Investigatory Powers (Amendment)Bill [Lords]

Debate between John Hayes and Stuart C McDonald

Report stage
Monday 25th March 2024 Commons Chamber

[Stuart C. McDonald]

I am grateful to the right hon. and learned Member for that intervention. He possibly makes a fair point. If I recall correctly, the wording of that proposed new subsection was borrowed from another part of the Bill. I might be wrong about that; I need to go away and have a look. I suppose the argument would simply be that if a category authorisation is to any extent being abused, it is right that the category authorisation is cancelled, and if somebody wants to come back with something similar, they can do so. However, I am not without sympathy to his point. I take it in the spirit in which it was intended, and will reflect upon it.

Let me move on from the question of oversight in relation to bulk personal datasets to the issue of “no” or “low” expectations of privacy in relation to such datasets, and how that test will operate in practice. Throughout the passage of the Bill, we have been repeatedly given some very easy examples of so-called “low/no” bulk personal datasets. For example, we have spoken about phone books, academic papers, public and official records, and other data that many people would have access to routinely. It was helpful that, in relation to what is now our amendment 9, the Minister said in Committee that Facebook posts and CCTV pictures would be considered sensitive and would not be caught by these provisions. It is very helpful to have that on the record.

None the less, it would to be useful to have greater precision in the Bill. Amendment 8 would take out reference to “low” expectations of privacy altogether, so that only “no” expectations would be covered by the new provisions. To us, “low” is such a difficult question to adjudicate—low expectations in particular. That is especially the case when we are dealing with datasets of potentially huge numbers of very different people with very different reasons for having very different expectations of privacy, particularly in how that would relate to different organisations. We cannot think of a single dataset example provided during the passage of the Bill that would not be adequately covered by “no reasonable expectation of privacy”. If that is the case, if that is really all the Bill will be used for, why not just accept the amendment? It would be useful to have an understanding of what “low” expectation of privacy is designed to cover.

Amendment 15 brings us to internet connection records. In 2016, the Government emphasised the very targeted nature of the ICR powers, but here we are being asked to incrementally expand those powers so that they are slightly less targeted. To us, that means that the independent assessment of proportionality and necessity is pivotal, so we think that it should be subject to advance judicial oversight. Even the explanatory notes accept that there are difficulties in formulating sufficiently targeted queries, noting that

“such queries are highly susceptible to imprecise construction”

and that “additional safeguards” are required.

For us, the required additional safeguard is judicial oversight. We were led to believe that the powers would be used only exceptionally, so it is hard to see how a judicial authorisation requirement would cause any significant problem. The Government argue that there may be times when warrants are needed on an emergency basis, but that could be dealt with by having emergency processes or very limited exceptions—it is not an argument against a general rule of advance judicial oversight.

I turn to the impact on technology companies of the Bill’s various provisions relating to notices—although the right hon. and learned Member for Kenilworth and Southam probably made more sensible and eloquent points than those I am about to make. The written evidence that the Bill Committee received shows that tech companies, academics and human rights and privacy campaigners are still a million miles away from the Government in their understanding of how the provisions will work and of the impact that they will have on products and services. Apple wrote to the Committee that these provisions

“would dramatically disrupt the global market for security technologies, putting users in the UK and around the world at greater risk.”

It is frustrating and disappointing that we did not have the opportunity to explore those differences in detail through witness testimony. The Minister did his best to reassure us, and he made some important arguments about extraterritoriality and conflicts of laws, but given the serious concerns that have been raised, it is worth again asking the Minister to explain why those witnesses are wrong and he is correct. In particular, the Government’s explanation that the new pre-notification requirement in clause 21 is

“not intended as an approval mechanism”

has not dampened concerns. Apple argued in evidence to the Committee that

“Once a company is compelled to provide notice of a new security technology to the SoS, the SoS can immediately seek a Technical Capability Notice to block the technology.”

