Investigatory Powers (Amendment) Bill [HL]

Baroness Manningham-Buller Excerpts

2nd reading
Monday 20th November 2023 Lords Chamber

[Baroness Manningham-Buller (CB)]

Will your Lordships allow me to speak in the gap? I had not intended to speak in this debate because I knew that my noble friend Lord Evans is more up to date than me. I think my noble friend Lord Anderson has had enough praise already, but I shall add a bit. I promote the noble Baroness, Lady Bennett, because nobody else of her gender was going to speak in this debate. I shall make a few comments on the things that have been said. The noble Lord, Lord Murphy, talked about the balance between liberty and security. Of course that is an issue, but there is no liberty without security. Without making sure that our electoral proceedings, our secrets and our citizens, whether shopping or going on the Tube, have safety in their lives, there is no real liberty. I think sometimes it is an artificial distinction.

I noticed that my noble friend Lord Evans and my successor but one, Ken McCallum, the current head of MI5, gave a public speech in California recently at the Five Eyes conference—a first—and it was reported. There were three things he talked about as really at the top of his concerns: first, whether arising out of the tragic events in the Middle East there would be a resurgence of terrorism in that area; secondly, cyber; and thirdly, the threat to our democracy, including our electoral process, from various states. It is not an accident that the law governing the Security Service emphasises that it is there to protect parliamentary democracy. I find quite strange the idea that it is a threat to it.

I would also like to, I am afraid, dismiss as ignorant the spurious argument that having too much information means that you do not find the people you should have found. As my noble friend has said, you can know of people in this country, and MI5 will know some about whom it has significant concerns, but it does not know what they will do. It is also constrained, rightly so, by the law, and cannot suggest to the police that they arrest people unless there is a good case to do so, any more than it can mount intrusive surveillance unless there is a good case to do so.

The final point I would make in endorsing again what my noble friend has said is that my colleagues in the service and in the other agencies were very conscious that the law gives us powers that are not given to the normal citizen. The Murdoch press occasionally took them with the interception of phones, but they are not given to the normal citizen. They are given to the agencies and the police within the law. Precisely because they are not normal abilities to intrude into people’s privacy, that work has to be done with great care to the highest ethical standards and only when proportionate and necessary. Excuse me for delaying the conclusion of this important debate, but I did not think I could sit patiently and not make those remarks.

Investigatory Powers (Amendment) Bill [HL]

Baroness Manningham-Buller Excerpts

Committee stage
Monday 11th December 2023 Lords Chamber

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow the noble Lord, Lord Murphy, who has served with such distinction on the issues we are discussing this afternoon. I do not want to repeat what I said at Second Reading; I spoke in support of the Bill in general terms, and I remain in support of it. The only additional thing I would say is that we should not allow unnecessary amendment of the Bill to create a sort of legislative game of Dungeons and Dragons in which a bureaucratic labyrinth would be created which can be met in a much more practical way. On the whole, the Bill is pretty practical about a modern problem—a more modern problem than existed, say, 10 years ago—which has to be addressed in real time and sometimes with great urgency in that real time.

I want to say something that follows from what the noble Lords, Lord Murphy and Lord West, said about the ISC. I hope that we can tease a little more information out of the Minister, who has been extremely helpful to all of us who are interested in the Bill. I can see, and I would be grateful if the Minister would tell us, that there might be some practical problems relating to national security in the way in which the ISC was informed about problems arising under the provisions in the Bill when it becomes an Act. It would be helpful to the Committee if the Minister were to say from the Dispatch Box that the Government certainly do not exclude the involvement of the ISC in the consideration of the Bill. I should also be very grateful if he would say that the Home Secretary would regard it as a duty to inform the ISC on his personal responsibility if issues arose which ought, in the national interest, to be the subject of information to the ISC. Thus, the ISC might be able to report on these issues without too much bureaucracy being involved and any arguments about what is or is not disclosable in a wider way concerning national security.

[Baroness Manningham-Buller (CB)]

My Lords, I do not know whether I can help the noble Lord, Lord Fox, on his question of urgency. One of the things that the Security Service and the other intelligence agencies do is deal with matters of life and death, of imminent terrorist threats, of states pursuing one of their dissidents. There is many an occasion when moving at vast speed outside the hours when IPCO is available is necessary and proportionate. I am out of date, so it is hard to give lots of current examples, but many a time there is an urgent need to move fast to try to save life.

