Investigatory Powers Bill

Earl Howe Excerpts

Ping Pong (Lords Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

Moved by

[Earl Howe]

That this House do not insist on its Amendments 15B, 15C, 338B, 339B and 339C, to which the Commons have disagreed for their Reasons 15D, 15E, 338C, 339D and 339E.

Commons Reasons

15D: Because it is inappropriate to extend civil liability in respect of the interception of communications.

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339E: Because it is consequential on Lords Amendments Nos. 15B and 15C to which the Commons disagree.

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

My Lords, I will not detain the House for long. I want merely to note my gratitude to the noble Baroness, Lady Hollins, for choosing not to press her amendments on press regulation again today. Her efforts and those of her supporters have successfully raised the profile of this issue and made a clear signal of her intent. She can rest assured that this has not gone unnoticed by the Government. I say that with due emphasis: the proof of it lies in the public consultation on this issue announced by my right honourable friend the Secretary of State for Culture, Media and Sport. That consultation provides, in my submission, the right means for interested individuals and groups—including, I trust, the noble Baroness, Lady Hollins, and other noble Lords—to have their say. It is a serious consultation, designed to take the process forward in a considered fashion. The Government have committed to respond promptly, following its conclusion.

Therefore, in moving this Motion, I hope that noble Lords who supported the noble Baroness, Lady Hollins, at earlier stages will recognise that their efforts and their arguments on these matters have not been wasted. I beg to move.

[Lord Lipsey (Lab)]

My Lords, the Commons has spoken and we must, as usual, bow the knee, even if it took us twice to get round to it this time. I take some consolation from what the Minister said, because at least the consultation document is something concrete which has an end date. However, we know that Governments can take an awfully long time after the end date of consultations deciding and announcing what they are going to do, and the present situation is very unsatisfactory. Section 40 sits there in the ether, with nobody knowing whether it is in or out, and we get rumours in the papers about the Government’s purported attitude. This is not how this matter should be dealt with; it should be dealt with quickly.

If anyone thinks there is no problem now with the press post-IPSO, they should read the coverage of what has happened to poor Prince Harry and his girlfriend. With the privacy issues involved in that, do they really feel that this shows—although there are, no doubt, two sides to the case—that the press has put its badnesses from the past behind it? I submit that they should not. This is a matter that requires urgent treatment—although I agree, not in the Bill.

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[Lord Rosser (Lab)]

I congratulate the noble Baroness, Lady Hollins, on pressing this issue over a lengthy period with such determination and vigour. I ought to set out our position. There is inevitably a strong feeling that the Government are seeking a means to go back on the cross-party agreement, the undertakings given to victims and their commitment to implement Section 40 of the Crime and Courts Act 2013. In the Commons yesterday, the Solicitor-General rather gave the game away when he said that the consultation will ask whether Section 40 should be fully commenced, repealed or kept under review. Many fear that the consultation will prove to be a sham. Governments do not suddenly decide to hold a consultation on repealing recent legislation that has not yet been implemented unless that is something they would be happy to do. I suggest that the Minister knows that only too well. I suspect he may well choose to deny that, but the proof of the pudding will be in the outcome of this hastily organised consultation.

The question today is about the stance to take on the Government’s Motion. The noble Baroness, Lady Hollins, has indicated her position—at least, the Minister has done it for her—and it is one with which we agree. Two matters in particular need to be considered. One is the impact on the progress of the Bill. In our most recent discussion of this issue, the Government sought to argue that carrying the amendments concerned could place national security at risk, because it would delay the implementation of the Bill when there is a deadline, in a few weeks’ time, by which it needs to be passed. However, the Government destroyed their argument about a risk to national security by taking longer than they needed over scheduling consideration of our amendments in the Commons. If the Government seriously thought that national security was being put at risk, they would have had the Lords’ amendments considered by the Commons much sooner than they did. However, we are now that much closer to the deadline. Since we support the Bill we do not wish to start raising credible doubts over whether it will become an Act within the required timescale.

The second matter concerns the role of this House. This is usually described as inviting the Commons, the elected House, where deemed appropriate, to think again about aspects of or gaps in proposed legislation. We have done that twice in respect of the issue we are considering again today, and the Commons has twice declined to accept our view. This House has carried out its role and its responsibility.

In view of that, while we will continue to pursue this matter and the Government’s actions, like the noble Baroness, Lady Hollins, we do not believe that we should continue to do so through the medium of insisting on the amendments to the Bill that have previously been carried.

[Earl Howe]

My Lords, I am grateful for the contributions made from all quarters of the House. I will comment briefly on the consultation.

The consultation is a serious effort to canvas opinion. This is a difficult issue. There is no consensus around Section 40 implementation. We want to find a model for self-regulation that has broad support and works in practice. As well as having a responsibility to the victims, the Government have a responsibility to make sure that we have, as the noble Lord, Lord Myners, has correctly put it, a vibrant and sustainable press, particularly at the local level. We want to gather the evidence through a proper process, better to understand the potential impacts and explore options for next steps.

I and the Government believe that a consultation period of 10 weeks is appropriate and right. This is enough time to enable those who want to comment to do so, and we look forward to that process commencing.

Motion agreed.

HMS “Ocean”

Earl Howe Excerpts

Monday 7th November 2016 Lords Chamber

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

My Lords, following the decommissioning of HMS “Ocean” and prior to the Queen Elizabeth-class aircraft carriers being brought into service, a combination of the existing amphibious ships of the Royal Navy and the Royal Fleet Auxiliary will provide the lift capability for our amphibious forces.

[Lord West of Spithead (Lab)]

My Lords, I thank the Minister for that Answer, which I find very disappointing. I have commanded task groups and amphibious assault groups, and it is clear and well known that the only way of providing simultaneous two-company lift is to have a large deck with at least six spots that can be operated simultaneously and a hangar that can carry up to 12 or 14 helicopters. Anything else will not achieve the amphibious capability that is laid out clearly in our doctrine. What worries me is that this is yet another cut to our Navy. There seems to be cut after cut. Some £65 million has just been spent on refitting this ship in order to run it until 2025, and it is suddenly being laid up in 2018. “Diligence” has just been laid up. Saying we are ordering eight frigates—which I am sure is the sort of response we will get—is great, but they are years late, and there are eight rather than 13. In this highly dangerous world, the most chaotic I have known in 50 years on the active list, can we not put “Ocean” into reserve status, as we will with HMS “Bulwark” next year, and keep her until 2025 when the carriers are online and she can be replaced, and therefore have that capability if it is needed?

[Earl Howe]

My Lords, as the noble Lord knows, the specified service life for HMS “Ocean” was 20 years as from 1998, and we announced in the SDSR 2015 that she would be taken out of service in 2018. The Royal Navy has been clear that, following the decommissioning of HMS “Ocean”, its priority was to maintain surface lift capability using “Albion” and “Bulwark” while preparing to bring the carriers into service with a smooth sequencing programme. I do not share the noble Lord’s perception of the Royal Navy as suffering cuts; if anything, it is very much on the up. We have the arrival of the two Queen Elizabeth-class carriers to look forward to, which will provide immensely greater capability than we have at the moment.

[Lord Boyce (CB)]

My Lords, I am afraid that I do not find the Minister’s Answer to the Question asked by the noble Lord, Lord West, particularly convincing. Does the Minister agree that paying off “Ocean” makes no strategic sense and that, despite what he said, it has been done because defence is badly underfunded and, in the Royal Navy’s case, badly underresourced in people as well? Does he agree that it was a mistake to impose an unrealistically low manpower ceiling in the 2010 defence review and to compound that mistake by not addressing it properly in the 2015 defence review, and that the current underfunding of defence resources, which is requiring the services to make cuts of some 10%, is having a very bad effect on training and the quality of life of our soldiers, sailors and airmen?

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[Earl Howe]

My Lords, I always listen carefully to the noble and gallant Lord, as I do to the noble Lord, Lord West. There are always difficult choices to be made within a fixed budget, and that applies to any government department. However, last year’s strategic defence and security review announced an increase in the size of the Royal Navy of 400 personnel—to 30,600—by 2025. That represents an uplift of 1,600 over the 2010 SDSR position. Of course, there are manning pinch points; we acknowledge that and the Royal Navy is addressing them. But we have to live within the means that we have and address the capabilities we need, and I believe the Navy is doing that.

[Lord Hamilton of Epsom (Con)]

Will my noble friend confirm that one of the pressures on the naval procurement budget results from the ordering of two aircraft carriers by the noble Lord, Lord West, which still do not have enough aircraft—the F35, at £100 million apiece—to fly off them?

[Earl Howe]

I am sure my noble friend will be pleased to know we have already taken delivery of five of the F35s and have announced an accelerated buying programme to allow us to embark up to 24 of these fantastic fifth-generation aircraft by 2023. When my noble friend sees the “Queen Elizabeth” coming into Portsmouth, as it will next year, he will be very proud of the capability that this country can offer in terms of naval power.

[Lord Touhig (Lab)]

My Lords, the role of HMS “Ocean” has been to provide the marines with a capability to deploy on land using landing craft and helicopters, and I understand that in future this will be provided by modifying one of the new Elizabeth-class carriers. Can the Minister say what these modifications will entail and how much they will cost? As has already been said, the Government have spent £65 million on refitting “Ocean” only to decommission it. They also spent £16 million on refitting RFA “Diligence”, our only at-sea repair ship, only to put it up for sale. That means they have spent £81 million refitting two ships in order to scrap them. What does this tell us about the Government’s long-term naval planning—that there is no long-term planning, but simply an endless waste of taxpayers’ money?

[Earl Howe]

I can reassure the noble Lord there is a great deal of long-term planning, as I witnessed myself at last week’s Admiralty board. He asked about the sequence of programming for the new carriers. The first of the carriers, HMS “Queen Elizabeth”, will enter service in 2018, after which she will conduct flying trials, initially with helicopters and then with the F35B Lightning II aircraft. We will deliver an initial carrier strike capability by 2020, but in parallel we will be developing our carriers to deliver amphibious assaults with Royal Marines and battlefield helicopters as well as to mount global counterterrorism strikes. I hope the noble Lord will agree that there is a logical sequencing programme in train.

Defence Estate

Earl Howe Excerpts

Monday 7th November 2016 Lords Chamber

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

My Lords, with the leave of the House I shall now repeat a Statement made in another place by my right honourable friend the Secretary of State for Defence, “A Better Defence Estate”. The Statement is as follows:

“With permission, Mr Speaker, I would like to make a Statement on our strategy for a better defence estate. Our defence estate is where our people work, live and train, where advanced equipment is maintained and where cutting-edge research is undertaken. It is the place where major exercises are conducted and major operations launched.

Our estate is vital, but it is also vast. We control almost 2% of the United Kingdom’s land mass, an area almost three times the size of Greater London. Yet bigger does not mean better. While the size and structure of our forces have changed to meet different threats, our estate has failed to adapt. It is too inefficient. It costs £2.5 billion a year to maintain, with 40% of our built assets more than 50 years old. And it often fails to meet the needs of our Armed Forces and their families, with capabilities spread across old, small, remote sites, often removed from population centres and job opportunities.

Last year’s strategic defence and security review committed to increase the defence budget in real terms every year of this Parliament, with a £178 billion equipment plan to create a world-class Joint Force 2025, but an ambitious joint force needs an estate to match, so today I set out a long-term strategy to achieve that ambition.

First, we will transform an estate built for previous generations of war-fighting into one that better supports military capability and the needs of our Armed Forces. It will help deliver Joint Force 2025 by bringing people and capabilities into new centres of specialism and clustering units closer to their training estates. Since the beginning of this year, I have announced plans to dispose of 35 of our most costly sites. Today, based on advice from the Chiefs of Staff, we are going further by freeing up a further 56 sites by 2040 and bringing the total of sites released to 91.

I now turn to what this means in practice. It means that the Royal Navy will continue focusing on operating bases and training establishments around port areas and naval stations, with surface ships in Portsmouth and Devonport; all the UK’s submarines on the Clyde; an amphibious centre of specialisation in the south-west, based around Devonport; and helicopters based at Yeovilton and Culdrose. It means the Army having specialised infantry in Aldershot; mechanised, wheeled capability, including two of our new strike brigades, in Catterick; air assault forces in Colchester; armoured and tracked capability around Salisbury Plain; medical services in the West Midlands; and hubs of light infantry battalions in London, Edinburgh, Lisburn, St Athan, Blackpool and Cottesmore. It means the RAF building on its centres of specialism with combat air in Coningsby, Marham and Lossiemouth; intelligence, surveillance and reconnaissance at Waddington; air transport at Brize Norton; force protection at Honington; and support enablers at Wittering and Leeming. Fuller details are published in the strategy, which will be available in the Vote Office.

Secondly, this strategy will deliver a better estate for service families. Over the next decade, we will invest £4 billion in improving our infrastructure and modernising our accommodation, including funding from disposable receipts and the £1 billion secured at the spending review. All savings from running costs will be recycled back into defence. By consolidating our estate and locating our service men and women together with capability, we will provide better employment opportunities for their partners, provide more stable schooling for their families and increase their ability to buy their own home. We have purposely focused on sites that will support recruitment and retention, giving our personnel and their partners greater certainty and confidence to put down roots in local communities.

Finally, a better defence estate will deliver better value for money for taxpayers. By releasing sites we no longer need, we can help build the houses that we do need. I can confirm the MoD has firm plans to achieve its target to release sufficient land to build up to 55,000 houses in this Parliament. My department will now work with industry, local authorities and devolved Administrations, as well as with our personnel, to deliver this—supporting construction and infrastructure jobs and boosting local economies.

This is a strategy that looks ahead to 2040 to provide the defence estate we need to keep Britain safe and promote our prosperity. As we implement it, we will seek to minimise any disruption to the Armed Forces as well as to service personnel, civilians and their families. We will give our people as much notice as possible over planned redeployments, ensuring all are well provided for. As well as the built estate, I am determined to widen our focus and seek better value from our training and reserve establishments as well. We will update Parliament on our progress in our first annual report next October.

These reforms provide a vision of a better defence estate: an estate that supports a more efficient and effective military capability; an estate that gives our Armed Forces a world-class base from which to work; and an estate that helps defence play its part in securing our security and prosperity. I commend it to the House”.

My Lords, that concludes the Statement.

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[Baroness Jolly (LD)]

My Lords, I thank the Minister for repeating the Statement. The MoD’s aim is to reduce waste from overcapacity or inefficient use of facilities. That has to be welcomed, but as yet we have not seen the list of estates—if it has been released, I have not yet seen it. We welcome the general thrust of what the MoD wishes to achieve, but, as with all things, the devil is in the detail. The opportunity to improve accommodation for service personnel is long overdue, and their families will welcome that investment.

Times have changed. The noble Lord, Lord Touhig, referred to golf courses and pitch and putts, and I have to confess that over 40 years ago, the father of our best man was known as SHAGO—Security, Horse and Golf Officer—for one of the golf courses and Navy bases near Portsmouth. But several serious issues arise from the Statement.

There are the revenues from the sales, the impact on local communities and the opportunity to rationalise the functions of our Armed Forces geographically. Is this just a short-term attempt to plug the gap in defence accounts? We get capital from this money only once, so why is now the time to sell? Are there buyers for these sites? Will the income from the sales go into MoD or Treasury coffers?

In the Statement the Minister said:

“I can confirm MoD has firm plans to achieve its target to release sufficient land to build up to 55,000 houses in this Parliament”.

This makes no mention of whether the houses are affordable homes, for which there is a very clear need; whether it is housing that will benefit the local communities, meeting their needs; or whether the houses will be expected to have green standards—all of which is the least that a community should expect, given that it will feel it is losing quite a lot. Has any impact assessment been done of the effect on local communities of losing jobs? There is no point in building houses in these places if there are no jobs to attract people.

I ask the House to excuse me: I am not going to refer to the Army or RAF issues as I have not had time to do the research. I know rather more about the Navy, so I would be grateful if the Minister could clarify some issues surrounding the Devonport naval base and the area around it. Would he confirm that the Trafalgar class submarine will move from Devonport to Faslane? Will he comment on whether the rehousing of the Royal Marines from Royal Marines Stonehouse to Royal Marines Tamar is a possibility? The closure and sale of Stonehouse was announced in the previous Statement amid much local sorrow and anguish but it was not clear, and I do not think it is clear yet, where the Marines and their capability and functions will move.

[Earl Howe]

My Lords, I am grateful to both noble Lords for their questions and comments. The noble Lord, Lord Touhig, began with a statement with which I wholly agree. This programme has been built around the needs of the Armed Forces; that is the first requirement that we should always consider. I hope the fact that the Chief of the Defence Staff has put his name to the document alongside that of the Secretary of State demonstrates that the strategy is based closely on advice from front-line command. This is about enabling an infrastructure that better supports military capability and the needs of a modern fighting force. That is its starting point. It will see the defence estate consolidated into fewer centres of gravity and specialisation, with better support capability.

