Investigatory Powers (Amendment) Bill [HL]

Lord West of Spithead Excerpts

Committee stage
Monday 11th December 2023 Lords Chamber

Perhaps the Minister will tell me that this is very old-fashioned and that, in practice, in the modern world, access to an electronic dataset will always be electronic. Indeed, the Minister is nodding. In that case, surely my point still stands. If access is always electronic, why is it necessary to specify that access must be electronic before the safeguards kick in? Surely paragraph (c) on page 14 implies that access may be non-electronic and disapplies the safeguards in those circumstances. I am still a bit puzzled. If there is a point in the last line of new Section 226E, I hope the Minister will explain what it is.

[Lord West of Spithead (Lab)]

My Lords, if I suddenly fall over, it is not excitement over my amendments but that I have a brand new starboard knee, which is still slightly wobbly, so I might look a little wobbly at times.

Noble Lords will recall that the Investigatory Powers Act was introduced as a result of the Intelligence and Security Committee of Parliament’s 2015 report, Privacy and Security, which recommended that a new Act of Parliament be created to

“clearly set out the intrusive powers available to the Agencies, the purposes for which they may use them, and the authorisation required”.

However, as the noble Lord, Lord Anderson, recognised in his recent report, which he referred to, there have been a number of changes since the Act was introduced. We now face a very different threat picture from that which we did in 2016, with an increased threat from state actors such as China, Russia and Iran, and a significant rise in internet-enabled crime, including ransomware and child exploitation. The pace of technological change has been incredible. Developments in the fields of data generation, cloud services, end-to-end encryption, artificial intelligence and machine learning have all created challenges, as well as opportunities, for law enforcement and the intelligence community.

The Intelligence and Security Committee, of which I am a member, therefore welcomes the introduction of this Bill. The ISC has considered classified evidence relating to the Bill and questioned all parts of the intelligence community and Ministers on the need for change. However, as ever, the devil is in the detail. The committee considers that there are several areas in which the Bill must be improved and, in particular, safeguards strengthened.

Parliament must ensure that the balance between privacy and security is appropriate, and that there is sufficient independent oversight of the work of the intelligence community, given the potential intrusiveness of its powers. The Bill seeks an expansion in the investigatory powers available to the intelligence services. While this expansion is warranted, any increase in investigatory powers must be accompanied by a concomitant increase in oversight. I have previously spoken about the refusal of the Government to update the remit of the ISC, or to provide the necessary resources for its 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”,—[Official Report, Commons, Justice and Security Bill Committee, 31/1/13; col. 98.]

as was the commitment given by the then Security Minister in the other place during the passage of the Justice and Security Act.

The House has made known its views on this long-standing failure during debates on several recent national security Bills, including the National Security and Investment Act, the Telecommunications (Security) Act and the National Security Act. However, despite 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 they say they value. If they do not, then they should expect that Parliament will. I therefore call upon the Government once more to update the ISC’s memorandum of understanding to ensure sufficient oversight of all intelligence and security activities across government. Indeed, this was the quid pro quo that Parliament expected during the passage of the Justice and Security Act 2013, and I trust that Parliament will take the same view now.

I turn to Amendment 10, which is designed to close a gap in oversight. Proposed new Section 226DA requires that each intelligence service provide an annual report to the Secretary of State detailing the individual bulk personal datasets that they retained and examined under either a “category authorisation” or an “individual authorisation” during the period in question. My amendment would ensure that there is independent oversight of this information, rather than just political oversight. The amendment would provide that the annual report be sent also to the Intelligence and Security Committee of Parliament and the Investigatory Powers Commissioner. IPCO has a degree of oversight included in the Bill already, since judicial commissioners approve both individual and category authorisations at the point of issue and approve the renewal of any authorisations after 12 months. This is not full oversight. Further, there is currently no democratic oversight at all of category authorisation, which is not appropriate. My amendment would ensure that IPCO and the ISC have oversight of the overall operation of this new regime.

Noble Lords will note that I have also tabled an amendment to notify IPCO of any new individual datasets that are added to category authorisations by the intelligence services. That amendment would work alongside this, and the ISC considers that the combination would provide an appropriate balance of real-time and retrospective oversight for these new powers. It is vital that the robust safeguards and oversight mechanisms so carefully considered by Parliament in respect of the original legislation are not watered down by the changes under this new Bill. Instead, they must be enhanced in line with the increasing investigatory powers. This is what the ISC seeks to achieve by the amendments I have tabled today.

Amendment 12 is consequential on the amendments that I have just talked about.

I speak now to Amendment 13. Part 7A of the Bill 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 a low or no reasonable expectation of privacy. Approval to use such a dataset may either be sought under a category authorisation—which encompasses a number of individual datasets that have similar content or may be used for a 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 a 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 a 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.

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. This would mean relying on the intelligence service to spot and rectify any mission creep, whereby datasets might be added to a category authorisation in a way that was not consistent with the definition of the original authorisation, which lasts up until the 12-month marker for renewals.

While we have every faith in the good intentions of the intelligence services—and I do not mean that in a joking way, because we have been amazingly impressed by them—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. The ISC therefore seeks to fill that very worrying gap.

My amendment proposes a new section in Clause 2—proposed new Section 226DAA—which would ensure that the IPCO was notified whenever a new individual bulk personal dataset was added by the agencies to an existing category authorisation. Notification would simply involve the agencies sending to the Investigatory Powers Commissioner 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 the intelligence services.

The amendment would require not that the use of the dataset be approved by the IPCO but merely that the commissioner be notified that it had been included under the authorisation. It therefore does not create extra bureaucracy or process. Indeed, it provides for a flow of real-time information between the intelligence services and IPCO, to allow for the identification of any concerning activity or trends in advance of the 12-month renewal period. Any such activity could then be investigated by the commissioner as part of its usual inspections. The ISC believes that this amendment strikes the right balance between protecting the operational agility of the intelligence services and safeguarding personal data at any level of sensitivity.