On the point from the noble Lord, Lord Murphy, about the ISC—we will come on to look at these amendments in more detail—as far as my service is concerned, we did not need to get used to the ISC in that we had been demanding its creation for a number of years, with resistance from the Prime Minister of the day until it actually came into being. And when it did, we very much welcomed it.

I have hardly had more pleasure since I have been in this House than from the amendment in the name of the noble Lord, Lord Fox, on seeking to forget stuff. Like some noble Lords, I have difficulty in remembering things—I am sorry, I should speak only for myself—but if I was legislated to forget something, it is almost certain that I would be capable of remembering it.

[Lord Fox (LD)]

That is exactly the case.

Investigatory Powers (Amendment) Bill [HL]

Baroness Manningham-Buller Excerpts

Committee stage
Wednesday 13th December 2023 Lords Chamber

[Lord Fox (LD)]

My Lords, I rise to speak to the amendments in my name in this group. First, I shall make some brief and broadly supportive comments regarding the amendments proposed by the noble and learned Lord, Lord Hope, and the noble Lords, Lord West and Lord Coaker.

As we have heard, all these amendments are designed to tighten up or clarify the triple lock and the changes introduced in the Bill. As your Lordships know, the triple lock relates to circumstances where UKIC and law enforcement may obtain and read the communications of MPs, et cetera; we will talk about the “et cetera” in a minute. Currently, the usual double lock is supplemented by an unqualified requirement that the Secretary of State may not issue the warrant without the Prime Minister’s approval.

As we heard from the noble and learned Lord, Lord Hope, the report from the noble Lord, Lord Anderson, explores the circumstances in 2020 when the Prime Minister was hospitalised and the triple lock was therefore rendered unavailable. The noble Lord recommends the use of a deputy for the purposes of the triple lock when the Prime Minister in unable to approve a warrant in the required timescale, particularly through incapacity, conflict of interest or an inability to communicate securely. As we heard from the noble and learned Lord, “unable” has been substituted with “unavailable” in the Bill. I really am not sure why—perhaps the Minister can explain why—but that is a different context. In his normal, forensic way, the noble and learned Lord explained the difference between those words; that is why I was happy to sign Amendment 51A, which reverts back to the originally recommended “unable”.

The amendments in the name of the noble Lord, Lord West, are more probing but interesting. We will be interested to hear how the Minister responds to them; I look forward to that.

Amendment 47 in the name of the noble Lord, Lord Coaker, seeks to limit the number of Secretaries of State who can be designated in that deputy role. This seems a reasonable suggestion. Others may want to change the list, but a senior group of Ministers should be listed; surely having three or four of them on that list should be sufficient to deal with the issue.

The noble Lord, Lord Coaker, spoke to Amendment 55A. There are elements of reporting there that are reflected in my Amendment 55, which I will come to shortly.

I will now speak to Amendments 50, 54 and 55 in my name. Amendments 50 and 54

“would require that members of a relevant legislation who are targets of interception are notified after the fact, as long as it does not compromise any ongoing investigation”.

Amendment 55 seeks to ensure that the Investigatory Powers Commissioner reports annually on the operation of surveillance warrants and safeguards in relation to parliamentarians. This should include records in the annual report of the number of warrants authorised each year to permit surveillance of the Members of relevant domestic legislatures. This would ensure transparency, at least over the rate at which the power is being used.

Before talking a little more about this, it is worth recapping the history of political wiretap legislation. I am sure there are others who know it better than I, but it was helpful for me to understand the context. As we have heard, the IPA permits the interception or hacking of parliamentarians or the Members of other domestic legislative bodies via this triple-lock system, whereby the Secretary of State can issue a warrant with the approval of the Prime Minister, as per Sections 26(2) and 111(3). Until October 2015, it was widely understood that the communications of MPs were protected from interception by the so-called Wilson doctrine. This protection extended to Members of the House of Lords in 1966, and was repeated in unequivocal terms by successive Prime Ministers. Tony Blair clarified in 1997 that the policy

“applies in relation to telephone interception and to the use of electronic surveillance by any of the three security and intelligence agencies”.—[Official Report, Commons, 4/12/1997; col. 321W.]

