Investigatory Powers Bill
Earl Howe Excerpts(10Â years, 2Â months ago)
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Baroness Hayter of Kentish Town (Lab)
My Lords, I have added my name to Amendment 154 and will not repeat what has been said about it. It simply asks the Government to make explicit what they have said—namely, that the retention of third-party data will not be required. It would be helpful to make that clear in the Bill.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, as the noble Lord, Lord Paddick, has explained, these three amendments all deal with the issue of third-party data. Amendment 116 seeks to prevent public authorities from acquiring third-party data, Amendment 154 seeks to put the Government’s commitment not to require retention of third-party data on to the face of the Bill and Amendment 235 seeks to amend the definition of communications data to exclude from it third-party data.
On the acquisition of third-party data, the Bill maintains the existing position under RIPA that public authorities can acquire third-party data where necessary and proportionate to do so. But I want to be clear here—a provider is required to comply with a request for communications data, including a request for third-party data, only where it is reasonably practicable for them to do so. It is absolutely right that, where a communications service provider holds, or is able to obtain, communications data, whether in relation to its own services or those provided by a third party, then the data should be available to public authorities for the statutory purposes in the Bill. Put simply, data that already exist, are already held and which could save a life, convict a criminal, prevent a terrorist attack or provide an alibi, should not be put out of reach of law enforcement based solely on which company it is that holds the information.
Amendment 154 deals with the retention of third-party data. As I am sure the noble Lord knows, this matter was considered in the Commons, where the Government gave a commitment to consider it further. I am grateful to the noble Lord and the noble Baroness for tabling this amendment and giving me an opportunity to update the Committee on those considerations. My right honourable friend the Home Secretary has given a clear commitment that we will not require a telecommunications operator to retain third-party data, and that commitment is given effect to in the Communications Data Draft Code of Practice. However, distilling that commitment into primary legislative drafting is complex. We do not want to include provisions in the Bill that are not entirely clear in scope or which put in place restrictions that are broader, or indeed narrower, than intended. But we have been making good progress and are close to a provision that we think achieves the desired outcome. Of course, we need to test that drafting with operational stakeholders and with those telecommunications operators likely to be affected by the legislation, but we hope to be able to return to this issue on Report.
Finally, on Amendment 235, the principle of what are communications data is clear. Changing that position so that the classification of data changes depending on which provider holds them would no doubt cause confusion among providers as to how the data should be handled. While I understand the concerns around third-party data, and hope that what I have said today lays some of those to rest, amending the definition of communications data is not the right way forward. I invite the noble Lord to withdraw Amendment 116.
Lord Paddick
I am grateful to the Minister for his explanation and am encouraged by the promise of government amendments on Report. I have to say that I am still a little confused. The former Home Secretary, in her commitment, said that third-party data of telecommunications operators from abroad would not be required to be retained by UK telecoms operators. If the third-party data are of a different UK telecoms operator, surely the Secretary of State can make an order to get the data from that operator. But I will read carefully in Hansard what the Minister has said. As he has made a commitment, we will come back to this on Report. For the moment I beg leave to withdraw the amendment.
Earl Howe
My Lords, Clause 58 is the first clause of Part 3 of the Bill and deals with the targeted obtaining of communications data. It provides the power for only those public authorities listed in Schedule 4 to the Bill to authorise conduct to obtain communications data. Obtaining communications data may be authorised only when necessary for one of the statutory purposes listed in Clause 58(7) and where the conduct authorised is proportionate to what is sought to be achieved. Similarly, Clause 146(2) provides the statutory purposes for which a bulk communications data acquisition warrant will be considered necessary. Those purposes mirror the statutory functions of the security and intelligence agencies, since bulk warrants are of course available only to those agencies. They are where it is,
“in the interests of national security”,
for the prevention or detection of serious crime, or,
“in the interests of the economic well-being of”,
the UK where relevant to national security.
Throughout the passage of the Bill, we have heard repeatedly of the vital importance of communications data for the full range of law enforcement activity and national security investigations. This Government are committed to ensuring that law enforcement and the intelligence agencies have the tools they need to carry out the critical responsibilities that Parliament has placed upon them. Indeed, one of the key aims of this legislation is to ensure that investigatory powers are fit for a digital age and that crime can be investigated wherever it takes place, regardless of the method of communication. However, the Government consider these amendments unnecessary for targeted communications data and an inappropriate extension of responsibilities for our intelligence agencies for bulk communications data.
The Bill already provides that communications data may be acquired for the purpose of preventing or detecting crime, wherever that crime takes place and whatever scale it is on, where an application for communications data meets the requirements for necessity and proportionality. So it would already be available for the purpose of suppressing less serious crimes perpetrated on a large scale. I commend the aim of my noble friend Lord Lucas’s amendment but I believe that the Bill already provides the powers that he seeks.
As I said earlier, the bulk acquisition of communications data is available only to the intelligence agencies, whose statutory functions relate to serious crime and national security. The inclusion of a statutory purpose to obtain communications data in bulk so that our intelligence agencies could suppress less serious crime would therefore, in my submission, be inappropriate.
I hope that my noble friend finds those comments helpful and will feel able to withdraw his amendment.
Lord Lucas
My Lords, I thank my noble friend for his reply. I am not surprised but disappointed, but I shall certainly seek leave to withdraw my amendment.
“( ) The fact that the communications data which would be obtained in pursuance of an authorisation relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that it is necessary to obtain the data for a purpose falling within subsection (7).”
“Restrictions in relation to internet connection records
(1) A designated senior officer of a local authority may not grant an authorisation for the purpose of obtaining data which is, or can only be obtained by processing, an internet connection record.(2) A designated senior officer of a relevant public authority which is not a local authority may not grant an authorisation for the purpose of obtaining data which is, or can only be obtained by processing, an internet connection record unless condition A, B or C is met.(3) Condition A is that the designated senior officer considers that it is necessary, for a purpose falling within section 58(7), to obtain the data to identify which person or apparatus is using an internet service where—(a) the service and time of use are already known, but(b) the identity of the person or apparatus using the service is not known.(4) Condition B is that—(a) the purpose for which the data is to be obtained falls within section 58(7) but is not the purpose falling within section 58(7)(b) of preventing or detecting crime, and(b) the designated senior officer considers that it is necessary to obtain the data to identify—(i) which internet communications service is being used, and when and how it is being used, by a person or apparatus whose identity is already known,(ii) where or when a person or apparatus whose identity is already known is obtaining access to, or running, a computer file or computer program which wholly or mainly involves making available, or acquiring, material whose possession is a crime, or(iii) which internet service is being used, and when and how it is being used, by a person or apparatus whose identity is already known.(5) Condition C is that—(a) the purpose for which the data is to be obtained is the purpose falling within section 58(7)(b) of preventing or detecting crime,(b) the crime to be prevented or detected is serious crime or other relevant crime, and(c) the designated senior officer considers that it is necessary to obtain the data to identify—(i) which internet communications service is being used, and when and how it is being used, by a person or apparatus whose identity is already known,(ii) where or when a person or apparatus whose identity is already known is obtaining access to, or running, a computer file or computer program which wholly or mainly involves making available, or acquiring, material whose possession is a crime, or (iii) which internet service is being used, and when and how it is being used, by a person or apparatus whose identity is already known.(6) In subsection (5) “other relevant crime” means crime which is not serious crime but where the offence, or one of the offences, which is or would be constituted by the conduct concerned is—(a) an offence for which an individual who has reached the age of 18 (or, in relation to Scotland or Northern Ireland, 21) is capable of being sentenced to imprisonment for a term of 6 months or more (disregarding any enactment prohibiting or restricting the imprisonment of individuals who have no previous convictions), or(b) an offence—(i) by a person who is not an individual, or(ii) which involves, as an integral part of it, the sending of a communication or a breach of a person’s privacy.(7) In this Act “internet connection record” means communications data which—(a) may be used to identify, or assist in identifying, a telecommunications service to which a communication is transmitted by means of a telecommunication system for the purpose of obtaining access to, or running, a computer file or computer program, and(b) comprises data generated or processed by a telecommunications operator in the process of supplying the telecommunications service to the sender of the communication (whether or not a person).”
(ba) there is an opportunity to obtain information where—(i) the opportunity is rare,(ii) the time to act is short, and(iii) the need to obtain the information is significant and in”
Earl Howe
My Lords, in moving Amendment 124 I shall speak also to Amendment 127. We consider the requirement for an authorising officer to be independent of the operation or investigation being worked on an important safeguard and intend the exceptions to be drawn as narrowly as possible. That is why we welcomed the Intelligence and Security Committee amendments on this in the House of Commons and why we have tabled these amendments, which fully reflect the substance of the ISC’s intention and more narrowly define the national security exceptions. I beg to move.
Lord Paddick
My Lords, my noble friend Lady Hamwee and I have Amendment 126 in this group. It attempts to challenge the fact that the size of the relevant public authority, which may make it difficult to find a senior officer independent of the investigation to which the authorisation relates, makes it an exceptional circumstance, which it would be if the Bill is accepted as drafted.
Earl Howe
My Lords, Amendment 126, as the noble Lord, Lord Paddick, has just explained, concerns the independence of the authorising officer. As I mentioned a moment ago, the Bill provides for a very limited set of circumstances in which the designated senior officer need not be independent of the investigation or operation; for example, where delays in locating an independent officer may pose a threat to life, or in specific cases where the interests of national security prevent it. As we have heard, the intention behind the amendment is to ensure that an authorising officer is always, without any exceptions, independent of the investigation. I beg the noble Lord’s pardon.
Lord Paddick
I am grateful to the noble Earl for giving way. We entirely accept that some public authorities will be so small, or some investigations so important, that there cannot be someone independent of the investigation who can give the authority. As the Bill is drafted, however, simply the size of the public authority is seen as an exceptional circumstance. It is not an exceptional circumstance and the amendment attempts to allow the size of the authority to be a reason why an independent senior officer cannot give the authority without making it an exceptional circumstance.
Earl Howe
I am very grateful to the noble Lord. He is right: in some small public authorities there will be only a small number of staff sufficiently senior to take on this important responsibility. Where he and I part company is over the question of whether the rank of the designated senior officer should be lowered to ensure that there are sufficient numbers of them to always be independent of the investigation. I do not feel able to agree to that, because to do so would lower the safeguards that form an integral part of the communications data regime. Equally, I am afraid the Government are not prepared to remove these powers from some of the smaller authorities. They may be small, but they often do vital work in keeping the public safe and investigating crime.
I would be happy to discuss this further outside the forum of Committee, if that would help the noble Lord. I understand where he is coming from, but we have a fundamental disagreement of view on this.
Lord Paddick
I would just add that we do not disagree that a public authority may be so small that there is no independent senior officer who can grant the authority; the problem is whether that situation would amount to an exceptional circumstance. However, I would be very happy to discuss that situation with the noble Earl between now and Report.
( ) may cancel it at any time, and( ) ”
Lord Paddick
My Lords, Amendments 146 and 147 in this group are also in my name and the name of my noble friend Lady Hamwee. Much concern has been expressed about the number of public authorities that can intrude into people’s privacy, and as a result, restrictions have been put in the Bill. If the Bill is enacted there will be fewer public bodies with that ability, and that is to be welcomed. We therefore do not think it is right that under Clause 67 the Secretary of State should be allowed by regulation to add a public authority. Amendment 145 would delete this power from Clause 67(2)(a) and Amendment 146 would make a similar change to subsection (3).
Amendment 147 would impose a duty on the Secretary of State to consult representatives of local authorities—for example, the Local Government Association—if she intends to make regulations to change a local authority-designated senior officer to someone of lower office, rank or position, in addition to consulting each of the local authorities concerned, as set out in Clause 69(5). I beg to move.
Earl Howe
My Lords, these amendments all concern the public authorities that are able to acquire communications data. I should take this opportunity to mention a document which we published last week and which is available in the Printed Paper Office: Operational Case for the Use of Communications Data by Public Authorities. It sets out why it is essential that the authorities listed in Schedule 4 to the Bill are able to acquire communications data. It is important to recognise that the crimes they investigate are not trivial. They include offences such as bribery and corruption, defrauding vulnerable people of their life savings, stealing sensitive personal information and supplying dangerous counterfeit medicines. That document is pertinent to this group of amendments, because Amendments 145 and 146 would remove the ability of the Secretary of State to add public authorities to Schedule 4 by regulations.
I recognise the well-intentioned purpose of the amendments. However, it is not something that the Government can support because it goes against our stated aim of ensuring that the Bill is future-proofed. Although we have no plans to use the regulation-making power, and, indeed, we think it unlikely that any additional authorities will be identified, it would not be good policy to specifically rule it out. That is because communications data are an essential investigative tool for numerous investigations and they are used by a number of different authorities. As I said, we have published the operational case demonstrating why it is so essential that the authorities listed in Schedule 4 continue to be able to use these powers.
As that operational case demonstrates, the authorities that acquire communications data, including the so-called “minor users”, often do so to investigate serious crime and, in some cases, save lives. Should a new investigative body be established—for example, with a remit to investigate a specific type of serious crime—we would want the flexibility to give it the powers that it needed. Similarly, we need to be able to adapt the list if changes in the roles and responsibilities of public bodies mean that it falls out of date.
Of course, there should be full and proper scrutiny of any decisions to provide powers to an additional body. The Government will consider giving powers only where a public authority can make a robust case and, perhaps more importantly, the Bill allows a public authority to be added to Schedule 4 only under the enhanced affirmative procedure. This procedure requires additional consultation above and beyond the affirmative procedure and ensures that a parliamentary committee is provided with an opportunity to consider the draft regulations.
This power has been considered by the Delegated Powers and Regulatory Reform Committee. In her letter to the Joint Committee that scrutinised the draft Bill, my noble friend Lady Fookes reported that the committee accepted the need for the delegated power and welcomed the strengthening of scrutiny procedures under the Bill. She said that,
“the enhanced affirmative procedure ... provides an appropriate level of Parliamentary scrutiny”.
I hope that that reassures the Committee that sufficient scrutiny is already built into the process to ensure that an additional public authority would be added to Schedule 4 only where it had a robust and compelling need for the powers.
Lord King of Bridgwater (Con)
Obviously, this is a very important area, which has given rise to a lot of public concern about how widely this would go in terms of all the authorities that might have access to information in this way. But it must be right that, if there is to be a list and it is to bear the power to remove names—which the noble Lord, Lord Paddick, is not suggesting should be deleted—there must be a power to add to the list as well where appropriate. Knowing the way that Governments, bodies and names change, I can see without altering the impact at all that it would be necessary to exercise this power. Could the Minister say a little more about the committee that he was talking about? Is it a standing committee, special committee or advisory committee? When he mentioned the proposal to add somebody to the list, he said that that would be scrutinised by a committee. What sort of committee would that be?
Earl Howe
My Lords, I was referring to the procedure relating to the enhanced affirmative process. That procedure is set out in Clause 239 of the Bill. Importantly, it provides for a relevant parliamentary committee to report on the regulations. I do not think that I can be more specific at this stage. The enhanced affirmative procedure has been used in the past, albeit not very frequently, and is there as an additional safeguard. I endorse everything that my noble friend said in support of my remarks. He is absolutely right that we cannot foresee at this stage the need to add to the list, but we must and should provide for the circumstances where that becomes necessary.
Lord Paddick
I am grateful for the noble Earl’s explanation. The noble Lord, Lord King of Bridgwater, raised this important concern that people have about the range of public authorities that will be able to access this data. There is a real concern that the Secretary of State by regulation can simply add to the list included in the Bill. As a general principle, to have provisions in a Bill in order—to quote the noble Earl —to future-proof it, even if those are unlikely to be used, is not the ideal way forward. However, the enhanced affirmative procedure does give some reassurance on that issue.
On the other matters, I will read carefully what the noble Earl has said, but at this point I beg leave to withdraw the amendment.
“( ) The fact that the data which would be retained under a retention notice relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the requirement to retain the data is necessary for one or more of the purposes falling within paragraphs (a) to (j) of section 58(7).”
Lord Rosser
The intention behind this amendment to Clause 83 is to replicate the Data Retention and Investigatory Powers Act in its original form. In so doing, it would restrict the scope of Clause 83 and equate it to existing data retention provisions in DRIPA, with the only addition being the inclusion of internet connection records.
Under the Data Retention and Investigatory Powers Act, the term “relevant communications data”, as I understand it, covers internet access services, internet email and internet telephony. Those categories replicate the 2009 data retention regulations, which implemented the then EU data retention directive. The Counter-Terrorism and Security Act 2015 extended DRIPA to include what was called IP address resolution data.
Clause 83 currently empowers the Home Secretary to issue retention notices covering some six categories of data under the definition of “relevant communications data”. One of these categories is internet connection records. That therefore leaves five other categories, which on the face of it would appear to go wider than the existing data retention categories under the Data Retention and Investigatory Powers Act 2014 as amended by the Counter-Terrorism and Security Act 2015.
As the Bill is currently drafted, the term “relevant communications data” could be interpreted as some sort of catch-all definition of relevant communications data that would cover the collection of virtually any type of communication on a network, including communications where the sender or recipient was not a human being. If that is an accurate assessment, the definition of “relevant communications data” in Clause 83 would cover not only background interactions that smartphone apps make automatically with their supplier servers but presumably also the entire internet of things.
I therefore seek an explanation from the Government as to why the scope of “relevant communications data” in the Bill is not consistent with that in current recent legislation, the reasons and justification for the apparent broadening of the scope, and the difficulties that presumably the Government believe would be caused if the scope of Clause 83 were restricted in line with the amendment and instead equated to existing data retention provisions in DRIPA, apart from the addition of the inclusion of internet connection records. I beg to move.
Earl Howe
My Lords, the amendment seeks to amend the definition of “relevant communications data”—that is, the communications data that the Secretary of State will be able to require communications service providers to retain.
In looking at how the amendment is couched, I would like to bring the Committee’s attention to a statement made by David Anderson QC in his report on investigatory powers. He said that,
“any new law … must be couched in technology-neutral language”.
The Government agree. However, the amendment would go against that advice. It would seek to revert to the technical language from the data retention regulations 2009. This, in turn, as the noble Lord mentioned, was drawn from the EU data retention directive 2006, which was struck down in 2014.
I suggest to the noble Lord that it would be inappropriate to base today’s law on specific tele- communications definitions from a decade ago. For example, the amendment would ensure that we retained a reference to dial-up internet access in our legislation. That surely cannot be appropriate where broadband and mobile internet access are now the norm. The approach we have taken is to keep our definitions technologically neutral, as David Anderson recommended and as, indeed, is sensible in the drafting of any law that needs to apply across a range of technologies over time.
I hope that the noble Lord will recognise that it is not appropriate to tie our data retention regime to specific, and outdated, technological language. Those are the reasons why the Government cannot support the amendment.
Lord Rosser
Perhaps I may ask a question on that point. Not unfairly, the noble Earl made reference to regulations of some years ago, but presumably it is also accurate to say, and perhaps he could comment on this, that very recent legislation—namely, DRIPA 2014, as amended by the Counter-Terrorism and Security Act 2015—has also used the wording referred to in the amendment. Therefore, it also relates to legislation that is not particularly old and indeed is pretty recent. As I see it, we are making a change in wording from legislation that was passed only a year or two ago.
Earl Howe
The noble Lord makes what is, on the face of it, a fair point. We have language, as I have explained, that is out of date. But even where the language is not out of date in the kinds of instances that he refers to—for example, legislation refers to the “international mobile equipment identity” of devices—the rate at which telecommunications change means that that kind of language could become out of date very quickly. We try to read across the data descriptions that originated in the 2006 directive to the communications technologies of today, and do so in technology-neutral language. That is why we have departed from the approach that the noble Lord is advocating.