Other provisions in the Bill around maintaining the status quo during notice review periods work in tandem with these provisions to deliver what Apple and others see as a de facto block on adoption of new technology—that is the risk that they are highlighting, and it is what the Minister must address in his speech. It is why we have tabled amendments to take out some of those provisions. It is also why we have tabled amendment 19: an alternative that would introduce advance judicial oversight and, hopefully, a degree of reassurance that the new notification notice regime under clause 21 will not deliver the unintended effects that many fear.

Finally, I put on the record our support for the amendments tabled by members of the Intelligence and Security Committee, whose work on the Bill has been as helpful as ever—I congratulate them on their one-and-a-half victories so far. As is often the case when it comes to Bills of this type, we also put on record our support for several of the amendments tabled by the right hon. Member for Haltemprice and Howden (Sir David Davis), some of which are similar to amendments that we tabled in Committee, while others are similar to amendments that we supported during the passage of other Bills, including the National Security Act 2023. In particular, new clause 3, which is designed to place an absolute prohibition on the UK sharing intelligence with foreign Governments where there is a real risk of torture or cruel, inhuman or degrading treatment, is long overdue and would close a serious gap in the law. For us, that is self-evidently the right thing to do.

[Sir John Hayes]

As you will know, Madam Deputy Speaker, and as other Members have made reference to, I was the Minister who took the original Bill, which this Bill amends, through the House—indeed, it became the Investigatory Powers Act 2016.

The purpose of that legislation was both to draw together a number of the capabilities of the agencies necessary for them to keep us safe, and to put in place a series of mechanisms to ensure that there was proper scrutiny and accountability for those powers. We introduced the principle of a double lock, whereby both politicians and judicial commissioners were necessary to authorise some of those very powers. They matter because of the threats we face. Those threats are, as has been said by a number of contributors, metamorphosising. They were bound to do so, and we anticipated that when the original Act was considered in this place.

I accept the argument used by the shadow Minister, the hon. Member for Barnsley Central (Dan Jarvis), that that does not end here tonight. Those threats will continue to change, and it will be necessary to update the legislation to reflect those changes, for our security services and police need two things to do the job that we expect them to do on our behalf: capacity—namely, skills and resources—and capability, which includes legislative powers.

Investigatory Powers (Amendment) Bill [ Lords ] (Second sitting)

Debate between John Hayes and Stuart C McDonald

Committee stage & Report stage
Thursday 7th March 2024 Public Bill Committees

[Sir John Hayes]

I had it printed out on parchment.

[Stuart C. McDonald]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.

Clauses 13 and 14 ordered to stand part of the Bill.

Schedule agreed to.

Clause 15

Internet connection records

Question proposed, That the clause stand part of the Bill.

Investigatory Powers (Amendment) Bill [ Lords ] (First sitting)

Debate between John Hayes and Stuart C McDonald

Committee stage & Report stage
Thursday 7th March 2024 Public Bill Committees

[Stuart C. McDonald]

I am grateful for that. Could the Minister perhaps follow up on that in writing? That is useful to have on the record.

This discussion is mainly about amendment 23; the other amendments are all consequential. Basically, the amendments would remove the concept of category authorisations from the Bill. Again, I take the same approach as the shadow Minister; I will not be pushing any of these amendments to a vote, but they are designed to probe and allow for debate on some of the important concepts in the Bill.

It is this clause, and the notion of category authorisations, that leads to the restricted judicial oversight of the “low or no” categories that are being retained. It would be useful for the Minister to give us an example here of what a category authorisation might look like. I am not on the ISC, so it is hard for me to understand exactly how broadly they might be drafted. I absolutely appreciate that there are operational reasons why the Government might have to be careful about the examples they give. However, to provide some reassurance, I am sure it would be possible to put on record what one of these authorisations might look like, just so we know how broadly they will be drafted, or indeed how focused they will be.