Despite this clear and unambiguous statement that MPs and Peers would not be placed under electronic surveillance, an October 2015 decision by the Investigatory Powers Tribunal held that the doctrine had been unilaterally rescinded by the Executive. We pick up from there, so it is an interesting evolving power and we are part of that evolution in this Bill.

This evolution has also coincided with the meteoric rise in electronic communication that now offers the possibility of vastly more information being unearthed than was the case with a simple wiretap back in the Wilson days. First, there are clearly times when this sort of interception is necessary, and that is why the triple lock is such an important safeguard. But I have a couple of modest suggestions contained in these amendments. I must say now that I am in a state of deep trepidation, as not only has the noble Baroness, Lady Manningham-Buller, given me notice that she is on my case but she has actually moved five Benches closer than she was on Monday, so my boots are shaking.

These amendments would introduce a post-notification procedure to inform parliamentarians where they have been affected by targeted surveillance powers, but only if it does not compromise any ongoing investigation. Clearly, they would have to be deemed innocent or beyond suspicion for that notification to happen. I agree that it would be unfortunate, to say the least, if, for example, the announcement of any investigation revealed confidential sources that led to the initial investigation. I had hoped that my wording implied that, but I will be very happy to work with the noble Baroness on improving the wording on Report if she deems it necessary.

We got to the fourth group of amendments to the Bill without my raising the European Convention on Human Rights. Now is the time. Happily, I am sure that the Minister has been reading up on this for other reasons, and he will no doubt be familiar with this important bastion of freedom. I refer in particular, in this case, to Article 8: the right to respect for private and family life, home and correspondence. I feel sure that most surveillance interventions would meet the terms of Article 8, which are summarised as:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.


As I say, it is unlikely that the activities we have been describing will break that.

In the unlikely event that they do and there is a misstep, in order to bring a case under the Article 8 right it is necessary for a person to know that their privacy was breached in the first place, hence Amendments 50 and 54. I refer the Minister to two Article 8 rights cases heard by the European Court of Human Rights: Klass v Germany in 1978, which was reiterated in Weber and Saravia v Germany in 2006.

Amendment 55 is a bit simpler. It would ensure that the Investigatory Powers Commissioner’s annual report provides information about the operation of safeguards in relation to surveillance of Members of Parliament et cetera, as is already required for journalists. It would mandate that

“information in particular about warrants … considered or approved”

that are targeted at MPs et cetera is included, further to the requirement to provide information on general targeted interception and hacking warrants. I believe that is not a controversial ask, and I hope the Minister agrees.

I would like to use these amendments to do some probing as well as changing words, by confirming the “et cetera” part of MPs et cetera. My understanding, which I am sure is correct, is that as things stand that includes Lords and elected Members of the devolved authorities. But our democratic system is changing and evolving as we go. We now have very powerful elected mayors with very large electorates—much larger than any MP’s. I wonder whether there is an argument that they too should be included within the triple-lock umbrella going forward. I have one additional question in this vein. Once out of office, do all these individuals no longer attract triple-lock protection? Are ex-First Ministers, ex-MPs and ex-Prime Ministers all no longer subject to the triple-lock safeguards?

This sort of legislation breeds suspicion. The two measures I propose here are sincere attempts to help tackle some of these suspicions and create sufficient transparency to allay the fears that there is widespread and extensive activity of this type—assuming, of course, that this activity is indeed a rare occurrence.

[Baroness Manningham-Buller (CB)]

My Lords, the noble Lord, Lord Fox, is quite safe; I am not going to come and hit him, but I am going to try to demolish a few of his arguments.

I will start with the word “transparency”, which appears again in some of the amendments in the name of the noble Lord, Lord Coaker. The work of the security and intelligence agencies can never be transparent. It is in the interests of those agencies that as much as can safely be known of what is done in their name is known, which is why my organisation sought law in the 1980s. But there will always be things that cannot be made public because, if they are, we might as well pack up and go home.