As the noble Lord will remember, DRIPA was emergency legislation. We simply replicated the existing language in that Bill. We now have an opportunity in the Bill before us to do rather better and try to future-proof the terms that the Bill contains.
Lord Rosser
I thank the Minister for that explanation. In the light of what he has said on behalf of the Government, I beg leave to withdraw the amendment.
“( ) The fact that additional relevant communications data which would be retained under a retention notice as varied relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the requirement to retain the data is necessary for one or more of the purposes falling within paragraphs (a) to (j) of section 58(7).”
Baroness Hayter of Kentish Town (Lab)
My Lords, I added my name to Amendments 159 and 160. Amendment 164 is in my name and that of my noble friend Lord Rosser. Our points are much the same as those made by my noble friend Lord Harris. I do not think there will be planting of evidence, for example. Our concern is much more about the risk to any public cybersecurity system, and we would want that to be taken into account. These amendments follow the recommendations of the Joint Committee. The idea is to minimise any potential risks. If, for example, the Secretary of State has to take into account any risk to the security and integrity of the networks, that by itself will ensure that any applicant sets that out in the form they submit. We hope the Government will respond, as my noble friend Lord Harris said, not necessarily by using these exact words but in the spirit of these amendments in order to retain overall security.
Earl Howe
My Lords, Amendments 159 and 160 would introduce new clauses requiring the person making an application for a warrant to make a detailed assessment of the risks of the proposed equipment interference activity to any critical national infrastructure, to the security and integrity of systems and networks, and to the privacy of those not targeted. Amendment 164 is linked to the requirement to produce risk assessments and would require the Secretary of State, when issuing warrants to the Chief of Defence Intelligence, to consider the content of these assessments when deciding whether the activity under the warrant would be proportionate. Amendment 169A would require a judicial commissioner to take into account a technical cyber risk assessment, conducted by the Investigatory Powers Commissioner, of the specific equipment interference proposed when deciding whether to approve a decision to issue a warrant.
I start by making an important general point. It seems these amendments are based on a fundamental misinterpretation of what GCHQ and others are here to do. Their role is to protect the public. That includes protecting cybersecurity. Indeed, the Government have invested very considerable resources into improving our cybersecurity efforts. Last November, the Chancellor announced the creation of a new national cyber centre led by GCHQ, with an additional ÂŁ190 million of funding.
GCHQ has an excellent track record in identifying cyber vulnerabilities and making leading computer companies aware so they can improve their security. For example, in September 2015, Apple publicly credited CESG, the information assurance arm of GCHQ, with the detection of a vulnerability in its iOS operating system for iPhones and iPads, which could have been exploited to allow the unauthorised modification of software and to extract information from the devices. That vulnerability has now been patched.
I appreciate that the noble Lords’ amendments are intended to introduce safeguards, but I contend that sufficient safeguards are already contained in the Bill. Part 5 already requires the Secretary of State or law enforcement chief to consider whether the proposed conduct is necessary and proportionate before issuing a warrant. The Government have provided even more reassurance since the discussion of these same amendments in the other place. As we have frequently reflected, Clause 2 is a new provision that sets out overarching privacy duties. It includes a requirement to have regard to the public interest in the integrity and security of telecommunication systems. This requirement applies to any decision on whether to issue an equipment interference warrant.
The draft statutory code of practice also sets out, in detail, the factors that must be considered in respect of proportionality. The code states at paragraph 3.27 that one element of proportionality that should be considered is,
“explaining how and why the methods to be adopted will minimise the risk of intrusion on the subject and others”.
It goes on to state at paragraph 3.30:
“Equipment interference activity must therefore be carried out in such a way as to appropriately minimise the risk that the activities of the equipment interference agency would result in any increase of the likelihood or severity of any unauthorised intrusion into the privacy, or risk to the security, of users of equipment or systems, whether or not that equipment is subject to the activities of the equipment interference agency”.
If noble Lords will allow me one last quote, paragraph 3.31 states:
“Any application for an equipment interference warrant should contain an assessment of any risk to the security or integrity of systems or networks that the proposed activity may involve including the steps taken to appropriately minimise such risk … The issuing authority should consider any such assessment when considering whether the proposed activity is proportionate”.
Lord Beith (LD)
An innocent citizen could be the subject of training or testing equipment interference under paragraphs (d) or (e). Are these not legitimate questions to ask on behalf of such a citizen? If it is established that there was a risk, albeit a relatively small one, who will make the judgment that it is reasonable to expose the person, his equipment and his privacy to that risk?
Earl Howe
My Lords, I hope the noble Lord will accept that, in the context of training and testing, those activities are essential if we are to have fully functioning services. It should not only be current investigations that are used for training as that could jeopardise operations. Current investigations may not give the full range of testing and training opportunities to prepare staff and equipment for all necessary eventualities. I will write to the noble Lord on the precise procedures involved in authorising testing and training as I do not have the information in front of me. However, appropriate safeguards will be built into those procedures.
I come back to the point I was making about these amendments in general. I contend that they are not necessary because the Bill and the draft statutory code of practice already require that the impact on people’s privacy, including in respect of collateral intrusion and cybersecurity, is properly considered in every single case. The draft codes will, of course, also be subject to parliamentary scrutiny and agreement before they come into force. I hope that those remarks are helpful in reassuring the noble Lord and that he will withdraw his amendment.
Lord Paddick
I thank the Minister for responding to these amendments. I have to say that I am a little sceptical. Yes, of course, as I think he just mentioned, one part of GCHQ is responsible for improving cybersecurity and identifying vulnerabilities around it. However, the role of another part of GCHQ is to breach cybersecurity in order to access information on terrorists’ and serious criminals’ devices. Indeed, when I was at GCHQ it was accepted that there was a tension between the two parts of that organisation as far as that is concerned.
I am also not convinced that it is absolutely clear and obvious in the Bill that there is a need to consider the unintended consequences of damage to networks or devices. I accept what the noble Earl says about collateral intrusion but not in terms of damage to devices or networks. However, at this stage—
Earl Howe
Before the noble Lord decides what to do with his amendment, it might be helpful if I amplify my earlier comments. It is perfectly right to say that some equipment interference operations involve taking advantage of weaknesses, generally in how users are interacting with the internet, but sometimes vulnerabilities in the software or hardware themselves. However, I also contend that the use of equipment interference does not in itself create those weaknesses. While the security and intelligence agencies might on occasion—as I say—exploit such capabilities, they are at the same time committed to making the internet as secure as possible. As I mentioned, the security and intelligence agencies regularly highlight such vulnerabilities to industry.
There is a simple point to be made here. To leave targets open to exploitation by others would increase the risk that their privacy would be unnecessarily intruded upon. It would also increase the risk of those who wish to know who our targets are identifying the security and intelligence agencies’ tools and techniques. Therefore, operations must be carried out in such a way as to minimise that risk. I come back to the point I made near the start of my remarks: the purpose of GCHQ is to protect the public in that sense.
“( ) The fact that the information which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary on grounds falling within subsection (5).”
“( ) The fact that the information which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary as mentioned in subsection (1)(b) or (2)(b).”
“( ) The fact that the information which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary as mentioned in subsection (1)(a).”
“( ) The fact that the information which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary as mentioned in subsection (1)(a).”
(a) ”
( ) 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).”
Lord Rosser
Since the issue of the Wilson doctrine has been raised, perhaps I could refer to the recent report from the Select Committee on the Constitution. It referred to the Wilson doctrine and made particular reference to a case decided last year, where,
“the Investigatory Powers Tribunal held that the Wilson Doctrine provided fewer safeguards for parliamentarians’ communications than had commonly been supposed”.
The Select Committee ended that section of its report by saying:
“We note that the surveillance of parliamentarians is a significant constitutional issue and would welcome clarification from the Government of its current understanding of the Wilson Doctrine”.
Do the Government intend to give an indication of their current understanding of the Wilson doctrine, in line with the views expressed in that recent report from the Select Committee on the Constitution?
Earl Howe
My Lords, Amendment 169AA would remove the role of the Secretary of State and law enforcement chiefs from the warrant authorisation process, in circumstances where an equipment interference warrant is sought for the purposes of acquiring the communications or private information of a Member of a relevant legislature. This proposal reflects an earlier amendment discussed by this Committee in the context of interception. As I understood her, the noble Baroness, Lady Jones, is concerned that the safeguards contained in the Bill politicise the process of authorising a warrant. I do not share that perspective at all.
As my noble and learned friend Lord Keen said when we first discussed this matter, this amendment would in fact reduce the safeguards for parliamentarians. In line with the commitment given by the previous Prime Minister last November, the Bill provides a triple lock where warrants concern a parliamentarian’s communications or private information: they must be issued by the Secretary of State; approved by the Prime Minister; and authorised by a judicial commissioner. The Bill goes even further in the context of equipment interference warrants issued to law enforcement agencies, which are issued by a law enforcement chief and must be approved by the Secretary of State, the Prime Minister and an independent judicial commissioner.
I will not rehearse the arguments for the double lock at this point, but it is important to remember, as the noble Lord, Lord Murphy, reminded us, that it was endorsed by the Joint Committee of Parliament that scrutinised the draft Bill and, following amendments made in the other place, enjoyed cross-party support. The additional safeguards provided for parliamentarians add an extra layer of checks to the process. I do not share the perception of the noble Baroness, Lady Jones, that the process introduces the risk of political bias. In fact, I find it difficult to see what possible benefit would accrue from removing one of the checks that we now propose—that regarding the Secretary of State or law enforcement chief. In view of that, I respectfully invite the noble Baroness to withdraw her amendment.
I will move on briefly to the amendment tabled by the Government. Amendment 173 is—this answers the question from the noble Baroness, Lady Hamwee—a small, technical amendment that simply corrects the omission of a definition from Clause 114. The amendment adds the appropriate definition of a “designated senior official” to the clause, informing the reader of the persons to whom the provision applies. We do not think that there is any need to revisit the relative definitions in other parts of the Bill, and the amendment does not change how the equipment interference regime operates in any way.
The noble Lord, Lord Rosser, asked about the Government’s view of the Wilson doctrine. As he will be aware, in its judgment of 14 October the IPT comprehensively rejected the claim brought by a number of parliamentarians that their communications were improperly intercepted and found that all activity was within the law. The IPT also found that MPs’ communications with their constituents and others are protected by RIPA, the statutory legal regime, and that the regime governing the interception of MPs’ communications is compliant with the European Convention on Human Rights.
In February 2015, the Government published an updated draft code of practice on the interception of communications, which explicitly recognised the importance of communications between constituents and their elected representatives. In consequence, the Bill now provides for this in statute by setting out a role for the Prime Minister in authorising warrants which target a parliamentarian. I hope that that is helpful.
Lord Beith
I have to ask the Minister to address the Wilson doctrine just to this extent. Given the statutory provision which he and I both now support, what kind of statement does he envisage would be made by a Prime Minister to the House of Commons on the lines first envisaged by Harold Wilson so long ago? How can that possibly be a relevant proceeding now that these statutory provisions will be in place?
Earl Howe
My Lords, as I understand it, the Wilson doctrine committed the then Government to returning to Parliament if there was a change of policy. Clearly, now that we are enshrining what I think by common consent is a good formula for protecting parliamentarians, the need for a Government to come back to Parliament to announce a change in policy would have to be followed up, if it were done, by further primary legislation. I cannot envisage that and simply do not foresee that contingency. Through the Bill, we are now in a stronger and clearer position on the protection of parliamentarians and their communications with constituents than we were before.
Baroness Jones of Moulsecoomb
I thank the noble Lords who have made kind comments, even if they disagreed with me. We are not going to agree on the double or treble lock because, quite honestly, if you have two people from the same background or discipline agreeing with and corroborating each other—whether police chiefs or politicians—I think that there is the possibility of bias and that people outside this Chamber will see that as well.
I have heard several times in our debates the idea that we have to give the security or intelligence services the tools that they need to do the job. Personally, I heard that quite a lot with reference to the Met Police when I was on the Met Police Authority. In fact, while the Met and the intelligence services can be somewhat like a greedy child at Christmas, wanting more and more toys, it was the current Prime Minister who said “Enough” to the police. When the previous Mayor of London, Boris Johnson, wanted water cannon to be used on the streets of London, Theresa May MP said that, no, she would not authorise it. So sometimes you have to say no because it is not the right thing—the right powers or toys to give to a department.
This is a monstrous Bill which, in essence, means the end of privacy for us all. It is very important that we get these things right, so I welcome all the debate that we are having. I beg leave to withdraw the amendment.
““designated senior official” means a senior official who has been designated by the Secretary of State or (in the case of warrants issued by the Scottish Ministers) the Scottish Ministers for the purposes of this section.”
Investigatory Powers Bill
Earl Howe Excerpts(10Â years, 2Â months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, Amendment 176A seeks to replace the statutory appointment of an Investigatory Powers Commissioner with the creation of an investigatory powers commission. This topic was discussed in detail, and voted on, in the other place, which agreed with the government position that establishing a commission was not necessary.
I am afraid I remain unconvinced of what practical good this amendment would do. The powers and duties on the proposed body would remain exactly the same as the responsibilities of a commissioner. The number of inspectors, technical experts and judicial commissioners employed by the organisation would remain exactly the same. In fact, as the noble Lord, Lord Strasburger, indicated, the only things that would increase would be the expense of the body to the taxpayer and the bureaucracy that it would be faced with. The body would need to be provided with a range of staff to perform corporate functions on its behalf, including its own IT people for when the printers break, its own procurement people to buy the stationery and so on.
Lord Strasburger
I just wonder whether all the expenditure that the Minister is listing does not apply just as much to the commissioners as to any commission.
Earl Howe
No, I do not believe it does. A lot of these overheads, such as those relating to back-office functions, can be shared with other arms of the executive, so my advice is that these would be extra costs that would have to be paid for by the new body.
The new commission will also have to appoint a board and at least three non-executive directors. That would certainly add significantly to the expense of creating a new oversight body with, I contend, very little benefit in the quality of the oversight that it provides. Creating a commission would not serve to advance independence, which was one argument put forward by the noble Baroness. The current oversight bodies, the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner, are provided for in statute in the same way as we propose to provide for the Investigatory Powers Commissioner. The model we propose will allow the oversight bodies to focus on their core tasks of inspections and investigations without tying them up in too much administration; that is a sensible approach. I hope that the noble Baroness will feel able to reflect on that between now and Report.
As for the comment that the model we propose does not respond to the recommendations about separating powers, it will be for the Investigatory Powers Commissioner to decide how to arrange and run their office. The commissioner will have responsibility for two distinct functions and will have sufficient staff to undertake them independently of each other. However, as David Anderson recognised, there are distinct advantages in having that relationship, even if it is an arm’s-length one, between the two functions. An example of where David Anderson felt that the relationship will be useful is when the judicial commissioners could specifically advise the inspectorate on matters to look out for on their inspections. The dialogue would be lost if the two functions were kept completely distinct.
Baroness Hamwee
Before the noble Earl moves on, 20 minutes ago I was not hugely enthusiastic about a single body; I have become a little more so as the debate has gone on. I have one question and another point. Have the current commissioners been consulted about the Bill’s proposals for the structure? What is their view about a single body as distinct from the parallel arrangements? Secondly, I absolutely understand that if you create a new body you create the need for some administrative—bureaucratic, if you like—arrangements, but for the argument to hinge too much on savings really worries me. As my noble friend says, surely, from paperclips onwards, the needs will be identical. If savings are expected from this, there must be concern that the functions will be affected.
Earl Howe
I understand the noble Baroness’s strength of feeling on this. Part of the purpose of our debates in Committee is to enable all of us to reflect on the points that have been made between now and Report, and I will certainly go away and do that. The answer to her first question is yes, the current commissioners were consulted about bringing the functions together into a new commissioner, and they approve of creating that single function.
Amendment 194A would require the Secretary of State to provide the judicial commissioners with support and assistance. While I agree with the intention behind the amendment, it is unnecessary. In terms of support, Clause 213 already places a duty on the Secretary of State to provide the IPC with staff, accommodation, equipment and other facilities. As regards assistance, Clause 211 requires the Secretary of State to provide the IPC with any access and assistance as necessary to fulfil its functions. Amendments 194B and 194BA are more specifically about the funding and resources that the IPC receives from the Secretary of State.
I fully support the principle that the IPC should be both well resourced and well supported. The impact assessment the Government have published makes it clear that the predicted future funding of the IPC is £7.4 million per annum. That is an increase of 131%—well over double—when compared to the combined funding that the existing commissioners received before the Bill was introduced. I also appreciate that the needs of the commissioner may change over time. Therefore, Clause 210(2)(d) makes it clear that the annual report of the IPC must contain information about,
“funding, staffing and other resources”.
I am certain that the IPC would use this opportunity to alert the Prime Minister if it felt that it was under-resourced in any fashion. The Prime Minister must then lay this report before Parliament, so Parliament could then take up the cause of the IPC if we ever reached that state of affairs. Therefore, I do not believe that Amendments 194B and 194BA are necessary.
Amendments 194E and 194F propose changes to Clause 220 of the Bill. This clause provides for the continued existence of a technical advisory board, currently provided for in Section 13 of RIPA. It also provides for the make-up of the technical advisory board to be prescribed by the Secretary of State in regulations. Amendment 194E would make a minor change to this clause. From what the noble Baroness said, I do not think that the purpose of the amendment is to ensure that the membership of the existing board is replaced in its entirety—that we should scrap the existing board and start from scratch. If I am wrong about that, perhaps she could indicate as much, but I did not gather that from her comments. But it might be helpful for me to provide some additional information about the make-up of the current board.
Current board members were appointed from the very small pool of people who have knowledge of the cost and technical feasibility of developing the technical capabilities used to give effect to warrants. In line with RIPA and the provisions in this clause, there is a balance of representation from the telecommunications industry and from the agencies entitled to apply for warrants or authorisations under the Bill. The role of these experts is to advise the Secretary of State on cost and technical grounds if an interception notice given under RIPA is referred for review.
The Investigatory Powers Bill extends this important safeguard to data retention notices, national security notices and all technical capability notices. It is of course right that board members must be able to meet the requirements of this new role. So, in response to the recommendations of the House of Commons Science and Technology Committee on the draft Investigatory Powers Bill, the Government committed to audit the membership of the current board to identify any gaps in knowledge; those will be addressed as a priority through the recruitment of new members.
It may be helpful for me to make the Committee aware that the board’s independent chair may, if required, call on external expertise to assist the group in deciding reasonable costs and the technical feasibility of an obligation. Furthermore, regulations under Clause 220 may also provide for other persons to be appointed to the board as the Secretary of State considers appropriate. This ensures that the technical advisory board is sufficiently flexible to be able to seek particular expertise as required.
I note that the noble Baroness feels that the word “continue” is inappropriate in this context, but I argue the opposite. If the board exists at the moment, it is perhaps not the right thing implicitly to deny its existence by failing to include a word that acknowledges the fact. I hope that we are not dancing too much on the head of a pin there, and that she will not insist on the change that she has proposed.
Lord Rosser
Will the noble Earl respond in writing on the point on the part of the report by the Select Committee on the Constitution which states:
“The House may wish to consider whether it would be appropriate for an independent court to be prevented from disclosing information if it considers it necessary in the interests of justice”?
Is that the issue on which the Government are going to respond?
Lord Rosser
There is one more point. In response to Amendment 194BA on funding, the noble Earl said that Clause 210 already requires the Investigatory Powers Commissioner to make an annual report to the Prime Minister. The Select Committee on the Constitution was of course aware of that at the time when it made its report, since it comments:
“The Prime Minister is required to publish the report but has a power to order redactions”.