The Minister spoke a little about oversight at the end of his previous contribution, but it is the oversight of category authorisations that causes me some concern. The tests for a category authorisation set out in proposed new section 226BA of the Investigatory Powers Act 2016 are simply that it must be classed as “low or no” and that the decision has been approved by a judicial commissioner. There are none of the other tests that are set out for the individual authorisation, such as it being necessary for the

“exercise of any function of the intelligence service,”

that it

“is proportionate to what is sought to be achieved,”

or that there are various arrangements in place.

It seems to me that the degree of oversight at the stage of granting a category authorisation is far more restricted. That has a knock-on consequence: when the judicial commissioner comes to review the granting of a category authorisation, they are only then considering whether it applies to a “low or no” group of datasets. The judicial commissioner, even on the low-level judicial review criteria, does not look at whether the category authorisation will be necessary or proportionate, or any of the other tests for the other authorisation.

[Sir John Hayes]

I do not want to do the Minister’s job for him, because I am sure he will say this anyway, but when an application is made by an agency for the acquisition and retention of bulk personal datasets, a specific case needs to be made in the warrant application, and a particular case has to be made where that application applies to exceptional material. That case is considered through the double-lock mechanism by both the judicial commissioner and the Minister. That case needs to specify the reason that it is necessary for operational purposes.

[Stuart C. McDonald]

It is useful to have that explanation. I understand that is the existing process, as the 2016 Act applies just now. However, my simple question concerns the fact that that does not seem to be what is set out here.

Illegal Migration Bill

Debate between John Hayes and Stuart C McDonald

Consideration of Lords message
Monday 17th July 2023 Commons Chamber

[Stuart C. McDonald]

We should oppose all nine Government motions, which is precisely what my SNP colleagues and I will do this evening. Let me say again that this Bill is so appalling that the House of Lords should stop it in its tracks. However, Baroness Jones was the one speaker who had the guts to say:

“we should be stubborn about not allowing the Bill to go through.”—[Official Report, House of Lords, 12 July 2023; Vol. 831, c. 1814.]

As I asked last week, if the Lords will not consider halting this Bill, which Bill will it be? This Bill is about locking up kids, forcing trafficking victims back to their exploiters, mass detention, closure of the UK asylum system and the trashing of international laws. If the Lords will not use their powers to block this Bill—a Bill that also runs totally contrary to what was in the 2019 Conservative manifesto—what is the point of their powers, and what is the point of the House of Lords? Let us hope that we can salvage something from these final proceedings.

On Lords amendment 1B, if the Bill is consistent with our international obligations, the Government cannot have any objections to the amendment. On the other hand, if, as the Government have at other times argued, it wrecks the Bill to have to be read consistently with international law, then the problem is with the Bill, not the amendment. That is a good reason in itself for the whole Bill to be stopped in its tracks. The revisions to the amendment mean that arguments about allegedly incorporating international laws have been addressed, despite the completely unsubstantiated assertion from the Minister. We have heard lots of strong words about protecting a dualist system of law, but given that the Government could not even make the normal human rights compatibility statement, we need strong action to protect fundamental human rights and the rule of law.

The grouped amendments 7B and 90D are also important in upholding the rule of law. They preserve judicial oversight, so that illegal decisions by the Government can be properly challenged before they are implemented. It really is as simple and fundamental as that. The Government keep talking about loopholes, but access to courts, the rule of law and fundamental rights are not loopholes; they are fundamental principles that we should be upholding.

Lords amendment 9B is another crucial amendment. It now includes safeguards to assuage the usual Government concerns about gaming the system, but retains the vital protection that if a person cannot be removed to Rwanda even after six months, they will then have their case assessed here. It simply preserves the status quo and is an essential protection. It remains an appalling prospect that people who are refugees will be left in limbo forever by the Government; never allowed to have their claim heard here and never able to contribute, even if removal is a near impossible prospect.