He asked about golf courses, which I can cover quite quickly. The department currently has 11 operational golf courses, five of which are contained in today’s announcement: Molesworth, Abercorn, Condor, Henlow and North Luffenham. While we do not resent our personnel enjoying the odd round of golf, there is perhaps a happy limit to the number of courses that it is proper for the ministry to maintain.

The noble Lord asked an important question about disposal receipts and whether they would be reinvested into defence. I can give him that assurance. It is not a statement that was included in the words that I repeated, but it applies as much to these disposals as those that we have previously announced.

The noble Lord asked how much would be raised. In the nature of this programme, that is not a question that I can answer because we are looking at a disposal programme over the next 25 years. These are sites that we are now signalling our intention to dispose of, but many of them will in fact not be sold for a number of years, for reasons that I will come on to. But I can say that the disposals will contribute significantly towards the MoD’s £1 billion target for land release sales, as set out in last year’s spending review. The money raised will be reinvested in the defence estate, where it is most needed. The strategy will also generate savings of more than £140 million in running costs over 10 years, rising to nearly £3 billion by 2040. Again, all that can be reinvested in defence.

The noble Lord asked how many service families would be required to move. We are closely reviewing how to offer service personnel more choice in their accommodation options in future, and by consolidating the defence estate around capability in regional clusters we are able to provide additional stability to service personnel. We recognise the vital contribution made by the families of our personnel and it is our intention to provide better employment opportunities, particularly spousal employment opportunities, for those who often make great personal sacrifices to support the careers of the men and women of our Armed Forces.

The noble Lord asked about regular reviews of this programme, perhaps every five years. I hope I can reassure him even more firmly than that: where plans are required to change we will inform our personnel and we will update Parliament every year on our progress. This is a matter of continual review, not just review every five years. The annual update that we give to Parliament will include updates to reprovision on a rolling five-year basis.

The noble Baroness, Lady Jolly, asked why now was the time to sell. As I have indicated, we do not anticipate selling these sites now or even next year, but some will be disposed of in this Parliament and some in the next Parliament and the Parliament after that. The key point here is that this is an imperative. We have to grip this. The estate is too large, the cost of maintaining it is spread too thinly and we need to configure the estate, as the Statement makes clear, in accordance with the needs of the Armed Forces and their capabilities.

The noble Baroness asked about affordable homes and green standards. Those are discussions that will need to be had with the relevant local authorities as time goes forward. The whole issue of the disruption to local communities, and indeed the enhancement to some local communities, along with the jobs that will be lost and created will be part of those discussions. Again, though, the important point is that we are giving ourselves enough time to have those discussions with local authorities, and I hope that they will welcome that.

On Devonport and the removal of submarines to Faslane, I can confirm that the plan is to base all our submarines in due course at Faslane. I will have to get back to her about the other question she asked about the rehousing of the Royal Marines, if she will allow.

[Lord West of Spithead (Lab)]

My Lords, the place for the Royal Navy is at sea, and for that you need ships and submarines. I welcome this rationalisation, but can the Minister confirm that this new money, particularly the capital side of it, will be used to run on ships that have already been refitted, as we have discussed in this House, and maybe to buy new ships, and that it will not be used to disguise what is actually a systematic underfunding of defence for Joint Force 2025 because there is insufficient money there to achieve that?

[Earl Howe]

My Lords, I can confirm that. One of the plus points of the strategic defence and security review, if I can put it that way, was an agreement from Her Majesty’s Treasury that by creating these efficiencies—for that is what they are—we can plough the money back into defence. Some of the money will go back into the defence estate, but in the round it will enable our money to go further. Additionally, we have the promise that during this Parliament the defence budget as a whole will increase by 0.5% in real terms every year. So this is not a plan to somehow secrete money away into areas other than the front line; it will in fact boost the front line.

[Lord Marlesford (Con)]

My Lords, does my noble friend agree that the single largest and most valuable site which could—and, I would argue, should—be released for sale for housing, which would probably meet the £1 billion target on its own, is RAF Northolt? Is that being considered?

[Earl Howe]

Northolt is not being considered at the current time. It is a very valuable facility for the RAF, as well as for the services generally—it is located close to the centre of London—so it is not on the MoD’s list at present. However, I recognise the point that my noble friend makes: it is clearly a valuable site.

[Lord Hope of Craighead (CB)]

Can the noble Earl say a little more about the centres of gravity as they affect the Army in Scotland? He mentioned the position of the light infantry battalion in Edinburgh—3 Rifles is presently stationed there and has been for some time. It is widely rumoured that one place that is to be disposed of is Fort George in Inverness-shire, where one of the battalions of the Royal Regiment of Scotland—the Black Watch—is stationed. That raises a question: if Fort George is closed down, will there be any place for a battalion of the Royal Regiment of Scotland to be stationed in Scotland? If not, what is proposed? There is something to be said for having at least one of the Scottish battalions stationed within Scotland, not some distance south of the border.

[Earl Howe]

I am very grateful to the noble and learned Lord. Fort George is a site of historical importance to the Army; there is no question about that. It is home to the Black Watch, but it has many minus points. It is an isolated site; it is not good for retention for the Army; it is a long way from the training estate; and it costs £1.6 million a year to run. It is therefore on our disposals list, but we are clear that 3 Scots will relocate to an alternative location in Scotland. After all, the origins of 42 Regiment Foot, which is how Black Watch originated, were from the Tay. Although I cannot say that it will move back to the Tay, the fact that it is in Fort George is perhaps a product of history more than anything else. We will engage with the Scottish Government and the local authority to identify the most appropriate combination of development types to maximise the opportunity that Fort George presents. We now have time to engage with local authorities generally about how this is to be managed.

[Lord Campbell-Savours (Lab)]

My Lords, will Crichel Down issues apply in the case of selling off of much of the land? Also, in the case of sites contaminated by former MoD activity, will proper evaluation be made of the cost of decontamination to ensure that when they are ultimately sold, they are not sold at deflated prices? Are MoD officials—civil servants—well aware that the National Audit Office will pore over the sales at some stage in future?

[Earl Howe]

As to the last point, yes, we are all too well aware of that. We are anxious at all times to achieve best value for the taxpayer. Crichel Down considerations can and do arise where former owners come forward to claim title. Of course, due process is followed. It is being followed in the case of Southwick Park, for example, which I think was announced as one of our intended disposals in September.

Decontamination is also a live issue on many of the sites. There is no question of disguising contamination where it occurs: environmental assessments always have to be made and are done openly and transparently with potential purchasers.

[Lord Campbell of Pittenweem (LD)]

The noble Earl is quite right to say that the Black Watch traditionally came from north of the Tay—and south, as well—because it has traditionally recruited in Angus, Perthshire and Fife. My question is whether any impact on Reserve units in all three services arises from the Statement he has made today.

[Earl Howe]

There may well be some impact on Reserve units, in so far as where they train and are based when they are called up, but I cannot supply the noble Lord with any detail on that. If I am able to after this, I will happily write to him.

[Lord Lansley (Con)]

My Lords, I follow that question precisely. My noble friend’s Statement is very welcome, but he knows that in future forces, the Reserve Forces will play an enhanced and important part, so their ability to train on mobilisation is very important. Can he say a bit more about how capacity for their training can be supplied? In particular, Bassingbourn Barracks in my former constituency has lain idle for more than two years, is brilliantly situated and well-equipped to provide Reserve Forces mobilisation training.

[Earl Howe]

I am grateful to my noble friend. In a sense, considerations for the Reserve Forces cannot be separated from those for Regular Forces because, with the whole force concept, training is now taking place with regulars and reservists side by side, which is entirely appropriate. I am aware that Bassingbourn’s future use has been the subject of a great deal of speculation, but I cannot inform my noble friend in detail about the site. Again, if I can enlighten him in writing I am happy to do so.

[Lord Foulkes of Cumnock (Lab)]

My Lords, will the Minister confirm that the welcome announcement about the development of an infantry centre in Edinburgh, the improvements at Lossiemouth, his earlier announcement on the Royal Regiment of Scotland and the announcement made last week about the frigates on the Clyde are all possible only because the people of Scotland two years ago rejected separation, and that it is part of the welcome union dividend?

[Earl Howe]

The noble Lord makes a very good point, and I agree. It enables us as a department to commit to an enduring defence presence in Scotland through a number of programmes. As he is aware, we have now committed to building eight type-26 global combat ships on the Clyde. We are investing more than £500 million in the infrastructure and capability of the naval base at Clyde as it becomes the home of all Royal Navy submarines by 2020. We are investing in the expansion of RAF Lossiemouth, so that it will be home to at least one additional Typhoon squadron, as well as the maritime patrol aircraft. We are investing in concentrating some Army capabilities in Leuchars Station. That will improve access to suitable training areas. Across a whole range of projects, Scotland will benefit.

[Lord Craig of Radley (CB)]

My Lords, I have a couple of questions for the noble Earl. Generally, I welcome the Statement, but in repositioning units and so on considerable capital expenditure is incurred. Is it reasonable to expect that the amount of money from sales will be adequate to meet that expenditure as it occurs, and not fall to the Ministry of Defence to find additional funds early on in the hope of jam tomorrow? Secondly, runways are of course vital to the Royal Air Force and to any flying unit. With the reduction in the number of airfields, will there be sufficient runway availability when some runways have to be repaired and flying from that unit will have to stop? Finally, this presumably refers only to MoD holdings in this country, and not to holdings overseas.

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[Earl Howe]

I am grateful to the noble and gallant Lord. I can confirm that this applies only to holdings in this country. As regards runway availability, I will have to write to him as I do not have it in my brief. He makes an important point on the cost of reprovision, but again I come back to what I said earlier: this is being driven primarily by the needs of the Armed Forces. While we may find in some cases that the net receipt from a disposal is of a fairly de minimis nature, nevertheless the reprovision will be the right thing to do for that particular unit or part of the service.

[Baroness Smith of Newnham (LD)]

My Lords, we have already heard about the National Audit Office and questions about value for money for the taxpayer. That has so far been on the receipts side, but can the noble Earl tell us what work is being done to ensure that the defence procurement contracts to deliver the better estate for service families, which will be most welcome, and the maintenance contracts for accommodation for services will also deliver value for money for the taxpayer and the best possible outcome for service families?

[Earl Howe]

My Lords, the department takes the provision of good service family accommodation very seriously. We are continuing to manage the improvement of the performance in this area of CarillionAmey, which is the contractor as the noble Baroness knows. At the end of May 2016, following what was called a “Get Well Plan”, CarillionAmey effectively passed with a performance that was markedly better than it had achieved previously: in the next generation estate contract, 29 of 30 KPIs met performance targets; in the national housing prime, six of seven key performance indicators met performance targets. We will continue to monitor closely the company’s delivery performance, working collaboratively with it, of course, to sustain and improve its performance. But the noble Baroness is absolutely right that we need to achieve value for money in this area. I believe that now we are nearly there, but CarillionAmey is under no illusions that it must maintain this rate of improvement.

[Lord Robathan (Con)]

My Lords, like the noble Lord, Lord Touhig, I too was responsible for the defence estate for a time in the previous Parliament. My question concerns not golf courses but the growing disconnect between the Armed Forces and the people of this country whom they defend. With the reducing footprint that my noble friend the Minister has mentioned, the Armed Forces have a tendency to retreat back into their barracks and away from the people they defend, so there comes a greater disconnect. Can my noble friend reassure me that this will not lead to the civilian population regarding the Armed Forces as a race apart?

[Earl Howe]

My noble friend makes an extremely important point—one that has been very much in our minds as we have taken these ideas forward. I will be quite open with him: it is a risk. The more that personnel are concentrated in fewer centres, the more that the population as a whole will feel disconnected from the armed services. Ways must be found, therefore, to prevent that happening. We can see routes through events such as Remembrance Sunday and the commemorations around that. We can see it through the charitable work of organisations such as Help for Heroes, and so on. It is something that we need to bear in mind as we go forward. As Minister with responsibility for community engagement, I can tell my noble friend that I receive regular advice on this very topic.

[The Lord Bishop of Chester]

My Lords, I follow the point made by the previous noble Lord by asking about recruitment. I notice that Dale Barracks in Chester are on the hit list. That has been a centre of recruitment for the Cheshire regiment over the years. It is hardly a small and remote site, as referred to in the report. Now the 2nd Battalion the Mercian Regiment is pretty much based there. How is recruitment to the Armed Forces likely to be affected by this withdrawal from a large number of sites, where the association with the Army—or the Navy or Air Force, for that matter—goes back a very long way?

[Earl Howe]

The concentration of sites that I have been talking about plays into recruitment in the round because the more stable and confident armed services personnel and their families feel about their roots and where they are, the more we are likely to see a better performance in recruitment and retention. The problem with some of these sites—I do not necessarily include the one referred to by the right reverend Prelate—is that they are remote, do not play into the recruitment agenda very easily, and certainly not the retention agenda, and they are not conducive to spousal employment either. We want a better deal for families in the round, and I hope that over the next few years, as this programme rolls out, the personnel of our Armed Forces will see it in the same way.

[Lord Kilclooney (CB)]

My Lords, as there will continue to be an enduring defence presence in Northern Ireland, can the Minister confirm that Ballykinler in County Down will be disposed of, and has Drumadd Barracks in Armagh city already been disposed of?

[Earl Howe]

My Lords, Ballykinler will continue to provide valuable training assets for both the Regular and Reserve forces within Northern Ireland. There are no plans at this stage to reduce the training facilities in either location. I apologise to the noble Lord—he mentioned a second site.

[Lord Kilclooney]

Drumadd Barracks in Armagh city. It was up for sale, but we do not know what has happened.

[Earl Howe]

I shall need to write to the noble Lord on that.

[Lord Spicer (Con)]

My Lords, anything which improves the morale and efficiency of the Armed Forces is to be welcomed in the face of the rising Russian menace. In that context, and relevant to it, can my noble friend say at some time, if not now, what number of hostile probes there have been in NATO by Russian naval ships and by the Russian air force?

--- Later in debate ---

[Earl Howe]

I shall again need to write to my noble friend as this is slightly off the theme of the Statement, but I recognise the importance of the point he raises.

[Lord Beith (LD)]

My Lords, will the vital monitoring of our skies against hostile incursions continue to be carried out from RAF Boulmer in Northumberland, bearing in mind that, the last time there was a proposal to move it, the proposal got short shrift from the National Audit Office?

[Earl Howe]

I was slightly dreading that I would get questions on the detail of these sites. Again, I hope that the noble Lord will allow me to write to him on that point.

Russia: Baltic States

Earl Howe Excerpts

Wednesday 2nd November 2016 Lords Chamber

[Lord Robathan]

To ask Her Majesty’s Government what assessment they have made of Russia’s current strategic objectives in the Baltic states.

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

My Lords, Russia’s activity around the territory of our allies, including the Baltic states, is designed to test the responses of NATO members. As set out in the 2015 strategic defence and security review, Russia’s behaviour will remain hard to predict. Though highly unlikely, there is the possibility that it may feel tempted to act aggressively against NATO allies. Our response, with NATO and EU partners, includes promoting access to independent Russian language media, enhanced forward presence and air policing.

[Lord Robathan (Con)]

I commend Her Majesty’s Government’s robust response through NATO, although we should all be rather concerned about seeming paralysis in the United States because of the presidential election. Those of us who are old enough to remember the Cold War will view the actions of Russia with very real concern, be it the 2008 invasion of Georgia, the Crimean annexation, the intervention in Ukraine, leading to the downing of an aircraft by Russian missiles, the bombing of Syria and Aleppo and, of course, not one mile from here on the streets of London, the murder of Alexander Litvinenko. Given the increasingly aggressive posturing of Russia in the Baltic, does the Minister think we should perhaps revisit last year’s SDSR? Perhaps our response, to which he referred, should be to look to increase defence spending, not just in the United Kingdom but particularly across the rest of NATO.

[Earl Howe]

My Lords, my noble friend has made some very important points and he is right. The UK is leading the way in defence expenditure. We have committed to the NATO 2% target and, during this Parliament, a 0.5% real-terms increase in the defence budget. However, he is right that spending across the alliance is still too low. Having said that, the alliance is making good progress. There are now five allies spending 2% of GDP on defence, an increase from three before the pledge. Twenty allies have increased defence spending in real terms and eight have put plans in place to work towards reaching the 2% guideline for defence spending, which demonstrates a clear political will. The issue now is to translate the political will into actions.