I wonder why the Government do not therefore feel able to go down the road of the Select Committee recommendation over the Investigatory Powers Commissioner having the right to make written representations to Parliament, because they argue it on the grounds of the requirements of judicial independence and the need for public trust and confidence in the system. They say, in suggesting that the Investigatory Powers Commissioner might have the right to make written representations to Parliament, that that is,
“akin to the right conferred on the Lord Chief Justice by section 5 of the Constitutional Reform Act 2005”.
I am not sure why the Government are in effect rejecting the suggestion from the Select Committee on the Constitution, which knew at the time when it made that suggestion that Clause 210 required the commissioner to make that annual report but commented that although the Prime Minister is required to publish it, he has a power to order redactions. That is therefore slightly different from the Investigatory Powers Commissioner having the right to make written representations to Parliament directly, and it is a right that is akin only to that already conferred on the Lord Chief Justice under the Constitutional Reform Act 2005.
Earl Howe
I understand the point made by the noble Lord, but I think it would be unimaginable that Parliament would not protest if there were a redaction in the report around the commissioner’s funding. Redactions, in any case, are made only on national security grounds, not on matters of this nature. Nevertheless, I will consider carefully over the summer period what the noble Lord has said, and no doubt we can return to these matters at a later stage.
Baroness Hamwee
My Lords, I have been listening to what the Minister has been saying. It is not too much of a stretch to imagine an argument that goes, “We can’t publish comments about the funding available because that would give clues about the severity of the security system situation or about the effort that is or is not going into dealing with it”, so it is a serious point. Regarding the phraseology in Clause 220, I was never much of a dancer so I hope the Minister will forgive me. I accept that it is a continuation of an existing board, but that is not how it appears in the Bill. I think it would benefit from being anchored by a reference to the existing board. I do not want to bring back such a minor point on Report, so I thought I would make it now and see if it gained any traction.
Investigatory Powers Bill
Earl Howe Excerpts(10Â years, 2Â months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, Clause 48 maintains the position set out in RIPA that interception is lawful in certain circumstances in psychiatric hospitals. The clause sets out that interception is lawful if it takes place in any hospital premises where high-security psychiatric services are provided and is conducted in pursuance of, and in accordance with, any relevant direction given to the body providing those services at those premises.
While the clause provides that the interception is lawful, it is the relevant direction under the National Health Service Act 2006, the National Health Service (Wales) Act 2006, the National Health Service (Scotland) Act 1978, or the Mental Health (Care and Treatment) (Scotland) Act 2003, that sets out how and when the interception may be conducted—that is not a function of this Bill.
Clause 49 provides that certain interception carried out in relation to immigration detention facilities is lawful. The Immigration and Asylum Act 1999 contains powers for the Secretary of State to make rules for the management of immigration detention facilities, and Clause 49 provides that interception carried out in accordance with those rules will be lawful. At present, rules have been made only in respect of immigration removal centres—the Detention Centre Rules 2001. The interception of communications in relation to immigration removal centres, in line with the statutory rules, is purely for the purposes of maintaining the security of those centres or the safety of other persons, including detainees. It is right that officers should be able, for example, to intercept attempts to send controlled drugs or other contraband material into particularly sensitive and secure environments.
Contrary to speculative claims, this power can never be used to determine the outcome of any person’s asylum claim. Again, the precise circumstances in which interception may take place in immigration detention facilities are not a matter for the Bill. To be clear, the purpose of this clause is not to determine rules relating to the management of immigration detention facilities. The purpose of the clause is simply to make clear that conduct authorised and regulated under existing legislation—specifically, the Immigration and Asylum Act 1999—would be lawful.
Rules made under the 1999 Act about the regulation and management of detention facilities are subject to negative resolution, as specified in the Act and as agreed by Parliament. Such rules in relation to interception would be based on the clearly legitimate purposes already contained in the Detention Centre Rules 2001. The interception of communications in relation to immigration removal centres, in line with the statutory rules, is purely for the purposes of maintaining the security of those centres or the safety of other persons, including detainees, as I explained.
I hope the noble Baroness will accept that the amendments are unnecessary and that the clauses should stand part of the Bill.
Baroness Hamwee
My Lords, I have found it difficult throughout the Bill to accept that something is necessary just because it is in RIPA or is currently in effect. I am afraid I gave up chasing through the references in Clause 48—I thought my iPad was going to give out on me if I asked www.legislation.gov.uk any more questions on Sunday morning. I should have pursued this, and for that I apologise to the Committee. I think I am reassured by the explanations I have. I will go away and read the record, but I am grateful to the noble Earl.
Earl Howe
My Lords, in moving Amendment 73, I will speak also to Amendments 74, 75 and 76. I can be brief. These amendments add further conditions to Clause 50, which provides for circumstances in which a telecommunications operator may intercept communications in response to a valid overseas request. The additional conditions clarify that the Secretary of State must designate those international agreements to which this clause applies and require that the interception must be for the purpose of obtaining information about communications of people known, or believed to be, outside the United Kingdom. I beg to move.
“( ) the duties imposed by section 2 (general duties in relation to privacy);”
Baroness Hayter of Kentish Town
My Lords, as was mentioned, Amendment 89 stands in my name and that of my noble friend Lord Rosser. Clause 222(6) contains what is to me the unusual phrase:
“Different levels of contribution may apply for different cases or descriptions of case but the appropriate contribution must never be nil”.
“Must never be nil” is a slightly strange phrase, especially given that someone who, until a few hours ago, was the Home Secretary but is now the Prime Minister said on Second Reading:
“I reiterate … that … 100% of the compliance costs will be met by the Government”.
She was asked to provide a long-term commitment for that and said,
“we are clear about that in the Bill … it is not possible for one Government to bind the hands of any future Government in such areas, but we have been clear about that issue”.—[Official Report, Commons, 15/3/16; col. 821.]
However, being clear about the contribution which must never be nil is not what I call clarity.
Amendment 89 simply takes the then Home Secretary’s words as used in Parliament that the Government would meet 100% of the compliance costs, with full cost recovery for communication service providers, which, after all, have to implement the legislation. It is important to write it into the Bill to ensure that the financial impact of the legislation is transparent, not hidden, and to give forward confidence to those companies, whose activity in this country is already a little wobbly thanks to Brexit, that they will not at some point be hit by unexpected and unavoidable costs.
As was mentioned, Amendment 89 also allows for a proper audit to ensure that operators do not provide unduly high costings. Obviously, they can make no profit from these procedures because they are a departure from normal business, but they need those costs to be met. Cost recovery could be significant, but the Bill does not seem to put any limit on it at present. We will depend on the good will of these companies to make the Bill effective. We should not charge them for their willingness as well.
Earl Howe
My Lords, this amendment seeks to ensure that communications service providers are fully reimbursed for their costs in connection with complying with obligations under this Bill, and that arrangements for doing so are in place before the provisions in the Bill come into force. It is, of course, important to recognise that service providers must not be unduly disadvantaged financially for complying with obligations placed upon them. Indeed, the Government have a long history of working with service providers on these matters. We have been absolutely clear that we are committed to cost recovery. I want to reaffirm to the Committee a point that my right honourable friend the Security Minister made very clear in the other place: 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. I hope that that assurance is helpful.
The key question that this Committee needs to consider is whether it is appropriate for the Government of today to tie the hands of future Governments on this issue. I wonder whether, on reflection, the noble Baroness thinks it right to press for that. That does not mean that we take our commitment lightly or that future Governments will necessarily change course. Indeed, I suggest that it is unlikely ever to be the case; 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.
This Government have been absolutely clear that we practised cost recovery and we have been consistent in our policy for a very long time. Indeed, this Bill adds additional 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 also means that the provider would be able to seek a review of any variation to the notice which affected the level of contribution. The Government already have arrangements in place for ensuring that providers receive appropriate contribution for their relevant costs without delay, so the amendment that seeks to ensure that they are in place before the provisions come into force is, I suggest, unnecessary. Accordingly, I invite the noble Baroness to withdraw her amendment.
Baroness Hamwee
My Lords, I wrote down a number of phrases, including “not unduly disadvantaged”. In the light of the absolute, clear commitment to full cost recovery, I wonder whether “unduly” is the right term. I also wrote down “100% of reasonable costs” that ought to be covered by the audit provision. The noble Earl has just referred to an appropriate contribution for relevant costs. I am sure he will understand where I am going with these terms.
The noble Earl asks whether it is appropriate to tie the hands of future Governments. I would say that in this instance it is appropriate, because a future Government can bring forward future legislation and that would be the way to do it—not to seek to resile from what everyone regards as a very important commitment given, but where there is a detraction from it in the terminology of Clause 222. I do not know whether the noble Earl is in a position to make a comment about “unduly” now. I suspect he is not. It is a rather unfair question from me.
Earl Howe
We are clear that it is important to ensure that communications service providers are neither advantaged nor disadvantaged by obligations imposed under the Bill. The Government will maintain, therefore, their long-standing policy of making a reasonable contribution to costs, but it is unthinkable that the Government would seek to place any unreasonable financial burdens on a company simply for complying with a warrant. So we are talking about reasonable costs. That is surely right. It is not appropriate for the taxpayer to subsidise unreasonable costs, but as I have said, we have made a commitment to reimburse 100% of reasonable costs incurred by the communications service providers, and that includes both capital and operational costs.
(a) this Act;(b) the Intelligence Services Act 1994;(c) the Regulation of Investigatory Powers Act 2000;(d) the Regulation of Investigatory Powers (Scotland) Act 2000 (2000 asp 11).”
Earl Howe
My Lords, I shall also speak to the other government amendments in this group. These amendments seek to make minor changes to the notice-giving provisions in Part 9 of the Bill. Clause 225 provides for the Secretary of State to give a notice to a telecommunications operator in the United Kingdom requiring it to take steps in the interests of national security. Such a power is a critical tool in protecting our national security.
The power can only be exercised if the Secretary of State is satisfied that the steps required by a notice are necessary in the interests of national security and proportionate to what is sought to be achieved. The Government amended the Bill in the other place to provide for the application of the double-lock authorisation process to national security notices. This means that a national security notice could not be given unless a judicial commissioner had approved it.
This will replace the existing power in Section 94 of the Telecommunications Act 1984 which has been used for a range of purposes, including for the acquisition of communications data in bulk. This is now provided for in Part 6 of the Bill. Section 94 of the Telecommunications Act will be repealed. The power provided for by this clause will be used for a much narrower set of purposes than Section 94, but those purposes are nevertheless critical to our national security. The type of support that may be required from communication service providers includes the provision of services or facilities which would assist the intelligence agencies to carry out their functions more securely, or in dealing with an emergency as defined in the Civil Contingencies Act 2004.
A national security notice cannot be used for the primary purpose of obtaining communications or data. Clause 225(4) provides that a national security notice may not require the taking of any steps the main purpose of which is to do something for which a warrant or authorisation is required under the Bill. This amendment makes it clear that it is also the case that a notice may not require the taking of any steps the main purpose of which is to do something for which a warrant or authorisation is required under legislation which authorises the use of investigatory powers.
Amendment 90 lists the other statutes that provide for agencies to obtain data covertly—namely, the Regulation of Investigatory Powers Act 2000, the Regulation of Investigatory Powers (Scotland) Act 2000 and the Intelligence Services Act 1994. The amendment puts it beyond doubt that a national security notice cannot be used to circumvent the need to obtain a warrant or authorisation provided for in the Bill or in other relevant statutes.
I turn to Clause 226, which provides for the Secretary of State to give a technical capability notice to a telecommunications or postal operator requiring the operator to maintain permanent technical capabilities. The power builds on the current power in the Regulation of Investigatory Powers Act 2000 where a company can be obligated to maintain a permanent interception capability. The purpose of maintaining a technical capability is to ensure that, when a warrant is served, companies can give effect to it securely and quickly. The provision is particularly important when law enforcement or the security and intelligence agencies need to work at pace to identify and counter the actions of those who pose an immediate threat to the UK.
Subsection (7) of that clause provides for a technical capability notice to specify the period within which the steps set out in the notice are to be taken by the relevant operator. In practice, it will often be the case that a notice will require the creation of new technical systems. The time taken to design and construct such a system, including developing new pieces of technical hardware and implementing appropriate security measures, may lead to different elements of the notice taking effect at different times.
Government Amendments 94 and 95 propose a minor change to subsection (7) of the clause to make it clear that, where appropriate, a notice will permit different steps required in the notice to be taken at different times. The amendment will provide clarity to operators and ensure that the Bill reflects what needs to happen in practice. The Government propose a further minor amendment to the notice-giving provisions, this time to Clause 229, which provides for the Secretary of State to vary or revoke technical capability notices and national security notices.
Amendment 106 reads across provisions in Clause 228 that provide for the primacy of national security notices over aspects of the Communications Act 2003. The amendment does not change the effect of the provision but would make explicit that, when a national security notice is varied under Clause 229, the obligations in the notice as varied continue to have primacy over obligations imposed by Part 1, or Chapter 1 of Part 2, of the Communications Act 2003. The amendment replicates a provision previously provided for in the Telecommunications Act 1984, as amended by the Communications Act 2003, and removes any ambiguity about how the obligations set out in a national security notice as varied relate to those provided for in relevant parts of the Communications Act 2003.
Lastly, the Government propose Amendments 107, 110, and 111 to Clause 230. This clause makes provision for a person to request a review of the requirements imposed on them in a technical capability notice, or a national security notice. A person may refer the whole or any part of a notice to the Secretary of State for review after a notice is given or varied. The Government amended the Bill in the other place to provide for the double lock to be applied to the giving of notices. This means that a judicial commissioner must approve the Secretary of State’s decision to give a notice. The amendments that we are now considering would revise the review process to reflect this new role.
The proposed revised process is as follows: before reaching a decision on the outcome of the review, the Secretary of State must consult a judicial commissioner and the technical advisory board. The technical advisory board, a group of experts drawn from telecommunications operators and the intercepting agencies, will be required to advise on the technical feasibility of the requirements set out in a notice and the costs. The judicial commissioner will consider the requirements imposed by the notice on proportionality grounds.
As was previously the case, the judicial commissioner and the technical advisory board will be required to provide an opportunity for the person to whom the notice has been given and the Secretary of State to present evidence or make representations. The conclusions of the judicial commissioner and the board will be reported to the person and the Secretary of State. After considering these conclusions, the Secretary of State may decide to confirm the effect of the notice, vary the notice or withdraw it. Where the Secretary of State decides to confirm the effect of a notice or vary a notice, the Investigatory Powers Commissioner must approve the decision. Until the commissioner has approved the review decision, there is no requirement for the person who has referred the notice to comply with the specific obligations under review.
These amendments will strengthen the review process and will properly reflect the role of a judicial commissioner in approving the decision to give a notice. I hope the Committee will feel able to accept these amendments, and I beg to move.
Lord Paddick
My Lords, my noble friend Lady Hamwee and I have three amendments in this group. As a means of probing concerns about both national security notices and technical capability notices, we are suggesting that Clauses 225 and 226 stand part of the Bill, but we propose, in Amendment 92, that the provision in Clause 226(5)(c),
“obligations relating to the removal by a relevant operator of electronic protection applied by or on behalf of that operator to any communications or data”,
be deleted. These provisions are some of the most concerning for communications companies and the technology sector in the UK as they appear to provide open-ended and unconstrained powers, although I accept that the amendments that the Government have put forward today, as outlined by the Minister, provide significantly more oversight than was originally suggested in the Bill.
National security notices can require a communications provider in the UK,
“to carry out any conduct, including the provision of services or facilities, for the purpose of”—
this is in Clause 225(3)(a)(i)—
“facilitating anything done by an intelligence service under any enactment other than this Act”.
So the power is not limited to facilitating the use of powers under the Bill but any other legislation as well. The power is to do anything that the national security notice requires.
Technical capability notices enable the Government to require communications operators to comply with any “applicable obligations” specified in the notice, and the recipient must not only comply but must not disclose that they have been served with the notice, seemingly including, under Clause 226(5)(c), to remove encryption. However necessary or proportionate such notices may be—and I accept that, with the double lock now in place, that will be tested—there could be a suspicion that UK communications companies and the UK technology sector are subject to such notices, undermining customer confidence in the security of the network or device that they are using.
Although such a notice may be served to persons outside the UK, and may require things to be done outside the UK, such notices are not legally enforceable outside the UK. As well as undermining public confidence in the security of UK networks and technology, such notices have the potential to act as a competitive disadvantage to UK technology businesses. Instead of the power to force a company to remove encryption from a whole service or technology, alternative and more targeted powers should be used instead.
Lord Harris of Haringey (Lab)
My Lords, first, I should draw attention to my interests in the register on policing and counterterrorism matters. Secondly, I should make clear that my starting point on the Bill is that it is important that the developing gaps in access to communications data are addressed to protect the nation against all sorts of threats.
In any set of counterterrorism or counterespionage measures, or whatever else it might be, you have to look at the balance and weigh the benefit to the nation in protecting its citizens by having those powers against the potential downside or consequences of exercising them.
When we come to the question contained in this group of amendments—essentially about enabling or requiring companies to break the apparent encryption—we have to look carefully at the potential downsides presented by this. The first downside, or danger, is that by enabling this to happen—by creating the mechanism and requiring companies, as my noble friend Lady Hayter said, to make new arrangements so that encryption can be broken—you create a back-door mechanism. This would be available not just to the forces of good—those who are trying to protect all our security—but to cybercriminals and those who would do us ill. Therefore you need to weigh clearly what you are trying to do against whether you are creating something that will make it easier for criminals and those who would do us harm.
The second element is the extent to which what we do in this country sets a precedent that will be seized in other countries, whose interests may not be the same as ours or as positive as ours towards their citizenry. If we create that precedent, what is to prevent Governments in other countries saying that they want the same powers and therefore doing the same? That test has to be applied to quite a number of the measures in the Bill. As I say, my starting point is that I want the state to be able to fill the gap in its access to communications data that is emerging and opening up. However, I want to hear from the Government a clear explanation of why in this set of cases the benefits outweigh the potential disbenefits.
Earl Howe
My Lords, a number of amendments here separately seek to remove the encryption provisions from Part 9 or propose modifications to them.
I will begin with Amendments 92, 102 and 103, which propose removing the encryption provisions from Clauses 226 and 228. If these are anything other than probing amendments, I have to say that they are irresponsible proposals, which would remove the Government’s ability to give a technical capability notice to telecommunications operators requiring them to remove encryption from the communications of criminals, terrorists and foreign spies. This is a vital power, without which the ability of the police and intelligence agencies to intercept communications in an intelligible form would be considerably diluted.
Let me be clear: the Government recognise the importance of encryption. Encryption 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. However, law enforcement and the intelligence agencies must retain the ability to require telecommunications operators to remove encryption in limited circumstances—subject to strong controls and safeguards—to address the increasing technical sophistication of those who would seek to do us harm.
Encryption is now almost ubiquitous and is the default setting for most IT products and online services. If we do not provide for access to encrypted communications when it is necessary and proportionate to do so, 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 cannot be right.
These provisions simply maintain the current legal position in relation to encryption and go no further. They retain the ability of law enforcement and the security and intelligence agencies to require companies to remove encryption that they have applied, or that has been applied on their behalf, in tightly prescribed circumstances. It would not—and under the Bill could not—be used to ask companies to do anything that it is not reasonably practicable for them to do.