Noble Lords have already considered my related amendment, to provide the annual report to the IPCO and the ISC, as well as to the Secretary of State. The committee believes that 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, is necessary to provide Parliament and the public with the reassurance that data is being stored and examined in an appropriate manner by the intelligence services.

I repeat my entreaty to the House: the robust safeguards and oversight mechanisms so carefully considered by Parliament in respect of the original legislation must not be watered down by the changes under this new Bill; they must be enhanced in line with the increasing investigatory powers.

[Lord Hope of Craighead (CB)]

My Lords, I have added my name to Amendments 3 and 15 in the name of the noble Lord, Lord Anderson. I have nothing to add to what he said in support of Amendment 15, but I shall add a word about Amendment 3, which was the subject of the Christmas present of the noble Lord, Lord Anderson. It requires one to look a little more carefully at proposed new Section 226A(2), which provides as follows:

“In considering whether this section applies to a bulk personal dataset, regard must be had to all the circumstances, including in particular the factors in subsection (3)”.


What the noble Lord, Lord Anderson, is seeking to offer the Minister the invitation to include is the use to which the datasets are to be put. He draws strength for that proposition from what one finds in new Section 226BA(3), in which express reference is made to the use to which the datasets will be put. It can be said in support of this proposal that it seems a little strange not to include the use to which the datasets are to be put, if they are mentioned expressly in new Section 226BA(3). I suppose that one could say that, since new Section 226A(2) is very widely phrased and includes all the circumstances, that the Christmas present of noble Lord, Lord Anderson, is already there as already there as one of the circumstances, but it is probably happier to include it expressly, just for the avoidance of doubt. It is for the avoidance of doubt that the strength can be found in the proposal that he has put forward.

--- Later in debate ---

In his review of the operation of the IPA, the noble Lord, Lord Anderson, recommended that, if ICRs are expanded in the way currently proposed in this Bill, the new conditions should be restricted to the intelligence agencies, at least at first. However, the Bill goes further and provides these new powers to the NCA. We would like the Minister to explain why that decision was taken and why is it proportionate and necessary for the NCA to have these powers. The wider the use of these powers is spread, the more likely it is that the essential expertise that is required will not be available. I believe that was one of the motivations behind the contraction of that use. I beg to move.

[Lord West of Spithead (Lab)]

My Lords, I stand to address the clause stand part notice for Clause 13 and also Amendments 21, 22, 24 and 26. The aim of looking at the clause relates to the communication data disclosure powers. The current IPA wisely restricted the number of public authorities that are able to compel the disclosure of communications data from telecommunications operators, given the potentially intrusive nature of this power. Consequently, authorities such as the Environment Agency or Health and Safety Executive are currently required to take further procedural steps in order to compel disclosure of communications data. They must obtain either an authorisation under the current IPA, a court order or other judicial authorisation, or regulatory powers in relation to telecommunications or postal operators, or they must obtain the communications data as secondary data as part of a valid interception or equipment interference warrant.

However, the Bill before us seeks to remove these restrictions for a wide range of public regulatory authorities and restore their ability to compel the disclosure of communications data from telecommunications operators in service of their statutory regulatory or supervisory functions. The Government’s argument for removing these restrictions is that a broader array of communications now fall into the category of communications data, and that a wider number of organisations now constitute telecommunications operators. As a result, the current restrictions prevent some regulatory authorities from acquiring the information necessary to exercise their statutory functions, in a way that was not anticipated at the time of the original legislation.

It is argued that this is particularly relevant to bodies with a recognised regulatory or supervisory function, which would collect communications data as part of their lawful functions but would be restricted under the current Act if their collection was not in service of a criminal investigation. In particular, the change is focused on improving the position of certain public authorities responsible for tax and financial regulation, whose powers were removed in 2018 as a result of the rulings of the European Court of Justice.

Clearly, such bodies must be able to perform their statutory functions effectively, but we have been told that this Bill delivers only “urgent, targeted changes needed”. That is not the case here. These sections represent a sweeping restoration of powers across a wide number of public bodies, most of which have no national security or serious crime function.

The original Act was very particular about the purposes for which communications data could be gathered under the legislation and by which bodies. It ensured that this power was tied to national security and serious crime purposes only, to avoid impinging on the right to privacy without very good reason. Clause 13 and its related schedule fly in the face of this very deliberate policy in the original Act, and overturn Parliament’s careful deliberation of the point.

Will the Minister confirm which bodies will have their powers restored under this legislation? Which of those bodies have reported a significant reduction in their ability to perform statutory functions as a result of the IPA? Have some bodies been more effective than others? Might it be possible and appropriate to significantly pare back this list of organisations?

At present, the case has not been made. We need to be satisfied that these powers are given to those bodies which cannot adequately function without them. It cannot be the case that some are simply given these powers back by default. I am prepared not to take this amendment to a vote if the Minister can assure the House the Government will bring forward their own amendment, which restores these powers in a more limited and targeted way.

The next stand part notice is consequential on that one being taken.

I move on to Amendments 21, 22, 24 and 26. These seek to remove the ability of the agencies to internally authorise the use of a new broader power to obtain internet connection records for target discovery. The agencies would instead be required to seek approval from IPCO, thereby creating an element of independent judicial oversight.

As I noted previously, Clause 14 creates a new broader power for the agencies and the NCA to obtain ICRs for the purpose of target discovery. It represents a significant change from the current position, removing the current demand that the exact service used and the precise time of use be known. Instead, the agencies will be able to obtain ICRs to identify which persons or apparatus are using one or more specified internet services in a specified period—a far broader formulation.