[Lord West of Spithead (Lab)]

My Lords, Russia is actually running a wartime economy. It has the GDP of Italy. Putin is replacing all his strategic triad of nuclear weapons; he is spending an immense amount on arms. He is a revisionist; he believes in spheres of influence. He has espoused the unbelievable policy that he calls “de-escalation”—in other words, if fighting starts you use a tactical nuclear weapon to de-escalate—which I find quite extraordinary. Does the Minister not believe that in this very dangerous period, we must open every channel we can of dialogue with Russia? We must try to have means of access to Russia in order to talk about these issues and have some dialogue about reducing tension and the escalation that is happening right now.

[Earl Howe]

The noble Lord makes some very telling points. There is a balance here. He is right that it is important that we continue to engage with Russia, to avoid misunderstandings, to make clear where we disagree, to push for change where we disagree, but to co-operate where it is the UK’s national interest. We are committed to building stronger links—in particular, between the British and the Russian people. People-to-people exchanges will therefore remain important. Cultural and scientific exchanges are in our long- term interests, so we have to keep that balance as it should be.

[Lord Wigley (PC)]

My Lords, might Russia’s strategy be to use economic and ethnic issues to make the Baltic states appear unstable, so that they seem less attractive to the internal Russian Federation population which otherwise might see the Baltic states as a better model than that currently offered by Russia? Therefore, is it not in our interest to do everything we can to help the Baltic states in any economic challenges they have?

[Earl Howe]

The noble Lord is absolutely right. It is why we are standing by the Baltic states in a number of areas, not least in the sphere of defence. The noble Lord will know that the UK is leading on the enhanced forward presence that we are placing, as from next year, in Estonia, alongside the French and the Danes, to send a very clear message to Russia that it must not exceed its supposed sphere of influence.

[Lord Collins of Highbury (Lab)]

My Lords, the key thing that most people are concerned about is that, as the Minister rightly said, Britain has led the way in Europe on the common security and defence policy and in ensuring that Russia was clearly told what its actions would lead to. What assessment have the Government made of our relationship with Russia in the light of Brexit? What impact will that have on our security?

[Earl Howe]

My Lords, the UK’s decision to leave the EU has not changed our position on Russia. We will continue to protect the UK’s interests and those of our allies and partners. We will continue to engage with Russia in key areas of shared interest to promote our values—including the rule of law, human rights, and so on—and to build stronger links between the British and Russian peoples, as I have said. NATO will remain the bedrock of our security.

[Lord Wallace of Saltaire (LD)]

My Lords, cyberattacks of one sort or another have been a frequent way of trying to destabilise the Baltic states. Can the Minister say how closely we are working with the Baltic states in coping with this form of hybrid warfare?

[Earl Howe]

The noble Lord is right. We are developing a better understanding of the tools and levers that Russia may seek to use. We know more now about how Russia plans, conducts and controls hybrid activity, including the use of cyber. Russia is modifying its approach. We are trying to stay a step ahead. To that end, we are pursuing a coherent approach. We have a long history of effective co-operation and co-ordination with our allies. As the noble Lord will know, we have created the National Cyber Security Centre, and we work closely with our allies in this field.

Investigatory Powers Bill

Earl Howe Excerpts

Ping Pong (Hansard): House of Lords
Wednesday 2nd November 2016 Lords Chamber

Moved by

[Earl Howe]

That this House do not insist on its Amendment 11, to which the Commons have disagreed for their Reason 11A.

Commons Reason

11A: Because it is consequential on Lords Amendment No. 13 to which the Commons disagree.

--- Later in debate ---

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

My Lords, we return to the regulation of the press and the outcome of the Leveson inquiry. Yesterday my right honourable friend the Secretary of State for Culture, Media and Sport launched a 10-week public consultation relating to Leveson part 2 and the commencement of Section 40 of the Crime and Courts Act. The consultation will give everyone with an interest in these matters an opportunity to have their say on this vital issue, which affects each and every one of us in this country. I hope noble Lords will welcome this announcement, which shows the Government’s commitment to addressing the issues and recommendations set out in the Leveson report in the most appropriate way.

Before we consider the ins and outs of press self-regulation, it is important that we all remember the context in which we are having this debate: the Investigatory Powers Bill. The Bill’s passage has been a long one, from its inception after three independent reviews, through pre-legislative scrutiny by three parliamentary committees to the thorough scrutiny subsequently applied by both Houses. The Government have recognised the need for consensus on legislation of this significance. They have listened and substantially changed the Bill in light of the scrutiny it has received. Both Houses have improved the Bill.

There is consensus on the need for the Bill. It is one of the most important pieces of legislation this Government will take forward. The Bill will provide a world-leading framework for the use of investigatory powers by law enforcement and the security and intelligence agencies. It will strengthen the safeguards for the use of those powers and it will create a powerful new body responsible for oversight of those powers.

I remind the House that the Bill replaces provisions in the Data Retention and Investigatory Powers Act 2014 that will sunset at the end of this year. The loss of those powers would pose a significant threat to the ability of law enforcement and the security and intelligence agencies to protect the public. I must therefore be clear: the Bill is important for our national security. The Government believe that there should be no delay in the passage of this important legislation.

Yesterday, the House of Commons considered the amendments put forward by this House which strengthened the safeguards in this important legislation and added clarity. It unanimously accepted them all. However, the Commons decisively rejected the amendments put forward in relation to regulation of the media—the press.

[Lord Wallace of Tankerness (LD)]

The noble Earl has made the point that we should have no delay in the passage of the Bill. If your Lordships’ House should in fact support the amendments tabled today in the name of the noble Baroness, Lady Hollins, and the Bill goes back to the other place, when would the other place intend to debate these amendments and when would we get the opportunity to debate them again? Will it be tonight or tomorrow?

[Earl Howe]

My Lords, it will not be that soon. My understanding is that it will not be until after the mini-Recess that we would come to debate these matters again, should the House support the noble Baroness.

Many honourable and right honourable Members in the other place spoke of how this vital Bill was not the place to consider the important, but unrelated, matter of the regulation of the press. They were right to do so. I say to the noble Baroness, Lady Hollins, that the issues she has raised are of critical importance. She herself was treated terribly by rogue elements of the media. As the Secretary of State for Culture, Media and Sport acknowledged yesterday in the other place, we know that in the past some elements of the press abused their position and ignored not only their own code of practice but the law. It was clear to all that there needed to be change.

However, a free press is also an essential component of a fully functioning democracy. The press should be able to tell the truth without fear or favour and to hold the powerful to account. A number of those who spoke in the debate in the other place yesterday made the point that the press self-regulatory landscape has changed significantly over the past four years, since the Leveson inquiry reported. It is therefore surely right that the Government now take stock, look at the changes which have already taken place and seek the views of all interested parties on the most effective way to ensure that the inexcusable practices which led to the Leveson inquiry being established in the first place can never happen again. I hope that noble Lords who have spoken so passionately on this issue will take the opportunity to contribute to the consultation in order that we get a broad range of evidence on which to make decisions.

I am the first to acknowledge that the issue of press regulation is a vitally important one. It deserves the fullest consideration, consultation and debate, but the Bill is vitally important as well. It will provide our law enforcement and security and intelligence agencies with the powers that they need to keep us all safe. I contend strongly that this Bill is simply not the place to try to regulate the press. Given the events of yesterday and the new consultation, which is the right way to approach the issue of press self-regulation, I invite noble Lords not to insist on the amendments that have been tabled and not to delay further the passage of this vital and world-leading legislation, which is essential to the safety and security of us all. I beg to move.

[Baroness Hollins (CB)]

My Lords, it is with regret that I return to my initiative one more time. I suggest that we do have time to consider it and I will speak to my Amendments E1, F1 and G1.

The issue at the heart of these debates remains simple: there was a widespread criminal conspiracy involving, it now turns out, more than one newspaper group. It lasted, and was covered up, for many years. It was combined with unexplained failures in police and prosecution action and allegations of political involvement in a cover-up. As a result, there was a public inquiry—the Leveson inquiry—and in 2013 a cross-party agreement was signed, committing Her Majesty’s Government to implementing its recommendations. As a result of that agreement, this House withdrew cross-party amendments to the Enterprise Bill and the Defamation Bill.

--- Later in debate ---

[Lord Rosser (Lab)]

The noble Baroness, Lady Hollins, has already reminded us of the cross-party agreement that committed the Government to implementing the recommendations of the Leveson inquiry. Unfortunately, the Government have not seen fit to commence Section 40 of the Crime and Courts Act 2013, even though, crucially, alongside the royal charter, Section 40 was designed to incentivise newspapers to join a recognised self-regulator. Yesterday the Government announced a public consultation on Section 40, despite the clear terms of the cross-party agreement.

There will of course be those who are suspicious of the Government’s reasons behind this consultation. Some may even feel that it is designed to give a cloak of respectability to a later decision to go back on the undertakings given and the cross-party agreement reached on Section 40. I do not intend to pursue that line. It is simply very odd for the Government now to commence consultation on whether in effect they should implement their own recent legislation, which was the subject of cross-party agreement, was passed by Parliament, and which still represents the will of Parliament. Is this to be a precedent and to become a feature, with the Government holding regular public consultations on whether they should implement legislation passed by Parliament? Where will it all end?

By the way, I do not share the view that there is not still time to resolve this matter and still ensure the very necessary and vital passage of the Bill within the required time limit. My party, with others, has played a major role in improving it considerably during its passage through Parliament. We will support the amendment moved by the noble Baroness, Lady Hollins, if it is put to a vote. There is no reason not to honour undertakings given and cross-party agreements reached on Section 40.

[Earl Howe]

My Lords, I first say to those who have supported the amendments in the name of the noble Baroness that I acknowledge the strength of feeling in the House on this emotive issue. As I said in my opening remarks, the Government know how important these matters are to everybody. We need a robust and workable system for media self-regulation, and resolving that is in everybody’s interest. However, I am afraid that I remain of the opinion that the Bill is not the means to achieve that. Of course I agree with the noble Lord, Lord Paddick, that the noble Baroness’s amendments are procedurally in order; that has never been in question. However, first, the scope of the Bill means it cannot do this subject justice. The amendments we are considering today concern only interception of communications and would not necessarily sit well with whatever broader solution is to follow. Secondly, and more importantly, the public consultation which the Secretary of State for Culture, Media and Sport announced yesterday provides a means for a reasoned, informed and considered public debate—

[Lord Strasburger (LD)]

I thank the noble Earl for giving way. I would like to share with him a direct quotation from one of the six members of the Leveson inquiry—someone with whom I spoke this morning. He said, “The consultation announced this week is just a shabby stunt, probably concocted by Paul Dacre, to defer the betrayal of the victims of press abuse—past and future—until this Bill has been safely put to bed”. I would like to offer the noble Earl an opportunity to refute that charge.

[Earl Howe]

My Lords, I repudiate it completely. The Government have been clear about the timescale of the consultation and have committed to respond in a timely manner. We are taking this matter with proper seriousness. It is important that everyone has an opportunity to take on board and reflect on the changes that have occurred in the years since Lord Justice Leveson made his recommendations. I say again to the noble Lord, Lord Paddick—

[Lord Beith (LD)]

Just to clarify this matter, can the Minister tell us when he was told that the Government were launching a consultation on Section 40?

[Earl Howe]

I was made aware of it at the beginning of the week, but I am also aware that it was in gestation long before that.

I say to the noble Lord, Lord Paddick, that there is no mandatory period for a public consultation. The Cabinet Office guidelines say that there must be a proportionate amount of time, and I think 10 weeks gives everybody time to look properly at the issues and to submit their views to government. In that light, and for all the reasons I rehearsed earlier, I respectfully ask your Lordships to allow the Bill to pass without these amendments.

Motion A agreed.

Moved by

[Earl Howe]

That this House do not insist on its Amendment 12, to which the Commons have disagreed for their Reason 12A.

Commons Reason

12A: Because it is inappropriate to extend civil liability under clause 8.

[Earl Howe]

I beg to move.

Motion B agreed.

Moved by

[Earl Howe]

That this House do not insist on its Amendment 13, to which the Commons have disagreed for their Reason 13A.

Commons Reason

13A: Because it is inappropriate to extend civil liability under clause 8.

[Earl Howe]

I beg to move.

Motion C agreed.

--- Later in debate ---

Moved by

[Earl Howe]

That this House do not insist on its Amendment 14, to which the Commons have disagreed for their Reason 14A.

Commons Reason

14A: Because it is consequential on Lords Amendment No. 13 to which the Commons disagree.

[Earl Howe]

I beg to move.

Motion D agreed.

Moved by

[Earl Howe]

That this House do not insist on its Amendment 15, to which the Commons have disagreed for their Reason 15A.

Commons Reason

15A: Because it would not be appropriate to make such provision in relation to claims under clause 8 while consideration is being given to commencing section 40 of the Crime and Courts Act 2013.

[Earl Howe]

I beg to move.

Motion E1 (as an amendment to Motion E)

Moved by

--- Later in debate ---

Moved by

[Earl Howe]

That this House do not insist on its Amendment 338, to which the Commons have disagreed for their Reason 338A.

Commons Reason

338A: Because it is consequential on Lords Amendment No. 339 to which the Commons disagree.

[Earl Howe]

My Lords, I beg to move.

Motion F1 (as an amendment to Motion F)

Moved by

--- Later in debate ---

Moved by

[Earl Howe]

That this House do not insist on its Amendment 339, to which the Commons have disagreed for their Reason 339A.

Commons Reason

339A: Because it is inappropriate for clauses 8 and 9 to come into force before the other provisions of the Bill relating to interception.

[Earl Howe]

My Lords, I beg to move.

Motion G1 (as an amendment to Motion G)

Moved by

Armed Forces: Foreign Language Speakers

Earl Howe Excerpts

Thursday 27th October 2016 Grand Committee

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

My Lords, I anticipated a constructive and interesting debate, and I have not been disappointed. I take this opportunity to thank all noble Lords who have taken part for the valuable insight and experience that they have brought to bear on this vital subject.

I shall start by directly addressing the question with which the noble Lord, Lord Harrison, opened this debate—do we have sufficient speakers of foreign languages serving the Armed Forces? The answer to that is: as of today, yes, we do. The totality of defence’s operational and diplomacy requirements are being met. Furthermore, if we take as a starting point the strategic defence and security review of 2010, since then we have significantly improved the way in which we recruit, identify and train the linguists we need to achieve our defence aims. We currently have the capability to train in more than 40 languages. That is not to say that we are in any way resting on our laurels. As my noble friend Lord Attlee pointed out, our requirement for foreign language skills is ever-changing. As with many other aspects of defence, such as the purchase of ships and aeroplanes, we are trying our best to look ahead not just months but years, while retaining the ability to respond at very short notice to events as they occur.

On the one hand, there are languages that will be required no matter where—or, indeed, if—we are conducting operations. Those skilled in the major languages of commerce and diplomacy, such as French, German, Russian and Arabic, will always be required as defence attachés, training teams, exchange officers and members of headquarters and formations, and we will continue to ensure that sufficient such-skilled personnel are available. On the other hand, who would have thought that, prior to the dark events of September 2001, we would within weeks have need of expert speakers of Dari and Pashto, and require such skills in large numbers and for many years?

We now work hard to ensure that we can balance the longer, top-down requirements—those that are mostly foreseeable—with such shorter-term tactical needs that are much harder to envisage. Our systems must be flexible enough to allow for both, and we believe that they are. Also, as the noble Lords, Lord Wilson and Lord Tunnicliffe, and the noble Baroness, Lady Coussins, pointed out, this is about more than being just a skilled linguist. The Armed Forces recognise that any future operating environment is highly likely to present personnel with a diverse mosaic of audiences, actors, adversaries and enemies, meaning that, in the recent words of President Obama,

“in the 21st century, military strength will be measured not only by the weapons our troops carry, but by the languages they speak and the cultures that they understand”.

The Armed Forces also recognise that the breadth and depth of their understanding of these audiences need to be improved, and that culture and language skills are a key enabler in preparation for these contingencies. It is of note that the emphasis is now on both the language and the culture in which that language is used. As the noble Lord, Lord Tunnicliffe, said, that is an important ingredient of UK soft power. We recognise that in order to operate effectively in such an environment, defence requires personnel with highly developed intercultural expertise. The ability to understand what is termed the “human terrain” is now rightly seen as essential to successfully operating and achieving our aims in almost all overseas operations.

To deliver those aims, defence has taken a number of strategic steps to strengthen its organisational structures, including setting the pan-defence strategic capability for culture and language. We have a joint influence board with two-star representation from across the armed services. Below that is a steering group reporting to the board, which tasks a working group responsible for staffing, development and delivery functions of the capability programme. The Defence Centre for Languages and Culture is a world-renowned training facility, parented by the Defence Academy. There is a separate authority for capability generation. These interlinked arrangements ensure that the system is capable, responsible and flexible enough to meet defence needs as they arise.