Appealing as the amendments in the name of the noble Lord, Lord Fox, might be on the surface, for a start, telling people that they have been subject to interception would require us to alter earlier parts of the IPA because it would be illegal. To do so would also risk sources and methods. Of course, they would not be itemised, but let us consider a speculative case of a Member of the other House who has a relationship with a young Chinese lady. Let me emphasise strongly that this is not based on any knowledge of anything. Indeed, when I was director-general of MI5, we still operated the Wilson doctrine. Somebody in that MP’s office approaches my former colleagues and raises concerns with them. A warrant is obtained, signed by the Prime Minister, and subsequently it becomes clear that the concerns of the individual in the office—the source of the information—were absolutely justified. Now, we cannot tell that individual at any stage whether he or she is acquitted of any wrongdoing or ends up care of His Majesty’s jails. We cannot at any stage tell him because it risks sources and methods.

[Lord Fox (LD)]

I do not think I was saying that.

[Baroness Manningham-Buller (CB)]

No, this is what I want to establish. Just saying that he has been intercepted will lead that person to wonder how, so we cannot act covertly if there is any danger of sources being revealed or future operations being compromised.

Additionally, it raises the question of why Members of legislatures should have the privilege of being told that they have been subject to interception when members of the public never are. It is wrong, as it was, to treat parliamentarians as a particularly special case. Of course, such cases are highly sensitive, hence the triple lock; hence, I suggest, the rarity of this, but I think Amendments 50 and 54 are potentially damaging. I will shut up now.

[Lord Hogan-Howe (CB)]

My Lords, I apologise that I did not speak at Second Reading, but I was here. Perhaps for the same reasons, I strongly support what the noble Baroness, Lady Manningham-Buller, has just said. It is secret that telephone interception is in place. If someone is aware, directly or indirectly, that the only way the Security Service or the police will discover a certain piece of information is by a telephone call, then it could be revealed, so it would require the law to be changed.

I have four worries about this amendment. First, at the point at which an interception is stopped, it is very difficult to predict whether the investigation will continue and/or be resumed. If the suspect is advised of the existence of the investigation, it gives them the potential to destroy evidence, which may frustrate the investigation in the long run, so I do not think it is wise to advise any suspect that they have been under investigation.

Secondly, there are two types of investigation: overt ones, where the person knows they are under investigation, and covert ones, where they do not. There is a general convention whereby if an investigation concludes without a charge, we have never told the person that they were under investigation. I am not sure why we would breach that principle merely because intrusive surveillance was in place.

Thirdly, as the noble Baroness mentioned, why would we do that only for Members of the legislature? It could be put in place, but there have to be some strong reasons. I do not think Members of a legislature can just say, “We deserve extra protection”. There has to be a stronger reason, because, otherwise, the rest of the public could rightly say, “Well, why can’t we have that protection?” For that reason alone, you would have to think very seriously about it.

Finally, sometimes Members of the legislature might be under investigation for things in their private capacity and sometimes for a mixture of the two; it might overlap into their legislative acts. Before anything like this was considered, I would take an awful lot of persuasion and I do not think the argument was made for why this needed to happen only for Members of the legislature.

--- Later in debate ---

The last point I will make is that it always seems to me that the interconnectivity of the world must be really difficult when it comes to the legislative process. The movement of data and telecommunications across continents, let alone between countries and jurisdictions, must be incredibly difficult. As I say, Amendment 58 is simply another probing amendment to ask the Government what their view is and what their thoughts are about where the legislation goes to next.

[Baroness Manningham-Buller (CB)]

My Lords, I want to make a couple of comments in response to what the noble Lord, Lord Coaker, has just said. I can speak only for MI5, but, for many years, it certainly has been a desire of the organisation that, as far as safely possible, the British public—it needs their support every day of the week to do operations—have an understanding of what is done in their name to protect democracy.

I want to counter slightly the comment—I cannot now remember who made it—that there was much suspicion of this sort of activity. I may have misheard, because I am rather deaf. In my experience, when members of the public are approached by MI5 for help—such as, “Can I sit in your bedroom with a camera?”; something I would have deep suspicion of—they nearly always say yes and agree to co-operate. In my experience, when we are talking about transparency in this area, the public who I have encountered completely understand the role of secrecy. They do not want their role exposed, and, in particular, the identities of those brave men and women who we now clunkily call covert human intelligence sources need to be protected for ever. I want to counter the idea about public opinion. Of course there are concerns, but a lot of people are extremely supportive and deserve our thanks on a day-to-day basis.

