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

Tom Tugendhat Excerpts

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

[The Chair]

With this it will be convenient to discuss clauses 8 to 10 stand part.

[The Minister for Security (Tom Tugendhat)]

The Investigatory Powers Act 2016 contains world-leading oversight arrangements, which have strengthened the safeguards that apply to the use of investigatory powers. The clauses will enhance this oversight regime, including the role of the Investigatory Powers Commissioner, to ensure it is resilient and that the IPC can continue to effectively carry out their functions. This includes creating a statutory basis for appointing deputy IPCs to whom certain functions can be delegated and, in exceptional circumstances, the appointment of temporary judicial commissioners. The clauses also place certain existing oversight functions on a statutory footing and provide clarity to public authorities in their error reporting obligations. These are important and targeted amendments to ensure the oversight regime remains robust and the IPC can continue to carry out their role effectively.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clauses 8 to 10 ordered to stand part of the Bill.

Clause 11

Personal data breaches

[Tom Tugendhat]

I beg to move amendment 1, in clause 11, page 31, line 36, leave out “a court or tribunal” and insert “the Investigatory Powers Tribunal”.

This amendment is consequential on amendment 2.

[The Chair]

With this it will be convenient to discuss the following:

Government amendment 2.

Clause stand part.

[Tom Tugendhat]

Clause 11 will ensure that there is clarity for telecommunications operators operating within the IPA framework about which regulatory body certain personal data breaches should be notified to. It also provides a statutory basis for the Investigatory Powers Commissioner being notified of such breaches. Without this change, there will be confusion about personal data reporting obligations and a regulatory gap in respect of certain personal data breaches by telecommunications operators not being dealt with by the appropriate regulatory body. The clause also ensures that an individual affected by a personal data breach can be notified of the breach by the Investigatory Powers Commissioner, if the IPC deems to it to be in the public interest to do so. This will enable them to seek remedy from the Investigatory Powers Tribunal.

Government amendments 1 and 2 build upon the provisions already contained in clause 11 by providing a clear route to redress for those affected by personal data breaches committed by telecommunications operators. They ensure that the Investigatory Powers Tribunal has the jurisdiction to consider and determine complaints about personal data breaches committed by TOs and grant a remedy. The IPT already has significant experience of considering complaints from individuals who believe they have been the victim of unlawful interference by public authorities. It is therefore the appropriate forum to consider complaints regarding certain personal data breaches.

Amendment 1 agreed to.

Amendment made: 2, in clause 11, page 32, line 19, at end insert—

‘(1A) In section 65 of the Regulation of Investigatory Powers Act 2000 (the Tribunal)—

(a) in subsection (2), after paragraph (b) insert—

“(ba) to consider and determine any complaints made to them which, in accordance with subsection (4AA), are complaints for which the Tribunal is the appropriate forum;”

(b) after subsection (4) insert—

“(4AA) The Tribunal is the appropriate forum for a complaint if it is a complaint by an individual about a relevant personal data breach.

(4AB) In subsection (4AA) “relevant personal data breach” means a personal data breach that the individual is informed of under section 235A(5) of the Investigatory Powers Act 2016 (serious personal data breaches).”

(1B) In section 67 of the Regulation of Investigatory Powers Act 2000 (exercise of the Tribunal’s jurisdiction)—

(a) in subsection (1)(b), after “65(2)(b)” insert “, (ba)”;

(b) in subsection (5)—

(i) the words from “section” to the end become paragraph (a), and

(ii) after that paragraph insert “, or

(b) section 65(2)(ba) if it is made more than one year after the personal data breach to which it relates.”

(c) in subsection (6), for “reference” substitute “complaint or reference has been”.

(1C) In section 68 of the Regulation of Investigatory Powers Act 2000 (Tribunal procedure), for subsection (8) substitute—

“(8) In this section “relevant Commissioner” means—

(a) the Investigatory Powers Commissioner or any other Judicial Commissioner,

(b) the Investigatory Powers Commissioner for Northern Ireland, or

(c) the Information Commissioner.”’—(Tom Tugendhat.)