Indeed, it is also ludicrous that there will be people with totally unfounded claims for asylum who will get to remain here in limbo, often at considerable taxpayer expense, because of the Bill. The Bill stops unfounded claims being dealt with, just as it stops well-founded claims being dealt with. The end result is that thousands of people will need to be detained and accommodated in perpetuity. Many more will disappear underground, as they will have no reason to stay in touch with the Home Office. It is the end of the UK’s contribution to the refugee convention. Again, if the Government are not willing to move on that, their lordships should hold up the whole Bill.

On mass and limitless detention of children in inappropriate accommodation, of course we continue to support all efforts to curtail the horrendous new powers and to limit the extraordinary harm that we know—and the Home Office knows—detention causes to them. We therefore support Lords amendments 36C, 36D and 33B. As I said last week, the Government’s amendments in lieu really represent a pathetic non-concession. A theoretical right for some kids detained for removal to seek bail after eight days is just not remotely acceptable. At the very least, we need short, hard and fast limits, and those limits should be automatic and not dependent on a child being able to navigate the bail system and accessing the legal support that would be required to do that. And the time limits should apply to all kids, whether accompanied or not, and regardless of which particular powers they were detained under. The Government make claims about creating incentives to play by the rules, but, as with most of their claims, they offer absolutely no evidence. There is no suggestion, for example, that the introduction of strict time limits by David Cameron’s Government had the impact suggested here. It is just another myth.

As Members on both sides have said, the Bill is a serious threat to victims of modern slavery and trafficking, and yet again it totally ignores devolved powers on this subject. Those being exploited are the ones who will suffer, not the traffickers, whose power over their victims will only be enhanced by the withdrawal of any route to safety for those they are exploiting. We therefore support Lords amendment 56B and anything that will undo some of the damage that the Bill will do to modern slavery and trafficking provisions. Without 56B, the damage the Bill will do to slavery and trafficking laws across the UK is yet again sufficient to justify holding up the whole Bill.

On Lords amendment 23B and protections for LGBT people, we fully support everything Lord Etherton said in support of his amendments. Put the fact that these countries are not safe for LGBT people on the face of the schedule. Anything that builds on the flimsy and almost certainly unworkable system of “suspensive claims” should be welcomed. LGBT people should not have to go through that process in the first place. If the Government are committed to safe legal routes, they should have no problem with Lords amendment 102B. On the archbishop’s amendments 107B and 107C, a 10-year strategy is utterly sensible—indeed, it is essential. Long-term thinking is as necessary for issues surrounding forced migration as other pivotal challenges such as climate change.

Ultimately, the amendments can only add a little polish to an odious Bill that is utterly beyond redemption. It should be stopped in its tracks entirely and any parties that still send people to the relic of a second Chamber should be using their influence to see that that happens. Otherwise, this is all just for a show and very vulnerable people will suffer as a result.

[Sir John Hayes (South Holland and The Deepings) (Con)]

Edmund Burke said that what matters

“is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do.”

In considering the Government’s response to the Lords amendments, it is important to re-emphasise that the Bill is about fairness; about affirming the integrity of our nation by defending our borders from those who seek to arrive here illegally. We must have the power to remove those entrants from our country. To do so is just and fair. It is what the British people expect, what they voted for in 2019, and what they chose in the Brexit referendum.

Considering the arguments made in the other place, I was struck by the absence of a credible alternative to the Government’s proposal; there seems little sense there of the need to control our borders, stop the boats, save lives, and to make our immigration system fairer, more reasonable and more just. Sadly, much of the debate on the amendments in the other place has been characterised by a combination of denial and detachment from the popular will—denial about the urgency of the problem, and detachment from the sentiments expressed by my constituents and the constituents of other Members on both sides of this Chamber. Those arriving in small boats must be detained securely and removed swiftly, and it must be a straightforward process, for only through that process will we deter more people from arriving.