Defence can certainly not be accused of failing to take this matter seriously. I can tell the noble Lord, Lord Harrison, that in the Army, within the next few years, it will become essential for any officer wishing to make a success of their career to have skills in a foreign language. He asked what we are doing to find out who can speak what language. The Armed Forces are even now running a trawl to identify those already serving who have been hiding their linguistic skills under a bushel, and encouraging them to register these accomplishments so that they may be used not only for the benefit of defence but for themselves—as the noble Lord said, there are substantial financial rewards available for those with the skills we need. The incentives commended by my noble friend Lord Attlee are certainly there; for example, I can tell him that the daily rate of extra pay for a qualified paratrooper is £5.69, but a serviceman on operations with a valuable language skill is paid up to £70.20 per day.

[A noble Lord]

Wow.

[Earl Howe]

It is quite a significant sum of money. We are employing many methods to ensure not only that we are harnessing existing talent within both Regular and Reserve Forces but that we can attract people into both the regulars and the reserves who already have specific linguistic talents, or who have the potential to learn languages. We will also continue to look at those already within defence to find those suitable to undertake such training.

The noble Lord, Lord Harrison, was—if he will forgive me for saying so—a veritable Gatling gun of questions, and I will need to take many of them away with me and write to him about them. Some of them, such as those relating to GCHQ and our agencies, I may not be able to answer on security grounds. Others, such as detailed questions relating to the Foreign and Commonwealth Office, which was also the subject of a number of questions from the noble Baroness, Lady Coussins, I shall need to seek advice on. However, I assure all noble Lords that I shall study their speeches after this debate and ensure that I address in writing those questions I have not answered but which are capable of being answered.

I turn to a number of those questions now. The noble Lord, Lord Harrison, asked about the apparent reduction in language skills in the Foreign and Commonwealth Office. The FCO, like the Armed Forces, currently has sufficient linguists to achieve its objectives and aims. I will, however, get a readout from the FCO as to how it views its situation and what it is doing to address it. He asked about Army officers and language training—first, what level of skills are required and, secondly, what languages are acceptable. The Army now insists that officers must have a survival level of speaking and listening to a foreign language prior to the appointment of command at the rank of major. The level of skills required ranges from expert to functional. The Armed Forces maintain skills from across the spectrum in more than 30 operational languages. Those languages deemed to have an operational requirement are reviewed by a two-star board and a senior responsible officer on a yearly basis.

Across defence, there is a total of 655 personnel recognised as holding a functional level of qualification. The numbers that I will quote represent those individuals who fall within the examination currency period, which is three years. The actual number of personnel with language skills is almost certainly considerably higher than the figures I will give, as it includes those who have not renewed their qualification and those with a latent skill that has not been declared. I do not have figures relating to 20 years ago, which the noble Lord asked me for, but we have, for example, 108 Arabic speakers at functional, professional or expert level, and 217 French speakers, of whom 48 are expert. Of the specific languages mentioned by the noble Lord, Lord Wilson of Tillyorn, we have 22 speakers of Dari, of whom four are expert; 39 speakers of Farsi, of whom seven are expert; and 29 speakers of Pashto, of whom one is an expert. I emphasise that those figures do not include many others who may have fallen outside that three-year period to which I referred.

The noble Lord, Lord Harrison, asked how flexible defence is in responding to new language demands. I believe that we are more flexible than we were, but that is not to say that we cannot do better. We maintain a pool of linguists who can respond to contingent operational demands. The Defence Centre for Languages and Culture has an agile structure that allows it to use the commercial sector to respond to short-notice language teaching demands and, next year, the DCLC will instruct more than 370 individuals to a level of functional to expert, and a further 550 to a level below this.

The noble Baroness, Lady Coussins, made some important points about the teaching of languages in schools and I undertake to bring them to the attention of my ministerial colleagues in the DfE. She asked whether the measures adopted by the Army will be extended across the other services—the answer is yes. All measures that I have highlighted are common across all defence personnel, both regular and reserve, and the language competency award schemes are in play here. We are, as I say, conducting a 100% audit of all personnel with a latent language skill.

I have exceeded the time allocated to me. I will, as I promised, write to noble Lords on those areas that I have not been able to cover. In the meantime, I repeat my thanks for a series of very constructive and helpful speeches.

Royal Yacht

Earl Howe Excerpts

Wednesday 26th October 2016 Lords Chamber

[Lord Forsyth of Drumlean]

To ask Her Majesty’s Government what consideration they are giving to commissioning a new Royal Yacht.

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

My Lords, the Government have no requirement for a royal yacht and are therefore giving no consideration at the current time to the commissioning of one.

[Lord Forsyth of Drumlean (Con)]

My Lords, that is a very disappointing Answer. When I was Secretary of State, I hosted a dinner on the royal yacht in Toronto to which we invited the top industrialists, who flew thousands of miles to be there. I did not think they were coming to see me. Given that more than 100 Back- Bench Conservative MPs, the present Foreign Secretary and a former Foreign Secretary have all expressed support for a privately funded royal yacht, will my noble friend not at least agree to spend the money raised by the Daily Telegraph on a privately funded cost-benefit analysis? What possible objection could there be to the Government giving their full support to that?

[Earl Howe]

My Lords, I am sure that my noble friend underestimates his pulling power. If private enterprise, however defined, believed that there was a business case for a new royal yacht, we would of course look at it, but we would still be left with the question of who would pay for the vessel. Given that no government department has a need for a royal yacht, it is hard to see how any public funding could be justified.

[Lord Anderson of Swansea (Lab)]

My Lords, a number of Conservative Members in the other place have made the interesting suggestion that the costs of a new royal yacht should come out of the aid budget. Will the Minister reject that immediately?

[Earl Howe]

Yes, my Lords. No government funding has been proposed by any government department.

[Lord Watts (Lab)]

My Lords, do the Government agree that it would be totally wrong to adopt such a measure, given that the Royal Navy has no ships, and those that we have keep breaking down? Would that not give the wrong message to the country?

[Earl Howe]

My Lords, I do not accept the noble Lord’s premise. The Royal Navy has a fleet of ships that bears comparison with any in the world for cutting-edge technology, and we can be proud of that. However, to come back to the noble Lord’s central point, I believe that there are other ways of marketing the UK abroad.

[The Countess of Mar (CB)]

My Lords, has the noble Earl considered crowdfunding for this ship? There are a great many people interested in having a new “Britannia”, and they would all feel a bit of ownership, even if only of a rivet.

[Earl Howe]

My Lords, I do not want to give the impression that the Government’s mind is ever closed to good ideas. If a proposal comes forward for a royal yacht, from whatever quarter, and the business case is made, we will look at that constructively.

[Lord Craig of Radley (CB)]

My Lords, in that case, would the Government be interested in manning the royal yacht and what objections would there be to not having the Royal Navy do it?

[Earl Howe]

My Lords, the Ministry of Defence is clear that it cannot commit funding to a royal yacht, so any consideration would need to take account of how the financial outlay of the Royal Navy in providing a ship’s company could be recovered. That is a difficult issue.

[Lord Mawhinney (Con)]

My Lords, my noble friend said that we have no requirement for a ship. That may technically be correct, but it sends a somewhat negative message. Like my noble friend Lord Forsyth, I had the privilege of entertaining on the royal yacht European businessmen who were attracted to the prospect of doing business with this country as a consequence of being there. That this country is “open for business” is one of the very strong and very welcome stories that the Government are putting out. Should not the Government at least take a more open view on this given that no one is suggesting that any primary funding should come from the public purse?

[Earl Howe]

My Lords, I suggest to my noble friend that times have changed in the past 20 years. There is a variety of ways in which we can promote UK business around the world: we do it through members of the Royal Family, our many excellent embassies and high commissions, the Red Arrows, by using our Royal Navy warships as a backdrop for events and via the GREAT Britain campaign, which is very successful. We surely need to ask ourselves in that context whether, in the 21st century, a royal yacht would add significant value.

[Baroness Smith of Newnham (LD)]

My Lords, the proposal seems to be that if a royal yacht were to be commissioned, it would come from private funding. However, I note that the Question has gone to the noble Earl, Lord Howe, as Minister for Defence. I wonder whether it could be thrown back at the Department for International Trade, because it seems wholly inappropriate that something intended for trade promotion should take away from the resources of the Royal Navy.

[Earl Howe]

My Lords, we need to be clear that a new royal yacht would have to fly the White Ensign and would therefore have to be state owned and manned by Royal Navy personnel. I do not see a way out of the issue that the noble Baroness flags up.

[Lord Touhig (Lab)]

My Lords, I am sure there are many who see merit in commissioning a new royal yacht—for my part, I do not care one way or the other. However, I do care about the morale of our Armed Forces. The latest attitude survey revealed that 61% of all ranks serving in the Royal Navy say morale is low. Is it any wonder? We have no aircraft carriers; our Type 45 destroyers are plagued by technical difficulties and spend much of the time in port; we have almost twice as many admirals as we have warships; we are selling “RFA Diligence”, our only at-sea repair vessel; and the Royal Navy is short of recruits. Given this state of affairs, will the Minister reassure the House that if in the future there is some change of view on the Government’s part on this matter, there will be no question of the defence budget being used to fund the yacht, as it is a rather peripheral matter to defence?

[Earl Howe]

I am sorry that the noble Lord feels it appropriate to talk down the armed services, but I can give him the assurance that he needs.

[Lord Wallace of Saltaire (LD)]

My Lords, given that the Royal Navy is already short of manpower, it is quite likely that any royal yacht would have to be manned by people recruited from abroad. Does the Minister consider that we would do better to recruit them from within the European Union, or given that this is a more traditionally imperial matter, from Calcutta and Hong Kong?

[Earl Howe]

My Lords, there are strict criteria for personnel joining the Royal Navy and I am sure that the noble Lord knows what they are.

British Servicemen: Vexatious Law Suits

Earl Howe Excerpts

Wednesday 19th October 2016 Lords Chamber

[Lord Touhig]

To ask Her Majesty’s Government what steps they are taking to prevent vexatious law suits being brought against British servicemen.

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

My Lords, the Prime Minister has recently reaffirmed that the Government will put an end to the industry of vexatious claims. As a first step, we have already announced that the Government intend to derogate from the relevant articles of the European Convention on Human Rights in future conflicts whenever that is considered appropriate. We hope to announce further measures shortly.

[Lord Touhig (Lab)]

At the last election, the Conservative manifesto promised that our Armed Forces would not be subject to “persistent” legal claims that,

“undermine their ability to do their job”.

As the Minister said, the Prime Minister said in her conference speech that,

“we will never again in any future conflict”,

allow Britain’s Armed Forces to be harassed. However, the Defence Secretary contradicted her in a statement last week when he said that we will act to stop such claims only where this is appropriate. Our forces are subject to UK service law and allegations of criminal activity are rightly investigated. However, under this Government a whole industry of vexatious allegations against the men and women of our Armed Forces has flourished. So will the Minister tell us: is the Government’s policy the one set out by the Prime Minister or the one set out by the Defence Secretary?

[Earl Howe]

My Lords, there is no contradiction. As the noble Lord rightly said, the vast majority of service personnel deployed on operations overseas have acted in accordance with the law and their training. However, where credible criminal allegations are made, we must investigate in accordance with our legal obligations. What we need to do is strip out the vexatious claims. That is why we are taking a range of measures, as I am sure the noble Lord is aware.

[Lord Craig of Radley (CB)]

My Lords, what combat immunity or other legal protection have the Government arranged for Armed Forces personnel currently engaged in armed conflict in the air or on the ground, in the light of the views expressed by the Prime Minister?

[Earl Howe]

As regards combat immunity, the Government have previously made it clear that we will not rule out legislating, which is being considered among a range of options. It has been suggested that we should simply reinstate Section 10 of the Crown Proceedings Act; that is one of the options we are looking at, but it would be possible only under certain specific circumstances. No plans are in train for any immediate change on that front.

[Lord Thomas of Gresford (LD)]

My Lords, I have professional experience of fraudulent claims and of legitimate claims like the Baha Mousa case, where the deceased received 95 injuries before he died. I note that the Ministry of Defence has settled 326 claims at a cost of £32 million; I assume that those were legitimate claims. Do the Government now intend to abolish or prevent all claims being brought by prisoners or civilians who are injured in the course of operations, regardless of whether they are legitimate or vexatious?

[Earl Howe]

As the noble Lord is aware, the Iraq Historic Allegations Team looks into these allegations, which have totalled more than 3,300 to date. The current case load is around 1,600 and it expects to reduce that number to 250 by next January. We cannot simply close it down, because that would mean leaving these allegations open to referral to the International Criminal Court in The Hague, with the possibility of trials there. We must therefore investigate properly in this country.

[Lord Faulks (Con)]

My Lords, of course it is absolutely right that all our troops should be subject to international humanitarian law. My noble friend has described the first step the Government have taken. I suggest two further steps: putting combat immunity on a firm statutory basis, as the noble and gallant Lord suggested—there is far too ambiguity about its scope—and considering restricting the territorial scope of the Human Rights Act, which it was once thought clearly applied only within the United Kingdom.

[Earl Howe]

I am grateful to my noble friend. The proposal he makes is being looked at. We have no current plan to amend the Human Rights Act. As and when a British Bill of Rights is presented to Parliament, this is no doubt a matter that can be debated in that context.

[Lord West of Spithead (Lab)]

My Lords, can the noble Earl say why ex-military are treated in a different way in Northern Ireland when it comes to investigation of historic crimes? Surely there is a requirement to look on an equal basis at all these cases, be it a legacy case that includes the military or some other person within Northern Ireland. Why are they treated differently?

--- Later in debate ---

[Earl Howe]

My Lords, we are acutely mindful of the impact of any allegations against service personnel, particularly veterans and their families. Where veterans are involved in processes that arise out of alleged actions during their service, we will provide legal support as necessary—regardless of the length of an individual’s service or the time that has elapsed since the events occurred. It is always possible for us to look at improving the way we support veterans—and indeed serving personnel—and we are happy to look at anything in that area.

[Lord Robathan (Con)]

But my Lords, is not the PSNI legacy unit pursuing soldiers who committed acts 41 years ago, the cases against whom have been dismissed on at least two occasions? This means that people in their 70s are being arrested and charged, yet the other people who were in their patrol are already dead and cannot give evidence for them.

[Earl Howe]

My noble friend makes a powerful point. We want to process expeditiously any such cases where there is credible evidence. That is why we are supporting the creation of the historical investigations unit, which will roll into one some of the functions of the ombudsman and the Police Service of Northern Ireland and create efficiencies in the process. The life of that body will be limited to five years, which should provide some assurance that cases will not be allowed to drag on.

Investigatory Powers Bill

Earl Howe Excerpts

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

Moved by

[Earl Howe]

181: After Clause 137, insert the following new Clause—
“Approval of major modifications by Judicial Commissioners
(1) In deciding whether to approve a decision to make a major modification of a bulk interception warrant, a Judicial Commissioner must review the Secretary of State’s conclusions as to whether the modification is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary.(2) In doing so, the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where a Judicial Commissioner refuses to approve a decision to make a major modification under section 137, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.(4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to make a major modification under section 137, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to make the modification.”

--- Later in debate ---

Moved by

[Earl Howe]

182: Clause 138, page 111, line 6, leave out “fifth” and insert “third”

--- Later in debate ---

Moved by

[Earl Howe]

184: Clause 141, page 113, line 41, after “(5)” insert “and section 143”

--- Later in debate ---

Moved by

[Earl Howe]

185: Clause 142, page 114, line 21, after “(5)” insert “and section 143”

--- Later in debate ---

Moved by

[Earl Howe]

186: Clause 144, page 116, line 26, at end insert—
“( ) In deciding whether to give an approval under subsection (2) in a case where subsection (1)(b)(i) applies, a senior official must have regard to the public interest in the confidentiality of items subject to legal privilege.”

--- Later in debate ---

Moved by

[Earl Howe]

187: Clause 144, page 116, line 34, at end insert—
“( ) For the purposes of subsection (3)(b), there cannot be exceptional and compelling circumstances that make it necessary to authorise the use of the relevant criteria unless—(a) the public interest in obtaining the information that would be obtained by the selection of the intercepted content for examination outweighs the public interest in the confidentiality of items subject to legal privilege,(b) there are no other means by which the information may reasonably be obtained, and(c) obtaining the information is necessary in the interests of national security or for the purpose of preventing death or significant injury.”

--- Later in debate ---

Moved by

[Earl Howe]

189: Clause 144, page 116, line 34, at end insert—
“(3A) Subsection (3B) applies if, in a case where intercepted content obtained under a bulk interception warrant is to be selected for examination—(a) the selection of the intercepted content for examination meets any of the selection conditions in section 143(3)(a) to (c),(b) the purpose, or one of the purposes, of using the criteria to be used for the selection of the intercepted content for examination (“the relevant criteria”) is to identify communications that, if they were not made with the intention of furthering a criminal purpose, would be items subject to legal privilege, and(c) the person to whom the warrant is addressed considers that the communications (“the targeted communications”) are likely to be communications made with the intention of furthering a criminal purpose.(3B) The intercepted content may be selected for examination using the relevant criteria only if a senior official acting on behalf of the Secretary of State has approved the use of those criteria.(3C) A senior official may give an approval under subsection (3B) only if the official considers that the targeted communications are likely to be communications made with the intention of furthering a criminal purpose.”