This amendment provides for the Investigatory Powers Tribunal to be the appropriate forum for complaints by individuals about certain personal data breaches reported to the Investigatory Powers Commissioner under section 235A of the Investigatory Powers Act 2016 (personal data breaches).

Clause 11, as amended, ordered to stand part of the Bill.

Clause 12

Offence of unlawfully obtaining communications data

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

I beg to move amendment 39, clause 12, page 33, leave out lines 16 and 17.

This amendment would remove one of the examples cases where a relevant person has lawful authority to obtain communications data from a telecommunications operator or postal operator, being where the data has been “published”.

[Stuart C. McDonald]

The clause relates to section 11 of the Investigatory Powers Act 2016, which created an offence where a relevant public authority knowingly or recklessly obtained communications data from a telecoms or postal operator without lawful authority. That is an extra protection against unlawful invasions of privacy by public authorities. Comms data can of course be vital to prevent serious crime or to assist in missing persons investigations, but it can also be seriously invasive if not monitored, as such data can reveal all sorts of details about our lives and the people that we are linked with. The clause makes changes to that offence.

It is said that there is a lack of clarity around the concept of lawful authority, so the clause includes some examples of what lawful authority is. Most are uncontroversial—for example, where there is a statutory basis for gathering the data, where there is a relevant court order or an authorisation, or where it is obtained to respond to a call to the emergency services. However, we contest the assertion that new subsection (3A)(e) is a proper example of lawful authority, referring to:

“where the communications data had been published before the relevant person obtained it”.

We are concerned that that is not a correct expression of the law as it stands.

The simple fact of data being published is not in and of itself lawful authority for it to be obtained and subject to surveillance. The fact that I publish a Facebook post at such and such a time in such and such a place does not give public authorities the right to seek it from Facebook. In fact, on a Zoom meeting about a controversial political campaign, it cannot be the case that Zoom can then be ordered by the police to obtain the relevant communications data simply because the data was published and available to those who attended the meeting.

We need a very careful explanation from the Minister about what precisely is intended by the example in paragraph (e) because as drafted—again, it depends on how we interpret these things—it seems to be open to an interpretation that anything even semi-publicly available can be obtained by public authorities without anything more.

[Tom Tugendhat]

I will speak more widely to clause 12 before addressing the amendment. The clause does not create new routes to obtain communications data outside the Investigatory Powers Act. Rather, it provides examples of existing routes to acquire communications data in order to put the existing position, as set out in the communications data code of practice, on to a statutory footing. This will provide clarity that acquiring communications data in this way will amount to lawful authority for the purposes of the offence in section 11 of the IPA. It makes it clear that sharing of communications data between public bodies is lawful. It is not the intention of section 11 to discourage public sector sharing of data when administering public services for purposes such as fraud prevention. Clause 12 puts that beyond doubt.

While discussing clause 12, I will take the opportunity to set out that a communications data authorisation can amount to lawful authority to require a telecommunications operator to carry out any necessary activity on their systems to enable or facilitate the obtaining of the relevant communications data. The list of examples of what will amount to lawful authority in clause 12 will provide additional clarity to the existing drafting of section 60A(5) in the Investigatory Powers Act, which sets out what can be authorised under part 3 for the purposes of acquiring communications data.

I would also like to address an inconsistency with paragraph 176 of the explanatory notes for the 2016 Act and the conduct that the Act permits. To be clear, a communications data authorisation may authorise interference with equipment by a person where that is done to enable or facilitate the acquisition of communications data for the purposes of identifying an entity as well as information about their previous or current location.

The Government do not support amendment 39, moved by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. Additional authority for published material should not be required for its disclosure by a telecommunications operator to a public authority when that data has been disclosed with the consent of that operator. The consent of the operator provides the lawful authority for the obtaining of the previously published communications data, which public authorities can rely on. It places the existing position, set out in paragraph 15.11 of the communications data code of practice, on a primary legislative footing. It does not create new acquisition routes.