[Lord Murphy of Torfaen (Lab)]

My Lords, when I started life in politics a long time ago—50 years or so ago—when the general public, or people who had political ideas, thought about the security services they were generally criticised because they were spying on people who should not be spied on, such as political activists and all the rest of it. By the time the noble Baroness, Lady Manningham-Buller, and myself worked together with the intelligence and security agencies, the criticism that would come was whether the intelligence services had not done enough to protect us. That is the way in which things have changed over the last 40 or 50 years, so we have to be very careful how we balance this idea of accountability on the one hand and inevitable secrecy on the other. How do we do it?

There are reports by the Investigatory Powers Commissioner and the intercept commissioners. When I had to intercept, I was overseen by a commissioner every year. I had a meeting with him—a former judge—on whether I did this or that right, and on whether this or that was important. I come back to the point I have made in the last two days of Committee about the Intelligence and Security Committee itself. That is the vehicle by which Parliament holds the security services accountable. My noble friend Lord Coaker has been making that distinction all the time: the services being accountable to Government for what they do is very different from being available to Parliament.

Of course, details of who has been tapped and details of intelligence operations cannot come here, to this House or the other House—of course not. However, they can go through the committee which both Houses have set up, which meets in private, is non-partisan, and which has Members of both Houses who have great experience on it, to deal with these issues. That is why I appeal to the Minister—we had the debate on the issue on Tuesday—to think again about using the ISC to answer some of the issues that my noble friend Lord Coaker quite rightly raised.

Investigatory Powers (Amendment) Bill [HL]

Baroness Manningham-Buller Excerpts

Report stage
Tuesday 23rd January 2024 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, I rise to speak to Amendments 2, 3 and 6. As I made clear in Committee, the Intelligence and Security Committee broadly welcomes the introduction of this legislation as a means of addressing significant changes to the threat and technological landscapes that have the potential to undermine the ability of our intelligence agencies to detect threats and protect our country. There are, however, several areas in which the Bill must be improved and, in particular, safeguards strengthened.

The draft codes of practice published by the Government contain indicative safeguards. This is not a substitute, however, for putting such provisions on the face of the Bill, which is essential if we are to ensure that those safeguards cannot be changed or diluted by subsequent Administrations. This is particularly important when we are discussing necessary scrutiny and oversight. The ISC is still, therefore, seeking amendments to several sections of the Bill.

It is important to remember that the Bill seeks an expansion of the investigatory powers available to the intelligence services. We consider that this expansion is warranted. Any increase in those powers, however, must be accompanied by a proportional increase in oversight. Sadly, the Government have previously been reluctant to ensure that democratic oversight keeps track of intelligence powers—particularly where it is related to the remit and resources of the ISC. This House has made its views on this long-standing failure known during debates on several recent Bills, and yet again in Committee on this Bill. The Government have so far refused to update the remit of the ISC or provide the necessary resources for its effective functioning, such that it has

“oversight of substantively all of central Government’s intelligence and security activities to be realised now and in the future”—

as was the commitment given by the then Security Minister during the passage of what became the Justice and Security Act.

The House of Lords made its views on this long-standing failure known in debates over several recent national security Bills, including what became the National Security and Investment Act, the Telecommunications (Security) Act and the National Security Act. Despite these repeated attempts by this House to ensure effective oversight, this has been ignored by the Government. The Government cannot continually expand and reinforce the powers and responsibilities of national security teams across departments, and not expand and reinforce parliamentary oversight of those teams as well. The committee expects the Government to take this opportunity to bolster the effective oversight it purports to value. It is therefore imperative that Parliament ensures that, in relation to this Bill, the role of the ISC and other external oversight bodies, such as IPCO, is well defined and immovable from the outset. Fine words in a code of practice are, I am afraid, hardly worth the paper they are written on. They must be written into statute.