After consideration of the relevant classified evidence, the ISC agrees with the intent. However, the newly expanded power is potentially very intrusive. It allows the agencies to obtain ICRs from a range of internet services over a potentially long period of time and could, therefore, potentially intrude on a large number of innocent people. Parliament must therefore ensure that there are appropriate safeguards in place.

The ISC acknowledges that there are safeguards in place relating to the obtaining of ICRs. However, in all cases relating to national security and economic well-being, the agencies are able to authorise use of this newly expanded power internally. They make the assessment as to whether it is necessary and whether it is proportionate. There is no independent oversight of the agencies’ assessment.

The Government may argue that the ability of the agencies to authorise use of this power internally replicates the existing provisions when authorising the obtaining of ICRs for target discovery or target development. They will also no doubt refer to how the noble Lord, Lord Anderson, said in his report that “arguably” the potential intrusiveness of this newly expanded target detection power is no greater than the existing provisions for obtaining ICRs.

In the ISC’s view, the new provision—which is considerably broader than the existing target discovery power, removing the need to know the exact service used and the precise time of use—is significantly more intrusive than existing provisions. Consequently, greater oversight is required to ensure that the power is always used appropriately. This is not because we expect the agencies to act in bad faith but because independent oversight is essential, acting as a counterbalance to the intelligence community’s intrusive powers and providing vital assurance to Parliament and the public.

This amendment and the two linked Amendments 24 and 26 therefore remove the ability of the agencies to authorise use of this power internally. The agencies would instead be required to seek the approval of an independent judicial commissioner from IPCO in order to authorise the obtaining of ICRs under this new broader power.

Incorporating this independent judicial oversight would ensure that use of this power is always necessary and proportionate and strikes the right balance between security and privacy. It also aims to minimise any burden on the agencies. It does not, for example, incorporate the “double lock” mechanism, which is used for the most intrusive powers under the Investigatory Powers Act.

We recognise that the Government may wish to bring forward their own amendment to include provision for urgent cases; therefore, I do not propose to move this amendment to a vote at this stage. It should, however, indicate to the Government the ISC’s firm view that independent judicial oversight in this area is essential.

I will say a little more about Amendment 22. This amendment seeks to limit the purposes for which the new, broader target discovery power, which has been introduced under Clause 14, could be used. Clause 14 creates a new, broader power for the agencies, and the NCA, to obtain internet connection records for the purposes of target discovery. Target discovery is a great deal more intrusive than target development, potentially intruding on the privacy of a great number of innocent individuals. This is why we must tread very cautiously in this area and be quite satisfied of the need for the power, and that it is tightly drawn and properly overseen.

Currently, in order to obtain ICRs for target discovery, the agencies must unequivocally know the precise service used and the precise time of use by the unidentified individual. It is, therefore, very tightly drawn. The new target discovery power removes these requirements, allowing the agencies to obtain ICRs to identify which persons or apparatuses are using one or more specified internet services in a specified period. Noble Lords will recognise how potentially broad this is by comparison.

Investigatory Powers (Amendment) Bill [HL]

Lord West of Spithead Excerpts

Committee stage
Wednesday 13th December 2023 Lords Chamber

Moved by

[Lord West of Spithead]

43: Clause 21, page 41, line 29, leave out “is unavailable to decide whether to give approval under subsection (2)” and insert with “is unable to decide whether to give approval under subsection (2), due to incapacity or inability to access secure communications”
Member’s explanatory statement
This amendment would specify that the only exceptional circumstances in which the Prime Minister would be permitted the use of a designate is when he or she is unable to make a decision due to incapacity (ill-health) or lack of access to secure communications.

[Lord West of Spithead (Lab)]

My Lords, this is the first of three amendments I have tabled to Clause 21 relating to the so-called triple lock for targeted interception and targeted examination of communications relating to Members of the relevant legislatures. These changes are replicated in the three amendments which I have laid to Clause 22, which we will come to later, which relate to the triple lock around the targeted equipment interference warrants.

The communications of Members of the relevant legislatures, including noble Lords in this House, should not be intercepted and read unless it is absolutely essential to do so in the most serious of circumstances. That is why Parliament added a third layer of safeguards to approve of any such warrant in the IPA, ensuring that these warrants will not only be issued by a Secretary of State and reviewed by a judicial commissioner but approved by the Prime Minister personally. This is a robust and necessary oversight mechanism, and it is important that any changes as a result of this Bill do not undermine the central three layers of approval.

Nevertheless, the ISC recognises that, on occasion, the requirement that a warrant be approved by the Prime Minister personally may disproportionately affect the operation of the intelligence agencies, where they are seeking a targeted interference or equipment interference warrant that is very time sensitive. We therefore support the intention to provide some resilience, whereby in truly exceptional circumstances, an appropriately empowered Secretary of State may temporarily deputise for the Prime Minister on these matters. However, the clauses before us go too far.

My three amendments seek to ensure that decisions are delegated only in the most exceptional circumstances, that the decision may be designated only to a limited number of Secretaries of State who are already responsible for authorising relevant warrants, and that the Prime Minister retains oversight of all warrants which have been authorised in their name through a retrospective review of the decision.

The first of those relates to the circumstances in which a decision may be delegated by the Prime Minister to a Secretary of State. This should be clearly defined and limited only to situations where the Prime Minister is genuinely unable to take a decision. My amendment specifies that the Prime Minister must be “unable”, rather than simply “unavailable”—which is a rather subjective test—to decide whether to give the necessary approvals. It sets out that the only situations in which this applies are due to incapacity or inability to access secure communications—for example, if the Prime Minister is extremely ill or is abroad and unable to securely access the relevant classified documentation. This provides what the agencies require, but, when combined with the requirement that there is an urgent need for the decision, also provides the necessary assurance to Parliament that the Prime Minister’s responsibility will be deputised only in specified exceptional circumstances, and ensures that the use of a delegate does not become routine.