Clause 13 amends the definition of communications data to include subscriber and account data, ensuring that this communications data is available to investigators with an IPA part 3, even if it is transmitted as the content of the message. That is not a broadening of the definition but a clarification of scope. “Subscriber data”, or “account data”, includes the details provided when someone completes an online registration form for a telecommunications service or system. This change overcomes the current uncertainty for investigators about the data types that will be “communications data” and therefore available to them.

Clause 14 restores the general information gathering powers to regulatory or supervisory bodies, which were repealed by section 12 of the 2016 Act. It will ensure that public authorities will be able to utilise their own pre-existing statutory powers to acquire communications data for civil purposes. These are existing statutory powers that have been conferred on public authorities by Parliament—for example, in the regulation of the financial markets to ensure market stability.

Since 2016, the data sought has increasingly moved online and is now being caught by the definition of “communications data” in the 2016 Act. For example, His Majesty’s Treasury is responsible for the civil enforcement of financial sanctions regulations. Some information that is essential in carrying out its civil enforcement functions, such as the timestamp of an online banking transaction, is now communications data, and His Majesty’s Treasury cannot currently use its powers to compel that information to be provided by a telecommunications operator. Communications data is available under the IPA only if the matter under investigation is a serious crime, and so is out of reach for public authorities exercising civil enforcement functions.

[Stuart C. McDonald]

I thank the Minister for his response and his explanation. We will of course take that away and give it consideration again. He has referred to codes of practice being put into statute, so we will go away and look at those codes of practice. Of course, codes of practice can sometimes be inconsistent with various laws as well, so this is not necessarily the end of the matter. It would be helpful if the Minister could perhaps—in writing, or perhaps we will have to revisit it on Report—look at the specific examples that I gave and just explain whether or not those amount to prior publications of comms data.

[Tom Tugendhat]

I am very happy to write to the hon. Gentleman.

[Stuart C. McDonald]

I very much appreciate that, and that will hopefully help to clear things up before we get to the next stage of proceedings. I will withdraw the amendment.

--- Later in debate ---

My anxiety is that we should be very clear about what the limits are on the public bodies concerned, who those public bodies are, and in what circumstances they might exercise the powers that the Bill confers. It will be very much in the Government’s and the Minister’s interests to be very clear and certain about that as we make this case publicly. If I were to be for a moment—but only a moment—fanciful, it might well be that a member of the public will say, “Why should a local authority have similar powers to MI5?” I am not sure that it is quite like that, and I know the Minister will be able to reassure, through me, the wider public, but that is the kind of argument one can see possibly being presented in the media and elsewhere. I speak merely to test the Minister on this and ask him to let us know when he will make this list available—perhaps during the course of our consideration. I know that the Intelligence and Security Committee of Parliament has asked for this. Will the Minister fulfil the promise he gave without delay?

[Tom Tugendhat]

As always, my right hon. Friend asks a pertinent question. I hope he will forgive me for saying that I very much hope that the letter I asked to be sent arrived in his inbox this morning. He may not have seen it, which I completely understand, as there are many pressing issues on his time. I have also attached it into the packet for the Bill and indeed copied it to the ISC secretariat, which has done such an important job in ensuring that we are all as one on this. I hope very much that that will answer my right hon. Friend’s questions. If it does not, he knows where I am—I would be delighted to clarify it further. As my right hon. Friend has very kindly asked, I shall give that list now, for the record: HM Revenue and Customs, the Financial Conduct Authority, the Department for Work and Pensions, the Treasury, the National Crime Agency, the Department for Business and Trade, and the Competition and Markets Authority.

My right hon. Friend reminds me of that famous scene in “Yes, Prime Minister”—thank God defence is held at central authority, or we would not have to worry about the Russians; we would have a civil war in two weeks. His point about local authorities having intelligence powers is valid. They do not have the same intelligence powers as MI5—let us be absolutely clear about that. That is not what we are offering.