Illegal Migration Bill

Debate between John Hayes and Stuart C McDonald

Tuesday 11th July 2023 Commons Chamber

[Stuart C. McDonald]

I absolutely agree. The most obvious example—I would say it is blindingly obvious—is the trafficking convention. That says that we must provide support to victims of trafficking, yet here we have a Bill that says the opposite. We are going to say, “Victim of trafficking or not, you are not getting support.” That is a blatant contravention of the trafficking convention, and that is why we need the treaties in Lords amendment 1 incorporated into clause 1.

[Sir John Hayes]

Surely, the hon. Gentleman recognises that the point of Lords amendment 1 is to incorporate a whole range of international obligations into our law. It may well be that those obligations matter and that the Bill needs to be in line with them, but Lords amendment 1 would incorporate them into law. This is not the place to do that, and it is not the means to do it.

[Stuart C. McDonald]

It is absolutely the place to do it, and it is essential that we do it, precisely for the reasons I have just given. Various provisions of the Bill clearly breach some of those conventions. I have just given the example of the trafficking convention. I cannot see how any sensible person can read the Bill and say that it accords with our obligations under the trafficking convention—I really cannot. I see no alternative but to support Lords amendment 1; in fact, I absolutely embrace what their lordships have attempted to do here.

We are also talking about amendments to stop mass and indeterminate detention at the whim of the Home Secretary. Very little attention has been drawn to those shocking and appalling powers today; I would have thought they would embarrass some Conservative MPs, yet we have barely considered them. We need to bring back the principle that it is for the courts to assess what is necessary to effect removal, rather than leaving it open to the Home Secretary to detain just for her convenience.

We are talking about amendments protecting pregnant women, and accompanied and unaccompanied children, from lengthy detention. The concession on pregnant women is a rare positive, and I welcome it, but the so-called concession on detaining children is nothing of the sort. It means that a few, but very far from all, will be allowed to apply for bail after eight days. That is not a time limit and it will not apply universally—far from it. We should not let the Government away with detaining hundreds and possibly thousands of kids indefinitely.

The Government have been forced to concede on amendments regarding the retrospective application of the Bill, which is good. Presumably, they do not want a backlog of 10,000 as soon as the Bill goes into force. Again, though, the concession does not go far enough, as important parts of the Bill will still be applied retrospectively. In the Government’s amendment in lieu, there is a power for Ministers to change the commencement date again. It would be useful at least to have an assurance from the Minister that that will not be used to put the clock back again, whether to March or to any other time before Royal Assent.

We are talking about amendments protecting LGBT people from removal to countries where they will almost certainly face serious harm. That protection is necessary, because the flimsy procedures in the Bill as it stood when the Government introduced it were totally inadequate to stop that happening.

We are talking about amendments to remove victims of trafficking from the Bill’s horrendous reach. As the right hon. Member for Maidenhead put it, without the Lords amendments, trafficking and slavery victims will have absolutely no incentive to seek support from the Government; in fact, they will have every incentive not to. Instead, they will be driven straight back into the hands of the people who have been exploiting them.

Judicial Review and Courts Bill

Debate between John Hayes and Stuart C McDonald

Report stage
Tuesday 25th January 2022 Commons Chamber

[Sir John Hayes]

Absolutely. The separation of powers does not deal with neutrality. It deals with different powers, which are, by constitutional arrangement, held by the courts and this place. The relationship between the two is critical. It is critical to our considerations today and more critical still to our constitution. A. V. Dicey argued that the separation of powers confers on Parliament a dominant characteristic. Parliament consists of Her Majesty the Queen, the House of Lords and the House of Commons acting together. Therefore, as Dicey says:

“The principle of Parliamentary sovereignty means neither more nor less than this, that Parliament… has… the right to make or unmake any law whatever; and further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”

That is precisely the point that my hon. Friend makes.