My second amendment to Clause 21 is to specify those Secretaries of State who can act as a designate for the Prime Minister in these circumstances. As currently drafted, the Bill includes all Secretaries of State as potential designates for the Prime Minister in relation to triple-lock warrantry. However, only a limited number of Secretaries of State have any statutory responsibility for warrantry for investigatory powers: for example, the Secretaries of State for the Home Office, the Ministry of Defence, and the Foreign, Commonwealth and Development Office. Given that the authorising of a warrant that relates to a Member of the relevant legislature must be taken seriously, it is both sensible and desirable that any Secretary of State deputising for the Prime Minister on these matters should already be familiar with the process and framework for targeted interception and targeted equipment interference warrants as part of their routine responsibilities, as those are the warrants we are talking about.

This amendment therefore limits the Prime Minister to up to two designated Secretaries of State and specifies that they should be Secretaries of State who are already required in their routine duty to issue warrants under Sections 19 or 102 of the IPA. I note that my noble friend Lord Coaker has tabled a similar amendment, which would list a number of specific Secretaries of State who could be designated as deputies to the Prime Minister. We wholeheartedly support the intention behind this amendment, and our amendment seeks to achieve a similar outcome. However, I note the possible scenario whereby the evolution of departmental names, seen relatively recently with the renaming and restructuring of the Foreign, Commonwealth and Development Office, may sow confusion as to which Secretaries of State are included under Clause 21. My amendment seeks to avoid any such confusion by linking the role to existing statutory responsibilities for warrantry in the original Investigatory Powers Act. In this way, it should achieve a very similar outcome to that which was wisely proposed by my noble friend Lord Coaker.

My third amendment to Clause 21 would ensure that the Prime Minister retains ultimate responsibility for any targeted interception and targeted examination warrants which involve communications to or from Members of the relevant legislature. As I outlined earlier, the Intelligence and Security Committee considers it essential that the three planks of the triple lock not be weakened by any changes made by the Bill. Therefore, we must ensure that the Prime Minister’s overall oversight of and involvement in these warrants is retained, even if, in designated cases, it could be retrospective. I have therefore tabled an amendment to provide that the Prime Minister review the decision taken by a designated Secretary of State on their behalf as soon as the circumstances have passed which prevented the Prime Minister approving the warrantry in the first place.

--- Later in debate ---

[Lord West of Spithead (Lab)]

My Lords, I absolutely support what my noble friend has said. I was about to leap up and say that this should not be discussed in this forum because some of it is so sensitive. The Minister handled it extremely well, but we are getting quite close to the margins.

[Lord Sharpe of Epsom (Con)]

I thank both noble Lords for their thanks. I have forgotten where I was, but I had pretty much finished.

[Lord West of Spithead (Lab)]

I beg leave to withdraw my amendment.

Amendment 43 withdrawn.

Investigatory Powers (Amendment) Bill [HL]

Lord West of Spithead 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.

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[Lord Anderson of Ipswich (CB)]

My Lords, I know that the noble Lord, Lord West, will want to speak to his own amendments, but, perhaps for the sake of good order, I could comment relatively briefly on government Amendment 14 before he does so.

I entirely accept what is said in the explanatory statement, that the amendment is intended to ensure that “unwanted cases” are not brought

“within the definition of ‘communications data’ in section 261 of the Investigatory Powers Act 2016”.

That is a good objective, and I applaud the sentiment behind it. I also accept that the amendment may well be an improvement on the original Clause 12. My concern is that the wording used at the end of the amendment may inadvertently leave that definition broader than it should be, putting within the definition of “communications data” material that should plainly be classed as content.

Proposed new subsection 5B(b) is intended to limit the categories of content defined in new paragraph (a) which are classed as “relevant subscriber data” and thus as communications data. Instead of defining subscriber data tightly, by reference to information identifying an entity or the location of an entity, which would be reasonable, the limiting words in new paragraph (b) provide, more loosely, that it should be

“about an entity to which that telecommunications service is … provided”.

That is a wide formulation indeed if you apply it to something such as Facebook or an online dating site. The information that customers may be required to provide to initiate or maintain their access to such services is likely to be very much broader than simply who and where they are. For example, I have it on the best authority that, in the case of a dating site, this information may, for example, include a full online dating profile, which sounds very like content to me. It would be most unfortunate if the wording of new paragraph (b) were to result in an interpretation of this clause—for example, by police reading it in good faith—than was far broader than was intended.

I offer more than the conventional gratitude to the Bill team, who have engaged with me intensively on this issue in an extremely short timescale. It is too late to seek an amendment to Amendment 14, but the Minister would help us and law enforcement out if he could confirm, perhaps in response to this intervention or in his own time, that the aim of Clause 12 in its amended form is to class as communications data only information which is truly needed to obtain or maintain access to a telecommunications service—traditional subscriber data such as name, location and bank details—and that there is no intention to cover information provided as part of using the service, such as the online dating profile that you might be asked to fill out to operate or fully activate an account.

[Lord West of Spithead (Lab)]

My Lords, I rise to speak to Amendments 15 to 20. In Committee, I moved amendments seeking to remove Clause 13 and its associated schedule. This was to retain the current arrangements, which wisely restrict a number of public authorities from being able to compel the disclosure of communications data from telecommunications operations. Parliament restricted this power in the original legislation because it considered it to be potentially very intrusive.

What this means is that, at present, authorities such as the Environment Agency or the Health and Safety Executive are required to take further procedural steps to compel disclosure of communications data. They must obtain an authorisation under the current IPA, a court order or other judicial authorisation, or under regulatory powers in relation to telecommunications or postal operators, or they must obtain the communications data as the secondary data as part of a valid interception or equipment interference warrant.

