that in these areas we can look again to see whether we can strengthen these matters. At this stage I would invite the noble and learned Lord not to press his amendment.

--- Later in debate ---

[Lord Paddick]

I also thank the Minister for this impressive package of amendments. It clearly has to be necessary and proportionate in some circumstances to investigate a journalist. However, I am a little concerned about a law enforcement chief being able to authorise such acquisition through equipment interference, although there is now the reassurance of a judicial commissioner, which did not exist before. I accept what the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Black of Brentwood, said about the concern of the National Union of Journalists that there should be prior notification and the ability to make representations. However, I think it is reasonably clear how difficult it would be to differentiate between the cases to which the measure would and would not apply. In all the circumstances, I think that this is more than the best that we could have hoped for. We are very grateful.

[Baroness Hayter of Kentish Town]

My Lords, I hope that my noble friend Lord Rooker has not ended the Minister’s political career. However, I think we all can say that when we come here our political careers are behind us. I join the noble Viscount, Lord Colville, the noble Lord, Lord Black, and others in thanking the Ministers and their team for the significant changes that have been made. I will not go through all of them, but the Government’s adding in Amendment 11 a reference to,

“information identifying or confirming a source of journalistic information”,

needing extra protection is very welcome, in addition to the other overriding requirement of there being no other way of getting the information.

As has been mentioned, government Amendments 30 and 31 insert special procedures for journalistic material and, perhaps of even more concern to journalists, journalists’ sources. As has just been said, the NUJ in particular wants other changes to be introduced but the idea of prior notice for covert investigation is in itself a contradiction too far. We are, however, sympathetic to the essence of the journalists’ approach—that is, their desire to protect not simply their members but whistleblowing members of the public through whom misdeeds often come to light. However, there will be occasions when terrorists or others who wish us harm will have been in touch with a journalist and the sole indication of that person’s whereabouts might exist on a journalist’s phone. Unless we are absolutely sure that we would never in any circumstances want those who protect us to be able to access that information, we need the warrants and the powers in the Bill. We hope very much that the safeguards provided will keep those exceptions to a minimum—I think that the word used was “rare”—and we hope that the IPC, in reviewing what happens, will always bear in mind the cost to all of us if fears of retribution deter good whistleblowers from getting misdeeds into the public domain. However, those are in a way fairly small instances. I commend to the House the changes that have been made.

[Earl Howe]

My Lords, I very much appreciate the noble Lord, Lord West, alerting the House to the achievement of my distinguished ancestor, Admiral Earl Howe, in relieving the siege of Gibraltar, to which he referred for the rest of his life as one of his greatest accomplishments. Glad as I am that this package of amendments has received the approval of so many of your Lordships, I cannot claim that it falls into quite the same bracket as the relief of Gibraltar. I am obviously gratified that it has met with the House’s approval.

For the sake of completeness, I should add that we have also undertaken an extensive update of the section relating to journalists and their sources in the existing draft communications data code of practice, providing additional statutory guidance to police forces about handling requests for communications data relating to journalists. This revised version of the code has been published in time for Report, so I refer noble Lords to it.

--- Later in debate ---

[Lord Paddick]

My Lords, I support the amendments for the very reasons that the noble Lord, Lord Butler of Brockwell, has just set out. Bulk powers are exceptional powers and they raise concerns among the public. There are specific offences in other parts of the Bill and in other legislation, and now we are focusing on deliberate abuse. I echo what the noble Lord, Lord Butler, said about the integrity of the security services, but we believe that these specific offences are necessary for public reassurance, if nothing else.

[Baroness Hayter of Kentish Town]

My Lords, I was about to congratulate the noble Lord, Lord Butler, on his excellent drafting of the amendments but he has slightly given away that it was not all done by his own fair hand. However, if the look on the Minister’s face is indicating that the Government might accept the amendments, we are delighted that the noble Lord’s influence from this House seems to be keeping pace with the influence that he had in his previous occupation. We are very content to support the amendments.

[Lord Keen of Elie]

My Lords, we welcome the chance to revisit this important issue, which was debated in Committee.