--- Later in debate ---

Moved by

[Earl Howe]

191: Clause 144, page 116, line 40, at end insert—
“(4A) The Investigatory Powers Commissioner may—(a) direct that the item is destroyed, or(b) impose conditions as to the disclosure or otherwise making available of that item.(4B) The Investigatory Powers Commissioner—(a) may require an affected party to make representations about how the Commissioner should exercise any function under subsection (4A), and(b) must have regard to any such representations made by an affected party (whether or not as a result of a requirement imposed under paragraph (a)).(4C) Each of the following is an “affected party” for the purposes of subsection (4B)—(a) the Secretary of State;(b) the person to whom the warrant is or was addressed.”

--- Later in debate ---

Moved by

[Earl Howe]

194: After Clause 144, insert the following new Clause—
“Additional safeguard for confidential journalistic material
Where—(a) a communication which has been intercepted in accordance with a bulk interception warrant is retained, following its examination, for purposes other than the destruction of the communication, and(b) it is a communication containing confidential journalistic material,the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.(For provision about the grounds for retaining material obtained under a warrant, see section 141.)”

--- Later in debate ---

Moved by

[Earl Howe]

196: Clause 146, page 117, line 21, at end insert—
“section (General definitions: “journalistic material” etc.) (general definitions: “journalistic material” etc.),”

--- Later in debate ---

Moved by

[Earl Howe]

197: Clause 153, page 122, line 17, leave out subsection (6)

--- Later in debate ---

Moved by

[Earl Howe]

199: Clause 154, page 123, line 15, leave out “fifth” and insert “third”

--- Later in debate ---

Moved by

[Earl Howe]

201: Clause 159, page 127, line 10, after “(5)” insert “and section 160”

--- Later in debate ---

[Lord Paddick]

My Lords, the amendment is in my name and that of my noble friend Lady Hamwee. I shall speak also to all the other amendments in this group, Amendments 203B to 203D, 204A to 204F, 205A, 208A to 208C, 209A, 210A and 210B, 215A, 217A and 218A. The sole effect of all the amendments would be to remove from the Bill the power to engage in bulk equipment interference.

This is a new power for the security and intelligence agencies to carry out equipment interference in bulk overseas. It is not a power they currently have and, according to David Anderson QC, it is not something that they currently do. As a result, David Anderson said in his review of bulk powers that the operational case for bulk equipment interference was “not yet proven”. The noble Lord, Lord Murphy, has said:

“The case for bulk equipment interference was less strong, but nevertheless still there”.—[Official Report, 7/9/2016; col. 1049.]

As the noble Lord, Lord Rosser, said in Committee, there is a difference between an operational case, let alone an unproven one, and proportionality or desirability. Quoting Mr Anderson, he pointed out that Mr Anderson assessed only the operational cases in his review, saying that the issues of proportionality and necessity were a matter for Parliament—which is why we are debating these amendments today.

We heard in earlier debates about the potentially broad scope of targeted equipment interference warrants. They can specify all equipment used by anyone in a particular organisation or more than one organisation involved in a single investigation or operation; all equipment used by members of a group with a common purpose or engaged in a particular activity; equipment in a particular location or more than one location for the purpose of a single investigation or operation; and equipment being used or that may be used for a particular activity or activities. That is all contained in Clause 108.

Although I realise that the primary focus of this House should be to protect the citizens of this country, I ask noble Lords to consider how they would feel if overseas Governments took our lead and enacted similar legislation that could be deployed against the UK and its citizens. UK citizens’ communications could be acquired through the use of bulk equipment interference warrants if they communicated with others based overseas.

In paragraph 7.37 of his report into bulk powers, David Anderson QC warns that considerable caution is required for a series of reasons. He concludes in paragraph 7.38:

“All this means that bulk EI will require, to an even greater extent than the other powers subject to review, the most rigorous scrutiny not only by the Secretary of State but by the Judicial Commissioners who must approve its use and by the IPC which will have oversight of its consequences”.

It is the nearest David Anderson comes to expressing an opinion on necessity and proportionality and, reading between the lines, it is clear that he is not keen.

For those reasons—and as the Intelligence and Security Committee initially recommended, although it was subsequently persuaded—we believe that bulk equipment interference warrants should be removed from the Bill. I beg to move.

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

My Lords, these amendments would remove the bulk equipment interference provisions from the Bill. Before I address the amendments specifically, it is worth pausing to reflect briefly on the importance of bulk powers in the round and the very significant steps that the Government have taken to ensure both that a robust operational case has been made for their necessity and that the most rigorous safeguards will apply to their use.

Extremely detailed and extensive scrutiny has been applied to bulk powers during the passage of the Bill, both in Parliament and, of course, by David Anderson QC as part of his bulk powers review. The conclusion of that review was that bulk powers,

“have a clear operational purpose”;

that they,

“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”;

and that where alternatives exist to their use,

“they were likely to produce less comprehensive intelligence and were often more dangerous (for example to agents and their handlers), more resource-intensive, more intrusive or—crucially—slower”.

The Government have now tabled amendments giving full effect to the sole recommendation of that review, establishing in statute a Technology Advisory Panel to the Investigatory Powers Commissioner. We have also accepted an amendment tabled by the Intelligence and Security Committee which introduces a specific offence in the Bill to address deliberate misuse of the bulk powers. We have addressed wider concerns of that committee by adding very significant detail to the Bill on the safeguards that will regulate the use of these powers. I am grateful for the intensive scrutiny that has been applied to the bulk provisions in the Bill and believe that those provisions are all the stronger for it. There should now be no question that these powers are necessary and they are subject to world-leading safeguards.

--- Later in debate ---

Moved by

[Earl Howe]

204: Clause 167, page 132, line 37, leave out “(unless already cancelled) ceases to have effect” and insert “—
(a) ceases to have effect (unless already cancelled), and(b) may not be renewed;and section 166(4) does not apply in relation to the refusal to approve the decision.”

--- Later in debate ---

Moved by

[Earl Howe]

205: Clause 173, page 137, line 10, leave out subsection (7)

--- Later in debate ---

Moved by

[Earl Howe]

206: After Clause 173, insert the following new Clause—
“Approval of major modifications by Judicial Commissioners
(1) In deciding whether to approve a decision to make a major modification of a bulk equipment interference warrant, a Judicial Commissioner must review the Secretary of State’s conclusions as to the following matters— (a) whether the modification is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary, and(b) in the case of a major modification adding or varying any description of conduct authorised by the warrant, whether the conduct authorised by the modification is proportionate to what is sought to be achieved by that conduct.(2) In doing so, the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matters referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where a Judicial Commissioner refuses to approve a decision to make a major modification under section 173, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.(4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to make a major modification under section 173, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to make the modification.”

--- Later in debate ---

Moved by

[Earl Howe]

207: Clause 174, page 138, line 13, leave out “fifth” and insert “third”

--- Later in debate ---

Moved by

[Earl Howe]

209: Clause 177, page 141, line 4, after “(5)” insert “and section 179”

--- Later in debate ---

Moved by

[Earl Howe]

210: Clause 178, page 141, line 28, after “(5)” insert “and section 179”

--- Later in debate ---

Moved by

[Earl Howe]

211: Clause 180, page 143, line 29, at end insert—
“( ) In deciding whether to give an approval under subsection (2) in a case where subsection (1)(b)(i) applies, a senior official must have regard to the public interest in the confidentiality of items subject to legal privilege.”

--- Later in debate ---

Moved by

[Earl Howe]

216: After Clause 180, insert the following new Clause—
“Additional safeguard for confidential journalistic material
Where—(a) material obtained under a bulk equipment interference warrant is retained, following its examination, for purposes other than the destruction of the material, and(b) it is material containing confidential journalistic material,the person to whom the warrant is addressed must inform the Investigatory Powers Commissioner as soon as is reasonably practicable.(For provision about the grounds for retaining material obtained under a bulk equipment interference warrant, see section 177.)”

--- Later in debate ---

Moved by

[Earl Howe]

218: Clause 182, page 144, line 28, at end insert—
“section (General definitions: “journalistic material” etc.) (general definitions: “journalistic material” etc.),”

--- Later in debate ---

Moved by

[Earl Howe]

228: Clause 191, page 150, line 19, at end insert—
“and section 190(4) does not apply in relation to the refusal to approve the decision.”

--- Later in debate ---

Moved by

[Earl Howe]

229: Clause 194, page 152, line 9, at end insert “, and
(d) where the Secretary of State has imposed conditions under section (Protected data: power to impose conditions), specify those conditions.”

--- Later in debate ---

Moved by

[Earl Howe]

230: Clause 196, page 154, line 3, at end insert—
“( ) Section (Protected data: power to impose conditions) applies in relation to the renewal of a specific BPD warrant as it applies in relation to the issue of such a warrant (whether or not any conditions have previously been imposed in relation to the warrant under that section).”

--- Later in debate ---

Moved by

[Earl Howe]

231: Clause 197, page 154, line 37, leave out subsection (6)

--- Later in debate ---

Moved by

[Earl Howe]

232: After Clause 197, insert the following new Clause—
“Approval of major modifications by Judicial Commissioners
(1) In deciding whether to approve a decision to make a major modification of a class BPD warrant or a specific BPD warrant, a Judicial Commissioner must review the Secretary of State’s conclusions as to whether the modification is necessary on any of the grounds on which the Secretary of State considers the warrant to be necessary.(2) In doing so, the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy). (3) Where a Judicial Commissioner refuses to approve a decision to make a major modification under section 197, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.(4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to make a major modification under section 197, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to make the modification.”

--- Later in debate ---

Moved by

[Earl Howe]

233: Clause 198, page 155, line 33, leave out “fifth” and insert “third”

--- Later in debate ---

Moved by

[Earl Howe]

235: Clause 200, page 157, line 7, at end insert—
“( ) In deciding whether to give approval for the purposes of subsection (3)(b), the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).”

--- Later in debate ---

Moved by

[Earl Howe]

236: Clause 202, page 159, line 9, after “that” insert “arrangements are in force for securing that”

--- Later in debate ---

Moved by

[Earl Howe]

239: After Clause 202, insert the following new Clause—
“Additional safeguards for items subject to legal privilege: examination
(1) Subsections (2) and (3) apply if, in a case where protected data retained in reliance on a specific BPD warrant is to be selected for examination—(a) the purpose, or one of the purposes, of using the criteria to be used for the selection of the data for examination (“the relevant criteria”) is to identify any items subject to legal privilege, or(b) the use of the relevant criteria is likely to identify such items.(2) If the relevant criteria are referable to an individual known to be in the British Islands at the time of the selection, the data may be selected for examination using the relevant criteria only if the Secretary of State has approved the use of those criteria.(3) In any other case, the data may be selected for examination using the relevant criteria only if a senior official acting on behalf of the Secretary of State has approved the use of those criteria.(4) The Secretary of State may give approval for the purposes of subsection (2) only with the approval of a Judicial Commissioner.(5) Approval may be given under subsection (2) or (3) only if—(a) the Secretary of State or (as the case may be) the senior official considers that the arrangements mentioned in section 188(6)(d) include specific arrangements in respect of items subject to legal privilege, and(b) where subsection (1)(a) applies, the Secretary of State or (as the case may be) the senior official considers that there are exceptional and compelling circumstances that make it necessary to authorise the use of the relevant criteria.(6) In deciding whether to give an approval under subsection (2) or (3) in a case where subsection (1)(a) applies, the Secretary of State or (as the case may be) the senior official must have regard to the public interest in the confidentiality of items subject to legal privilege.(7) For the purposes of subsection (5)(b), there cannot be exceptional and compelling circumstances that make it necessary to authorise the use of the relevant criteria unless—(a) the public interest in obtaining the information that would be obtained by the selection of the data for examination outweighs the public interest in the confidentiality of items subject to legal privilege,(b) there are no other means by which the information may reasonably be obtained, and(c) obtaining the information is necessary in the interests of national security or for the purpose of preventing death or significant injury.(8) In deciding whether to give approval for the purposes of subsection (4), the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matter with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(9) Subsections (10) and (11) apply if, in a case where protected data retained in reliance on a specific BPD warrant is to be selected for examination— (a) the purpose, or one of the purposes, of using the criteria to be used for the selection of the data for examination (“the relevant criteria”) is to identify data that, if the data or any underlying material were not created or held with the intention of furthering a criminal purpose, would be an item subject to legal privilege, and(b) the person to whom the warrant is addressed considers that the data (“the targeted data”) or any underlying material is likely to be data or underlying material created or held with the intention of furthering a criminal purpose.(10) If the relevant criteria are referable to an individual known to be in the British Islands at the time of the selection, the data may be selected for examination using the relevant criteria only if the Secretary of State has approved the use of those criteria.(11) In any other case, the data may be selected for examination using the relevant criteria only if a senior official acting on behalf of the Secretary of State has approved the use of those criteria.(12) Approval may be given under subsection (10) or (11) only if the Secretary of State or (as the case may be) the senior official considers that the targeted data or the underlying material is likely to be data or underlying material created or held with the intention of furthering a criminal purpose.(13) In this section, “underlying material”, in relation to data retained in reliance on a specific BPD warrant, means any communications or other items of information from which the data was produced.”

--- Later in debate ---

Moved by

[Earl Howe]

242: Clause 203, page 160, line 11, at end insert—
“( ) In deciding whether to give approval for the purposes of subsection (7), the Judicial Commissioner must apply the same principles as would be applied by a court on an application for judicial review.”

--- Later in debate ---

[Baroness Hamwee]

My Lords, I shall also speak to Amendments 245 and 246. These amendments take us back to the question of the reimbursement of the operators’ costs. We have heard frequent assurances about the operators’ compliance costs and that they are to be met, but the words of the Bill do not quite live up to some of the narrative.

Our three amendments cover two alternatives; they would not all be possible. Amendments 244 and 245 would provide that arrangements were in force to secure for the operators the full amount of all relevant costs—“relevant costs” are defined later in the clause—not an appropriate contribution. As Clause 225(1) is framed, the Secretary of State must ensure,

“an appropriate contribution in respect of such of their relevant costs as the Secretary of State considers appropriate”.

With these two amendments, we seek to take out that element of discretion.

Amendment 246 would provide that if the contribution was not an equal amount, there should be regulations regarding the basis of how the contribution is calculated. Our amendments provide that the Secretary of State should lay regulations to that effect. It will be obvious to noble Lords that our reasons are transparency, equality between operators and the opportunity to consider the criteria—the factors, if you like—applied in calculating the contribution. In other words, our intention is scrutiny, using the opportunity that regulations give for debate of their content.

We have debated this matter on a number of occasions, and the Minister will be well aware of our concern. This is an attempt, at this almost last stage, to pin down just how the contribution will be made. I beg to move.

[Earl Howe]

My Lords, Amendments 244 and 245 are intended to ensure that communications service providers are fully reimbursed for their costs in connection with complying with obligations under the Bill. As the noble Baroness knows, this matter has been considered at length both in this House and in the Commons. It is important to recognise that service providers must not be unduly disadvantaged financially for complying with obligations placed on them aimed at protecting national security or combating crime. Indeed, the Government have a long history of working with service providers on these matters and we have been absolutely clear that we are committed to cost recovery.

I once again take the opportunity to reaffirm to the House a point that both my right honourable friend the former Security Minister and my right honourable friend the Prime Minister made very clear in the other place and that I made in Committee: this Government will reimburse 100% of reasonable costs incurred by communications service providers in relation to the acquisition and retention of communications data. This includes both capital and operational costs, including the costs associated with the retention of internet connection records.

The question that the House needs to consider, I submit, is whether it is appropriate for the Parliament of today to tie the hands of future Governments on this issue. That does not mean that we take our commitment lightly, or that future Governments will necessarily or lightly change course. Indeed, it is unlikely that any change in policy will ever take place. For example, the current policy has not changed since the passage of the Regulation of Investigatory Powers Act 2000, and so has survived Governments of three different colours, or combinations of colours.

The Bill adds further safeguards, requiring a data retention notice to set out the level of contribution that applies. This ensures that the provider must be consulted on any changes to the cost model and means that the provider could seek a review of any variation to the notice which affected the level of contribution.

Another question that I hope the House will consider is whether a communications service provider should be able to derive commercial benefit as a result of the obligations imposed on them in relation to the other powers under the Bill. Sometimes, it may be necessary for a communications service provider to upgrade part of its infrastructure to comply with an obligation imposed on it under a technical capability notice. As the communications service providers may be able to derive some business benefit from that upgrade, it is right that the legislation allows for the contribution to the costs to be appropriate to the circumstances.