The Bill seeks to remove that requirement for further procedural steps in relation to a wide range of public regulatory authorities. The Government’s argument for removing these restrictions is that a broader array of communications now fall into the category of communications data and a wider number of organisations now constitute telecommunications operators. As a result, the current restrictions prevent some regulatory authorities from acquiring the information necessary to exercise their statutory functions in a way that was not anticipated at the time of the original legislation.

These organisations have argued that this is particularly relevant to bodies with a recognised regulatory or supervisory function which would collect communications data as part of their lawful function but are restricted under the current Act if their collection is not in service of a criminal investigation; in particular, the changes focused on improving the position of certain public authorities responsible for tax and financial regulation, the powers of which were removed in 2018 as a result of rulings by the European Court of Justice. The ISC recognises that such bodies much be able to perform their statutory function effectively; however, we have been told that the Bill delivers only the urgent, targeted changes needed, and we have not thus far been presented with the case for that.

This was a highly scrutinised issue during the passage of the original Act. Parliament rightly ensured that the power to gather communications data was tied to national security and serious crime purposes only, to avoid impinging on the right to privacy without very good reason. We should not lightly brush that aside.

There have been a number of reported incidents of the intrusive use of investigatory powers by local councils and other public authorities for purposes that are subsequently deemed neither necessary nor proportionate; for example, things such as dog mess. The Minister said in Committee that the clause

“applies to a relatively small cadre of public authorities in support of specific regulatory and supervisory functions”.

Yet in response to my question on which bodies would see their powers restored, he said that

“it is not possible to say with certainty how many public authorities have some form of regulatory responsibilities for which they may require data that would now meet the definition of ‘communications data’”.—[Official Report, 11/12/23; col. 1759.]

How can it be right to expect Parliament to reintroduce sweeping powers for a wide range of public bodies when a previous Parliament deemed that that was too intrusive—and when we cannot even be told which bodies they will be? Noble Lords will need to be sufficiently satisfied that these powers are to be given to bodies that cannot function without them; this cannot be a case of just giving powers back by default. I urge the Minister to consider this further. As it stands, we have not been given the information, or a convincing case, to persuade Parliament of the need for such a complete about-turn. The ISC will continue to pursue this amendment unless robust assurance can be provided that these powers will be restored in a sufficiently limited and targeted way.

Amendment 17 and its two consequential amendments seek to remove the ability of the agencies to internally authorise the use of this new, broader power to obtain internet connection records for target discovery. My amendment would require the agencies to seek approval from IPCO, thereby ensuring proper oversight. As I noted in Committee, Clause 14 creates a new, broader power for the agencies and the NCA to obtain ICRs for the purpose of target discovery. It represents a significant change from the current position because it removes the current requirement that the exact service used, and the precise time of use, be known. Under these new provisions, the agencies will be able to obtain ICRs to identify which person or apparatus used internet services in a period of time—a far broader formulation that will capture a far broader number of individuals.

As I also noted previously, the ISC agrees with broadening the power; what it does not agree with is that there is no oversight of it. The principle remains that increased powers must mean increased oversight. This new, expanded power is potentially very intrusive: it allows the agencies to obtain ICRs from a range of internet services over a potentially long period of time, and they could therefore potentially intrude on a large number of innocent people who would not have been captured previously.

It is essential in a democracy that there are appropriate safeguards on such powers, but in all cases relating to national security and economic well-being, the agencies are able to authorise use of this newly expanded, broader power internally. They make the assessment as to whether it is necessary and proportionate; there is no independent oversight of the agencies’ assessment. The Minister argued in Committee that the ISC amendment inserts a disproportionate limitation on the agencies’ ability to use condition D, as the Government

“do not assess that the new condition creates a significantly higher level of intrusion”.—[Official Report, 11/12/23; col. 1761.]

With respect, the ISC not only disagrees with this assessment but finds it incomprehensible. This is about depth and breadth. The new condition D may not represent a new depth of intrusion as ICR requests under the new regime will still return the same type of information, but it certainly represents a much wider breadth of intrusion as a far greater number of innocent internet users’ details will be scooped up by these ICR requests.

The Government may argue that, because those individuals’ details will not be retained once they have been checked and found not to be of intelligence interest, this is therefore not an intrusive power. Again, with respect, this is not an answer that Parliament or indeed the public can or should be satisfied with. I doubt any individual would feel that their privacy had not been intruded on if they had been scooped up just because they had not been retained, particularly when the retention of details is currently contingent entirely on the judgment of the agencies themselves, with no external input on whether the judgment is proportionate. The ISC very firmly believes that the new condition is more intrusive, and therefore greater oversight is required to ensure the power is always used appropriately.

Oversight will act as a counterbalance to the intelligence community’s intrusive powers and provide vital assurance to Parliament and the public. This amendment and my two linked amendments therefore remove the ability of the agencies to authorise use of this power internally. The agencies would instead be required to seek the approval of an independent judicial commissioner from IPCO to authorise the obtaining of ICRs under this new, broader power. This strikes the right balance between security and privacy and minimises any burden on the agencies.

I move on to Amendment 18 in relation to the new same broader target discovery power in Clause 14. This amendment is to limit the purposes for which this new power would be used. As I outlined previously, target discovery has the potential to be a great deal more intrusive than target development as it will inevitably scoop up information of many who are of no intelligence interest. This is why we must tread very cautiously in this area and be quite satisfied of the need for the power, that the power is tightly drawn and limited, and is properly overseen.

The ISC agrees with the noble Lord, Lord Anderson, who, in his excellent report reviewing the Government’s proposal for this Bill, supported the need for this change. The ISC has considered the classified evidence and recognises that due to technological changes the current power is less useful than envisaged due to the absolute precision it requires. However, as this House also recognised, Parliament deliberately imposed a high bar for authorising obtaining internet connection records, given their potential intrusiveness.