In putting beyond doubt that deliberate wrongdoing in relation to the bulk powers will be subject to clear, criminal sanction, we accept that these amendments will provide clarity on a crucial issue. We also believe that they have been drafted in such a way that, rightly, they would not criminalise honest, well-intentioned mistakes by the staff of our security and intelligence agencies, who do so much to keep us all safe. As such, we believe they strike the right balance and are to be welcomed. Therefore, we are happy to accept the amendments.

Investigatory Powers Bill

Baroness Hayter of Kentish Town Excerpts

Monday 12th September 2016 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

The purpose of the Liberal Democrats’ amendment seems to be that there is a speedier review of the legislation than was agreed in the passage of the Bill in the other place and was actually in the Bill. During the proceedings of the Joint Committee, a number of witnesses, including the Information Commissioner, argued for a sunset clause to be put into the Bill. The committee considered that; it did not agree, but at the end of the day believed that there should be,

“some form of review after five years”,

and that it should be “detailed post-legislative scrutiny”. The proposal that the Joint Committee came up with, to which I believe the Government have agreed, is that a Joint Committee of both Houses should be established within six months of the end of the fifth year after the Bill is enacted.

The difficulty with the amendment is that it refers specifically to the Secretary of State reviewing the Bill, whereas the Joint Committee was arguing that both Houses of Parliament should review it. The argument that technological change can be swifter than was thought by those of us who believe that five years was the answer is what lies behind the amendment. However, this is not simply about technology; it is also about the impact of the Act, as it will then be, upon the liberties of the people and about the nature of the various powers that we are enacting in the course of our proceedings. We therefore need some clarification: is it about the Government reviewing, or is it about Parliament reviewing? What precisely are we reviewing? I think everyone agrees with the principle, but we have to look carefully at the way in which Parliament reviews. If the amendment is eventually accepted then, frankly, it has to be secondary to parliamentary scrutiny.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the questions that have been asked are interesting. Times are changing, as is the nature of the threats. Who would have thought 30 years ago that we would be sitting here worrying about online grooming, ISIS terrorism and kidnapping or sophisticated cybercrime and money laundering? Who would have known that they were the challenges that would face us? Who would have talked 30 years ago about apps, internal emails—which we can get on our phones, according to some of my friends—and similar matters?

We will come back to issues of encryption. Technology is changing all the time, as is the modus operandi of those who wish us harm. Added to that, as I think my noble friend was alluding to, are the new powers in the Bill and the very welcome safeguards—the privacy measures and the double lock. These are new measures and we will want to see whether they achieve what the Government hope for them.

There are therefore two issues: first, how are the Government themselves going to monitor whether the Bill is achieving what they want; and, secondly, as alluded to by my noble friend, how will we then have formal post-legislative scrutiny to see whether they are what Parliament wants, and what is the correct time for that? The issues raised about reviewing these important powers and about the rapid change both in the technology and in the threats are ones that we want to be assured will be monitored and reported back on.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I am not sure how useful this intervention will be, but it occurs to me that when the Government consider the amendment and the proposed reduction of the period allowed for a review, they should also bear in mind the sole recommendation made by David Anderson in his review published in August, which we were all discussing last week, the Report of the Bulk Powers Review. I know that his amendment was not accepted then, but consideration will be given to it and I would expect amendment to the Bill along the lines that David Anderson recommended:

“The Bill should be amended to provide for a Technology Advisory Panel, appointed by and reporting to the IPC”—

that is, the commissioner,

“to advise the IPC and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability and development of techniques to use those powers while minimising interference with privacy”.

Assuming that some effect is given to that and some such advisory panel—an altogether more elaborate advisory panel was canvassed during the debate last week by the noble Lord, Lord Carlile—that will surely bear on the appropriate period within which an overall review should take place.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, I have not spoken often on this Bill but felt impelled to say that what the noble Lord, Lord Lester, and the noble and learned Lord, Lord Brown, have said is extremely good sense and the Government should follow it.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, given what has been said, I have little to add. I was born in Germany after the war, when it was so easy to define national security. It was about people coming over our border. Today, it is about our streets and about keeping people safe at home and abroad. I look forward to the noble Earl’s response. I do not think it is wise to try to define national security in the Bill, not simply because of the complications but because the definition changes. I know that it is a long time since I was born, but even over the next five years the definition will change again. We look forward to hearing the Government’s comments.