The safeguards that apply to the use of these provisions have been strengthened during the Bill’s passage through Parliament. First, the “double-lock” authorisation process now applies to the giving of notices, which means that a judicial commissioner must approve the Secretary of State’s decision to give a notice. The Secretary of State must also consult the relevant operator before a notice is given. The draft codes of practice, which were published alongside the introduction of the Bill, 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 includes any obligations relating to the removal of encryption—it should raise them during the consultation process. Furthermore, the new privacy clause in the Bill requires that regard be given by the Secretary of State to the public interest in the integrity and security of telecommunications systems when deciding whether to give a technical capability notice.
Lord Paddick
Can the Minister comment on the fact that increasingly, encryption is end-to-end, and can he say whether national security notices and technical capability notices would be of any use in circumstances where people were using end-to-end encryption? Can he also comment on a suggestion that instead of these notices, targeted equipment interference would be more useful in that it could deal with the problem of end-to-end encryption?
Earl Howe
Certainly, targeted equipment interference is, if you like, the next step should interception not be possible for any reason. However, I will answer the noble Lord’s first question, on end-to-end encrypted services. We start from the position that we do not think that companies should provide safe spaces to criminals to communicate. They should maintain the ability, when presented with an authorisation under UK law, to access those communications. We will work with industry to ensure that, with clear oversight and the legal framework I have in part alluded to, the police and intelligence agencies can access the content of terrorists’ and criminals’ communications when a warrant has been approved in the usual way.
We will of course consider what steps are reasonably practicable for an individual telecommunications operator, taking account of a range of factors, including technical feasibility and likely cost. We recognise that what is reasonably practicable for one telecommunications operator may not be for another, so any decision will have regard to the particular circumstances of the case. However, I cannot go into our relationships with individual companies, as the noble Lord will understand. It is important to understand that the Bill does not ban encryption or do anything to limit the use of fully encrypted services.
Lord Strasburger
I thank the Minister for giving way. I think this is the first time I have heard the Government admit that the phrase “removal of electronic protection” does in fact refer to encryption.
I want to emphasise—and anybody in the cryptography industry will spell this out—that you cannot have it both ways. Either encryption is secure, or it is not; it cannot be insecure for a small group of users and secure for everybody else. Once encryption is weakened, it is weakened for everyone and once this is done at the request of the Government, it is available to all the people I listed earlier who would do us harm. I would also point out that there are a myriad of encryption products available outside the UK—ISIS has its own set, and I have seen the manual. There are any number of ways that people who want to use encryption for malign purposes can acquire it and use it in a way that UK companies cannot break.
Lastly, when I was at GCHQ, it seemed fairly relaxed about the threat of encryption because it is very confident that it can use the other means we have referred to, such as equipment interference, to get the unencrypted data it wants. But the main point, which the Government really do have to take on board, is that encryption is either strong or it is not. It cannot be partially strong—that is, strong for most and weak for the Government.
Earl Howe
I shall of course reflect on those points, which I was already aware of. It is important to emphasise that any encryption arrangements that a communications service provider has not itself applied, or had applied on its behalf, would almost inevitably fall outside these provisions because it would not be reasonably practicable for the company to de-encrypt. Many of the biggest companies in the world rely on strong encryption to provide safe and secure communications and e-commerce, but nevertheless retain the ability to access the contents of their users’ communications for their own business purposes—and, indeed, those companies’ reputations rest on their ability to protect their users’ data. In many cases, we are not asking companies to do something that they would not do in the normal course of their business, but I note what the noble Lord has said.
Amendment 93 deals with the subject of end-to-end encryption more specifically. This matter was discussed in detail in another place, so I will reiterate what was said there to explain why this is not an appropriate amendment. I have already outlined the strict safeguards that will apply. This amendment is not necessary because the Bill makes absolutely clear that a telecommunications operator would not be obligated to remove encryption where it is not reasonably practicable for it to do so. It is important to highlight that the amendment would in many cases prevent our law enforcement and security and intelligence agencies from being able to work constructively with telecommunications operators as technology develops to ensure that they can access the content of terrorists’ and criminals’ communications. Depending on the individual company and circumstances of the case, it may be entirely sensible for the Government to work with them to determine whether it would be reasonably practicable to take steps to develop and maintain a technical capability to remove encryption that has been applied to communications or data. But the amendment would signpost to terrorists and criminals that there are communications services they can use to communicate with each other unimpeded and which the authorities will never be able to access. That cannot be right.
Amendments 108 and 109 propose changes to Clause 230, which provides for a telecommunications or postal operator to request a review by the Secretary of State of the obligations imposed on it by a technical capability notice or a national security notice. The Secretary of State must seek the views of the Technical Advisory Board—a group of experts drawn from the telecommunications operators and the intercepting agencies—and the Investigatory Powers Commissioner before deciding the review.
Amendment 109 seeks to insert the double-lock authorisation process into that review. I contend that this is unnecessary. The Government have an amendment which provides that the Secretary of State must initially consult the judicial commissioner on proportionality, and that the Secretary of State’s decision following the review must be approved by the Investigatory Powers Commissioner. As I have explained, if after consulting the commissioner and the Technical Advisory Board, the Secretary of State decides to confirm the effect of a notice or vary it, the Investigatory Powers Commissioner must approve that decision, so the amendment is not required.
Amendment 108 seeks to require the Technical Advisory Board to consider the consequences for others likely to be affected by obligations imposed by a notice. This proposal was first raised in the other place and, following discussion, considered to be unnecessary. I will briefly explain why. First, the Technical Advisory Board has a very specific role to play in advising the Secretary of State on cost and technical grounds. This role is reflected in its membership. Board members are drawn from the telecommunications industry and those persons entitled to apply for warrants and authorisations under the Bill. These experts are well placed to consider the technical requirements and the specific financial consequences of the notice. If they consider it appropriate, they may look beyond cost and technical feasibility, but those factors are rightly their focus.
The responsibility for considering the broader effect of the notice on the operator to whom it has been given sits with the judicial commissioner, and it is right that the commissioner has this role. As part of any review into the obligations set out in a notice, the commissioner must report on their proportionality. This would include an assessment of its consequences, both for the person seeking the review and for anyone else affected by it. Furthermore, the clause requires the commissioner to seek out the views of the person who has received the notice. The person will have an opportunity to raise any concerns regarding the effect of the notice with the commissioner for consideration, and the commissioner must report his or her conclusions to the person and the Secretary of State. In my view, and as concluded following discussion in the other place, the Investigatory Powers Commissioner is rightly placed to carefully assess proportionality as a whole. The amended wording would introduce unnecessary duplication and ambiguity over what the board and Investigatory Powers Commissioner are each considering.
Finally, allow me to turn to another part of the Bill. I welcome the intent of Amendment 129, which seeks to clarify the scope of the restrictions on the acquisition of internet connection records. The clarity that noble Lords intend to create with this amendment is already provided in the code of practice, and I hope I can reassure noble Lords that there are good reasons why this definition should not appear in the Bill. The Bill already contains definitions of “telecommunications service” and “communication” which make very clear that a communication can include messages between individuals, between individuals and machines, and between machines. This maintains the existing position in RIPA, and it is absolutely right that the powers and, indeed, safeguards in this Bill apply to all forms of communication.
Taken in its broadest sense an “internet communications service” is simply a telecommunications service that involves communication over the internet and it should rightly include all forms of internet communication. But in the context of internet connection records the term is used to mean services that facilitate communications between two or more individuals, like email or social networking websites. An “internet service”, by contrast, is any other communication service a person could connect to over the internet, including person to machine communications, such as a person accessing a website. This distinction is made clear in the code of practice, which is the appropriate place for it because the definition has a different meaning in other contexts in the Bill.
I hope that noble Lords will be reassured that the definition is contained in the code of practice. We are concerned that defining “internet communications service” on the face of the Bill in the way proposed could cast doubt on the scope of the Bill in so far as it applies to internet communication services more generally. For all the reasons that I have set out, I ask noble Lords not to press their amendments.
Lord Harris of Haringey
My Lords, can the Minister clarify for me—I am sure that other noble Lords have got to the point precisely—that the requirements that the Bill seeks to create will apply only where a service provider has offered a service which most people might assume is secure and encrypted but has built in an existing arrangement which allows it to access it? Would it apply only in those circumstances? If that is not the case, perhaps the Minister could explain in what other circumstances it might apply. Can he further tell us whether there is an expectation in the Bill that, where a service provider is developing a new service, it must ensure that it has the facility to access what the user would assume are encrypted data?
Earl Howe
The answer to both questions is that it depends on what is reasonably practicable for the communications service provider. The power will apply usually to encryption that the provider has applied or has been applied on its behalf. If there are other circumstances where it would apply, I will take advice and write to the noble Lord, but we come back to what is reasonably practicable for the company. It is why the Government maintain a dialogue with communications service providers to ascertain what is practicable and what is not, and what would be cost effective and what would not be. However, broadly speaking, the noble Lord was right.
Lord Harris of Haringey
I am sorry to press the point, but I need to understand it. I understand the Minister’s answer in respect of the requirement applying where it is reasonably practicable because the encryption arrangement has been applied by the service provider, but is he saying that there is an expectation that in building new services a service provider should create something where it is technically possible for it to undermine that encryption? If so, that would raise a very different point which is important to clarify. Is the service provider required to make it technically practicable in future services as it develops them for this to be allowed?
Earl Howe
It might be, but it might not be. Again, it depends on what is reasonably practicable in the particular circumstances. Those circumstances might vary from provider to provider and from situation to situation, so it is not possible for me to generalise about this, but I will take further advice and write to the noble Lord about it.
Baroness Hayter of Kentish Town
My Lords, the Minister spoke about what is possible and reasonable, but the point of our Amendment 93 is that a notice may not impose the requirement to build a facility that would break end-to-end encryption. We may need to return to this on Report, but it would perhaps be useful to have a discussion between now and then about imposing the requirement to build capacity to break end-to-end encryption.
Lord Strasburger
I fear that the Minister is taking himself down a long cul-de-sac here, because the implication of what he is saying is that no one may develop end-to-end encryption. One feature of end-to-end encryption is that the provider cannot break it; encryption is private between the users at both ends. He seems to be implying that providers can use only encryption which can be broken and therefore cannot be end to end, so the next version of the Apple iPhone would in theory become illegal. I think that there is quite a lot of work to be done on this.
Earl Howe
I was certainly not implying that the Government wished to ban end-to-end encryption; in fact, we do not seek to ban any kind of encryption. However, there will be circumstances where it is reasonably practicable for a company to build in a facility to de-encrypt the contents of communication. It is not possible to generalise in this situation. I am advised that the Apple case to which the noble Lord referred could not occur in this country in the same way.
Lord Harris of Haringey
Is the Minister therefore saying the Government’s expectation is that service providers will in future ensure that it is reasonably practicable for them to access those communications? If that is the case, I think that he is raising a whole new group of issues.
Earl Howe
The Bill is clear that any attempt to obtain communications data must be necessary and proportionate, or it will not be permitted. It is crucial that the Bill provides a robust, legal framework which means that the law is consistently applied correctly. That is why we are introducing the double lock involving judges signing off warrants for the most intrusive powers, which means that the Secretary of State’s decisions, other than in the most urgent cases, will be independently scrutinised before warrants can be issued. I come back to the central point here, which relates to encryption: we do not think that companies should provide safe spaces to terrorists and other criminals in which to communicate. They should maintain the ability when presented with an authorisation under UK law to access those communications.
(a) ”
(a) ”
“( ) But the Secretary of State may vary the notice, or give a notice under subsection (9)(b) confirming its effect, only if the Secretary of State’s decision to do so has been approved by the Investigatory Powers Commissioner.”
“Approval of notices following review under section 230
(1) In this section “relevant notice” means—(a) a national security notice under section 225, or(b) a technical capability notice under section 226.(2) In deciding whether to approve a decision to vary a relevant notice as mentioned in section 230(9)(a), or to give a notice under section 230(9)(b) confirming the effect of a relevant notice, the Investigatory Powers Commissioner must review the Secretary of State’s conclusions as to the following matters—(a) whether the relevant notice as varied or confirmed is necessary as mentioned in section 225(1)(a) or (as the case may be) section 226(1)(a), and(b) whether the conduct required by the relevant notice, as varied or confirmed, is proportionate to what is sought to be achieved by that conduct.(3) 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 (2) 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).(4) Where the Investigatory Powers Commissioner refuses to approve a decision to vary a relevant notice as mentioned in section 230(9)(a), or to give a notice under section 230(9)(b) confirming the effect of a relevant notice, the Investigatory Powers Commissioner must give the Secretary of State written reasons for the refusal.”
Defence: Continuous At-Sea Deterrent
Earl Howe Excerpts(10Â years, 2Â months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, a Motion on the UK’s independent minimum credible nuclear deterrent will be debated in the other place on Monday next week, and in particular the Government’s commitment to build four new ballistic missile submarines to maintain the UK’s continuous at-sea deterrent posture. Given the overwhelming importance of the matter at hand and its pivotal implications for the future security and prosperity of this country, time has been set aside for us to consider the issues at stake and to help inform the forthcoming debate.
I do not need to remind your Lordships that the first duty of any Government is to safeguard their people against external aggression, a task that grows in complexity and scale along with the palpable threats that inform it. In the words of the 2015 Strategic Defence and Security Review:
“Defence and protection start with deterrence, which has long been, and remains, at the heart of the UK’s national security policy”.
Deterrence means convincing potential aggressors that the benefits of attacking are far outweighed by the consequences. Decades of careful foreign and defence policy, formulated in concert with our allies, have ensured that our deterrence arsenal is well stocked, ranging from the soft-power tools of diplomacy and economic policy on the one hand to the hard power of our Armed Forces on the other.
At the extreme end of this arsenal is, of course, continuous at-sea deterrence—or CASD—the UK’s minimum credible and assured nuclear deterrent that is the ultimate guarantor of our national security and way of life. We have maintained CASD successfully and unceasingly for nearly 50 years to deter nuclear attack, nuclear blackmail and extreme threats that cannot be countered by any other means. Our nuclear deterrent kept us and our NATO allies safe for the duration of the Cold War and it continues to do so in this post-Cold War era. That is why this Government are committed to building four new ballistic missile submarines to replace our ageing Vanguard fleet—a commitment that we stated prominently in the manifesto on which we were elected last year. It is a commitment that must be acted upon now if we are to replace our current fleet on time and without a break in our CASD posture. It is a commitment that no responsible Government should, or indeed could, rescind, for three compelling reasons. First, we live in an increasingly dangerous and uncertain world. We cannot rule out the future possibility of extreme threats to the UK emerging. Therefore, CASD remains as relevant as ever. Secondly, we take our responsibilities to the British people and to our allies seriously. Thirdly, in an unstable nuclear world, we must be realistic when it comes to the goal of disarmament. So the reasons are relevance, responsibility and realism; let me take each in turn.
First, I will speak to relevance. Despite being a by-product of the Second World War and a defining facet of the Cold War, the nuclear deterrent is no relic of the past. Yes, the world has changed. The Soviet Union no longer exists, new global power dynamics have evolved and technology has changed the way we fight wars, but the nuclear threat has remained throughout. In fact, if anything, it has become more dangerous as the international situation has become increasingly fragmented and less predictable. The facts speak for themselves. Today, there are an estimated 17,000 nuclear weapons around the world, a figure that could well rise. North Korea is particularly worrying. It has stated a clear intent to develop and deploy nuclear weapons. This year, it has conducted a fourth nuclear test, a space launch that used ballistic missile technology, and several ballistic missile launches. It is attempting to develop a submarine launch capability for nuclear weapons, and claims to be testing components for a future intercontinental ballistic missile capability.
Nuclear aspirants aside, the threat from established nuclear states remains clear and present. As I speak, a resurgent Russia is in the midst of upgrading its nuclear forces, including commissioning a new class of nuclear-armed submarine. At the same time, it has increased the frequency of its snap nuclear exercises, and there has been a notable escalation in its official rhetoric about the use of nuclear weapons—most recently, threatening to base nuclear forces in Kaliningrad and Crimea.
This is the briefest of glimpses at our national threat assessment. However, the decision to replace our Vanguard fleet rests not on the here and now but on what the world could look like in the 2030s, 2040s, 2050s and beyond, when the Successor fleet would be in operation. Given the parlous state of world affairs now, can we say with any certainty that the nuclear threat will disappear within that time or that no new threat will emerge? Of course we cannot. Given our inability to predict some of the world’s most seismic events in recent decades—the end of the Cold War, the rise of Daesh and Russia’s annexation of Crimea—is it fair to say that, within reason, anything could happen? Of course it is.
It is our duty, not only to current generations but to ones not yet born, to act now to retain our strategic nuclear deterrent beyond the life of the current system and so preserve the ultimate safeguard of our national security. Let me be unequivocal here: nothing less than our current CASD posture will do. Those who seek to dilute our deterrent by proposing a different, cheaper or diminished posture are no better than those who seek to scrap Trident altogether. We estimate four new submarines would cost ÂŁ31 billion spread over 35 years and have set a contingency of ÂŁ10 billion, a prudent estimate based on past experience of large, complex projects. On average, that amounts to 20 pence in every ÂŁ100 the Government spend, for a system that will provide a capability through to the 2060s. I believe that this is a price worth paying to keep our country safe.
From 2020, all the Royal Navy’s operational submarines will be based at Faslane. HM Naval Base Clyde is one of the largest employment sites in Scotland and will sustain around 8,200 military and civilian jobs by 2022. Furthermore, the specialist skills required in this industry—in engineering, software development and design—will keep our nation at the cutting edge of technological advancement for many years to come. If the decision were taken to discontinue the programme, not only would we lose the ultimate guarantee of our security and sovereignty, but local economies would be crippled and key skills lost, while our chances of regaining those skills and capabilities would be dealt a mortal blow.
But this is about far more than national self-interest: it is about our international responsibility, because if we failed to renew our strategic nuclear deterrent, we would be gambling with not only our own future but the future security of our NATO allies. NATO is a nuclear alliance that is the cornerstone of our defence, one that has arguably become all the more load-bearing in the wake of Brexit. Along with those of the US and France, our nuclear forces are a key facet of NATO’s commitment to collective defence, providing a robust nuclear umbrella under which many non-nuclear nations shelter. Our contribution massively enhances the alliance’s overall deterrent effect by providing added agility and resilience and by complicating the calculations of potential adversaries. To renege on our commitment while expecting the US and France to continue protecting us would be a dereliction of duty that would diminish our integrity in the eyes of our allies, diminish NATO’s credibility in the eyes of the world, and embolden our adversaries.
That leads me to my final point, which is about the need for a good dose of realpolitik when it comes to considering how a decision not to renew our deterrent would be received by our adversaries. All sides of this debate share an ambition to see a world in which nuclear weapons states feel able to relinquish their weapons. The UK is committed to working towards multilateral disarmament under the Non-Proliferation Treaty. In fact, we have done more than most to fulfil our obligations. Since the height of the Cold War, we have reduced our nuclear forces by well over half, and we remain committed to reducing our stockpile of nuclear weapons to no more than 180 warheads by the mid-2020s, approximately 1% of the declared global total. But despite our honourable intent, have others had a change of heart? Quite the opposite. Instead, we have an increasingly recalcitrant Russia and North Korea and the threat of state-sponsored nuclear terrorism.
We all want to see a world where nuclear weapons are no longer necessary, but unilateral disarmament by the UK is not a route to achieving that. It would only weaken our ability to bring about lasting change. The only viable alternative is to work multilaterally to create a safer and more stable world in which states with nuclear weapons have the confidence to relinquish them. It sounds almost as Utopian as unilateral disarmament, but it can be done. Just look at the success achieved by the US and the former Soviet Union under the Strategic Arms Reduction Treaty, which reduced both parties’ deployed strategic warheads from about 12,000 to some 6,000 in total. Look at the recent deal with Iran—encouraging evidence of what we can achieve through diplomatic negotiations.