[Sir John Hayes]

It does the Minister great credit that he has made that list available during the course of our consideration. That is very important. What I had feared might happen was that we might not get it while we were in Committee. In fact, I have not actually seen it, but I am grateful to him for making it available, at least, during our consideration.

[Mr Kevan Jones (North Durham) (Lab)]

This is an area that concerns me. I am quite certain the security services have protocols on how to deal with such things, but it worries me that the DWP is on that list. Having been involved in work on the Horizon Post Office scandal for many years, I know the DWP did not cover itself in glory on some of those cases. Can the Minister reassure the Committee that there are protocols governing when and how it will use those powers? That, I think, would give the public some assurance that there is a standard for how they will be used.

[Tom Tugendhat]

The right hon. Gentleman tempts me towards an area that the Bill does not cover, so I hope he will forgive me for focusing on what it does cover, such as the safeguards. Clause 14 will limit communications data acquisition to the purpose of a body required to meet its civil functions and duties, such as a regulatory body providing oversight of financial markets, or indeed the DWP overseeing different elements of its responsibilities. Where disclosure is in support of a criminal prosecution and IPA part 3 authorisations for communications data must continue to be sought, using the existing safeguards and oversight provided for by the Investigatory Powers Commissioner’s office, the courts will oversee the use of those powers by public authorities in the same way as the acquisition of non-communications data under the existing powers. He has asked me specifically about a connected area, so—I hope he will forgive me—I will have a look at it and write to him very specifically about that.

[Mr Jones]

May I suggest that the Minister does write to the Committee? I accept the safeguards in place, but for organisations other than the security services, I want to know what internal mechanisms they have to ensure that use of those powers is proportionate in terms of investigations and so on, and what training and protocols they are using. If the Minister could write to us on that, that would be helpful.

[Tom Tugendhat]

Forgive me, but the right hon. Gentleman is asking for a very large piece of work there. I am setting out the legal authority under which those organisations can act. Their internal processes may be different in different circumstances and be answerable to different Ministers.

[Mr Jones]

I am sorry, but I do not agree with the Minister. He is giving those other public bodies additional powers, and I think it is quite reasonable for this Committee and the public to be assured of how those powers are actually going to be used. As I say, I have no problem with the security services, because I am well aware that they have very clear, strong protocols and safeguards governing the use of their powers internally, with authorisations and so on. I think he just needs to ask those other Departments how they are going to do this, and what the internal mechanisms are.

[Tom Tugendhat]

I am very happy to ask them; I am just stating clearly that they are not under the responsibility that I have as a Minister. The legal powers that they are given are not additional powers; they are repetitions of the IPA 2016, so they are not additional powers—[Interruption.] Forgive me, but they are not additional powers. Their existing codes of practice under the different organisations have their own responsibilities within them.

[Mr Jones]

I beg to differ. In the next clause, we will come on to the breadth and depth of the new powers, but that is a different argument—I will save that until then. However, he is the Minister and, in my experience, the Minister leads the Bill. I would have thought it would be quite simple to ask those other Departments what those protocols are. If he does not ask, he does not get.

[Tom Tugendhat]

I will happily ask. The right hon. Gentleman is asking for internal management structures, though.

[Sir John Hayes]

I am grateful to the Minister for offering me a second bite of the cherry. Perhaps I can offer a Hegelian synthesis between him and the right hon. Member for North Durham. We talked earlier about operational purposes, but we have to be careful about that: in the case of the agents of the police, one cannot publish purposes in fine detail, because that would be unhelpful. However, in broad terms, perhaps the way forward on this is to illustrate the kind of purposes that the bodies the Minister described might employ, within the legal constraints that he just set out. Perhaps that is the way forward; it would certainly satisfy me, and I cannot think that would not help to satisfy the right hon. Member for North Durham, who is a reasonable man—not my right hon. Friend, but a right hon. Gentleman and a personal friend, which is better than being a right hon. Friend.