We need to reaffirm that principle in general and the Bill is an opportunity to do so. Any Parliament that makes a new law or repeals a law will be obeyed by the courts. That is fundamental to the role of this place. All of us who represent the people, as my hon. Friend says, have a duty, not just a mission, to reflect the will of the people.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Is not the point of judicial review to make sure the Government comply with the rules and restrictions set by Parliament? Restrictions on judicial review allow the Government to ride roughshod over Parliament’s views.

[Sir John Hayes]

That is, of course, true, and it is why judicial review exists. The hon. Gentleman is right that there need to be checks and balances, but it is wrong to use judicial review to perpetuate matters of high politics or to perpetuate debates that have been settled in the country and in this place.

What we heard from the Minister when we debated these issues at considerable length is that, in effect, people are having several bites of the cherry. Debates were settled and then people came back to reopen them and revisit subjects that had already been agreed. That is not the role of the judicial process and it is certainly not the role of judicial review. The Bill goes some way to addressing that.

The purpose of my new clauses is to probe and press the Government to do more. I strongly urge the Minister to accept them with enthusiasm and alacrity because to involve the courts in matters of investigatory powers, as I said, is quite wrong. The landmark Privacy International case of May 2019 illustrates how wrong it can be. I will not go into detail because time does not permit, but other hon. Members will be familiar with the case and its legal ramifications. I recommend the Attorney General’s speech, which I have mentioned already, to those who want to find out more.

Professor Richard Ekins gave evidence to the Public Bill Committee, and he wrote an excellent paper on these subjects for Policy Exchange. He describes the Supreme Court’s judgment in respect of the Privacy International case as

“a very serious attack on some fundamentals of the constitution.”––[Official Report, Judicial Review and Courts Public Bill Committee, 2 November 2021; c. 15.]

For a very long time, it was not accepted that the courts should become involved in matters of investigatory powers, and particularly the tribunal. There was no possibility of judicial review for 19 years after the 2000 Act was passed.

Nationality and Borders Bill

Debate between John Hayes and Stuart C McDonald

2nd reading
Monday 19th July 2021 Commons Chamber

[Sir John Hayes]

Absolutely, it does not, nor is it just to pillory the public and those who speak for them when they argue that we should enforce the law and that migration should be controlled. As a number of hon. Members have said, legal migration has been out of control for some time, and illegal migration, by its very nature, is both unjust and unfair because it breaks the law. It breaches that principle that people who arrive here and pursue legal routes are doing the right thing and that those who do not are simply doing the wrong thing and should be deported. That is what the public think, and that is what we should say very clearly.

[Stuart C. McDonald]

Is no one on the Conservative Benches remotely concerned that the Bill would see a Uyghur fleeing persecution in China, a Syrian fleeing disastrous war crimes in that country or a persecuted Christian seeking sanctuary on this shore criminalised with an offence that could see them in prison for up to four years, stripped of their family reunion rights, offshored and whatever else? Does nobody on those Benches have any qualms about that whatsoever?

[Sir John Hayes]

Surely the hon. Gentleman must realise that while the principle of granting asylum—of giving sanctuary to people in desperate need—is a noble one, it is being gamed, day after day and month after month, with people travelling through many safe countries before claiming asylum, repeated claims on a whole range of different grounds, and even modern slavery, which we all deplore, being used as a justification to stay here when it is invented. That is to insult—to besmirch—those who are really suffering persecution and who come here in genuine need. It is being gamed, frankly, by a combination of unscrupulous civil rights and human rights activists, and people-traffickers. Although they do not work together in an organised fashion, the combination of the two is damaging public faith in our ability to control our borders. If “take back control” means anything, surely it means taking back control of our sovereign borders.

When the average Briton sees the asylum system being played, it leaves them bewildered, frustrated and angry that we should be taken for such fools. British people do not want to pull up the drawbridge to the world’s needy. What they want is a consistent system that helps the right people in the right way: one that will remove those with no right to stay in Britain just as it protects those we ought to be protecting, not one that grants favour to those who manage to successfully break our laws when they first arrive here.