The noble Lord, Lord Anderson, also recommended, therefore, that the purposes for which this new broader target discovery power could be used be limited to national security and serious crime only, and that use of it should be limited to the intelligence community. However, the Bill as drafted departs from his recommendations in both respects. Not only does it include the National Crime Agency as well as the intelligence community, but it allows the intelligence community to use the new, broader target discovery power for a third, far less-defined purpose of:

“the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.

In Committee, the Government argued that this decision had been taken because it is consistent with the statutory functions of the agencies and Article 8 of the European Convention on Human Rights. That is, of course, true. It is consistent, but that is not an argument in favour of simply transporting it here. Not every intrusive power should be available for every purpose that the security services have. Given the potential intrusiveness of this new power, it must be constrained appropriately and the purposes for which it can be used must be crystal clear.

However, what is not yet at all clear is exactly what critical work must be enabled under the umbrella of “economic well-being” as it relates to “national security” which is not already captured under the straightforward national security category. It must be clear exactly what harm would occur if this purpose were not included in the Bill. At the moment, the addition of “economic well-being” serves only to blur the lines between what an ICR can or cannot be used for, something which Parliament should not accept. Therefore, in addition to requiring independent judicial oversight, which is the subject of a separate amendment, this amendment seeks to prevent the agencies from using this newly expanded power for the purposes of economic well-being relating to national security. This will ensure that the rather vague concept of economic well-being is not being used as a catch-all justification for the exercise of these powers.

The agencies will of course still be able to use this power in relation to national security more broadly, and in urgent cases of serious crime. This is proportionate and indeed more in line with the recommendations of the noble Lord, Lord Anderson. Unless the Minister can provide the House with information as to exactly why it is critical to retain economic well-being for the use of these specific powers, not the agency’s powers more broadly, I urge noble Lords to support my amendment and strike this from the Bill.

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Moved by

[Lord West of Spithead]

39: Clause 21, page 42, line 8, leave out “is unavailable to decide whether to give approval under subsection (2)” and insert “is unable to decide whether to give approval under subsection (2), due to incapacity or inability to access secure communications”
Member's explanatory statement
This amendment would specify that the only exceptional circumstances in which the Prime Minister would be permitted the use of a designate is when he or she is unable to make a decision due to incapacity (ill-health) or lack of access to secure communications.

[Lord West of Spithead (Lab)]

My Lords, this is the first of three amendments I have tabled in relation to Clause 21 and the so-called triple lock for targeted interception and targeted examination of communications relating to Members of relevant legislatures—that is, people like us and MPs et cetera. These changes are replicated in the three amendments I have tabled to Clause 22, which we shall come to later, which relate to the triple lock for targeted equipment interference warrants.

Noble Lords will, I am sure, agree that the communications of Members of relevant legislatures should not be intercepted and read unless it is absolutely essential to do so in the most serious of circumstances. That is why Parliament added a third layer of safeguards to the approval of any such warrant in the IPA. This ensures that these warrants would not only be issued by a Secretary of State and reviewed by a judicial commissioner but approved by the Prime Minister personally. This is a robust and necessary oversight mechanism, and it is essential that any changes as a result of this Bill do not undermine these three layers.

The ISC recognises that, on occasion, the requirement that a warrant be approved by the Prime Minister personally may affect the operations of the intelligence agencies where they are seeking a targeted interference warrant that is very time sensitive, and the Prime Minister is unavailable. We therefore support the intention to provide an element of resilience whereby, in truly exceptional circumstances, it may be appropriate for a Secretary of State to temporarily deputise for the Prime Minister on these matters. However, the clauses as drafted go too far.

My three amendments are designed to ensure that decisions are delegated only in the most exceptional circumstances; that the decision may be designated only to the limited number of Secretaries of State who are already responsible for authorising relevant warrants; and that the Prime Minister retains sight of all warrants relating to Members of a relevant legislature. The first of the three amendments relates to the circumstances in which a decision may be delegated by the Prime Minister to a Secretary of State. These circumstances must be very clearly specified—there can be no ambiguity —and they should be limited to situations in which the Prime Minister is genuinely unable to take a decision.

My amendment specifies that the Prime Minister must be “unable” to decide whether to give the necessary approvals, rather than simply “unavailable”, which is rather a subjective test. It then very clearly sets out those circumstances, which are “incapacity” or

“inability to access secure communications”—

for example, if the Prime Minister is extremely ill, or is abroad and unable to securely access the relevant classified documentation. The draft codes of practice published by the Government give these two scenarios as examples of the circumstances in which the Prime Minister might use this designation power. This is a step in the right direction. But the first problem is that they give them only as examples, which means that there could be any number of other unspecified circumstances about which Parliament would be kept in the dark. That cannot be acceptable.

There should be no question of the delegation of this power becoming routine, so there must be absolute clarity as to the exact scenarios when the power can be used. If, in future, other scenarios arise in which the Government seek to use this designation power— I note that they are currently unable to conceive of what they might be, as they have never arisen before—they must return to Parliament to make the case for it.

The second problem is that to which I referred in my opening remarks: matters as important as this must be in the Bill, where they cannot be amended or diluted by Administrations present or future without first returning to Parliament. This amendment provides what the agencies require but, when combined with the requirement

“that there is an urgent need for the decision”,

it also provides the necessary assurance to Parliament that the Prime Minister’s responsibility will be deputised only in specified exceptional circumstances.

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[Lord Sharpe of Epsom (Con)]

My Lords, I offer my thanks to the noble Lords, Lord Anderson of Ipswich, Lord Fox, and Lord West of Spithead, and the noble and learned Lord, Lord Hope of Craighead, for their amendments and for the points that they have raised during this debate. I also thank the noble Lord, Lord Evans, for his perspective, and the noble Lord, Lord Carlile, for supporting the Government, which obviously I hope becomes a habit.