On the detail of Amendment 2, as I have noted in my previous speeches, Section 226DA of the current Bill requires that each intelligence service provide an annual report to the Secretary of State detailing the individual bulk personal datasets it retained and examined under either a category authorisation or an individual authorisation during the period in question. My amendment would ensure that there was independent oversight of this information, rather than just political oversight, as at present. It would achieve this by providing that the annual report be sent also to the Intelligence and Security Committee of Parliament and the Investigatory Powers Commissioner.

IPCO does have a degree of oversight included in the Bill already, alongside its existing powers of inspection, but it is not full oversight. Further, there is currently no parliamentary oversight of category authorisations at all. This is not appropriate. My amendment will, therefore, enshrine within legislation that IPCO and the ISC will have oversight of the overall operation of this regime.

At this point, I acknowledge the amendment tabled by the Government. I thank the Minister for his engagement with the ISC; we have had some useful dialogue and I thank him very much for that. It is reassuring that there may finally be some recognition of the strength of feeling in this House that was apparent through noble Lords’ interventions at Second Reading and in Committee that the ISC must have a role in scrutinising this new regime.

However, what is not clear is why the Government chose to table their own amendment rather than accept the ISC’s amendment. Both amendments would seemingly provide the ISC with information on category authorisations that are granted or renewed in the given period. Without wishing to sound suspicious, I think the House requires an explanation as to what the Government see as the difference.

The first difference appears to be that the government amendment is less specific on the information to be provided and does not include individual authorisations within its scope. It therefore does not give the same level of assurance to Parliament and the public that the ISC is fully sighted on the operation of the regime.

The second difference is that the government amendment would seem to create more work for the intelligence community, as rather than simply sending the existing annual report to the ISC, a separate report would have to be produced instead. The Minister has been very keen to emphasise the need to minimise the burden on the agencies—we agree entirely with him; they are very busy—when it comes to other elements of the Bill, so it is most peculiar that the Government are deliberately choosing to increase the burden.

The third point I would note is that if the intention of this proposal is to carefully curate the information provided to the ISC regarding the Part 7A regime, it is rather undermined by the fact that the committee would still be able and willing to request a full report be provided to the Secretary of State, under the existing powers in the Justice and Security Act.

My fourth and final point is that the government amendment excludes the Investigatory Powers Commissioner. It is not clear why. IPCO and the ISC are both essential to oversight.

I trust noble Lords can recognise that, despite what I am sure are the Government’s best intentions, the ISC amendment provides the most robust assurance to Parliament and the public regarding oversight of the new regime, and the most streamlined mechanism for delivering this. I therefore urge the Minister and noble Lords to support this amendment to ensure that the robust safeguards and oversight mechanisms so carefully considered by Parliament in respect of the original legislation are not watered down by changes under this Bill. If investigatory powers are to be enhanced, so must oversight. This is what the ISC seeks to achieve by this amendment and those others that I have tabled.

I will touch very briefly on my noble friend Lord Coaker’s Amendment 5. I support it fully and I have raised those issues to do with the ISC.

On Amendment 6, this Intelligence and Security Committee amendment is required in order to close a 12-month gap in oversight. This relates to the new Part 7A, to be introduced by this Bill, which provides for a lighter-touch regulatory regime for the retention and examination of bulk personal datasets by the intelligence services where the subject of the data is deemed to have low or no reasonable expectation of privacy. Approval to use such a dataset may be sought either under a category authorisation, which encompasses a number of individual datasets that may be used for similar purpose, or by an individual authorisation, where the authorisation covers a single dataset that does not fall neatly within a category authorisation or is subject to other complicating factors.

In the case of the category authorisation, a judicial commissioner will approve the overall description of any category authorisation before it can be used. A judicial commissioner will also approve any renewal of category authorisation after 12 months, and the relevant Secretary of State will receive a retrospective annual report on the use of all category and individual authorisations.

However, as I highlighted in Committee, this oversight is all retrospective. What is currently missing from the regime is any form of real-time oversight. Under the current regime, once a category authorisation has been approved, the intelligence services then have the ability to add any individual datasets to that authorisation through internal processes alone, without any political or judicial oversight. They will be able to use those datasets for potentially up to a year without anyone being the wiser. This would mean relying on the good intentions of a particular intelligence service to spot and rectify any mission creep up until the 12-month marker for renewal. Although we have every faith in the good intentions of the intelligence services, no legislation should be dependent on the good will of its subjects to prevent misuse of the powers granted therein, particularly where those powers concern national security.