So, despite the very real threats that we face, there is cause for hope, and we should find further grounds for hope in our collective will—in this Chamber, in this country and among our allies—to create a world in which nuclear weapons are no longer necessary. But it is imperative that we go about achieving this in a measured, intelligent and cohesive way that does not leave us, our allies and future generations fatally exposed in a world fraught with danger. Let us make no mistake. We stand at this moment at a critical juncture. One path leads to uncertainty, vulnerability and powerlessness on an unstable and volatile world stage, while the other will lead us to a place where we can continue to shape our own future and have a positive stake in global affairs. To me, as a part of the Government entrusted with defending our realm, there is no real choice here, just an imperative. We must replace our Vanguard class submarines. No responsible Government would or could do otherwise.
Earl Howe
My Lords, my confident expectation for this evening was for a constructive and illuminating debate, and I have not been disappointed. No doubt all of us could have wished for a somewhat longer time to devote to this crucial matter, but I am extremely grateful for the invaluable insights and expertise that your Lordships have brought to bear on it. I hope that the wide support for the Government’s policy voiced this evening will inform and assist our right honourable and honourable friends as they prepare for their own debate in five days’ time.
I should like to address some of the highly pertinent questions and observations raised by noble Lords who have spoken. I begin with the question posed by the noble Lords, Lord Tunnicliffe and Lord Ramsbotham: why are we having this debate now? There are some simple realities which we must confront. The Vanguard fleet is due to leave service in the early 2030s, and the successor submarines are highly complex vessels, which take 20 years or so to design and build. It is important, too, to recognise that industry needs certainty for the investment that it needs to make both in construction and in skilled workers. It has the assurance from the Government of a clear policy, but at this juncture in the successor programme, it is right that it knows that Parliament as a whole is behind this programme.
In 2007 Parliament voted to maintain our strategic nuclear deterrent beyond the life of the existing system. Last year Parliament voted twice to retain our deterrent, and the issue will be debated again next week. It is important that we keep reminding ourselves that this is not a judgment about short-term threats, but about the threats we may face over generations to come. It is right that Parliament has the opportunity to vote on such an important issue. It is important, too, for the Government to have the backing of Parliament in pursuing the policy on which we were elected to office.
The noble Lord, Lord Tunnicliffe, asked about the need for ongoing scrutiny of the programme as it goes forward. The 2015 SDSR concluded that a step change was required in the performance of the defence nuclear enterprise to deliver the successor submarine programme on time and on budget. We are currently engaged in intensive negotiations with industry about how best to contract on both Astute and successor to deliver the necessary performance improvements. It would not be appropriate for me to comment further while those negotiations are ongoing.
In addition, we have established a new Director General Nuclear post and supporting organisation to create a single and accountable focus within the Ministry of Defence for all aspects of the defence nuclear enterprise. In parallel, in answer to the noble Lord, Lord West of Spithead, the MoD also plans to create a new organisation for the procurement and in-service support of all nuclear submarines, including the successor programme. This organisation will have a specific focus on delivery, with the authority and freedom to recruit and retain the best people to manage the technical challenges and industrial base. Options for the new organisation continue to be developed and assessed.
Furthermore, as regards the Director General Nuclear, we expect to make a permanent appointment by the end of the year, but to maintain momentum at what is a critical point in the successor programme, Ian Forber, a civil servant with extensive experience of nuclear-related issues, has been appointed as acting DG Nuclear. The need for primary legislation will be considered as part of the continuing development and assessment of options for the new organisation.
My noble friend Lord Sterling, in his thoughtful and wide-ranging speech for which I thank him, spoke about the defence budget and the 2% commitment. The Government have made two defence spending commitments: to increase the budget in real terms in each year of this decade and to meet the NATO 2% commitment. Obviously, the first commitment means that defence spending will increase irrespective of what happens to GDP. I hope that reassures the noble Baroness, Lady Smith of Newnham.
My noble friend Lord Sterling referred to the depreciation of the pound in the context of the defence budget. I can tell him that the department carefully monitors fluctuations in currency markets and takes steps to protect its budget from short-term volatility. Like any responsible large organisation, we take appropriate financial precautions in all our procurement contracts.
The noble Baroness, Lady Falkner of Margravine, and the noble Lord, Lord Hutton, were right to underline that there is no viable alternative to CASD. The Trident Alternatives Review, published in 2013, demonstrated that no alternative system is as capable, resilient or cost-effective as the current Trident-based deterrent. It found that submarines were less vulnerable to attack than silos or aircraft and can maintain a continuous posture in a way that air and land-based alternatives cannot. Alternative delivery systems, such as cruise missiles, lack the range of the Trident missile system, meaning that the reach and capability of our deterrent would be reduced.
In that vein, the noble Lords, Lord Robertson and Lord Lee, and my noble friend Lady Buscombe all made a point with which I wholly agree. To those who, like the noble Baroness, Lady Smith, propose saving cash by cutting our fleet from four to three, I contend that that would be a false economy. A continuous at-sea deterrent without the capacity to be continuous is no good to anyone. It would ultimately undermine the credibility of our deterrent on the international stage, rendering it pointless. Any savings made would be offset by the very real danger of being left in the lurch in the event of unplanned refits or breakdowns and our consequent inability to provide a second-strike capability.
My noble friend Lord King, in his wise and helpful speech, rightly rejected the proposition that the United States protects NATO, so why do we need UK nuclear weapons? What do they add to the alliance? He knows, as do many noble Lords, that the supreme guarantee of the security of the allies is provided by the strategic nuclear forces of the alliance in the round, particularly those of the United States. The independent strategic nuclear forces of the UK and France, which have a deterrent role of their own, contribute to the overall deterrence and security of all allies. Having more than one nuclear power in NATO makes it more difficult for adversaries to predict how the alliance might respond if threatened, so the deterrent effect is stronger.
The right reverend Prelate the Bishop of Chester and the noble and right reverend Lord, Lord Harries of Pentregarth, questioned how nuclear weapons help us to fight terrorism. The noble Lord, Lord West, put it very well. Nuclear weapons by themselves do not deter terrorists, but they were never meant to. We believe that they will, on the other hand, deter states tempted to sponsor terrorist groups by providing the capability to enable them to act as nuclear-armed terrorists as proxy against the UK or our NATO allies.
The UK has a wide range of policies and capabilities to deal with the wide range of threats we currently face—or might face in the future. Our nuclear deterrent is there to deter the most extreme threats to our national security and way of life, which cannot be done by other means. The nuclear deterrent does not deter terrorism any more than a tank or infantry deter nuclear war.
The noble and right reverend Lord, Lord Harries, went on to ask whether the deterrent serves a rational purpose. On that, I align myself with the noble Lord, Lord Touhig, and many other speakers. We cannot be certain what extreme threats we might face in the 2030s, 2040s, 2050s and beyond. Our nuclear deterrent provides the ultimate guarantee of our national security and way of life. Deterrence means convincing any potential aggressor that the benefits of an attack are far outweighed by its consequences. It is in no one’s interests to attack another nuclear power with nuclear weapons because of the consequences of its response.
The noble and right reverend Lord, Lord Harries, also raised a practical issue. He asserted that emerging capabilities will one day enable our enemies to locate our submarines or subvert them through cyberwarfare. I can tell him that a great deal of work has been done on that subject. Let me assure him that, despite ongoing and exhaustive monitoring of nascent technologies, there is nothing to suggest that this will be remotely possible in the foreseeable future. If it were remotely possible, we should ask ourselves why both Russia and China are expanding their nuclear submarine fleets.
The noble Lord, Lord Ramsbotham, suggested that the Government should remove the cost of Successor from the mainstream defence budget, accounting for 2% of GDP. I agree with the noble Lords, Lord Triesman and Lord Touhig, about the indivisibility of deterrence. All our forces, including conventional forces, have a powerful deterrent effect. Nuclear weapons, however, pose a unique threat and remain a necessary element of the capability we need to deter threats from others possessing nuclear weapons. It was made clear in the 2006 White Paper that investment required to maintain the nuclear deterrent will not be at the cost of other conventional capabilities. That remains the case today.
My noble friend Lord Arbuthnot on a similar theme asked why CASD was funded by the Ministry of Defence. I say to him that it is right that, as the ultimate defensive and protective capability, the deterrent continues to be funded by the Ministry of Defence. The regular reviews that form SDSRs examine the whole spectrum of threats. The Government, and the Ministry of Defence as part of that, are thus able to take appropriate decisions and allocate funding when required to defend our nation.
My noble friend was right to speak of the political sensitivities of basing the deterrent in Scotland. Her Majesty’s Naval Base Clyde is one of the largest employment sites in Scotland, as he knows, with around 6,800 military and civilian jobs now, as well as a wider economic impact on the local economy. The future is very positive. The numbers at HMNB Clyde are set to increase to an estimated 8,200 by 2022. That increasing presence generates economic benefits for communities throughout Scotland—through jobs, contracts and requirements for supporting services and skills. That is the message that we need to get across to our friends and colleagues in Scotland. In the end, the people of Scotland voted to remain part of our United Kingdom in 2014 and they will continue to benefit themselves from the security that our deterrent provides.
The noble Lord, Lord Judd, in his customarily thoughtful speech, spoke about nuclear disarmament. I agree that the only way to achieve global nuclear disarmament is to create the conditions whereby nuclear weapons are no longer necessary. We believe that the nuclear non-proliferation treaty should remain the cornerstone of the international nuclear non-proliferation regime and the essential foundation for the pursuit of nuclear disarmament and for peaceful uses of nuclear energy. All state parties should be pushing for universality of the treaty and for concrete progress across all three of its mutually reinforcing pillars. It is worth reminding ourselves that the NPT process has worked. It has stopped the nuclear arms race, reduced stockpiles and slowed the pace of proliferation.
The noble Baroness, Lady Smith, asked me what we are proposing to do practically with the NPT. Clearly multilateral disarmament will be challenging, but we remain fully committed to a world without nuclear weapons in line with our obligations under Article 6 of the NPT. We firmly believe that the best way to achieve that goal is through gradual multilateral disarmament, negotiated using a step-by-step approach within the framework of the NPT. We remain determined to continue to work with partners across the international community to make progress on this to build trust and confidence to underpin the process. We have put forward a proposal to create a working group that can identify, elaborate on and make recommendations on effective measures for nuclear disarmament. That proposal remains on the table, and we continue to work with other member states with the aim of reinvigorating the Conference on Disarmament in Geneva.
My noble friend Lady Goldie spoke compellingly on the futility of unilateral disarmament. I agree with every word that she said. Unilateral disarmament would not make the world a safer place. It is naive to imagine that the grand gesture of UK unilateral disarmament would change the calculations of nuclear states or those regimes seeking to acquire nuclear weapons. There is no good reason to think that other nuclear-capable states would follow our example; that has not been our experience to date.
The noble Lord, Lord Hutton, asked specifically about the comprehensive test ban treaty. The UK is a strong supporter of the CTBT and we actively urge states to sign and/or ratify it. The remaining Annex 2 states outside the treaty need to join as soon as possible, and we press for this whenever the opportunity presents itself.
This has been an extraordinarily useful debate, and I apologise to those speakers whom I have not been able to mention. Amid our deliberations, notwithstanding the hesitations expressed by the noble Baroness, Lady Smith, and the noble and right reverend Lord, Lord Harries, there has been a steel core of consensus. Whether one is in favour of or opposed to maintaining this nation’s nuclear deterrent, we can all surely agree on the laudable premise that a world without nuclear weapons would be a better one. Utopian dreams aside, though, we have to face facts: we cannot predict the future. As so many speakers have said, nuclear weapons are here—17,000 of them around the world. They present a real and present threat to our national security and, for as long as they continue to do so—as I fear they are likely to—we must maintain our ability to respond in kind. To do otherwise would be a dereliction of this Government’s primary duty, the defence of the realm—a duty that we must discharge not just on behalf of the men, women and children living in the UK today, not just on behalf of NATO, but on behalf of countless generations yet to be born.
Iraq Inquiry
Earl Howe Excerpts(10Â years, 2Â months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, we meet today, less than a week after its publication, to debate the report of the Iraq inquiry by Sir John Chilcot and his committee. It is a report which has already received extensive tributes as a seminal and extraordinarily impressive document, but it is appropriate that I should begin by expressing the Government’s deep gratitude to Sir John and his team of privy counsellors, including the late Sir Martin Gilbert, for their conscientious, forensic and thorough analysis. As an account of what happened during the years in question, it surely cannot be bettered, and because of, rather than despite, its length, it undoubtedly affords the best possible basis for public debate and reflection.
Indeed, for the long term, that is where the value of this report lies. Stones can be cast in many directions, and have been. That is the painful part and, in the nature of major inquiries, an almost inescapable consequence, but in confronting uncomfortable truths, as we must, I would contend that the more important role for us all, but particularly for government, is also to confront current realities. As a Government, and as Parliament, it behoves us to ask some searching questions arising out of Sir John’s findings, not just about what happened in 2002-03 and subsequently, but also about today. What can we say now, for example, about the process of decision-making in government? What are the differences today in the way that intelligence is gathered, assimilated and presented? How effective are we in equipping our Armed Forces to enable them to undertake the tasks we place upon them? In short, could the same thing happen again?
Happily, we are well placed in this Chamber to examine these and other questions in a frank and informed way. There are many here with very considerable experience of Iraq and other military conflicts. We have those who were members of the Government during the period of the report or who were serving as Members of Parliament as events unfolded and many who, like me, were in this House and remember the events of that time very vividly.
Following the Prime Minister’s Statement last Wednesday, we had a brief opportunity to discuss Sir John’s report, but it is right that we now have a day set aside in this House, and two days in the other place, to discuss it at greater length. The Iraq war set in train events which cost the lives of scores of thousands of Iraqis, thousands of international troops and many of our own brave service men and women, and we owe it to the memory of all those who served, to all those who suffered life-changing injuries and to all those who lost loved ones to do justice to the report’s findings, whether in Parliament during the course of this week or more fully still over the weeks and months ahead as we continue to digest the detailed findings.
In speaking of our service men and women, at all levels, it is right too to remind ourselves that this report is most certainly not an indictment of their performance or their conduct. On the contrary, as Sir John made clear in his statement, our Armed Forces prosecuted a successful military campaign, took Basra, saw the fall of Baghdad in less than a month and helped remove Saddam Hussein, a man who was, let us not forget, a brutal dictator who oppressed and murdered his own people. The service personnel, civilians deployed to Iraq and Iraqis who worked for the UK showed great courage in the face of huge danger. They deserve our lasting gratitude and respect. For all its present troubles, Iraq is now a better, freer and more democratic country than it ever was under Saddam. Our Armed Forces can be proud that they made a difference.
However, their efforts cannot disguise the shortcomings in decision-making and planning surrounding the operation and its aftermath that make Sir John’s report such uncomfortable reading. While it may appear to be restrained, almost quiet, in its approach, its conclusions are stark and devastating. There were too many failures—failures of process, of knowledge and understanding, of decision-making, of strategy, of planning and of preparation. His ultimate conclusion is damning. The Government failed to achieve their stated objectives in Iraq and the UK military role there ended a very long way from success.
There will, therefore, be many lessons to learn. Indeed, on that theme, one of the things that I hope will emerge clearly from this debate is that many lessons have already been addressed. We have not stood still waiting for Chilcot to be published. We have learned lessons from the Butler and Hutton reviews, and in 2010 the Prime Minister established the National Security Council to ensure joined-up strategic decision-making at the top of government. Thanks to the NSC structures, the conflict pool and latterly the Conflict, Stability and Security Fund mechanism, there is a much stronger culture of cross-government working on strategy, policy and delivery issues in fragile and conflict-affected countries. Indeed, we are seen as world leaders in the way that we integrate our work across departments. The NSC is not an ad hoc committee but, rather, a standing committee of the Cabinet with its own secretariat, meeting regularly both inside and outside parliamentary term time and including as members the service and security chiefs and the Attorney-General.
Within the Ministry of Defence, we have gone a long way to addressing the criticisms made in the report relating to equipment. Underpinning those changes, we have corrected failings in the MoD’s finances so that we can better match our strategy and our plans to the level of our resources. This has allowed us to commit to £178 billion of investment over the next 10 years in the right equipment for our Armed Forces. The reforms led by the noble Lord, Lord Levene, have led to a much greater degree of accountability and sense of ownership of the equipment programme within the service commands.
In addition, we have systems in place to enable us to respond swiftly and appropriately to calls from a conflict zone for additional equipment to support and protect our troops on the ground. In Afghanistan, for example, some ÂŁ5 billion was approved for urgent operational requirements, enabling our personnel to benefit from, for instance, mine detection and counter-IED equipment and protected patrol vehicles. There is now a senior military officer within the Ministry of Defence whose direct responsibility it is to commission and co-ordinate such approvals.
In the context of post-conflict planning, I mention too the work that we have been doing to enable civilians and the military to train, plan and work together routinely. DfID officials attend the MoD’s training courses for senior military personnel, DfID advisers regularly take part in military planning exercises so that development and humanitarian needs are considered as part of the MoD’s planning and decision-making and the MoD, the FCO, DfID and other departments undertake joint assessments of the causes of instability and conflict in our priority countries, which in turn inform the deliberations of the NSC.
In the coming months, government will analyse what more must be done. We are not complacent. In the Ministry of Defence, the Secretary of State has, with the Chief of the Defence Staff and the Permanent Secretary, already established a team to review the findings and set out the changes that must be made. I look forward to the outcome of that work.
For now, I conclude by echoing the words of the Prime Minister when he said there are some lessons we should not draw from Iraq—not least, the notion that intervention is always wrong. The UK and the international community have intervened successfully in the past, such as in Sierra Leone and Kosovo. There have been times when we perhaps should have intervened but did not, or did not do so effectively, such as in Rwanda and Srebrenica. Today we are intervening again to assist coalition efforts in Iraq and Syria against Daesh, and we are surely right to do so. So our challenge, the challenge of the Government and the military in future, is not simply to prevent bad intervention but to ensure better intervention when intervention is needed. With that end in view, I look forward to the debate that lies ahead of us.
NATO Warsaw Summit
Earl Howe Excerpts(10Â years, 2Â months ago)
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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 earlier today by my right honourable friend the Secretary of State for Defence on the NATO Warsaw summit. The Statement is as follows.
“With permission, Mr Speaker, I would like to make a statement on the NATO summit held in Warsaw last Friday and Saturday. The 2015 strategic defence and security review reaffirmed NATO’s position at the heart of UK defence and security. The UK remains a leader within the alliance, with the second largest defence budget after the US and the largest in Europe. The range of challenges the alliance faces, including Daesh, migration and Russian belligerence, meant that this summit was of huge importance for Euro-Atlantic security. The overwhelming message from Warsaw was one of strength and unity. We believe the summit has delivered an alliance that is more capable and projects stability beyond our borders based on institutional adaptation and stronger partnerships, which collectively protect our citizens and defend Europe.
I will address each of these issues briefly. At the Wales summit in 2014, NATO agreed its Readiness Action Plan to ensure that the alliance can respond swiftly and strongly to new challenges. The UK is at the forefront of these efforts: our Typhoons are currently conducting Baltic air policing missions from Estonia; our ships are making a significant contribution to NATO’s naval forces; and we will lead NATO’s quick-reaction “spearhead force”, the Very High Readiness Joint Task Force in 2017, with 3,000 UK ground troops ready to deploy within days.