I have discussed the triple lock at length with noble Lords and many others in Parliament and across government. We are all in agreement that this is a matter of the utmost importance, and it is imperative that we ensure that the triple lock operates correctly. That means that the triple-lock process, when needed urgently, has the resilience to continue in the most exceptional circumstances, when the Prime Minister is genuinely unavailable, while ensuring that the alternative approvals process is tightly and appropriately defined.

On Amendment 40, I thank the noble Lord, Lord Anderson, for the valuable engagement he has taken part in with my ministerial colleagues, Home Office officials and me regarding this amendment. I take this opportunity to explain why the Government do not support this amendment. The expressed intention of the noble Lord’s amendment is twofold: first to tighten the requirement in the current clauses, which use the word “unavailable”; and, secondly, to introduce a potential provision for dealing with a conflict of interest, as one of the circumstances in which the alternative approvals process could be used.

There is certainly merit in limiting the circumstances in which the alternative approvals process may be used. However, the noble Lord’s amendment introduces the requirement for a judgment to be made on the Prime Minister’s ability to consider a warrant application, for any number of reasons, including conflict of interest. This raises a number of challenges.

The first challenge is that “unable” draws into the legislation the principle of ministerial conflict of interest. This poses a constitutional tension and a challenge to Cabinet hierarchy. The inclusion of “unable” would allow for someone other than the Prime Minister to decide whether the Prime Minister is subject to a conflict of interest in a particular scenario, which goes against clear constitutional principles regarding the Prime Minister’s powers. This would be a subjective decision on the Prime Minister’s ability, rather than an objective decision on his availability.

As such, rather than strengthening the current drafting, the amendment as proposed could be considered to constitute a watering down of the triple lock, in that it was always designed to be exercised by the Prime Minister. Someone else making a decision about whether the Prime Minister is able to make a decision, given they can be said to be available and therefore technically able to consider an application, risks the intention of the triple lock. As drafted, the original clauses require a binary decision to be made about whether the Prime Minister is available or not, whereas, in deciding whether the Prime Minister may have a conflict of interest, a judgment must be made which is not binary and therefore has much less legal clarity.

The noble Lord, Lord Anderson, asked me if it is right that the Government believe that it is proper for the Prime Minister to consider a warrant application relating to the Prime Minister’s own communications. The best answer I can give is that the Bill is intended not to tackle issues relating to Prime Ministerial conflicts of interest, but rather to improve the resilience of the warrantry process. Conflict of interest provisions and considerations relating to propriety and ethics are therefore not properly for consideration under this Bill. The Prime Minister is expected, as are all Ministers, to uphold the Nolan principles in public life. For these reasons, the Government cannot support this amendment.

The Government have, however, recognised the concerns expressed by Members of both Houses, and the seeming consensus that a more specific, higher bar should be set with relation to the circumstances in which the alternative approvals process may be used. This high bar is of particular importance because of the seriousness of using these capabilities against Members of relevant legislatures. We accept that we are not above the law and it is appropriate for it to be possible for us to be subject to properly authorised investigatory powers. However, it is right that the significance that this issue was given in the original drafting of the Investigatory Powers Act is respected, and the communications of our fellow representatives are properly safeguarded.

I therefore thank the noble Lord, Lord West of Spithead, for his amendments, and for the close engagement on this Bill which I, the Security Minister and my officials have had with the members and secretariat of the Intelligence and Security Committee. Following engagement with Members of both Houses on these amendments, it is clear that there is good consensus for these measures, and the Government will not be opposing them today. While they will reduce the flexibility of the current drafting somewhat, the Government agree that these amendments strike an important and delicate balance between providing the flexibility and resilience that the triple-lock process requires, while providing the legal clarity and specificity to allow for its effective use. The amendments will also provide further confidence to members of relevant legislatures, including those of this House, that the protection and safeguarding of their communications is of paramount importance.

I should note that the Government do not quite agree with the precise drafting of these amendments, and we expect to make some clarifications and improvements in the other place, particularly to the references to routine duties under Sections 19 and 102 of the Investigatory Powers Act 2016, but I am happy that we seem to have reached broad agreement today.

[Lord West of Spithead (Lab)]

I just want to be clear, as I have never had an amendment accepted in 14 years —is the Minister saying that the Government accept my Amendments 39 and 41?

[Lord Sharpe of Epsom (Con)]

Yes. The noble Lord, Lord Fox, says, “Don’t get too excited”, and he is right.

I now turn to the government amendment in this group, Amendment 46. This proposed new clause amends the Investigatory Powers Act’s bulk equipment interference regime to ensure that sensitive journalistic material gathered through bulk equipment interference is subject to increased safeguards. Currently, Section 195 of the IPA requires that the Investigatory Powers Commissioner be informed when a communication containing confidential journalistic material or sources of journalistic material, following its examination, is retained for any purpose other than its destruction.

This amendment introduces the need for independent prior approval before any confidential journalistic material or sources of journalistic material are selected, examined, and retained by the intelligence agencies. It also introduces an urgency process within the new requirement to ensure that requests for clearance to use certain criteria to select data for examination can be approved out of hours.

The Government recognise the importance of journalistic freedom and are therefore proactively increasing the safeguards already afforded to journalistic material within the IPA. In doing so, we are also bringing the IPA’s bulk equipment interference regime into alignment with bulk interception, which is being amended in the same way through the Investigatory Powers Act 2016 (Remedial) Order 2023; that is being considered in the other place today.

In wrapping up, I once again thank noble Lords for the constructive engagement we have had on the Bill, singling out in particular the noble Lords, Lord Anderson, Lord West, Lord Coaker and Lord Fox. With that, I hope that noble Lords will support the Government’s amendment.