Some noble Lords have expressed concern about the term “reasonable costs” and asked what it means. I hope I can provide some reassurance on that point. Significant public funding is made available to companies to ensure that they can provide assistance to public authorities in tackling terrorism, crime and other threats. As costs are reimbursed from public funds, the codes of practice make very clear that companies should take value for money into account when procuring, operating and maintaining the infrastructure required to comply with a notice. Were a company to select a solution that did not deliver best value for public funds, I am sure noble Lords would agree that it is absolutely right that the Government would need to consider carefully whether those costs were reasonable and therefore whether it was appropriate to reimburse the company in full.

The noble Baroness’s Amendment 246 acknowledges that there may be circumstances where it is appropriate for a communications service provider to be reimbursed less than its full costs. However, we do not think her proposed regulations provide the required flexibility. As I just explained, communications service providers may receive some business benefit from the changes made to their systems and it is appropriate that the Government are able to discuss these matters with them on a case-by-case basis, rather than be bound by general regulations. Indeed, while communications service providers would welcome an amendment to require 100% cost recovery in all cases, I suggest that they are unlikely to welcome regulations which enshrine in law circumstances where they would not receive full reimbursement.

I hope I have allayed any concerns about the Government’s position on costs and accordingly invite the noble Baroness to withdraw her amendment.

[Baroness Hamwee]

My Lords, until the last two or three sentences, I thought the noble Earl had made a much better case for regulations than I did. I am a little worried about his argument that regulations cannot provide for flexibility. Flexibility is not necessarily bad, but how it is exercised should be transparent, and that is what my amendment is driving at.

The noble Earl started his remarks by saying that the operators should not be “unduly disadvantaged”, and it is those words which caveat the commitment that has troubled us throughout our debates. We have tried, particularly with the third amendment, to meet the points made by the Government. I will obviously not pursue this any further; we have reached the end of the road. I have no doubt that someone will draw to our attention any problem in practice in future. I beg leave to withdraw the amendment.

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Moved by

[Earl Howe]

247: Clause 228, page 180, line 18, at end insert—
“( ) In a case where—(a) a national security notice would require the taking of any steps, and(b) in the absence of such a notice requiring the taking of those steps, the taking of those steps would be lawful only if a warrant or authorisation under a relevant enactment had been obtained,the notice may require the taking of those steps only if such a warrant or authorisation has been obtained.”

[Earl Howe]

My Lords, I shall speak also to the other government amendments. Government Amendments 247 to 250 clarify the activity that can be authorised by a national security notice to provide greater reassurance to telecommunications operators to whom such a notice may be given. These amendments also respond to concerns raised in the Commons that the detail set out in the draft code of practice was clearer than the provisions in the Bill.

Clause 228 states that the Secretary of State may give such a notice to a telecommunications operator in the UK, requiring the taking of such specified steps as are considered necessary in the interests of national security. The type of support that may be required includes the provision of services or facilities which would help the intelligence agencies to safeguard the security of their personnel and operations, or provide assistance with an emergency as defined in Section 1 of the Civil Contingencies Act 2004.

Amendment 248 makes it clear that a national security notice cannot be used for the primary purpose of acquiring communications or data. The proposed amendments further clarify that, in any circumstance where the taking of a step set out in the notice would involve the acquisition of private data, any interference with privacy must be authorised by an appropriate warrant or other authorisation under the Bill, or another relevant statute, where it is available. Therefore, a notice, of itself, cannot authorise as its primary purpose an intrusion into an individual’s privacy.

I should like to emphasise here that this power can be exercised only if the Secretary of State and a judicial commissioner are satisfied that the conduct required by a notice is necessary and proportionate to what is sought to be achieved.

In addition, Amendment 250 makes it clear that any conduct required under a notice is lawful for all purposes, providing reassurance for telecommunications operators that, when conduct is carried out in accordance with the requirements of a notice, the operator will not risk being found to be in breach of any other legal requirement.

I hope that these amendments reassure noble Lords that a national security notice cannot be used to circumvent the need to obtain a warrant or authorisation, but neither could it prohibit the acquisition of private data when such conduct has been appropriately authorised.

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Moved by

[Earl Howe]

248: Clause 228, page 180, line 19, leave out from “But” to “to” in line 20 and insert “the Secretary of State may not give any telecommunications operator a national security notice the main purpose of which is to require the operator”

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[Lord Paddick]

I can certainly tell the noble Lord that Yahoo! was one of the operators, but I do not have a list to hand.

[Earl Howe]

My Lords, Amendment 250A would define a technical capability notice as,

“specifying the distinct service or product to which the notice applies”.

I do not believe this amendment is necessary. The safeguards that apply to the giving of a notice under the Bill already ensure that a technical capability notice cannot be of a generic nature. I will not go into detail here about the lengthy process that must be undertaken before a notice can be given; we have discussed them at length previously and we will undoubtedly review them again shortly during our discussions on encryption. But it might be helpful for me to summarise.

Before giving a notice, the Secretary of State must consult the company concerned. This process will ensure that the company is fully aware of which services the notice applies to. The decision to issue a notice must be approved by the Secretary of State and a judicial commissioner. The obligations set out in the notice must be clear so that the Secretary of State and judicial commissioner can take a view as to the necessity and proportionality of the conduct required. As I have already mentioned, we propose a similar role for the judicial commissioner when a notice is varied. The operator may raise any concerns about the requirements to be set out in the notice, including any lack of clarity regarding their scope, during the consultation process. The operator may also seek a formal review of their obligations, as provided for in Clause 233. The safeguards which apply to the giving of a notice have been strengthened during the Bill’s passage through Parliament, and will ensure that the regime provided for under the Bill will be more targeted than that under existing legislation. It is for these reasons that I consider the amendment unnecessary.

Amendment 251A seeks to narrow the category of operators to whom a technical capability notice could be given. This change would exclude operators that provide services that have a communications element but are not primarily a communication service. This amendment, which has already been discussed in the Commons, is also unnecessary and, in my view, risks dangerously limiting the capabilities of law enforcement and the security and intelligence agencies. We are aware that the manner in which criminals and terrorists communicate is diversifying, as they attempt to find new ways to evade detection. We cannot be in a situation where terrorists, paedophiles and other criminals can use technology to escape justice. As David Anderson said,

“no-go areas for law enforcement should be minimised as far as possible, whether in the physical or the digital world”.

It is important that the Government can continue to impose obligations relating to technical capabilities on a range of operators to ensure that law enforcement and the security and intelligence agencies can access, in a timely manner, communications of criminals and terrorists using less conventional services, such as those offered by gaming service providers and online marketplaces. It may be appropriate to exclude certain categories of operators from obligations under this clause, such as small businesses, but it is our intention to use secondary legislation to do so. It would not be appropriate to impose blanket exemptions on services that have a communications element but are primarily not a communication service, since to do so would make it clear to terrorists and criminals that communications over such systems could not be monitored.

For all the reasons I have set out, I hope that the noble Lord, Lord Paddick, will feel able to withdraw his amendment.

[Lord Beith (LD)]

Before the noble Earl sits down, I refer to a point which at least needs to be borne in mind in drafting regulations. In most circumstances, if the Government impose upon a business an obligation of some kind, and behave totally unreasonably in doing so—or the business thinks that the Government are behaving unreasonably—the matter will end up in public discussion and the company has the weapon of saying to the public at large, “The Government are asking us to do something unreasonable”. That must not happen in these circumstances because clearly secrecy must be maintained. Therefore, the company is in a weaker position than it would be in the normal exchange between government and business. I hope that Ministers will recognise that fact.

[Earl Howe]

With the leave of the House, I am grateful to the noble Lord for raising that point, which I think will come up in the next group of amendments when we discuss encryption because it is centre stage in that issue. He is absolutely right and I hope that I can assuage his concerns in the next debate.

[Lord Paddick]

I am very grateful to the Minister, particularly for his explanation around Amendment 251A. I completely accept that the whole range of ways in which people can communicate potentially needs to be covered. I am encouraged by the fact that there may be some exceptions in secondary legislation. It is unfortunate that we do not have sight of that before I withdraw this amendment but life is like that.

Bearing in mind the fact that the Minister did not articulate any downside to Amendment 250A, I wonder why the Government will not accept it, given that it appears not to limit the Government’s action in any way. However, at this stage, I beg leave to withdraw the amendment.

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[Earl Howe]

My Lords, I hope that the House will allow me to speak at somewhat greater length than usual in responding to these amendments. I recognise the concern that lies behind them and I also recognise that, although we debated the Bill’s provisions on encryption in Committee, there is a need to correct a number of misconceptions that have been expressed and to set out the reality of the Government’s position on encryption. I would also like to make clear what the provisions in the Bill do and, crucially, what they do not do, and to explain why these provisions are so important to our law enforcement and intelligence agencies. I hope that by, setting this out, I can reassure noble Lords that the amendments are not necessary.

As we have made clear before, the Government recognise the importance of encryption. It keeps people’s personal data and intellectual property secure and ensures safe online commerce. The Government work closely with industry and businesses to improve their cybersecurity. For example, GCHQ plays a vital information assurance role, providing advice and guidance to enable government, industry and the public to protect their IT systems and use the internet safely. Indeed, the director of GCHQ said in March that he is accountable to the Prime Minister just as much, if not more, for the state of cybersecurity in the UK as he is for intelligence collection.

In the past two years, the security and intelligence agencies have disclosed vulnerabilities in every major mobile and desktop platform, including the big names that underpin British business. You do not have to take the Government’s word for that. In September 2015, Apple publicly credited the information assurance arm of GCHQ with the detection of a vulnerability in its operating system for iPhones and iPads, which could otherwise have been exploited by criminals to disrupt devices and extract information from them. As a result, this vulnerability could be fixed.

The assertion that the Government are opposed to encryption or would legislate to undermine it is fanciful. However, the Government and Parliament also have a responsibility to ensure that our security and intelligence services and law enforcement agencies have the capabilities necessary to keep our citizens safe. Encryption is now almost ubiquitous and is the default setting for most IT products and online services. While this technology is primarily used by law-abiding citizens, it can also be used—easily and cheaply—by terrorists and other criminals. Therefore, it can only be right that we retain the ability, as currently exists in legislation, to require a telecommunications operator to remove encryption in limited circumstances, subject to strong controls and safeguards. If we do not provide for this ability, then we must simply accept that there can be areas online beyond the reach of the law where criminals can go about their business unimpeded and without the risk of detection. That would be both irresponsible and wrong.

That is our starting principle, and it is one that we share with David Anderson QC. I have quoted this before, but he stated in his investigatory powers review, A Question of Trust:

“My first principle is that no-go areas for law enforcement should be minimised as far as possible, whether in the physical or digital world”.

This principle was also shared by the Joint Committee on the draft Bill and the Science and Technology Committee, both of which recognised that, in tightly prescribed circumstances, it should remain possible for our law enforcement agencies and security and intelligence services to be able to access unencrypted communications or data. That is exactly what Clauses 229 to 234 of the Bill provide for: strong safeguards to ensure that obligations to remove encryption can be imposed only in limited circumstances and subject to rigorous controls.

Clause 229 enables the Secretary of State to give a technical capability notice to a telecommunications operator in relation to interception, communications data or equipment interference. As part of maintaining a technical capability, the Bill makes clear at Clause 229(5)(c) that the obligations that may be imposed on an operator by the Secretary of State can include the removal of encryption. Before a technical capability notice is given, the Secretary of State must specifically consider the technical feasibility and likely cost of complying with it. Clause 231(4) provides that this consideration must explicitly take account of any obligations to remove encryption.

The Secretary of State must also consult the relevant operator before a notice is given. The draft codes of practice, which were published on 4 October, make clear that should the telecommunications operator have concerns about the reasonableness, cost or technical feasibility of any requirements to be set out in the notice, which of course includes any obligations relating to the removal of encryption, it should raise these concerns during the consultation process.

We have also amended the Bill to make clear that the Secretary of State may give a technical capability notice only where he or she considers that it is necessary and proportionate to do so, and, under Clause 230, that decision must also now be approved by a judicial commissioner, placing the stringent safeguard of the double lock on to any giving of a notice to require the removal of encryption. Clause 2 of the Bill, the privacy clause, also makes explicit that, before the Secretary of State may decide to give a notice, he or she must have regard to the public interest in the integrity and security of telecommunications systems.

In addition, a telecommunications operator that is given a technical capability notice may refer any aspect of the notice, including obligations relating to the removal of encryption, back to the Secretary of State for a review. In undertaking such a review, the Secretary of State must consult the Technical Advisory Board in relation to the technical and financial requirements of the notice, as well as a judicial commissioner in relation to its proportionality. We have amended the review clauses in the Bill to strengthen these provisions further. Where the Secretary of State decides that the outcome of the review should be to vary or confirm the effect of the notice, rather than to revoke it, that decision must be approved by the Investigatory Powers Commissioner.

The Bill also makes absolutely clear that, in line with current practice, obligations imposed on telecommunications operators to remove encryption may relate only to encryption applied by or on behalf of the company on whom the obligation is being placed. That ensures that such an obligation cannot require a telecommunications operator to remove encryption applied by other companies to data transiting their network. As we have already outlined, we have also now tabled a government amendment that would further strengthen the Bill’s provisions on technical capability notices. This amendment makes clear that the Secretary of State may vary a notice only where they consider that it is necessary and proportionate to do so. The amendment also makes clear that, in circumstances where a notice is being varied in such a way that would impose new obligations on the operator, the variation must be approved by a judicial commissioner.

Furthermore, obligations imposed under a technical capability notice to remove encryption require the relevant operator to maintain the capability to remove encryption when it is subsequently served with a warrant, notice or authorisation, rather than requiring it to remove encryption per se. That means that companies will not be forced to hand over encryption keys to the Government. Such a warrant, notice or authorisation will be subject to the double lock of Secretary of State and judicial commissioner approval, and the company on whom the warrant is served will not be required to take any steps, such as the removal of encryption, if they are not reasonably practicable steps for that company to take. So a technical capability notice could not, in itself, authorise an interference with privacy. It would simply require a capability to be maintained that would allow a telecommunications operator to give effect to a warrant quickly and securely including, where applicable, the ability to remove encryption.

That is an enormously long list of safeguards. Indeed, it is difficult to think what more the Government could do. These safeguards ensure that an obligation to remove encryption under Clause 229 of the Bill will be subject to very strict controls and may be imposed only where it is necessary and proportionate, technically feasible and reasonably practicable for the relevant operator to comply. Let me be clear: the Bill’s provisions on encryption simply maintain and clarify the current legal position, and apply strengthened safeguards to those provisions. They will mean that our law enforcement and security and intelligence agencies maintain the ability to require telecommunications operators to remove encryption in very tightly defined circumstances.

I would also like to make absolutely clear what the Bill does not provide for on encryption.

[Lord Beith]

Could the Minister help those of us who are not deeply technical in these matters? We fear that circumstances by their nature cannot be technical and defined. In at least some cases, the consequences of serving a notice would be that the operator would have to create a significant weakness, which would apply far beyond the objective for which the notice was being served, and the operator would have to say in future to its customers, “This system is not as strong as we would like it to be”.

[Earl Howe]

We come back to the test of reasonable practicability here. I am about to come on to what the Bill does not provide for on encryption and I hope that this will help the noble Lord.

The Bill does not ban encryption or do anything to limit its use. The Bill will not be used to force providers to undermine their business models, to create so-called back doors or to compromise encryption keys. It will not be used to prevent new encrypted products or services from being launched and it will not undermine internet security.

[Lord Harris of Haringey]

I am very grateful for the detailed exposition that has been given. The Minister says that the Bill will not be used to do those things. Can he confirm that it cannot be used to do those things?

[Earl Howe]

My Lords, some noble Lords have suggested the Bill’s provisions cause a weakening in encryption, which I think is the central point that the noble Lord is getting at. Many of the biggest companies in the world rely on strong encryption to provide safe and secure communications and e-commerce, but retain the ability to access the content of their users’ communications for their own business purposes, such as advertising, as we have heard. These companies’ reputations rest on their ability to protect their users’ data. This model of encryption can, and does, maintain users’ security. I do not think that anyone would dispute that.

Before I come on to the individual amendments, it would be helpful to address a number of specific points that were raised in relation to encryption. There was a suggestion that a company should never be asked to do something that it does not already do. Such an approach would of course, at a stroke, remove our ability to use any of the powers in the Bill, including carrying out any interception of terrorists’ and serious criminals’ communications, because companies do not do this in the normal course of their business.

There was a suggestion that equipment interference would do away with the need for these provisions. It will not. Equipment interference is no substitute for having a company’s assistance. Even if it were, there are only a very small number of very clever people who are able to carry out equipment interference. There will never be the capacity to deploy them on each and every operation.