Investigatory Powers Bill

Baroness Hayter of Kentish Town Excerpts

Tuesday 19th July 2016 Lords Chamber

[Lord Paddick]

My Lords, I shall speak to Amendment 116 in my name and that of my noble friend Lady Hamwee. We also have our names to Amendments 154 and 235 in this group.

These amendments relate to a government commitment not to require telecommunications operators to retain third-party data. On 4 November 2015 in a Statement in the other place, the then Home Secretary said that the Bill,

“will not include powers to force UK companies to capture and retain third party internet traffic from companies based overseas”.—[Official Report, Commons, 4/11/15; col. 969.]

However, Clause 58(5)(c) states:

“An authorisation … may, in particular, require a telecommunications operator who controls or provides a telecommunication system to obtain or disclose data relating to the use of a telecommunications service provided by another telecommunications operator in relation to that system”.

Surely this means third-party data.

Amendment 116 would alter Clause 58(5)(c) to read, “may not require”. The key point here is that telecommunications companies should not be forced to obtain third-party data. The draft code of practice on communications data states at paragraph 2.61:

“A data retention notice can never require a CSP to retain the content of communications or third party data”.

Paragraph 2.66 states:

“A CSP cannot be required to retain third party data as part of an ICR”.

Amendment 154 would add a new subsection to Clause 83(2)—the clause headed “Powers to require retention of certain data”—to make explicit that a retention notice may,

“not require a telecommunications operator to retain any third party data, unless that data is retained by the telecommunications operator for its own business purposes”.

This is to distinguish between communications data that the telecommunications operator may have and being forced to acquire third-party data that it does not have.

Amendment 235 would restrict the definition of communications data in Clause 233(5) so that it relates to the provision of the service by that operator and not a third party. I beg to move Amendment 116.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I have added my name to Amendment 154 and will not repeat what has been said about it. It simply asks the Government to make explicit what they have said—namely, that the retention of third-party data will not be required. It would be helpful to make that clear in the Bill.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, as the noble Lord, Lord Paddick, has explained, these three amendments all deal with the issue of third-party data. Amendment 116 seeks to prevent public authorities from acquiring third-party data, Amendment 154 seeks to put the Government’s commitment not to require retention of third-party data on to the face of the Bill and Amendment 235 seeks to amend the definition of communications data to exclude from it third-party data.

On the acquisition of third-party data, the Bill maintains the existing position under RIPA that public authorities can acquire third-party data where necessary and proportionate to do so. But I want to be clear here—a provider is required to comply with a request for communications data, including a request for third-party data, only where it is reasonably practicable for them to do so. It is absolutely right that, where a communications service provider holds, or is able to obtain, communications data, whether in relation to its own services or those provided by a third party, then the data should be available to public authorities for the statutory purposes in the Bill. Put simply, data that already exist, are already held and which could save a life, convict a criminal, prevent a terrorist attack or provide an alibi, should not be put out of reach of law enforcement based solely on which company it is that holds the information.

Amendment 154 deals with the retention of third-party data. As I am sure the noble Lord knows, this matter was considered in the Commons, where the Government gave a commitment to consider it further. I am grateful to the noble Lord and the noble Baroness for tabling this amendment and giving me an opportunity to update the Committee on those considerations. My right honourable friend the Home Secretary has given a clear commitment that we will not require a telecommunications operator to retain third-party data, and that commitment is given effect to in the Communications Data Draft Code of Practice. However, distilling that commitment into primary legislative drafting is complex. We do not want to include provisions in the Bill that are not entirely clear in scope or which put in place restrictions that are broader, or indeed narrower, than intended. But we have been making good progress and are close to a provision that we think achieves the desired outcome. Of course, we need to test that drafting with operational stakeholders and with those telecommunications operators likely to be affected by the legislation, but we hope to be able to return to this issue on Report.

Finally, on Amendment 235, the principle of what are communications data is clear. Changing that position so that the classification of data changes depending on which provider holds them would no doubt cause confusion among providers as to how the data should be handled. While I understand the concerns around third-party data, and hope that what I have said today lays some of those to rest, amending the definition of communications data is not the right way forward. I invite the noble Lord to withdraw Amendment 116.