It is important that we fill that 12-month gap in oversight, and my amendment does so very simply by providing a new Section 226DAA in Clause 2, which would ensure that IPCO is notified whenever a new, individual bulk personal dataset is added by the agencies to an existing category authorisation. The Government’s primary argument against this proposal appears to be that it would be too onerous for the intelligence community and would impair its operational agility. I do not believe this is the case.

Notification would entail the agency sending a one-line email to the Investigatory Powers Commissioner containing the name and description of the specific bulk personal dataset as soon as reasonably practicable after the dataset was approved internally for retention and examination by that intelligence service. The amendment would not require that the use of the dataset be approved by the Investigatory Powers Commissioner, merely that the commissioner be notified that it had been included under the authorisation. It does not, therefore, create extra bureaucracy or process—certainly not in comparison with an entire new annual report, as the Government were proposing in relation to my previous amendment.

Crucially, this will provide for IPCO to have real-time information to enable it to identify any concerning activity or trends in advance of the 12-month renewal point. Any such activity could then be investigated by the commissioners as part of their usual inspections. Aside from the supposedly onerous burdens that these one-line emails will place on the agencies, the Government are also seeking to argue that the safeguards of the Bill are currently calibrated to the lowest level of intrusion associated with low or no expectation of privacy datasets and that it would therefore be inconsistent for the agencies to provide notification regarding category authorisations, given that they do not provide notification for datasets under the current Part 7 class warrant regime.

This argument is similarly unpersuasive. In the first instance, the light-touch nature of our amendment, requiring simple notification rather than approval, is already calibrated to the lower level of intrusion. However, the key point is that the agencies do not have the same powers under Part 7 and Part 7A. This new regime gives the agencies greater powers specifically to internally add individual datasets to those categories without external approval. This is not a power given under the current Part 7 regime. The ISC agrees that the agencies should have this power in relation to low or no reasonable expectation of privacy datasets. However, to rehearse this argument yet again, we should not be creating greater intrusive powers without data oversight. This is a new power that should not be available without some form of real-time external oversight, which is what my amendment provides.

This combination of real-time oversight through the notification stipulated in this amendment and retrospective oversight through the involvement of judicial and political oversight bodies, as set out in my previous amendment, is necessary to provide Parliament and the public the reassurance that data is being stored and examined in an appropriate manner by the intelligence services. The ISC believes that this amendment strikes the right balance between protecting the operational agility of the intelligence services, which remains very important to us, and safeguarding personal data. I therefore urge noble Lords to support my amendment.

[Baroness Manningham-Buller (CB)]

My Lords, first, I apologise. Like the noble Lord, Lord West, who during Committee had a bionic knee, I may not last, because I had a new one installed a couple of weeks ago. My eyes turned to the noble Lord, Lord Fox, as he possibly expected, but I am out of reach today and I cannot hit him with my crutch.

It might help the House if I described the circumstances in which an emergency warrant is sought. There is a very long-standing system for this. In the days before we had judicial commissioners, it was if a Minister was unavailable, and now it is if the Minister and, of course, the judicial overseers decide that a warrant sought is wrong or inappropriate, all the material is destroyed.

At the earlier stage, I said that you cannot legislate to forget, but the noble Lord, Lord Fox, has slightly twisted what I was trying to say then. Of course, if the material is destroyed because the warrant was not approved, some people will remember what they read, but it cannot be used in any way.

These occasions occur nearly always at times when people are unavailable—in the middle of the night or at weekends—when there is a brief window of opportunity where it is a matter of life and death. I can see that, on the surface, it is appealing to bring the notification time down to 24 hours, but this is not rational or consistent with the rest of the legislation that we have. For far more intrusive techniques such as planting a microphone or intercepting a communication, it is three days. That said, I know that my former colleagues will endeavour to do it as soon as possible, but over the weekend the Investigatory Powers Commissioner’s Office is not open. People are not available. They will try to do it as soon as possible, but it does not make sense to reduce the time needed in these cases of low intrusion, with datasets of no or low expectation of privacy, to require a stricter regime than for very much more intrusive techniques such as the planting of a microphone in your house.