Finally, there was a suggestion that encryption is not a problem for the security and intelligence agencies. The heads of those agencies have repeatedly made clear that ubiquitous encryption is one of the most difficult challenges they face.

I now turn to the individual amendments, because I hope that this will clarify the picture further. Amendment 251 seeks to preclude an obligation to remove encryption from being imposed under a technical capability notice in relation to end-to-end encrypted services. I hope that the points I have already made make clear why the proposed amendment is not necessary and indeed why it is not desirable. As I have set out, the Government recognise the vital importance of encryption. Nothing in the Bill does anything to limit its use, and that of course includes the use of end-to-end encryption. But I have also set out the dangers of creating a guaranteed safe space online for those who would seek to do the public harm such as terrorists and other serious criminals, and I am afraid that that is exactly what this amendment would do. The amendment seeks to make explicit provision in law for there to be certain online services that criminals can use to go about their business unimpeded with no fear of being caught. That is not a position that any responsible Government or, I hope, Parliament could support.

What we must ensure is that the Bill enables us to work collaboratively with individual telecommunications operators to establish what steps are reasonably practicable for them to take, considering a range of factors including technical feasibility and likely cost. Any decision will have regard to the particular circumstances of the case, recognising that there are many different models of encryption, including many different models of end-to-end encryption, and that what is reasonably practicable for one telecommunications operator may not be for another.

As I have already said, this is not about asking companies to undermine their existing business models; it is about working with them to find a solution to ensure both that their customers’ data remain secure and that their services cannot be exploited by individuals who pose a threat to the UK. So in answer to the question put by the noble Lord, Lord Harris, I can confirm that these provisions cannot be used to introduce back doors or undermine internet security.

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[Lord Strasburger]

My Lords, if the noble Earl is so confident that none of the unintended consequences listed in Amendment 252A can occur, and that the Government do not want them to occur, what is his objection to putting them into the Bill?

[Earl Howe]

We already have a wide range of safeguards which I have listed. I do not see that it is necessary to go down the road the noble Lord is advocating because of the dangers that I have pointed out. These amendments would create safe spaces which I am sure that neither he nor any noble Lord would desire to occur.

[Lord Harris of Haringey]

My Lords, I am enormously grateful to the noble Earl for his detailed response and for reiterating the welcome and voluminous safeguards that are set out in the Bill. They are important and valuable, and they give me confidence about the context of the whole Bill. However, the argument with which he concluded does not quite hold together and there is an elision between different issues. The noble Earl has given an absolute assurance, I think on the basis of a piece of paper that was handed to him, that it cannot be used to require a communications service provider to build a back door or to create one in a future area. But then he said that we must not put in the Bill something that creates a safe space. Either the Government’s position is that this cannot be used to require a company to produce a back door, in which case the safe space exists and presumably the Government are not happy with their own legislation, or it is the case that the Bill could require a communications service provider to build such a back door.

We have already heard from the noble Lord, Lord Evans of Weardale, that what we are trying to do here is balance two national security concerns: the national security concern to prevent terrorism and so on and the national security concern about making it slightly easier for cybercriminals. These are very important issues. If the Government are clear that, as a result of the Bill, a technical capability notice could not require an operator to build a back door that would otherwise not exist, it is important to set that out in the Bill. If we are in a position where techUK says—as it has in the briefing it circulated to me and, I am sure, to other noble Lords—that this is ambiguous, perhaps it is the responsibility of the Government to remove that ambiguity and make the position clear. I do not really want to have to divide the House on this matter, so between now and Third Reading, is the noble Earl prepared to turn the unequivocal assurance he has given that it cannot be used in this way into an amendment to the Bill that will remove that ambiguity?

[Earl Howe]

With the leave of the House, I hope I can help the noble Lord on this because I do not believe that the Bill is contradictory. First, the term “back door” has been used, but I do not think that is a helpful or accurate way of describing the Bill’s provisions. “Back door” is in everyone’s judgment a loosely defined term. It is used incorrectly to imply that the Bill would enable our law enforcement, security and intelligence agencies to gain unrestricted access to a telecommunications operator’s services or systems, thereby undermining the security of those services—to force that to happen. That is absolutely not the case. The Bill enables our agencies to require telecommunications operators to remove encryption themselves, only in tightly defined circumstances: where they have applied the encryption themselves; where it has been applied on their behalf; where it is reasonably practicable for them to remove it; and where doing so is required to comply with a relevant warrant, notice or authorisation.

I come back to the point I made earlier. This is about the Government being able to sit down with companies and reach agreement with them on the basis of what is reasonably practicable, affordable and so on. It would not be responsible for any Government to deny themselves the possibility of doing that and discussing what in all the circumstances is reasonably practicable for the company, and for the company to agree to do it.

[Lord Harris of Haringey]

Again I am grateful to the noble Earl. I do not think anyone here has misunderstood the point that this is not about giving the Government uninterrupted access. It is about requiring companies to create a facility so that if they are asked, after all the suitable warrants have been gone through and all the safeguards have been fulfilled, to gain information and pass it back to the Government. I accept that that is the position and that is what is intended here. However, the Minister has still not been unequivocal on whether technical capability measures could require such a facility to be created, so that, in those circumstances and with all those safeguards in place, something could be done. It is a critical issue that we need to clarify. Otherwise, we do not know where we stand as far as the amendment is concerned. The Minister needs to provide the House and the IT industry with as much clarity as he can on this point, because the danger is that it will become the subject of continual argument.

Were the Bill to be amended by any of the amendments in this group, the Government would still have the option to say that they were minded to serve a technical capability notice on a particular company. That would then trigger a series of discussions, because it is what the Bill provides for, and a communications service provider might come back at that point and say, “Look, we literally cannot do it. We do not have the facility”. However, it is not clear whether the Government could none the less say, “Well, we understand that, but we are requiring you to do it”. The question then is: what is or what is not feasible? I happen to believe that some of the biggest communications service providers in the world have more computing expertise than any nation state. If they are told, “You are legally required to do this”, they could do it; they could find a way of making it happen. We have to be explicit as to what the Government’s expectation is. Are they saying, “No, that is not what we are requiring”, or are they saying, “Well, we might”? If they are saying, “We might”, that clarifies the position, if not helpfully. If they are saying, “No, we are not”, which is what the Minister said earlier, perhaps we could put that in the Bill—if not in the form of words proposed, then in some form of words that the Government could craft between now and next week. That would be a helpful way forward and provide absolute clarity as to the extent to which technical capability notices could be served. If I am not able to get that assurance from him—I appreciate that bits of paper have been flying backwards and forwards between him and the Box—we are in a very difficult position.

[Earl Howe]

I can state categorically to the noble Lord that it is absolutely not the case that the Bill would force a company to insert a back door, thereby undermining internet security. We might ask a company in certain circumstances to decrypt particular data if it was reasonably practicable and feasible for them to do so.

[Lord Harris of Haringey]

My Lords, I understand that that is the case; that is, if they have the encryption key—we will not use “back door”; we will find another form of words—and the capability to do it, and it is not too complicated and all the relevant warrants are in place, yes, they will do that. As I understand it, most tech companies are perfectly understanding of that and willing to do it. The question is whether, if the Government were presented with a situation they were concerned about, they could say to one of the biggest communications service providers in the world, “We are asking you to build something which is not there at the moment, but we’ll provide that facility for those circumstances that might arise in the future when we’ve gone through all the relevant warrants and so on”. I am looking for an assurance from the Minister that that is not sought here, because of the dangers that we have already discussed. If he wishes, I can reiterate the question to give the Minister the opportunity to read the piece of paper that has just arrived.

[Earl Howe]

Of course, a technical capability notice can require a new capability to be built; that is what they are there for. If it was neither practicable nor feasible, they would not have to do it. The problem here is that it is very difficult to generalise, because any decision about these things would have to have regard to the particular circumstances of the case. As I said, there are many different models of encryption, including many different models of end-to-end encryption. Any decision has to recognise that what is reasonably practicable for one telecommunications operator may not be for another. That is why I have referred repeatedly to the need for the Government and industry to have that easy interchange which they do at the moment. It is important to emphasise that these powers already exist in law today. We should not do anything that undermines the basis for the constructive discussions that we are having.

[Lord Harris of Haringey]

The Minister reminds us that the ideal arrangement is one of easy interchange and discussion—I understand that that carries on and works very well. He is right to say—this is why the wording of the current legislation is ambiguous and therefore a problem—that building a technical capability could mean simply putting in a piece of equipment, which means that, at the point at which the Government ask, having gone through all the voluntary processes, it is quite a straightforward matter to provide the information that the Government have legitimately and lawfully requested. That is one definition of technical capability.

What I want to know is whether “technical capability” could apply to a very secure end-to-end encryption process which no communications service provider could break but where, if they devoted thousands of person hours in California or wherever they operate from, they could develop something which might do that. If that is what the Bill is saying, we need to know.

[Earl Howe]

That would not be reasonably practicable in that particular example.

[Lord Harris of Haringey]

I accept that it would not be reasonably practicable; it would also be very expensive—as I understand the Bill, the Government would have to pay for it and I am sure that technical experts in California or wherever might be very expensive. If that is the case, and if it is not possible to write it into the Bill—I would have thought it could be—it would be helpful for the Minister to write and make very clear what the Government’s intentions are in that regard and confirm that such circumstances are precluded by the Bill. If the Minister is prepared to do that, I am prepared not to press the amendment to a vote.

[Earl Howe]

I think I have made the Government’s position as clear as I possibly can and I am not sure what I can do to amplify the remarks I have already made. While I want to be as helpful as possible to the noble Lord, I am struggling to see how a letter from me would make the position clearer.

[Lord Harris of Haringey]

I understand the Minister’s dilemma and I am sure that a letter from him to me would have far less force than the words appearing in Hansard. I appreciate that the courts can look at the debates in Hansard to try to interpret them. However, I ask that the Minister spends the next few days just thinking about some further modification to the Bill to make sure that this ambiguity, which I think genuinely exists—because techUK tells me so—is cleared up. On the basis that I am sure he will spend his waking hours between now and next Monday thinking about precisely these matters, I beg leave to withdraw the amendment.

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Moved by

[Earl Howe]

255: Clause 232, page 184, line 2, leave out “only if” and insert “given to a person only if—
(a) the Secretary of State considers that the variation is necessary in the interests of national security,(b) ”

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Moved by

[Earl Howe]

258: Clause 233, page 185, line 13, after first “section” insert “or section 234”

--- Later in debate ---

Moved by

[Earl Howe]

259: Clause 238, page 189, line 31, after “be” insert “or is capable of being”

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Moved by

[Earl Howe]

260: Clause 239, page 191, leave out lines 46 and 47

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Moved by

[Earl Howe]

268: After Clause 239, insert the following new Clause—
“General definitions: “journalistic material” etc.
(1) The definitions in this section have effect for the purposes of this Act.Journalistic material(2) “Journalistic material” means material created or acquired for the purposes of journalism.(3) For the purposes of this section, where—(a) a person (“R”) receives material from another person (“S”), and(b) S intends R to use the material for the purposes of journalism,R is to be taken to have acquired it for those purposes.Accordingly, a communication sent by S to R containing such material is to be regarded as a communication containing journalistic material.(4) For the purposes of determining whether a communication contains material acquired for the purposes of journalism, it does not matter whether the material has been acquired for those purposes by the sender or recipient of the communication or by some other person.(5) For the purposes of this section—(a) material is not to be regarded as created or acquired for the purposes of journalism if it is created or acquired with the intention of furthering a criminal purpose, and(b) material which a person intends to be used to further such a purpose is not to be regarded as intended to be used for the purposes of journalism.Confidential journalistic material(6) “Confidential journalistic material” means—(a) in the case of material contained in a communication, journalistic material which the sender of the communication—(i) holds in confidence, or(ii) intends the recipient, or intended recipient, of the communication to hold in confidence;(b) in any other case, journalistic material which a person holds in confidence.(7) A person holds material in confidence for the purposes of this section if—(a) the person holds it subject to an express or implied undertaking to hold it in confidence, or (b) the person holds it subject to a restriction on disclosure or an obligation of secrecy contained in an enactment.”

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Moved by

[Earl Howe]

269: Clause 240, page 193, line 27, at end insert—

“Confidential journalistic material

Section (General definitions: “journalistic material” etc.)(6) and (7)”

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Moved by

[Earl Howe]

276: Clause 242, page 196, line 20, at end insert—
“( ) section 218(2A),”

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Moved by

[Earl Howe]

277: Schedule 9, page 242, line 26, leave out “section 86(1) to (11)” and insert “sections 84(1)(b), (3A) and (7)(e), (Approval of retention notices by Judicial Commissioners), 86(1) to (11), (Approval of retention notices following review under section 86), 89(4)(b), (5A), (8A) and (9A) and 91(2)(de)”

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Moved by

[Earl Howe]

281: Clause 246, page 199, line 2, at end insert—
“( ) In subsection (3) “enactment” does not include any primary legislation passed or made after the end of the Session in which this Act is passed.”

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Moved by

[Earl Howe]

282: Schedule 10, page 250, line 17, at end insert—
“Security Service Act 1989
In section 1(5) of the Security Service Act 1989 (meaning of “prevention” and “detection”) for the words from “the provisions” to the end substitute “that Act”.”

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Moved by

[Earl Howe]

296: Clause 247, page 199, line 12, leave out “and (6)” and insert “to (6A)”

Investigatory Powers Bill

Earl Howe Excerpts

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

Moved by

[Earl Howe]

96: Clause 58, page 46, line 40, leave out “to disclose it” and insert “or capable of obtaining it—
(i) to obtain the data (if not already in possession of it), and(ii) to disclose the data (whether already in the person’s possession or subsequently obtained by that person)”

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

My Lords, I shall speak also to the other government amendments with which this is grouped.

This group contains the government amendments in relation to the acquisition of communications data under Part 3 of the Bill. Starting with Amendments 96 to 100, a designated senior officer may believe that a communications service provider has the communications data he or she requires and grants an authorisation or issues a notice to that provider for disclosure of the data. However, in such a case the provider may not actually have the data but is able to obtain it. The Bill already provides for an authorisation or notice in respect of such data. These amendments simply make it clear that a second authorisation or notice for the same data and for the same purposes is not required in these circumstances. I trust the House will agree that these are sensible amendments, ensuring that neither the public authority nor the communications service provider is unnecessarily burdened.

Amendments 101 to 103 update Schedule 4 in two ways. The first is through minor and technical amendments to the description of the minimum rank for authorising communications data requests within the Competition and Markets Authority and the Police Investigations and Review Commissioner in Scotland. These amendments correct an error and reflect an organisational restructure in the respective organisations. Secondly, they add the Department for Communities in Northern Ireland to the list of public authorities which may acquire communications data for the purpose of preventing or detecting crime or preventing disorder. Communications data are of course a vital tool in investigations to detect, prosecute and prevent benefit fraud, providing vital investigative leads that would not otherwise come to light. These amendments ensure that the Department for Communities in Northern Ireland has the same powers as its English counterpart, the Department for Work and Pensions. They will allow it to continue to investigate crimes, such as organised attacks on the benefits system.

On Amendments 104 to 106 and 109 to 114, the collaboration agreement provisions in this part of the Bill are intended to ensure that, where necessary and appropriate, one public authority can make use of another public authority’s authorising and single point of contact expertise. They will bolster the strength of the regime by allowing for the sharing and use of best practice and experience. These minor and technical amendments will ensure that public authorities can enter into collaboration agreements and benefit from them without any unintended consequences. For example, they would ensure that two public authorities could collaborate with each other, even though the purposes for which they can each acquire communications data are different. They would also ensure that restrictions, such as the requirement for local authorities to seek magistrate approval for their requests for communications data, operate properly under collaboration agreements.

Similarly, the amendments make clear that single points of contact in a public authority can themselves obtain the communications data from communications service providers on behalf of the authorising officer in the collaborating public authority, as well as provide their advisory function. The single point of contact already performs this role in respect of requests authorised within the same public authority, and this amendment was needed to ensure that nothing in the collaboration provisions casts doubt on their ability to perform that role. I hope the House will agree these amendments to improve the regime.

Finally, on Amendment 259, it has always been the case under RIPA that a public authority can request data that may reasonably be obtained by a communications service provider as well as data which it holds. This fact has been reflected in the telecommunication definitions in the Bill, which make clear that communications data includes data which are, are to be or are capable of being held or obtained by a telecommunications operator. This amendment does no more than ensure that the definition of communications data in the postal context is consistent in this respect. I beg to move.

Amendment 96 agreed.