To demonstrate allies’ solidarity, determination, and the ability to act in response to any aggression, Warsaw builds on the Wales commitments by delivering enhanced forward presence in Estonia, Latvia, Lithuania, and Poland, and I am proud that the UK is taking a leading role in this. Canada. Germany, the United States and the UK will each deliver a framework battalion. These will be defensive in nature but combat capable. The UK force will be located in Estonia with two UK companies, a headquarters element and equipment, including armoured vehicles, Javelin anti-tank guided missiles and mortars. Denmark and France have said they will provide troops to the UK battalion. In addition, we will also deploy a company group to Poland. These actions are in response to actions by Russia; NATO’s approach is based on balancing dialogue and strong defence. Dialogue is right where it is in our interests to deliver hard messages, promote transparency, and build understanding to reduce risks of miscalculation.
Credible alliance defence and deterrence depends on NATO’s ability to adapt to 21st-century threats through nuclear and conventional forces. The summit recognised the important contribution the UK’s independent nuclear deterrent makes to the overall security of the alliance, so I am pleased that the House will have the opportunity to vote to endorse its renewal next Monday. Initiatives on cyber and hybrid warfare, among others, will give the alliance the capabilities it needs to respond quickly and effectively. However, modern capabilities require appropriate funding, and here good progress has been made against the defence investment pledge—a key commitment from Wales. Following this Government’s decision to spend 2% of GDP on defence and increase the defence budget in each year of this Parliament, cuts to defence spending across the alliance have halted, with 20 allies now increasing defence spending, and eight committing in national plans to reaching the 2%.
Delivering the best for our country means maximising the talent in our Armed Forces. The Prime Minister has accepted the recommendation of the Chief of the General Staff to open up ground close combat roles to women. NATO’s role in preventing conflict and tackling problems at source has become ever more important, as threats to alliance security grow out of instability in fragile or weak states. NATO’s Defence Capacity Building Initiative, first announced in Wales, is a powerful tool in projecting stability and the UK continues to provide significant support to Georgia, Iraq, and Jordan. Building on this, allies agreed that NATO will conduct training and capacity-building inside Iraq. In Afghanistan, local forces are taking responsibility for providing security across their country. Our long-term commitment, as part of NATO’s Resolute Support Mission, is crucial; in 2017 we will increase our current troop contribution of 450 by 10%, to help build the capacity of the Afghan security institutions.
The summit also reiterated its support for our European partners, including Ukraine and Georgia. I was delighted that Montenegro attended the summit as an observer—a clear sign that NATO’s “open door policy” is helping to spread stability. However, the scale of Europe’s security challenges means NATO must work with a range of partners to counter them. This summit sent a strong message of NATO’s willingness to build strong relationships with other international institutions. I welcome the joint declaration by the NATO Secretary-General and the Presidents of the European Council and the European Commission on NATO-EU co-operation. We continue to support a closer relationship between NATO and the EU to avoid unnecessary duplication.
Our strong message to our allies and partners was that the result of the referendum on EU membership will have no impact on any of the UK’s NATO commitments and it remains the cornerstone of our defence policy. The UK will be leaving the EU, but we are not reducing our commitment to European security; we are not turning our back on Europe or the rest of the world.
HMS “Mersey” will deploy to the Aegean from late July to continue our support to NATO’s efforts to counter illegal migration in the Aegean. We will also provide a second ship, RFA “Mounts Bay” to the EU’s Operation Sophia in the central Mediterranean. NATO has agreed in principle to provide surveillance and reconnaissance support to this operation. It is a UK priority for NATO to do more against Daesh. NATO AWACS will now support the counter-Daesh coalition. In addition to our own assistance to the GNA, we will consider what NATO can do in Libya; for example, through capacity-building of the Libyan coastguard.
It is our firm view that the Warsaw summit successfully demonstrated that the alliance has the capability, will and intent to respond to the range of threats and issues that it may face. It also showed that Britain is stepping up its leading role in the alliance by deploying more forces to NATO’s eastern borders, to NATO’s support to Afghanistan and in countering illegal migration. With that strong UK leadership, Warsaw will be remembered for the concrete steps that were taken to deliver a strong and unified alliance that remains the cornerstone of European defence and security. I commend this Statement to the House”.
My Lords, that concludes the Statement, but, as it made clear, Motions will be put to the House of Commons on Monday next week. I hope that it is helpful at this point for me to inform your Lordships that the usual channels have agreed to set aside time on Wednesday this week for a debate on a Take Note Motion so that the views of this House can inform the debate in another place on the nuclear deterrent. The speakers list for the debate has already been opened by the Government Whips’ Office.
Baroness Smith of Newnham (LD)
My Lords, noble Lords on these Benches welcome the Statement and I echo some of the words of the noble Lord, Lord Touhig. We welcome the commitments made to the Baltic states and to Poland, but would ask the Government what thought has been given to the situation with Russia and its possible reactions. Clearly the commitment to NATO is welcome, especially at a time of such global and regional geopolitical uncertainties, and therefore the commitment to our colleagues in the Baltic states and Poland, as well as an increased role in countering illegal migration, are both important.
The Statement by the Prime Minister and the communiqué refer to the UK’s nuclear deterrent and the fact that the UK’s and France’s nuclear deterrents have a deterrent role of their own. I do not wish to pre-empt the debate we will have on Wednesday prior to the Motion to be debated next Monday in the other place, but can the noble Earl give us some reassurance regarding defence expenditure? Assuming a decision is taken to approve a successor on Monday, that will be a considerable defence commitment. Both the NATO summit and the Prime Minister’s Statement recommit us to spending 2% of GDP on defence, a commitment made at the Wales summit in 2014 and affirmed by the Government after the general election last year. However, if there is a recession, either as a result of the decision taken on 23 June to leave the European Union or the actual fact of Brexit, 2% of a smaller GDP would presumably mean less money going to defence. Has money been set aside and are there contingencies to ensure that, if there were a recession, we would still be able to meet our commitments on F35, the aircraft carriers and a successor, if that decision is taken?
Further to that, while it is clearly welcome that the Government do not envisage any reduction in the UK’s commitment to European security in the light of the decision to leave the European Union, how will that commitment be played out? Will it be solely through the multilateral framework of NATO or might the Government consider—I realise that the Minister may not be able to give us an answer pending Wednesday evening—continuing links with the common security and defence policy of the European Union? How far does the UK envisage ongoing links with the EU and how far does it envisage bilateral links, particularly with France but also with the Netherlands? Clearly, the ongoing British commitment to European security is important, but an indication of how we envisage that going forward would be welcome.
Earl Howe
I am grateful to the noble Lord, Lord Touhig, and to the noble Baroness, Lady Smith, for their comments and questions. They both asked about our approach towards Russia and the likely Russian reaction to the communiqué. Our objectives in respect of Russia are clearly to protect UK interests and those of our allies and partners; to uphold the rules-based international order in the face of Russian challenges; to engage with Russia on global security issues and key areas of shared interests; to promote our values, including the rule of law and human rights; and to build stronger links between the British and Russian people more widely. I commend the communiqué to noble Lords. It sets out very clearly why NATO has felt it necessary to commit to an enhanced forward presence. This is in the face of Russian actions over the past two or three years that fly in the face of the agreements and understandings that we have had with them and that obtain internationally. NATO collectively and the allies individually are clear that the alliance does not seek confrontation and poses no threat to Russia—those are its words—but will not compromise on the principles on which NATO and security in Europe and north America rest.
The NATO-Russia council meeting this Wednesday will discuss a range of issues. Its timing was deliberately set post the summit to continue the dialogue from a position of strength, given the decisions taken at Warsaw.
The noble Lord, Lord Touhig, asked a number of questions in the wake of the Chilcot report, in particular, whether a Cabinet Committee had considered current and proposed NATO deployments. The National Security Council considered the UK’s approach to Warsaw and our ongoing commitment to NATO activities. Because the National Security Council is a sub-committee of the Cabinet, it is rather better than an ad hoc committee, because it is a permanent standing committee that, as I explained last week, meets every week and constantly reviews those issues which bear upon the UK’s security.
The noble Lord asked about the long-running issue of an EU army. I take this opportunity to emphasise that, while the UK remains a full member of the EU until such time as we leave it, UK forces will not be part of an EU army. In no circumstances could Brussels, in any case, direct deployment of UK forces without the specific agreement of the UK Government. That agreement will not be forthcoming. Defence is entirely a national competence and if an EU army were to be proposed, it would be subject to national veto.
The noble Lord also asked about draw-down of UK forces from Germany. I can confirm that it continues and will continue as planned.
The noble Baroness, Lady Smith, asked about defence expenditure. She is right to say that the 2% commitment relates to the size of our GDP. Were that to diminish, it would have a bearing on our budget but I remind her that aligned with and joined to that 2% commitment was another commitment that the defence budget would increase year by year in real terms by 0.5%. We have committed to spend ÂŁ178 billion on equipment over the next 10 years, and that commitment stands.
The noble Baroness also asked about the relationship between NATO and the EU in the defence arena. As she would expect, in the medium term we will maintain our existing commitments to common security and defence operations and missions, and consider further requests from the EU. We will continue to lead the EU battlegroup from July to December this year. Whatever happens, the Government remain firmly committed to leading the way in working with the international community to tackle the migration crisis. In fact, the Prime Minister recently announced the deployment of RFA “Mounts Bay” to the central Mediterranean to help stem the flow of weapons to terrorists, particularly Daesh, in Libya. This is in addition to HMS “Enterprise”, which is already on task. No one can be in any doubt that we are committed to EU operations or about the strength of that commitment.
I did not answer the noble Lord, Lord Touhig, on what exactly our troops will be doing. First, as regards the proposals for Estonia, our forces are expected to participate in a demanding training and exercise programme alongside Estonian regular reservists and other allied forces based in the region. The deployment will also provide new training opportunities in heavily wooded areas and colder climates. The battalion will be maintained at a high state of readiness so that it is able to react immediately to a crisis or incident. Far from our Armed Forces personnel being confined to barracks, I hope that gives a flavour of the action-oriented agenda facing them.
In Poland, where, as the noble Lord is well aware, building a strong relationship is very much a priority for us, the deployment of the company group will enable UK and Polish forces to train, fight alongside each other, foster a greater understanding of their respective capabilities of the UK and Poland’s and increase interoperability, which the noble Lord will recognise is important. We will also work alongside the forces of other NATO allies in Poland, including the United States, which will provide a NATO-enhanced forward presence framework battalion in Poland. This deployment will also provide capability enhancement opportunities under the UK-US German-led TACET initiative. Many advantages therefore flow from this announcement.
Lord Howell of Guildford (Con)
Does my noble friend accept that this evidence of renewed NATO determination is welcome indeed and has little or nothing to do with our relations under various EU treaties, and whether we are in or out of them? However, does he also accept that in the 21st century, in addition to armaments and deployment build-up, one needs to win not merely the battles but the narrative? In this case the narrative is very much to get home to the Russian people that they would do far better in co-operation with the democracies and global networks which are now shaping our future all over the world than in a constant state of hostility and pointless belligerence. Surely that is the message to get home. I very much welcome the additional comments that these positive points will be put strongly to the Russians in the NATO-Russia Council, and hope they will realise that they could have better leadership and a better life if they follow that latter course.
Earl Howe
My noble friend is absolutely right. The meeting on 13 July this week is the continuation of political dialogue as agreed by NATO Heads of State and Government. At the same time, we are clear that there will be no return to business as usual until Russia again respects international law. Engagement through dialogue is important. It is right that we have that dialogue. It is in our interests to engage on subjects in a hard-headed, clear-sighted way, but that does not mean a return to the kind of co-operation that existed before Russia’s illegal annexation of the Crimea and the destabilising activity in which it has been engaged in Ukraine.
Lord Kerr of Kinlochard (CB)
Given our responsibilities under the Budapest Memorandum, what advice did our representative at the summit give to President Poroshenko of Ukraine? Were there contacts with the Turkish Government in which it became possible to make clear that, despite the insults to Turkey which emerged in the referendum campaign, including from a Ministry of Defence Minister, we still regard it as an extremely valuable ally?
Earl Howe
My Lords, on the latter point, we have most certainly taken every opportunity to reassure Turkey that it is a very valued member of the NATO alliance, and it is important that we continue to do that. NATO has been united in support for Ukraine throughout the crisis period. Meetings of the NATO-Ukraine Commission, most recently at Warsaw, provide political support. Capability and capacity support is delivered through Ukraine’s participation in NATO exercises and through dedicated NATO trust funds, and the UK is co-leading one of these trust funds. We like to think—and I believe it is right to claim—that we have a leading role. We have consistently argued for a strong response to Russia’s actions and continue to be fully supportive of the Normandy format process.
Lord West of Spithead (Lab)
My Lords, this conference has been very good news, particularly the nuclear aspects, not least because of Putin’s doctrine of de-escalation—which, extraordinarily, in fact means using nuclear weapons. The Government are to be congratulated on, at long last, agreeing to have a vote in the other place on replacing the four Vanguard class submarines. My question is not to do with money, but I have to say that, although one talks the talk, there is insufficient money in defence. The House of Commons Defence Committee has spotted that. The desperate shortage of money is shown not least in the lack in the number of ships. Should there be an escalation for another reason, none of the ships we are deploying to the Med are capable of looking after themselves, because they are not those types of ships. However, that is not my question. My question relates to Ukraine. It is absolutely right that we are reinforcing the Baltics and Poland—they are part of NATO; that is the right sort of message—but we must not delude ourselves: the Russians are terrified of NATO. We know that they are wrong to be terrified, but that does not mean that that is not their perception. We have sent people into Ukraine. Was there discussion about NATO being involved in Ukraine? If there was, I believe that it would be very destabilising.
Earl Howe
My Lords, there is no question of NATO ground troops being sent to Ukraine. On the other hand, the NATO Council was very clear that there is a role for NATO alliance members to support Ukraine in training in particular, and that is a major commitment of ours. Clearly, we would not wish to do anything that would serve to escalate the tensions that exist in Ukraine. We are encouraging both Ukraine and Russia to support the Minsk process and adhere to the commitments given at Minsk. Nothing that would escalate the violence that we have seen in eastern Ukraine should be contemplated.
Lord Dannatt (CB)
My Lords, may I take the Minister back to the issue of withdrawal from Germany, raised earlier by the noble Lord, Lord Touhig? The principle of forward deployment for practical and demonstrative purposes has been well illustrated by what is going to happen in Estonia and other areas of the Baltic. However, although I have been supportive for many years of withdrawing the Army from Germany, is there not a case for looking again at leaving one of our armoured infantry brigades in the well-found garrison of Paderborn and Sennelager, and saving ourselves the capital expenditure of building a third armoured infantry garrison around Salisbury Plain? This would also demonstrate, in the post-Brexit environment we find ourselves in, that we are willing to remain physically present in Germany with about 2,500 of our troops. I think it is worth looking at again, and I urge the Minister to take that thought back to the Ministry of Defence and think about it again.
Earl Howe
My Lords, I am grateful to the noble Lord. I will gladly do that. In fact, I can tell him that these matters are under continual review, as he would expect. There is undoubtedly a value to the idea of British troops remaining in Germany to a certain level, able to train alongside our German partners. However, I am not in a position at the moment to give him definite news on that front. What I can say, though, is that the bulk of UK forces will be withdrawn as planned. We believe that that is the right thing to do at this juncture, but we do not rule out keeping a contingent in Germany for the kinds of purposes that the noble Lord suggests.
Lord Vinson (Con)
My Lords, the noble Lord, Lord West, remarked that our defence expenditure is extremely strapped for cash. In view of this, and the fact that the efforts we are putting into both Finland and Poland are a substantial aid to the economies and welfare of those countries, would it not be sensible that at least part of that expenditure should be debited against our overseas aid bill, which is now running at the enormous sum of 0.7% of GNP?
Lord Robathan (Con)
My Lords, given the situation with Russia, is my noble friend aware whether relations between Greece and Russia were discussed, particularly given the reports—which I understand to be true—that Greece has recently signed an armaments deal with Russia whereby it will be making Kalashnikovs in one place or another?
Lord Tugendhat (Con)
My Lords, the Minister has announced a very important commitment to the Baltic states. Can he assure the House that the Governments of all three of these states are behaving entirely as we would wish in respect of their Russian-speaking citizens and people of Russian nationality living within those states? Can he be sure that they are not giving any justifiable cause or excuse to Mr Putin to act, and that they are behaving in a way that is completely consistent with the principles of the European Union?
Earl Howe
My Lords, there is a delicate balance to be struck here. We do not wish to provoke Russia into responding inappropriately to these deployments. On the other hand, we do ourselves need to react to the actions of Russia, as was laid out at the 2014 Wales summit, which delivered an effective and united response to Russia’s illegal annexation of the Crimea and its actions in eastern Ukraine. The measures taken at the summit will, we believe, provide further reassurance and deter Russian aggression. They are proportionate and defensive in nature. In saying those things, I recognise my noble friend’s appropriate concern that we ensure that the Baltic states in particular are being measured and reasonable towards the Russian-speaking element of their populations. This move is not designed to provoke those people any more than it is to provoke Russia itself.
Investigatory Powers Bill
Earl Howe Excerpts(10Â years, 2Â months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, I am grateful to the noble Baroness, Lady Hamwee, for explaining the purpose of this group of amendments. I am particularly glad that Amendment 5 gives us the opportunity to look carefully at the intention of subsection (1) in the privacy clause. Perhaps I could just clarify.
Clause 2(1) lists in some detail the functions that a public authority may discharge under the Bill that may result in an interference with an individual’s privacy or impose an obligation on a telecommunications operator. The clause as drafted makes clear that, when taking such a decision, a public authority—including the Secretary of State and the judicial commissioner—must have regard to the principles set out at Clause 2(2).
The effect of the clause is perhaps not far removed from the intention of the amendment, but I would argue that the current drafting has the benefit of providing clarity. I was grateful for the complimentary remarks about the clarity of the drafting of the Bill overall that the noble Baroness was kind enough to make. The drafting of this part of the clause makes clear that the privacy clause bites in every situation in which a public authority takes a decision or action to which privacy considerations are relevant. I hope that those comments will encourage the noble Baroness to withdraw the amendment.
I am sympathetic to the spirit behind Amendments 6 and 8, which seek to prohibit the authorisation of powers in the Bill if less intrusive means are available. I hope I can provide some comfort to the noble Baroness and the noble Lord, Lord Carlile, by directing them towards the statutory codes of practice which we have published in draft alongside the Bill for the Committee to consider. For example, paragraph 4.7 of the draft interception code of practice states:
“No interference with privacy should be considered proportionate if the information which is sought could reasonably be obtained by other less intrusive means”.
The codes will be submitted to Parliament for approval, and a failure to abide by them will be considered a breach by the Investigatory Powers Commissioner. I hope that that reassurance provides enough ammunition for the noble Baroness to withdraw her amendment.
Lord Carlile of Berriew
I do not want to prolong the debate, but does the Minister not think that it might be preferable to put these words in the Bill rather than face the inevitable consequences of legal discussions in the courts as to the role of codes of practice and their enforceability? Putting the words in the Bill at least provides certainty.
Earl Howe
I am grateful to the noble Lord for seeding that thought in my mind and I am glad to take it away and consider it between now and Report.
Amendment 7 also relates to Clause 2, which provides a statutory requirement that public authorities must consider all three of the privacy duties listed in subsection (2). It is not an exclusive list—there are other important principles that public authorities will have regard to—but it does make clear the principles that sit at the heart of this Bill and that underpin the exercise of functions under the Bill. And it is of course the case that the judicial commissioner will look to see whether these principles have been satisfied—when, for example, he or she reviews a Secretary of State’s decision to issue a warrant.