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Moved by

[Lord West of Spithead]

41: Clause 21, page 42, leave out lines 13 and 14 and insert—
“(2C) The Prime Minister may designate up to five individuals under this section.(2CA) The Prime Minister may designate an individual under this section only if the individual holds the office of Secretary of State and is required in their routine duties to issue warrants under section 19 or section 102.”Member's explanatory statement
This amendment would permit the Prime Minister to nominate up to five Secretaries of State to act for the Prime Minister if he or she is unable to decide whether to give approval under subsection (2A). The amendment also specifies that those nominated Secretaries of State must already have responsibility for the issuing of warrants under sections 19 or 102 of the Investigatory Powers Act 2016 (which governs warrantry for Interception and Examination of Communications, and Equipment Interference).

--- Later in debate ---

Moved by

[Lord West of Spithead]

43: Clause 22, page 42, line 38, leave out from “Minister” to end of line 39 and insert “is unable to decide whether to give approval under subsection (3) or (as the case may be) (6), due to incapacity or inability to access secure communications.”
Member's explanatory statement
This amendment would specify that the only exceptional circumstances in which the Prime Minister would be permitted the use of a designate is when he or she is unable to make a decision due to incapacity (ill-health) or lack of access to secure communications.

Investigatory Powers (Amendment) Bill [HL]

Lord West of Spithead Excerpts

3rd reading
Tuesday 30th January 2024 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My Lords, I extend my gratitude to all noble Lords who have contributed to the Bill, both on the Floor of the House and outside. We all agree that this piece of legislation is both important and necessary. The targeted amendments that it will make to the Investigatory Powers Act 2016 will ensure that the UK’s intelligence services and law enforcement will continue to have the tools at their disposal to keep this country safe, while ensuring that these are used in a proportionate way which places privacy at its heart. As the Bill passed through this House, the valuable debate has shaped it into what it is now. I am pleased that the House was able to reach agreement on several areas of potential divergence and that we send the Bill to the other place in exceptional shape and with cross-party support.

I first correct the record on one small point I made in my speech on the second group of amendments in last Tuesday’s debate on Report. His Majesty’s Treasury is not an example of a public authority that already has the power to acquire communications data using a Part 3 request. Examples of public authorities which do have these powers include His Majesty’s Revenue & Customs and the Financial Conduct Authority, both of which perform a range of vital statutory functions using communications data.

Once more, I extend thanks particularly to the noble Lord, Lord Anderson of Ipswich, who has been crucial in shaping the Bill through his independent review of the Investigatory Powers Act and his contributions during the Bill’s passage. My thanks go also to the noble Lord, Lord West of Spithead, and his colleagues on the Intelligence and Security Committee. The input from him and his fellow committee members has been valuable and intended to improve the Bill. He has been ably and knowledgeably supported by the erstwhile chair of the committee, the noble Lord, Lord Murphy of Torfaen.

Similarly, I have valued the collaborative and serious way in which the Opposition Front Benches have engaged on matters of such importance, so I offer my thanks to the noble Lords, Lord Coaker, Lord Ponsonby and Lord Fox, for their desire to scrutinise the Bill carefully and constructively.

I am much obliged to the support of other noble Lords who have contributed with such eloquence and expertise as the Bill has passed through this House. In particular, the noble Baroness, Lady Manningham-Buller, and the noble Lords, Lord Evans of Weardale and Lord Hogan-Howe, have all provided an invaluable perspective from their professional backgrounds. The noble Lord, Lord Carlile of Berriew, and the noble and learned Lord, Lord Hope of Craighead, both made a number of important and insightful interventions to help shape the debates and work towards practical solutions, for which I am grateful. My thanks go also to my noble friend Lord Gascoigne and his team in the Whips’ Office for their support as the Bill passed through this House.

I ask noble Lords to join me as I thank the policy officials and lawyers in the Home Office teams led by Lucy, Phoebe, Lucy, Hugh, Rob, Daphne and Becca, whose significant efforts have made this Bill happen. It is their hard work that has brought the Bill to this point. My thanks go also to the Bill team—Tom, Megan, Sophie, Emer and James—as well as Dan in my private office. I am also very grateful to Pete and Lucy, the expert drafters in the Office of the Parliamentary Counsel, for preparing the Bill and amendments during its passage.

Finally, I thank the intelligence agencies and law enforcement for their expert contribution to the Bill and for the work they do to keep this country safe day after day. The Bill will ensure that they continue to have the tools they need to carry out this task. We will all be the safer for it. We remain hugely grateful for their work.

As we send the Bill to the other place, it needs very little amending, save for some tidying up here and there. It is the first job of government to keep this country safe. The Bill helps us do just that.

[Lord West of Spithead (Lab)]

My Lords, first, I thank the Minister and his team for the liaison and the work we did together to try to meet all our concerns about the Bill. I also thank him for giving me the excitement of my life in that I had an amendment accepted—for the first time in 14 years. That is a pretty good strike rate, is it not? I was pleased about that as well.

We on the ISC are very happy that the Bill is needed. However, as the Minister knows, we are still concerned that there is insufficient acceptance of the fact that parliamentary scrutiny is required by the ISC more broadly in this and a number of other areas. I am sure this will be brought up in the other place; otherwise, I am pleased that we have moved this Bill forward at pace.

[Lord Anderson of Ipswich (CB)]

My Lords, I echo all the thanks that came from the Minister. I do not think I can add to his list, but I certainly endorse everything he said.

Bills of this nature can be controversial. We are seeing this in some other parts of the world at the moment. That was not the case in your Lordships’ House. That is testimony to the care with which the Bill was prepared, the civilised way in which it was debated and the openness of the Government to some of the important points made during our debates. I single out in particular the work of the Intelligence and Security Committee for the great scrutiny that it applied to it.

If I may, I will depart briefly from the studied impartiality associated with the Cross Benches. With the Government and Opposition so closely aligned on a Bill, it was particularly useful that we heard from the Liberal Democrats—with their sometimes annoying but rather necessary process of probing amendments. They caused everyone to think carefully about what we were doing. All in all, it was a happy experience for me. I hope that this is a good model for future Home Office Bills.