Moved by

[Earl Howe]

97: Clause 58, page 46, line 42, leave out paragraph (c)

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[Baroness Hamwee (LD)]

My Lords, the noble Lord, Lord Rosser, has set perhaps the hardest task for the Minister today in asking him to comment on what was perhaps not a coded speech but simply one inviting speculation.

Turning to the amendment itself, as on the first day of Report we are sympathetic to where the noble Baroness is coming from. Indeed, I think we had an amendment on “reasonable suspicion” at an earlier stage. However, perhaps again I should phrase what I have to say as a request for confirmation, as my noble friend Lord Paddick did last week. Reasonable suspicion is encompassed by the necessity and proportionality test. The way the noble Baroness has expressed it is that there is a moderate-sized hurdle to be got over and then a higher hurdle to be surmounted, by having “reasonable suspicion” and then the necessity and proportionality test. To keep up the athletic metaphor, you will not get over the higher hurdle even if you get over the lower one, so it seems to us that you might as well just have the higher hurdle. Perhaps we can be given some more assurances about how the different criteria will bite.

[Earl Howe]

My Lords, I listened carefully to the noble Baroness, Lady Jones of Moulsecoomb, and I am grateful for the case she has put. However, I cannot agree with it, and I will explain why that is.

As the noble Baroness explained, this amendment seeks to provide that certain communications data authorisations can be approved only where there is a reasonable suspicion that a serious criminal offence has been, or is likely to be, committed. In short, the amendment would undermine the ability of law enforcement and other public authorities to catch criminals and to keep the public safe. I will now set out why I believe that is so.

I shall start with the requirement for reasonable suspicion. As we discussed and agreed in this House last week, the necessity and proportionality test is established and well understood. It is difficult, therefore, to see what benefit would be derived from inserting a different test. Indeed, in order to approve an authorisation for communications data for the purpose of preventing or detecting crime, a sufficiently compelling case will always be required—a speculative authorisation would never be approved. Therefore, I suggest that the amendment responds to a concern that is fundamentally misplaced.

Turning to the serious crime threshold that this amendment would insert, assuming that the noble Baroness intends the threshold to be equal to that currently used to authorise the interception of communications, I believe once again that the amendment is inappropriate and damaging. Taking effective action against serious criminals often requires the investigation of, if I may use the phrase, lower-level individuals for activities that are not considered serious crimes in order to build a case against higher-ranked criminals. It may also include the investigation of minor offences where stopping an offender at this point may prevent an escalation of their criminal activities, such as in stalking and grooming cases.

It might be helpful if I expand on that. Placing this additional restriction on the acquisition of communications data would disrupt police investigations of online grooming and linked crimes, such as the sending of sexual communications to a child. This is because where such activity does not meet the high threshold proposed, which will often be the case if the child is over the age of 13, it may be impossible to identify perpetrators who may go on to be involved in child sexual exploitation. As such activities increasingly take place online, law enforcement agencies will rely heavily on communications data and the new power in relation to internet connection records in order to investigate this.

The amendment would also reduce the ability to investigate online fraud, which affects everyday internet users who shop or bank online, but which could, depending on the value of the fraud, fall below the serious crime threshold proposed here. Equally, the Department for Work and Pensions, for instance, investigates false tax credit claims which can result in the collective overpayment of millions of pounds of taxpayers’ money, but these false claims may not individually reach the threshold of serious crime. Communications data are currently used to investigate such activity.

I also believe that these amendments are unnecessary given the strict safeguards that already apply to the use of communications data. Data can be accessed only on a case-by-case basis and only where judged necessary and proportionate by a senior officer of a rank specified by Parliament and who is independent of the investigation. Strong judicial oversight will also be provided by the Investigatory Powers Commissioner.

I was grateful to the noble Lord, Lord Rosser, for qualifying his party’s position on this part of the Bill. We maintain that our existing regime and the proposals in the Investigatory Powers Bill are compliant with EU law, but whatever the final judgment, given the importance of communications data to preventing and detecting crime and safeguarding national security, we will ensure that plans are in place so that the police and others can continue to acquire such data in a way that is consistent with our obligation. I hope that that is helpful.

[Lord Rosser]

The Minister appears to be saying that the Government’s position is the same as ours, and that you cannot express a view on whether the law as it stands, as reflected in the Bill, meets the judgment of the European Court of Justice until we have seen and read what that judgment is.

[Earl Howe]

Indeed, but until we have seen and read what that judgment is, our view is that the Bill is compliant.

In view of the very significant impact that would flow from this amendment, I invite the noble Baroness to withdraw it.

[Baroness Jones of Moulsecoomb]

I thank all noble Lords who have given me some support: it is something that I feel very strongly about. I thank the noble Earl for his full reply. Needless to say, I am not convinced because all of the issues that he talked about are in fact potentially serious crimes, so the threshold would be satisfied.

If the noble Earl had spoken to some of the people who had been blacklisted, for example, and whose lives were basically destroyed because of illegal surveillance and co-operation by the police with various organisations, it is possible that he would have been influenced in the same way that I have been. However, in view of the noble Earl’s answer, I beg leave to withdraw the amendment.

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[Earl Howe]

My Lords, I hope that I can reassure the noble Baroness. Amendment 100A is unnecessary since the use, retention and destruction of all personal data held by public authorities, including communications data, are already regulated by the Data Protection Act 1998. That means that, once communications data have been obtained, there must be a lawful purpose for their use and ongoing retention, and they must be destroyed when they are no longer held for a lawful purpose. I would draw the attention of noble Lords to Chapter 11 of the Communications Data DRAFT Code of Practice, which sets out detailed requirements, consistent with the Data Protection Act, on public authorities about the use, disclosure, protection and destruction of the communications data they hold.

In addition, the amendment would unnecessarily, and in some cases very damagingly, require a public authority to destroy communications data it had obtained once they had been used for the purpose for which they were acquired, but other legitimate and important purposes for holding data may still exist. For example, a public authority is obliged by law to retain material it holds that has been used in evidence to support a conviction in case of appeal or to overturn a potential miscarriage of justice. It is also obliged to retain any material that is potentially exculpatory, even if it considers that it no longer requires the data for the original purpose for which it was acquired. This amendment would cut across those important tenets of our criminal justice system and I cannot imagine that that is what the noble Baroness wants to see.

I hope that, in combination, what I have been able to explain will reassure her sufficiently to enable her to withdraw the amendment.

[Baroness Hamwee]

I should obviously have included something like the words “except as otherwise required by law”. I am grateful for that explanation and I am sympathetic to the Government trying to get everything into the Bill, but here we find yet another example of another piece of legislation that we need to look at. However, it is helpful to have the explanation, and I beg leave to withdraw the amendment.

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[Earl Howe]

My Lords, I feel that I have to begin by saying to the noble Lord, Lord Paddick, that he has got this one wrong—indeed, very wrong. I am grateful to the noble Lord, Lord Carlile, the noble Viscount, Lord Brookeborough, my noble friend Lady Harding and the noble Lord, Lord Rosser, for the contributions that they have made.

The amendments seek to remove Clauses 64, 65 and 66 from the Bill, which provide that the Secretary of State may establish, maintain and operate filtering arrangements for communications data—colloquially referred to as the “request filter”—and detail the appropriate safeguards and restrictions around its use. Throughout the passage of the Bill we have repeatedly highlighted the many misconceptions and misrepresentations around the filtering arrangements, and we have demonstrated how the provisions in fact provide an important safeguard in the acquisition of communications data. It is therefore perplexing that the noble Lord, Lord Paddick, has given notice that he remains opposed to the clauses providing for the filtering arrangements to stand part of the Bill. It may therefore be helpful if I set out again what the filtering arrangements will actually do and not do.

Public authorities currently need to receive all the communications data disclosed by communications service providers in response to specific requests. In certain circumstances this amounts to more data—sometimes much more data—than are relevant to their investigation, and they will then need to determine which specific pieces of communications data are relevant. Perhaps I could illustrate with an example. The police may need to make a complex query, such as asking multiple communications service providers for data to identify an unknown person who is suspected of having committed a crime, such as armed robbery, at three different places at different times. Currently, public authorities might approach communications service providers for location data to identify all the mobile phones used in those three locations at the relevant times to determine whether a particular phone and a particular individual is linked to the three offences. This means that the public authority may acquire a significant amount of data relating to people who are not of interest but who just happened to be in the location at the time of the robbery.

The significance of the request filter is that, when a police force makes such a request, they will see only the data that they need to. Any irrelevant data about people who are not suspects will be deleted and not made available to the public authority. That is why I maintain that the filter acts as a vital safeguard, protecting privacy by ensuring that the police see only the data they need to. These amendments would remove that important safeguard—so it is perplexing, as I say, that the noble Lord wishes to do this.

To further reassure the House, I remind noble Lords of what the Joint Scrutiny Committee on the draft Bill stated about the filtering arrangements. It stated:

“We welcome the Government’s proposal to build and operate a Request Filter to reduce the amount of potentially intrusive data that is made available to applicants”.

The Joint Committee believed that the requirement upon law enforcement to state the operational purpose of accessing data through the filter and the oversight of the Investigatory Powers Commissioner will ensure the appropriate use of the filter.

The noble Lord, Lord Paddick, said that the Bill provided for unfettered access to private and confidential information. But access is not unfettered—and nor does the Bill permit fishing expeditions, as the noble Lord, Lord Carlile, rightly emphasised. The filtering arrangements can operate only in response to a specific, necessary and proportionate authorisation for the acquisition of communications data. That request must already have gone through all the existing communications data safeguards, such as authorisation by a designated senior officer of a rank specified by Parliament, who must be independent of the investigation.

I noted with some dismay the aspersions cast by the noble Lord on the likely integrity of those individuals actually retrieving the data—including, to my surprise, the integrity of the police. I am pretty shocked by the language that he used. The noble Lord also described the filter as a “database”. A database has to contain data. The filter will not hold any communications data. Once a request has been processed by the filter, any data—that is to say, all data—will be discarded. I hope that that does clear some of the fog.

The request filter will act as an important safeguard. It will ensure that police officers and others will see only the information they really need to in those cases where it is used. Accordingly, I respectfully request that the noble Lord, Lord Paddick, withdraws his amendment.

[Lord Paddick]

I thank the Minister for his remarks, and other noble Lords who have contributed. I acknowledge the great experience of my noble friend Lord Carlile of Berriew both as a lawyer and as a former Independent Reviewer of Terrorism Legislation. However, it is clearly untrue for him to say that, in his judgment, excluding the request filter from the Bill would reduce the capacity of the authorities to investigate cases. The request filter does not exist at the moment, so it cannot possibly reduce the capacity. It may restrict the capacity of the agencies in the future, but it will certainly not reduce it, because the authorities do not have a request filter at the moment. The “monster” that I alluded to is nothing other than the mechanism—the request filter—that these clauses and this amendment are all about.

My noble friend described two murder cases where convictions could not have happened were it not for the sort of data that we are talking about here. Those two convictions were obtained in the absence of a request filter, because the filter does not exist. So it is clearly nonsense for my noble friend to say that excluding the request filter from the Bill was likely to have impacted on convictions that relied on something that does not even exist at the moment.

I acknowledge the experience of the noble Viscount, Lord Brookeborough, in Northern Ireland. As the Minister said, this is not a database. It is not intelligence information that is gathered and stored. It is a mechanism—a piece of kit, if you will—that reaches out into databases held by private companies, such as the internet service provider led by the noble Baroness, Lady Harding of Winscombe, retrieves data and brings it back. As the noble Earl said, it is not about a real database but a virtual or federated one. In other words, the tool will effectively act as a database rather than being an actual one. I am sorry that, in the number of times that I have used this expression—at Second Reading, in Committee and now on Report—I have not been able to get my message across about the difference between a virtual database and a real one. But I think that it is time I stopped flogging that horse.

The noble Lord, Lord Rosser, is reassured that Clause 2, the overarching privacy clause, applies to every power in the Bill. This is not a power: it is a piece of kit, a search engine. The Government have said nothing in their response to this amendment to reassure us that Clause 2 applies to this, because it is not actually a power. The Minister used the example which I spoke to, almost exactly, when I moved the amendment. To use his word, it is “perplexing” that the noble Earl did not hear my objections to that as a good example.

The unfettered access that I am talking about is not unfettered access to data by the police and the security services, and I never suggested that it was—but there will be unfettered access by those who operate the request filter because the request filter will have direct access to the databases operated by the communications providers. So I am not saying that there would be unfettered access to data by the police and security services; what I am saying is that government officials, or those acting on behalf of the Secretary of State, would have unfettered access to these databases were the request filter to come into existence. So I, too, am perplexed that the Government have not responded positively to this amendment and I wish to test the opinion of the House.

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Moved by

[Earl Howe]

101: Schedule 4, page 222, line 16, leave out “and” and insert “or”

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Moved by

[Earl Howe]

104: Clause 71, page 57, line 1, leave out first “a” and insert “the”

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Moved by

[Earl Howe]

106: Clause 73, page 58, line 44, at end insert—
“( ) Nothing in this section prevents a person acting as a single point of contact from also applying for, or being granted, an authorisation or, in the case of a designated senior officer, granting an authorisation.”

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Moved by

[Earl Howe]

108: Clause 74, page 59, line 35, leave out subsection (8)

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Moved by

[Earl Howe]

109: Clause 75, page 60, line 25, at end insert—
“( ) this Part has effect as if the designated senior officer of the supplying authority had the power to grant an authorisation to officers of the subscribing authority, and had other functions in relation to the authorisation, which were the same as (and subject to no greater or lesser restrictions than) the power and other functions which the designated senior officer of the subscribing authority who would otherwise have dealt with the authorisation would have had, and( ) section 72(1) applies to the authorisation as if it were granted by a designated senior officer of the subscribing authority.”

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Moved by

[Earl Howe]

110: Clause 77, page 61, line 24, after “agreement” insert “for the purposes of a collaborating police force’s functions under this Part”

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Moved by

[Earl Howe]

115: Clause 84, page 66, line 5, after “notice”)” insert “and subject as follows,”

[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.

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Moved by

[Earl Howe]

116: Clause 84, page 66, line 6, after “if” insert “—
(a) ”

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Moved by

[Earl Howe]

119: After Clause 85, insert the following new Clause—
“Approval of retention notices by Judicial Commissioners
(1) In deciding whether to approve a decision to give a retention notice, a Judicial Commissioner must review the Secretary of State’s conclusions as to whether the requirement to be imposed by the notice to retain relevant communications data is necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (j) of section 58(7).(2) In doing so, the Judicial Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matters referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where a Judicial Commissioner refuses to approve a decision to give a retention notice, the Judicial Commissioner must give the Secretary of State written reasons for the refusal.(4) Where a Judicial Commissioner, other than the Investigatory Powers Commissioner, refuses to approve a decision to give a retention notice, the Secretary of State may ask the Investigatory Powers Commissioner to decide whether to approve the decision to give the notice.”

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Moved by

[Earl Howe]

120: Clause 86, page 68, line 14, leave out “the Investigatory Powers” and insert “a Judicial”

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Moved by

[Earl Howe]

122: After Clause 86, insert the following new Clause—
“Approval of retention notices following review under section 86
(1) In deciding whether to approve a decision to vary a retention notice as mentioned in section 86(10)(a), or to give a notice under section 86(10)(b) confirming the effect of a retention notice, the Investigatory Powers Commissioner must review the Secretary of State’s conclusions as to whether the requirement to be imposed by the notice as varied or confirmed to retain relevant communications data is necessary and proportionate for one or more of the purposes falling within paragraphs (a) to (j) of section 58(7).(2) In doing so, the Investigatory Powers Commissioner must—(a) apply the same principles as would be applied by a court on an application for judicial review, and(b) consider the matters referred to in subsection (1) with a sufficient degree of care as to ensure that the Investigatory Powers Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).(3) Where the Investigatory Powers Commissioner refuses to approve a decision to vary a retention notice as mentioned in section 86(10)(a), or to give a notice under section 86(10)(b) confirming the effect of a retention notice, the Investigatory Powers Commissioner must give the Secretary of State written reasons for the refusal.”

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Moved by

[Earl Howe]

123: Clause 89, page 69, line 26, after “unless” insert “—
(a) ”

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Moved by

[Earl Howe]

130: Clause 91, page 71, line 14, at end insert—
“(de) for section 83(3A) there were substituted—“(3A) A retention notice must not require an operator who provides a postal service (“the network operator”) to retain data which—(a) relates to the use of a postal service provided by another postal operator in relation to the postal service of the network operator,(b) is (or is capable of being) processed by the network operator as a result of being comprised in, included as part of, attached to or logically associated with a communication transmitted by means of the postal service of the network operator as a result of the use mentioned in paragraph (a),(c) is not needed by the network operator for the functioning of the network operator’s postal service in relation to that communication, and(d) is not retained or used by the network operator for any other lawful purpose,and which it is reasonably practicable to separate from other data which is subject to the notice.””