The noble Baroness expressed some concern about the phrase “have regard to”. In bringing forward the privacy clause, the Government responded to concerns raised by the Intelligence and Security Committee of Parliament as well as by the Opposition and the Scottish National Party in the other place. The language of “have regard to” is drawn from amendments tabled by the Opposition and the SNP in Committee. It reflects the language of Clause 1 of the Mental Health (Care and Treatment) (Scotland) Act 2003, which was held up by those parties in Committee as an exemplar of how such a clause might operate. That is the basis on which we have included that particular form of words. In short, while I am sympathetic to the concern raised in this area—
Lord Lester of Herne Hill
I am grateful to the noble Earl. Those precedents do not amount to what is really needed, which is full compliance with Article 8 of the convention and the Human Rights Act. In my opinion—it is no more than my opinion—the words do not satisfy that, whatever the precedents relied on may be in amendments tabled in other Bills. It is no use saying “have regard to”; it is necessary to ensure that what is in A, B and C happens in practice. “Have regard to” is rubbery and illusive and will not pass muster under the Human Rights Act or the convention, in my opinion.
Viscount Hailsham (Con)
May I press my noble friend more on this point? With regard to subsection (3), there is a test of relevance. Subject to the test of relevance, it seems to me that, under subsection (4), the public authority can in effect have regard to any consideration it deems fit. Is that correct?
Earl Howe
As I have said, it is not intended to be an exclusive list. There are, of course, factors that may well be relevant and a public authority will wish to have regard to that are not included in the list. We did not intend the list to be exclusive. However, I am grateful to my noble friend and, once again, I will take advice on whether the wording quite fits the intent.
The House has a proud tradition of respect for human rights. The Human Rights Act is referred to in Clauses 1 and 2. It is the Government’s view that those references make it absolutely explicit that the obligations and protections in that Act apply to the exercise of functions under the Bill. While I am sympathetic to the intention behind Amendments 9 and 13 and I listened with care to the noble Lord, Lord Lester, as I always do, I do not think the amendments are necessary. Public bodies are already required to act in accordance with the Human Rights Act 1998. Our position is aligned. The Human Rights Act is not an optional consideration when exercising the investigatory powers in the Bill. The Government consider it unnecessary to restate the position for that reason. Furthermore, we do not want to cast doubt in other places in statute where it is not restated, as that may serve actually to undermine the strong standing of the Act and the rights contained within it.
Turning to Amendment 10, I do not believe there is a divergence in principle here; this is merely a matter of drafting. The clause sets out that a public authority must have regard to certain considerations, and that duty is subject to the need to have regard to other considerations that exist elsewhere in the law. It would be superfluous to state that public authorities must have regard to things that they already must have regard to. For example, a warrant can be issued only where it is necessary and proportionate, and this is explicit in the relevant parts of the Bill. Equally, the need to comply with the Human Rights Act is encompassed within that Act: it does not need to be restated here. I hope that provides some reassurance and that the noble Baroness will, on that basis, choose not to press this amendment.
On Amendment 11, Clause 2(2) sets out the principles that public authorities must have regard to when exercising certain functions under the Bill. It is not an exhaustive list, and subsection (4) sets out some of the other factors that may be taken into consideration. Again, I emphasise that subsection (4) does not contain an exhaustive list. There will be other principles outside this list that public authorities will need to have regard to, and we should not cast doubt over that, as the amendment would.
My noble friend Lord Hailsham questioned the use of the word “may” as opposed to “must”. The use of “may” in subsection (4) should not be taken to imply that it is optional for public authorities to have regard to the principles listed in that subsection. The law requires, for example, that public authorities must always comply with their obligations under the Human Rights Act.
There are of course some factors listed at subsection (4) that will not be relevant in all circumstances: for example, it may not be meaningful, when modifying a national security warrant, to have regard to the public interest in the prevention of serious crime. But, to be clear, the use of the word “may” does not absolve public authorities from their wider obligations under this Bill or any other legislation.
I turn now to Amendment 12. Economic well-being is of course one of the statutory purposes of the security and intelligence agencies, and the reference to it in Clause 2 is intended to reflect that—nothing more. When powers under the Bill are authorised in the interests of the economic well-being of the United Kingdom, there must be a link to national security. The language at Clause 2 does not alter or undermine that; it simply reflects the statutory purposes of the agencies. As drafted, Clause 2 provides clarity and consistency with existing legislation. Given the specific limitations elsewhere in the Bill, any amendment to Clause 2 along the proposed lines is unnecessary.
Amendment 14 is the final one in this group. Your Lordships’ Committee is in no doubt of the importance of the office of the Independent Reviewer of Terrorism Legislation. David Anderson QC, who has occupied the role since February 2011 and whom both my right honourable friend the Home Secretary and I hold in the highest regard, does an excellent job of reviewing key counterterrorism statutes. His independent oversight and recommendations help us to ensure that our counterterrorism legislation is fair, effective and proportionate, and that it strikes an appropriate balance in the face of the very real and serious threat we face from terrorism.
Following the passage of the Counter-Terrorism and Security Act 2015, the Government undertook a consultation on whether David Anderson would benefit in his role from the support of a privacy and civil liberties oversight board. Having been informed by a public consultation on the board’s establishment, by David Anderson’s own recommendations on this matter and by the need to ensure the best value for public money, the Government decided that they could most effectively support the reviewer in discharging his statutory functions by instead providing him with specialist legal assistance in the form that he recommended in his July 2014 annual report.
Lord Lester of Herne Hill
I promise not to speak again on any amendments until we reach those covering legal professional privilege, as I do not intend to be even more of a human rights bore than I am at the moment. However, before the Minister sits down, since he has the great advantage of not being a lawyer, may I explain why the Government need to think again about the language that is being used currently?
The problem is that any mismatch between the wording of the Bill and the convention or the Human Rights Act would lead, necessarily, to a legal challenge, which would go probably all the way to the Supreme Court. At the end of the day, the court will say that it cannot do much about it, because the Act is clear, but that it will give a declaration of incompatibility. That will then cause the Government of the day to have to decide what to do about the language—whether they amend it or let it go to Strasbourg.
I want to avoid all that. Every time I see something in the Bill that seems to me to be a mismatch—for example the part which suggests that there are other unspecified relevant circumstances, which seems to violate the principle of legal certainty—I think, “Oh dear, this is going to lead to litigation and to a challenge”. I am begging the Government to make absolutely sure that the language of the Bill as it leaves this House cannot be challenged as being a mismatch with the European convention and the Human Rights Act.
The problem with the Human Rights Act is that it allows those challenges, quite rightly, to be made, along with declarations of incompatibility. That is why I really hope, when the Bill comes to Report, we can have language which, if not identical to these amendments, will achieve that objective.
Earl Howe
My Lords, I am grateful to the noble Lord for expressing his expert opinion so clearly. I can undertake only to study carefully what he has said between now and Report. Clearly, the Bill has been drafted by expert hands, but I am the first to say that there is no monopoly of wisdom on the Government’s side, and I am sure we need to taker full account of what he said.
Baroness Hamwee
My Lords, one of the things that we are saying is that because the Bill has a mixed heritage, it is perhaps not as clear as it could be and does not have the benefit of the expert work to which my noble friend referred. I am clearly going to have to read very carefully what has been said, but I want to make a few comments now.
First, I am grateful to the noble Viscount, but I do not think what he was saying was quite as the noble Earl put it with regard to the word “may”. We need to come back both to the “may” and the “other considerations” in particular and to the relationship between the subsections. That fact that the list in subsection (4) is not exclusive makes the matter even more difficult.
I obviously do not want to go over all the ground again. With regard to the privacy and civil liberties board, it was of course a construct—a compromise—but my noble friend Lord Strasburger’s point about somebody having the responsibility to make sure that privacy and civil liberties are right at the top, immovably in the agendas that the Government may have, is an important one. I, for one, would welcome something more than was in the Act.
I agree that listing where the duty bites does help clarity and transparency, but I had a difficulty in being completely certain that it bites on everything that I think it should; the filter in Clause 63 was my example. If the filter is part of granting, approving—obviously not—or cancelling an authorisation, that is fine, but it should be clear. I am afraid I am not hugely persuaded by a code of practice, since it is not primary legislation. In fact, I think the Minister said that we should have regard to it. If it provides that these matters are absolute, rather than discretionary, then the codes of practice will not be consistent with the primary legislation, and that will be a bad thing.
I come back to whether this clause has been invented here, or wherever it has been invented. I will offer to supply the hot towels for everybody—I might even provide cake—but this is a provision that would benefit from further discussion. I certainly do not offer not to bring it back on Report—I might if we can get to somewhere that satisfies all of those who are clearly concerned before then—but for the moment, I beg leave to withdraw the amendment.
Baroness Hayter of Kentish Town (Lab)
My Lords, I wish to speak briefly to Amendment 68, which is in my name and that of my noble friend Lord Rosser. Clause 45(1)(a) permits interception by a Revenue & Customs officer under Section 105 of the Postal Services Act 2000. That is the provision that contains the power to open postal items, so that is clear enough. However, Clause 45(1)(b) permits interceptions by, again, a Revenue & Customs officer under the same Section 105 “and another enactment”. It is the phrase “and another enactment” that I am not quite clear about. If Section 105 is sufficient, why add the words “and another enactment”? If it calls on some other law in order to legitimise this activity, should that not be detailed in the clause? Amendment 68 therefore proposes deleting the second arm—the “and another enactment” bit—unless the Minister can make some sense of it for me.
Earl Howe
My Lords, let me turn first to Amendment 19. Clause 4 defines interception. It provides greater clarity in relation to the activity that constitutes interception than is currently the case under the Regulation of Investigatory Powers Act 2000—RIPA—and responds to calls from a number of quarters that such clarity is necessary. “Relevant time” is defined in Clause 4(4) to make clear that the interception offence can be committed at any time while the communication is being transmitted, or while the communication is being stored. Under RIPA, it is an offence to intercept a communication in the course of its transmission by means of a public telecommunications system. There had in the past been some uncertainty as to the scope of the offence; for example, whether a voicemail message stored by a telecommunications system was still in the course of its transmission, and therefore whether to access it without lawful authority would engage the offence of unlawful interception. The revised definition of interception in Clause 4 is intended to make clear that messages stored in or by the telecommunications system are caught within the definition of interception, and therefore cannot be accessed without lawful authority. This puts beyond doubt, for example, that so-called phone hacking constitutes unlawful interception.
If the Bill were amended in the manner suggested, it would, I believe, undermine the strong safeguards that the Bill provides for the protection of private communications. It would cast doubt over whether access to stored communications without lawful authority would engage the criminal offence, and it would be less clear when a public authority required a warrant to intercept communications.
Amendment 66 is not necessary and would be very difficult to implement in practice. Clause 42 simply makes clear that where both parties to a communication have consented to the communication being made available to a third party, this does not constitute unlawful interception. The Bill already requires that consent must be given in such instances for it to be lawful. On the example of a telephone call, plainly it would not be practical to write to an individual seeking their consent before continuing with that call. I hope that the noble Lord will not press that amendment.
I turn to Amendment 68. Clause 45 relates to the power of HM Revenue & Customs to inspect postal items to ensure that contraband or illegal items are not being imported or exported from the country. This clause is vital in countering terrorism and preventing and detecting serious and organised crime. RIPA was amended by the Policing and Crime Act 2009 to put beyond doubt that the protections from interception afforded to postal communications in RIPA did not restrict this vital Revenue & Customs power to check international postal traffic. This clause simply maintains this position. I hope that I have been able to provide some reassurance as to why this provision is necessary.
Viscount Hailsham
Could I press my noble friend a little more on Amendment 66? Of course I understand that there will be circumstances when written consent cannot be made, but there will be many other circumstances when it can be obtained. I note, for example, that it involves the consent of both parties. That suggests that it happens some time before the interception takes place. I should have thought it perfectly possible to have a proviso that the consent should in general be forthcoming and evidenced in writing, but that there should be a disapplication in urgent situations. In dealing with that matter, can my noble friend help me as to why we have subsection (2) as well as subsection (1) of Clause 42?
Earl Howe
My Lords, I am very sorry to have to disagree with my noble friend about the consent in writing, which would be likely to result in completely impractical situations. It is not clear what real advantage would be gained. In any case, most of the time, prior consent in writing would simply not be an option. Taking the example again of a telephone call, it is difficult to see how the normal transaction of business would not be completely impeded if we insisted on this provision.
I shall endeavour to respond to my noble friend about his question on subsections (1) and (2). I do not have a ready interpretation to give him now but, if I can during the proceedings, I shall do so.
Lord Grabiner (Non-Afl)
The language is pretty clear. Subsection (1) of Clause 42 suggests that consent of both is required, while subsection (2) refers to the consent of the recipient alone.
Baroness Hayter of Kentish Town
Could the Minister write on the amendment to Clause 45(1)? I was absolutely not suggesting by the amendment that the right would be lost for Customs & Revenue to intervene—it was about whether it needed to be under both Section 105 and, as it says,
“that section and another enactment”.
It was the clarity of the words “and another enactment” that I was asking about. I would be quite content to have a letter to clarify that point.
Lord Paddick
My Lords, I am very grateful to those who have contributed to this short debate, and very grateful to the Minister. On Amendment 19, I think that I am right in saying that the issue around phone hacking was on whether a voicemail that had not yet been listened to was still in the course of transmission, whereas a voicemail that had already been listened to was not in the course of transmission. That was a reason that the police gave at one stage for not investigating some of the phone hacking. I find the wording rather curious. I should have thought that it would be sufficient to say that communication included communication stored prior to or following transmission. But I am not a lawyer—I accept that.
I accept what the Minister says on written consent, on Amendment 66, but surely there are other ways in which consent can be explicitly given. For example, if a telephone conversation was being recorded, both parties to that conversation could say on tape, as it were, that they consented to the interception of that conversation. Perhaps we could give that some further consideration. I beg leave to withdraw the amendment.
Lord Paddick
My Lords, the amendment is in relation to the mandatory use of equipment interference warrants. The wording of the relevant section says that security services must secure an equipment interference warrant if the “intelligence service considers that” the conduct would constitute an offence under the Computer Misuse Act. Surely, it must be something more than just whether the particular intelligence officer considers that the conduct would constitute an offence under that Act. Surely, an equipment interference warrant must be obtained because, otherwise, it would constitute an offence, rather than simply if the intelligence service considers that it is.
Amendment 24 makes a similar point about restrictions on the use of Section 93 of the Police Act 1997. In this case it states that a “targeted equipment interference warrant” is required,
“if the applicant considers that the conduct would … constitute”,
an offence under the “Computer Misuse Act 1990”. I would argue that exactly the same considerations apply as with Amendment 23. I beg to move.
Earl Howe
My Lords, the amendments in this group seek to change the language used in relation to the equipment interference regime and Computer Misuse Act offences. Clause 13 provides that an equipment interference warrant under the Bill is mandatory if the intelligence service considers that the conduct would constitute a Computer Misuse Act offence and there is a British Islands connection. Similarly, Clause 14 provides that law enforcement agencies will be unable to authorise this type of equipment interference under the Police Act 1997 where the applicant considers that the conduct would constitute an offence under the Computer Misuse Act. This is an important safeguard.
The language in Clauses 13 and 14 reflects the fact that at the point of application the equipment interference agency may not be able to say with complete certainty whether the proposed interference will constitute an offence under the Computer Misuse Act. For example, when an MI5 officer is handed a compact disc by a source, it may not be clear whether the disc belongs to the source who intends the officer to use the disc, in which case the Computer Misuse Act would not be engaged, or whether it is owned by another person who does not intend the officer to access the disc, in which case the Computer Misuse Act would be engaged. In these circumstances, the applicant will need to consider the possibility of an offence occurring, consult legal advisers, where unclear, and seek the appropriate authorisation, if required. The language of the Bill reflects that it may not be certain whether the Computer Misuse Act is engaged. The language in the Bill and the code of practice anticipate that applicants will err on the side of caution.
Finally, and crucially, all equipment interference will be overseen by the new Investigatory Powers Commissioner, ensuring that there is independent and objective analysis of any decision regarding the possibility of conduct constituting an offence under the Computer Misuse Act. I hope that explanation will be helpful to the noble Lord and explains why this language is in the Bill. I therefore invite him to withdraw the amendment.
Lord Paddick
I am very grateful for that explanation. I understand that it may not be certain that something constitutes an offence under the Computer Misuse Act. Where it is an offence under the Computer Misuse Act, does the Bill allow a Security Service agent or law enforcement officer to ignore that provision?
Earl Howe
That cannot happen. Without a valid lawful authority, interference with equipment that is prohibited by the Computer Misuse Act will remain illegal. If a member of an equipment interference agency considered that no Computer Misuse Act offence would be committed before beginning an operation but later determined that an offence was likely to be committed, they would be required to seek appropriate authorisation.
Lord Paddick
I am very grateful to the Minister. I beg leave to withdraw the amendment.
Baroness Hayter of Kentish Town
My Lords, I shall speak briefly about Amendment 148 in this group, which stands in my name and that of my noble friend Lord Rosser. It deals with what protections there should be for any journalist’s material collected as a result of any of these powers. In the case of material obtained that falls under normal rules of legal privilege, the Bill lays down the care with which such material should be treated under professional privilege. It is particularly important that the material is secured very safely, should anything from a journalist be held. Similarly for lawyers, material should secured very safely, and be seen by the fewest number of people possible. Anything that is not subsequently used in the investigation should be destroyed or returned and certainly not kept. That sort of safeguard should cover any journalist’s material, either under the Bill as it stands or as amended under Amendment 25.
The case has been made as to why it is so important to protect journalists’ sources. It encourages people to come forward to give what might be really important information to an independent source, who can then verify and publish it without the source’s identity being known. Sometimes, however, I have sympathy with people’s identity being known, when they are, for example, selling secrets they should not be to newspapers for large amounts of money. I am sorry that the noble Lord, Lord Black, was not here when we dealt with Amendment 18, as a number of newspapers have failed to work to implement Leveson. In discussion of what might constitute a journalist, perhaps anyone who works for a Leveson-compliant organisation, would be a good way of defining them. This might be the encouragement needed to bring that into being.
Guaranteeing anonymity has and always will be vital to the journalists’ profession, for the sake of those who go to them but also, as has just been mentioned, for the safety of journalists, literally hundreds of whom are killed around the world in the course of their duty. There can be little doubt that should some undesirable person or organisation think that a journalist who they have briefed or who has photographed or filmed them might hand that material over to the state, then that journalist becomes at risk. It is also essential that the use of powers that may affect journalists’ sources of information should be thought of being used only when there are exceptional and compelling reasons.
There will be times when journalists’ material gets scooped up, which is when it needs to be protected. More seriously, where journalists are being asked to hand over film or photographs, we share the desire that they should be fully protected, as outlined by the noble Viscount, Lord Colville. We hope that the Government have continued their discussion with the parties involved and we look forward to hearing an update.
Earl Howe
My Lords, this Government have been clear on their continuing commitment to protecting the free press and freedom of expression in this country. In the Commons and at Second Reading, we committed to looking at this issue further and ensuring that the balance of such protections was exactly right. I thank noble Lords for tabling this amendment and giving us the opportunity to continue this important debate. The Government have listened carefully to the debate on these issues so far, and have continued to discuss them with media organisations. I have met journalists and their representatives for a very informative discussion. This engagement has proved extremely useful all round, not least in resolving misunderstandings about the relevant safeguards provided in existing legislation.
In response, the Government tabled amendments in the House of Commons strengthening the protections in the Bill for journalists’ sources. The amendment passed on Report places an extremely strong test in the Bill where a public authority seeks to use communications data to identify or confirm a journalist’s source. This means that a judicial commissioner—that is, a serving or former high court judge—must first consider the public interest in protecting a source of journalistic information and then be satisfied that there is another, overriding public interest before approving an application.