--- Later in debate ---

[Lord Strasburger (LD)]

My Lords, I shall speak briefly on the amendments on the request filter. Along with internet connection records, the request filter is another power that first appeared in the draft Communications Data Bill and which died along with that ill-fated Bill. The view of the pre-legislative Joint Committee on that Bill, on which I sat, was that,

“the Request Filter introduces new risks, most obviously the temptation to go on ‘fishing expeditions’. New safeguards should be introduced to minimise these risks”.

The request filter was described as,

“essentially a federated database of all UK citizens’ communications data”.

I dare say that the committee would be even more worried when it said that in 2012 if it had seen how this Bill expanded the range of data to which the request filter can be applied. That expansion comes from the proposed introduction of internet connection records, which would reveal every detail of a person’s digital life and a very large part of their life in the real world. The effect of the request filter will be to multiply up the effect of intrusion into those data by allowing public authorities to make complex automated searches across the retained data from all telecoms operators. This has the potential for population profiling and composite fishing trips. It is bulk surveillance without the bulk label.

Use of the request filter would be self-authorised by the public authority without any judicial authorisation at all. The concept that the Government promote for bulk data is that they are passive retained records, which they say sit there unexamined until someone comes to the attention of the authorities. That concept is negated by the request filter. The data become an actively checked resource and are no longer passive. Will the Minister confirm that the request filter is not yet in existence and is not yet being used?

The request filter is a bulk power masquerading as an innocuous safeguard to reduce collateral intrusion. Unless and until the Government come forward with proposals to strictly limit use of the request filter through tighter rules and judicial approval for warrants, as is the case with other bulk powers, Clauses 63, 64 and 65 should not stand part of the Bill.

[Baroness Hayter of Kentish Town]

My Lords, I shall use the opportunity that arises from Amendments 140 and 146A to ask the Minister to clarify whether it really is the case that Clause 2 does not automatically affect every power in the Bill. If this was the case, we would be sympathetic to these amendments, as the privacy objective should be considered before any of the powers are used. My understanding was that Clause 2 was a general provision, which affected everything. Indeed, the letter of the noble Earl, Lord Howe, of 14 July to my noble friend Lord Rosser says, “The new overarching privacy clause sets out the privacy obligations which constrain the use of the powers in the Bill”. Our understanding had been that it covered the whole Bill, so I was slightly bemused by Amendments 140 and 146A—not helped by a briefing received, again very late last night, from the Equality and Human Rights Commission, which only ever sends out its briefings on the very eve of debate. That briefing says that Clause 2 does not cover it all, whereas my understanding was that it did. Perhaps this is the opportunity for one of the Ministers to make clear the situation.

[Lord Butler of Brockwell (CB)]

My Lords, I find the amendment moved by the noble Lord, Lord Paddick, difficult to understand. He made the point that the filter arrangement makes the operations of the police easier, but it makes them easier by ensuring that they do not inspect communications data which are not relevant to their purpose. It therefore protects privacy rather than threatens it. The filter is governed by the requirements of the rest of the Bill. It will apply the tests of necessity, proportionality and the protection of privacy. It is a protection of privacy rather than a threat to it.

--- Later in debate ---

[Lord Harris of Haringey]

My Lords, as I said earlier in Committee, it is important that, in assessing any proposal made in the Bill, we strike the balance between the need for it and any possible negative consequences, and whether that may weaken the security of a device, enabling the malign elements, as opposed to benign, to penetrate systems. As I understand it, the purpose of the amendment is to try to ensure that that balance is clear in the Bill. It would place an obligation on those seeking warrants and those considering them to look at whether that balance has been struck and ensure that it has.

It is reasonable for those seeking warrants to demonstrate that they have considered whether there are any negative consequences of the action they are prepared to take, particularly if it leads to a weakening of the general security of a wider system that may mean it is prone to attack from cybercriminals or others accordingly, or that there is likely to be a large amount of collateral damage in other people’s information being made available to the authorities.

I make it clear that I do not think the fact that the information of other people who are not the purpose of a warrant may be compromised is necessarily a reason why we should not proceed with this. It should be balanced with the consequences. For example, I can conceive of circumstances where a warrant might be sought for a machine in an internet café. Clearly, that is because certain individuals are thought to be using it. In any application I would want consideration to be given to what would be done about those other, presumably entirely innocent individuals who might use the same machine.