In addition, the Government introduced a new overarching privacy clause which makes it explicit that public authorities exercising functions under the Bill must have regard, for instance, to whether what is sought to be achieved by any authorisation may reasonably be achieved by other less intrusive means. It also requires persons exercising functions under the Bill, including authorising police officers and judicial commissioners, to have regard to the public interest in the protection of privacy as well as numerous other principles that underpin the legislation. These amendments clearly spell out in the Bill some of the protections that journalists seek.
Of course, the Bill proceeds from the widely accepted position, endorsed by the Joint Committee on Human Rights, that,
“review by a judge or other independent and impartial decision-making body”,
is the most significant safeguard required to protect the confidentiality of a journalist’s source. The Bill introduces that safeguard across all warrants. It specifically provides for judicial approval of any authorisation to acquire communications data for the purpose of identifying or confirming a journalist’s source.
Amendment 25 would apply a standard set of protections across the different powers provided for in the Bill. While I commend the intention to strengthen protections, the Government do not consider this blanket approach to be the right one. The powers in the Bill are not the same; they vary both in the material that can be acquired and the level of intrusion that such an acquisition represents. That is why the Bill ensures that additional protections are applied where they are most appropriate, providing for judicial authorisation of the most intrusive powers and mandating the use of less intrusive powers where that is possible. Indeed, journalists have it made clear to me that, uniquely, they consider communications data to be at least as intrusive as content, since they allow a source to be identified. That is exactly why the Government have, also uniquely, provided for judicial authorisation of communications data requests to identify a journalist’s source.
This Government agree—indeed they forcefully advocate—that confidential journalistic material and journalists’ interaction with their sources must be protected, but that does not mean that a journalist should receive blanket protection from legitimate investigation simply because of their chosen profession. The Bill ensures that protections are applied where they are required, that those who commit a crime or pose a threat to national security can be investigated, regardless of their chosen profession, and it does so in a way which is compatible with all our ECHR obligations. I should be clear that the Bill already requires any authorisation to relate to a legitimate ECHR Article 10 aim, as part of the amendment demands.
Extending protections to all,
“activities relating to journalistic information”,
as the amendment seeks to do, brings real practical implications which the Government do not consider appropriate. For example, it is clear that the content of an interview conducted in public should not be subject to the same stringent protections as a dossier of private, undisclosed material passed by a source and held in confidence. That would render meaningless those protections which are appropriately applied to confidential journalistic material.
In addition, the amendment would mean that a journalist suspected of committing a crime could be investigated only in an emergency situation where immediate action was necessary and an order to use the powers in the Bill was obtained from a judge—that is, if the crime had already taken place and there was no immediate danger, the powers could not be used to bring that individual to justice, nor could they be used to prove that individual’s innocence. I suggest that that is the wrong approach, and that is without considering the question, which even the National Union of Journalists has admitted is extremely difficult, of defining who is and who is not a journalist in the digital age.
Finally, on the question of the key decision-maker in this process, the Bill upholds the important principle of judicial involvement. A number of bodies representing the journalist profession have argued that the only way to prevent the powers in the Bill being misused is to allow a journalist to be involved in the judicial commissioner’s decision. The Government do not agree.
Of course, our security and intelligence and law enforcement agencies will in very limited circumstances have a legitimate need to investigate a journalist or their source. Where a journalist is suspected of a crime, it is clearly not appropriate that they should be alerted to the investigation, but there is a fundamental consideration here: these powers are by their very nature covert. Requiring prior notification would undoubtedly undermine the key purpose of the powers, whose use in relation to journalists, we should be clear, is already extremely limited.
Instead, the Bill provides for a robust regime to govern the use of the powers, with a clear role for judicial commissioners in authorising and overseeing their use by public authorities. It also sets out the offences that apply in the event that any of the powers are misused and provides for a world-leading oversight regime, led again by senior and independent judicial figures. The Bill takes a reasoned, balanced approach—the right approach—to protecting the important role of the media in a democratic society. It applies protection where it is needed without unduly hampering our law enforcement and security and intelligence agencies when they truly require the use of the powers. It is on that basis that I invite the noble Viscount to withdraw his amendment.
The noble Lord, Lord Strasburger, asked about protection for whistleblowers. The Joint Committee that was convened to scrutinise the draft Bill recommended that it make it clear that members of the intelligence services can raise concerns about the misuse of investigatory powers with the Investigatory Powers Commissioner without being at risk of prosecution for breaching the Official Secrets Act—that was recommendation 61. The Government included Clause 203—now Clause 212—on the Bill’s introduction to the House of Commons to give effect to the committee’s recommendation. The Bill will allow an individual to provide information on a voluntary basis to the Investigatory Powers Commissioner without that individual committing a criminal offence or incurring civil liability. Of course, any use of these investigatory powers must be for one of the purposes specified in the Bill, such as the prevention or detection of a crime or in the interests of national security. They cannot be used simply to protect any organisation’s reputation.
Amendment 148 would apply protections designed to provide the appropriate safeguards for a specific power to entirely different circumstances. “Exceptional and compelling” is a phrase which relates to a very specific set of circumstances: those in which the Secretary of State is satisfied, and the judicial commissioner agrees, that it is necessary to issue a warrant where the intention is to acquire legally privileged communications. Such circumstances will arise only in a very restricted range of cases, such as where there is a threat to life or limb or in the interests of national security and the interception is reasonably regarded as likely to yield intelligence necessary to counter the threat.
The test which the Government introduced into Clause 73 in the other place relates to the acquiring of communications data to identify or confirm a journalist’s source. It requires the judicial commissioner to have regard to the public interest in protecting journalists’ sources and then to consider, as I explained earlier, that there is another overriding public interest before granting the request. I suggest that that is the appropriate test because it reflects the requirements of freedom of expression under Article 10 of the European Convention on Human Rights.
This amendment also seeks to apply the arrangements provided for in relation to material acquired under an interception warrant to the handling, retention, use and destruction of communications data. While I commend the intention of this element of the amendment, it is unnecessary as equivalent safeguards are already to be found in chapter 11 of the Draft Communications Data Code of Practice. This chapter provides significant detail on the handling arrangements for communications data, placing stringent safeguards around how it is held: for instance, restrictions on who may access the data and for what purposes; when the data may be disclosed; and that when it is no longer necessary or proportionate to hold the data, it must be destroyed. These are strong safeguards which provide the appropriate protections for data.
As I noted earlier, the Bill takes what I would contend to be a reasoned and balanced approach—the right approach—to protecting the important role of the media in our society. I hope that, on that basis, the noble Baroness will not press her amendment.
Lord Strasburger
Perhaps I may ask the Minister three questions. Do the Government have any problems with the way that PACE currently protects journalists’ sources? I ask this because many of the criticisms he made of this amendment with respect to potential tipping off would surely also apply to PACE. The second question is this: do the Government feel that this Bill protects the communications data of journalists as well as PACE currently does? Thirdly, what special protections do the Government say the Bill gives journalists with respect to equipment interference?
Earl Howe
My Lords, the Government are clear that the regime provided for in the Bill is not inferior to the provisions of PACE. It requires that applications be made to a court for a production order on notice to the holder of the material. In the case of communications data the whole of the material is a telecommunications provider, not a journalist. We are therefore clear that nothing in the Bill enables the investigatory authorities to circumvent the protections for journalists’ sources contained in PACE. Indeed, in 2015 the Interception of Communications Commissioner conducted a detailed investigation into the allegations that public authorities had utilised RIPA to avoid the use of PACE and clearly rejected the claim. The amendments that we have made to the Bill combined with the other safeguards for acquiring communications data mean that the relevant considerations laid out in Schedule 1 to PACE are addressed on the face of the Bill.
Viscount Colville of Culross
My Lords, I thank noble Lords across the Committee for their support for this amendment. I am particularly grateful to the noble Baroness, Lady Hayter, for pointing out the dangers to journalists that are possibly posed by this Bill and how the amendment might be able to ameliorate that situation. I am also grateful to the noble Lord, Lord Murphy, for reminding us of the recommendations of his committee. There was a worry that there was less protection for journalists under the Bill than had existed under PACE. I know that the Minister has answered the point, but obviously there is widespread concern that that is the case.
I ask the Minister to listen to the noble Lord, Lord Paddick, who after all was a senior policeman. He himself pointed out that when it comes to looking at serious crime, particularly the worries over violence in demonstrations, it is all about keeping the balance and making sure that journalists do not become a target for violence and that we protect them. I thank the noble Lord, Lord Strasburger, for pointing out the importance of keeping the anonymity of whistleblowers. Of course the whistleblower Act protects whistleblowers, but only once they have been named. What we are trying to do is to maintain their anonymity.
I thank the Minister for the discussions that we have had in the run-up to the Bill, but I ask him to look once again at the protections in place for journalists under different powers. I do not think, as he said, that we are asking for blank protections for journalists. We are asking for them to be carefully controlled with different thresholds and controls to exist in different powers. I am also sorry that the Government do not feel the need to notify journalists that a warrant is going to be issued. It would be extremely helpful and it is important in making sure that the process works better.
I hope that the Minister will at least continue discussions with us between now and Report stage about how we can extend the protections for the sources of journalistic material. For the moment, however, I beg leave to withdraw the amendment.
Investigatory Powers Bill
Earl Howe Excerpts(10Â years, 2Â months ago)
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Lord Beith (LD)
My Lords, the Secretary of State’s involvement in law enforcement warrants is a historical hangover from when this was the only kind of control or restraint on police applications that existed prior to this legislation. Perhaps it shows a lack of rethinking the nature of judicial authorisation, such as this Bill provides for, that her involvement—it may well be “him” in the future—should have survived when it does not seem either to have practical purpose or to add significantly to the protections that the legislation will afford against misuse or excessive use of the power.
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, as the noble Lord, Lord Paddick, explained, these amendments seek to place the sole decision on whether to authorise a warrant application with a judicial commissioner. In the Government’s firm view, this would be a mistake. The noble Lord asked why there is a need for the Secretary of State’s involvement at all. Having a judicial commissioner be solely responsible for authorising warrants would remove all democratic accountability for that decision and would effectively remove parliamentary scrutiny from the process. In the scenario that a warrant was incorrectly either refused or approved, then the ability of Parliament to hold an individual to account for that particular decision would be greatly diminished.
Lord Strasburger
I think the Minister will have to concede that the notion of democratic accountability is wafer thin because a Minister cannot come to Parliament to explain or defend what is being asked about—any warrant. I would like the Minister to explain to us why the four other partners in the “Five Eyes” network—that is, Australia, Canada, the US and New Zealand—find no need for this democratic accountability.
Lord Strasburger
The “Five Eyes” partnership of Australia, New Zealand, Canada, America and the UK has been in existence since the Second World War. The UK is the only one out of those five that feels the need for Secretaries of State or politicians in general to be involved in authorising warrants. I was wondering why the UK has to stand out alone in that way.
Earl Howe
It is really quite difficult for me to answer the noble Lord’s question on the “Five Eyes”: it has to be a question for the other members of that group. The approach we have taken is consonant with our general wish, as a country, to hold Ministers to account for important decisions taken about national security and privacy, rather than to consign those decisions to the court. Nevertheless, we believe there is a role for a judicial commissioner to approve what Ministers do. That double lock is the formula which most people in the other place were comfortable with. That is probably all I can say on that score. I hope that the noble Lord will reflect on the case of Lee Rigby, which is a good example of how a Minister was directly accountable to Parliament, albeit in secret session but nevertheless fully accountable to a committee of Parliament. I am sure there are other examples where that has occurred.
Lord Pannick
Before the Minister sits down, could I test his patience? Will he write to me on the question that I raised, which is whether or not the Bill will expand the scope of the authorisation powers of the Secretary of State to new areas or whether it simply continues the existing scope of those powers? If the Bill does confer an authorisation power on the Secretary of State in relation to a wider scope, could he please explain why?
Lord Paddick
I am grateful to the Minister for his explanation. I did say that the amendments were probing ones and suggested that national security and politically sensitive issues—as with the Lee Rigby case, to which he referred—would have to be outside this provision. The fact is that in 2014 the Home Secretary personally authorised 2,345 interception and property warrants and renewals, which is about 10 a day. Even David Anderson was shocked by the number of warrants that the Home Secretary had to personally sign, which was why he came up with his recommendation. As the noble Lord, Lord Pannick, said, our understanding is that the number of warrants which the Secretary of State will have to sign will increase as a consequence of this legislation. David Blunkett, who has written of his time as Home Secretary, said that:
“My whole world was collapsing around me. I was under the most horrendous pressure. I was barely sleeping, and yet I was being asked to sign government warrants in the middle of the night. My physical and emotional health had cracked”.
I am sure that the current Home Secretary is more resilient than the noble Lord, Lord Blunkett, was in those circumstances.
Another issue, which I spoke about in the previous set of amendments, is the importance of international collaboration, particularly with the United States. I reinforce what my noble friend Lord Strasburger said. In America, federal investigative and law enforcement officers are generally required to obtain judicial authorisation for intercepting wire, oral and electronic communications. A court order must be issued by a judge of a US district court, a US court of appeals or a FISA judge. If we are to have these international co-operation agreements, again, as David Anderson pointed out in his report, it is important as far as possible to harmonise between different countries the authorisation levels of the system of authorisation. I will read what the Minister has said in his response and I agree that the amendments as drafted go too far, but this is something that we can hopefully discuss between now and Report. If not, we may have to bring this matter back on Report. At this stage, I beg leave to withdraw my amendment.
“( ) The fact that the information which would be obtained under a warrant relates to the activities in the British Islands of a trade union is not, of itself, sufficient to establish that the warrant is necessary on grounds falling within subsection (4).”
Earl Howe
My Lords, in moving Amendment 38, I will speak also to Amendments 117, 118, 120, 155, 157, 162, 163, 165, 166, 203, 220 and 223. I recognise that the Opposition and the Scottish National Party raised concerns about trade union protections in the Public Bill Committee in the other place. I know that it has been suggested that investigatory powers may have been used in the past to interfere with legitimate trade union activity.
Allow me to repeat what was said in the Commons. The agencies have never been interested in investigating legitimate trade union activity. The Security Service Act 1989 and the Intelligence Services Act 1994 limit the activities of the agencies. Both Acts make it explicit that the agencies cannot act to further the interests of any political party. It goes without saying that all the agencies take these duties very seriously.
The Government therefore agreed an opposition amendment on Report in the Commons to what is now Clause 20 of the Bill, making explicit that legitimate trade union activity would never be sufficient grounds of itself for an interception warrant application to be considered necessary.
These amendments read across protections from that amendment to all the relevant provisions in the Bill. It would still permit public authorities to apply for a warrant or authorisation, or issue new or varied data retention notices under Part 4, relating to members or officials of a trade union considered to be a legitimate intelligence target, but it makes explicit that legitimate trade union activity would never be sufficient grounds, of itself, for a warrant, authorisation or notice to be considered necessary. Accordingly, I beg to move.
Lord Pannick
The noble Earl recognises in his amendment that legitimate trade union activities would not of themselves be sufficient to establish the necessity of a warrant. I wonder whether the Government’s position is that they also recognise that legitimate trade union activities could not be relevant to the issue of a warrant, because the amendment does not go that far. If the Government do not recognise that, can they give a practical example of where legitimate trade union activities—I emphasise legitimate—could even be relevant to the issue of a warrant?
Lord Rosser
Unless the noble Lord, Lord Pannick, has driven a coach and horses through these amendments—I shall have to consider carefully what he said—I would like to thank the Government for bringing them forward. As has been said, they incorporate in all the relevant parts of the Bill the change that was made in relation to trade union activity in providing protection for it when the matter was debated in the Commons. We welcome the amendments and the Government honouring the commitment that they gave in the other place.
Armed Forces Deployment (Royal Prerogative) Bill [HL]
Earl Howe Excerpts(10Â years, 3Â months ago)
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The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, the noble Baroness, Lady Falkner of Margravine, is to be congratulated on introducing the Bill and I thank her for the characteristically clear and cogent way in which she introduced it. Her desire to formalise the war powers convention that Parliament should be consulted before troops are committed to conflict overseas may be considered understandable given the events of the past few years. It is clear that she also recognises the difficulties in the existing convention and believes that her Bill would serve as a useful measure of clarification. I also fully appreciate her concern not to constrain the Government’s room for manoeuvre during crises and conflict.
In drawing up her Bill, she has undoubtedly—as she explained—consulted expert legal opinion and the excellent report into the subject produced by the House of Lords Constitution Committee in 2013, of which she was a member. The report’s conclusions are highly pertinent and worth repeating. It found that the existing convention was the best means by which the House of Commons can exercise control over decisions to use force, that Parliament’s role should not be formalised by way of legislation or resolution, and that the risks associated with formalisation outweigh the benefits. This report was of considerable assistance to the National Security Council, chaired by my right honourable friend the Prime Minister, which decided earlier this year that the war powers convention should not be codified. It took that decision in order to retain the ability of this and future Governments to protect the security and interests of the UK in circumstances we cannot predict, and to avoid such decisions becoming subject to legal action. The noble Baroness, Lady Deech, spoke very powerfully on that point, as did my noble friends Lord Attlee and Lord Robathan. We are debating this Bill in a week when the findings of the Chilcot report are much on everyone’s minds. To the extent that that report has raised concerns about the role of the Cabinet, and the accuracy of the information available to Parliament, it is worth reflecting that formally codifying the convention would not address those concerns in any way.
The Government’s policy position was set out recently by my right honourable friend the Defence Secretary, in an admirably clear Written Statement. That Statement said:
“In 2011, the Government acknowledged that a Convention had developed in Parliament that before troops were committed the House of Commons should have an opportunity to debate the matter”,
and that the Government—
“proposed to observe that convention except where there was an emergency and such action would not be appropriate.”—[Official Report, Commons, 18/4/16; col. 11WS.]
That exception is one which I believe is widely understood and accepted. As the Statement explained, it is important to preserve the exception in order to ensure that this and future Governments can use their judgment about how best to protect the security and interests of the UK. In other words, while observing the convention, we must also ensure that the ability of our Armed Forces to act quickly and decisively, and to maintain the security of their operations, is not compromised.
The issues raised by the noble Baroness’s Bill have been thought about very carefully. I have to tell her that we do not believe that what she is proposing is the right way to go. We believe it would have the opposite effect to the one intended, potentially tying the Government’s hands in an unhelpful way, and at the same time muddying the waters. The combined effect would be to make our country less safe and less secure, rather than the reverse. I am of course happy to have discussions with the noble Baroness to explain the Government’s position in further detail, should she wish me to. Meanwhile, however, I fear that my overall message to her must necessarily be a disappointing one.
Investigatory Powers Bill
Earl Howe Excerpts(10Â years, 3Â months ago)
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Earl Howe
That it be an instruction to the Committee of the Whole House to which the Investigatory Powers Bill has been committed that they consider the bill in the following order:
Clauses 1 to 7, Schedule 1, Clauses 8 to 12, Schedule 2, Clauses 13 to 53, Schedule 3, Clauses 54 to 57, Clause 221, Schedule 8, Clauses 222 to 231, Clauses 58 to 66, Schedule 4, Clauses 67 to 79, Schedule 5, Clauses 80 to 100, Schedule 6, Clauses 101 to 126, Clauses 203 to 216, Schedule 7, Clauses 217 to 220, Clauses 127 to 202, Clauses 232 to 241, Schedule 9, Clause 242, Schedule 10, Clause 243, Title.