I am concerned that, as part of the process, there should be consideration of the downsides of a particular application: whether it is weakening the system or interfering with the privacy of other people who are not specifically targeted. If either is the case, there should be clear consideration of what can be done to minimise those risks. The fact that another person is not the subject does not necessarily mean that it should not be proceeded with. It is a matter of proportionality—the benefits that will be gained from the action being taken and whether those are properly considered by those making the application and those considering whether to approve it. For those reasons, the amendment is broadly helpful. I hope that Ministers may be prepared to accept this or something like it to provide that assurance.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I added my name to Amendments 159 and 160. Amendment 164 is in my name and that of my noble friend Lord Rosser. Our points are much the same as those made by my noble friend Lord Harris. I do not think there will be planting of evidence, for example. Our concern is much more about the risk to any public cybersecurity system, and we would want that to be taken into account. These amendments follow the recommendations of the Joint Committee. The idea is to minimise any potential risks. If, for example, the Secretary of State has to take into account any risk to the security and integrity of the networks, that by itself will ensure that any applicant sets that out in the form they submit. We hope the Government will respond, as my noble friend Lord Harris said, not necessarily by using these exact words but in the spirit of these amendments in order to retain overall security.

[Earl Howe]

My Lords, Amendments 159 and 160 would introduce new clauses requiring the person making an application for a warrant to make a detailed assessment of the risks of the proposed equipment interference activity to any critical national infrastructure, to the security and integrity of systems and networks, and to the privacy of those not targeted. Amendment 164 is linked to the requirement to produce risk assessments and would require the Secretary of State, when issuing warrants to the Chief of Defence Intelligence, to consider the content of these assessments when deciding whether the activity under the warrant would be proportionate. Amendment 169A would require a judicial commissioner to take into account a technical cyber risk assessment, conducted by the Investigatory Powers Commissioner, of the specific equipment interference proposed when deciding whether to approve a decision to issue a warrant.

I start by making an important general point. It seems these amendments are based on a fundamental misinterpretation of what GCHQ and others are here to do. Their role is to protect the public. That includes protecting cybersecurity. Indeed, the Government have invested very considerable resources into improving our cybersecurity efforts. Last November, the Chancellor announced the creation of a new national cyber centre led by GCHQ, with an additional £190 million of funding.

GCHQ has an excellent track record in identifying cyber vulnerabilities and making leading computer companies aware so they can improve their security. For example, in September 2015, Apple publicly credited CESG, the information assurance arm of GCHQ, with the detection of a vulnerability in its iOS operating system for iPhones and iPads, which could have been exploited to allow the unauthorised modification of software and to extract information from the devices. That vulnerability has now been patched.

I appreciate that the noble Lords’ amendments are intended to introduce safeguards, but I contend that sufficient safeguards are already contained in the Bill. Part 5 already requires the Secretary of State or law enforcement chief to consider whether the proposed conduct is necessary and proportionate before issuing a warrant. The Government have provided even more reassurance since the discussion of these same amendments in the other place. As we have frequently reflected, Clause 2 is a new provision that sets out overarching privacy duties. It includes a requirement to have regard to the public interest in the integrity and security of telecommunication systems. This requirement applies to any decision on whether to issue an equipment interference warrant.

The draft statutory code of practice also sets out, in detail, the factors that must be considered in respect of proportionality. The code states at paragraph 3.27 that one element of proportionality that should be considered is,

“explaining how and why the methods to be adopted will minimise the risk of intrusion on the subject and others”.

It goes on to state at paragraph 3.30:

“Equipment interference activity must therefore be carried out in such a way as to appropriately minimise the risk that the activities of the equipment interference agency would result in any increase of the likelihood or severity of any unauthorised intrusion into the privacy, or risk to the security, of users of equipment or systems, whether or not that equipment is subject to the activities of the equipment interference agency”.

If noble Lords will allow me one last quote, paragraph 3.31 states:

“Any application for an equipment interference warrant should contain an assessment of any risk to the security or integrity of systems or networks that the proposed activity may involve including the steps taken to appropriately minimise such risk … The issuing authority should consider any such assessment when considering whether the proposed activity is proportionate”.