[Tom Tugendhat]

As always, I welcome my right hon. Friend’s contribution. That is covered in many areas in the letter I wrote to him.

[Dan Jarvis (Barnsley Central) (Lab)]

In an earlier response to comments by the right hon. Member for South Holland and The Deepings, the Minister helpfully mentioned the letter that I think has been sent to the right hon. Member and possibly other members of the Committee. Can the Minister confirm that that letter will also be sent to the Opposition?

[Tom Tugendhat]

To be absolutely clear, the letter was in response to my right hon. Friend the Member for South Holland and The Deepings, so it was sent to him, it was copied to the secretariat of the ISC and it is in the Bill pack. The hon. Member for Barnsley Central therefore has access to it.

[Mr Jones]

May I ask the Minister to look at his internal process again? We also had this problem with the National Security Bill. I do not know whether he should change the pigeon post he is using to ensure people have it. May I also point out that the ISC is not constantly in session? Therefore, if he has to send it to the ISC, we do not automatically get it until our next meeting or when we do the next reading.

[Tom Tugendhat]

I am delighted to clarify that the letter was emailed to my right hon. Friend the Member for South Holland and The Deepings. He is a traditionalist in many ways, but I believe he has entered the electronic age.

[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.

[Tom Tugendhat]

The changes made by clause 15 should transform the intelligence services and the National Crime Agency’s ability to detect serious criminals and those seeking to undermine national security. Current internet connection record conditions only enable identification of individuals involved in known events. That means an investigator must know the date, time and service being used, preventing identification of offenders where they cannot be linked to a specific time of access. For example, where analysis of a seized device identifies a site serving images of child sexual exploitation, it would not currently be possible to search ICRs for subjects accessing that site beyond a specific known event. New condition D would help to identify other subjects accessing those sites. This will not be a fishing exercise. As with all investigatory powers, the case for requesting ICR data must be necessary, proportionate and intelligence-led. As Committee members will have heard this week, the benefit to the agencies is in being more, not less, specific.

The new condition will be subject to robust safeguards, including limiting the statutory purposes available, stringent necessity and proportionality requirements and independent oversight, including regular inspections by the Investigatory Powers Commissioner’s Office. Where internal authorisation takes place for urgent and national security-related applications, authorising officers must be independent of the operation and not in the line management chain of the applicant. If an investigator knowingly or recklessly obtained ICRs—for example, if the request was clearly not proportionate—they would be at risk of having committed a section 11 offence of unlawfully obtaining communications data, which can result in a fine or imprisonment.

--- Later in debate ---

[Sir John Hayes]

Exactly. That point was made when we debated the original Act, and I think that I committed at the time to those kinds of things being detailed in the annual report. To clarify a point that was made earlier, David Anderson was clear at the time, and has been since, that we cannot detail the operational purposes of the agencies if doing so would compromise them. The techniques and approaches that they necessarily use in the performance of their duties could be compromised if we were to talk in detailed terms about the character of their operational activities. However, we can speak in broader terms about the kinds of circumstances in which powers might be used—and all the more so for the other public bodies, in a sense, because even if a serious criminal investigation is taking place, those investigations are not typically as secret as they might necessarily be in respect of the security and intelligence community.

Perhaps those two grounds—greater sight of the processes in those bodies and clarity about the circumstances in which the powers can be used; in other words, exceptionally and for very serious matters—would be helpful ways of dealing with some of the points raised by my colleague on the ISC, the right hon. Member for North Durham.

[Tom Tugendhat]

As usual, right hon. and hon. Members have raised some excellent points. Let me be clear: it is not true to say that there is no judicial oversight. To say that there is no judicial oversight would be correct if the IPC were not in place. I know what the right hon. Member for North Durham is going to say, but that is a form of judicial oversight.

As to the way in which the authorisations work, I hope that I have been clear—I will repeat it to ensure that I am—that an investigating officer would have to make an application to use the powers. That would have to go to a senior officer in their service who is not in their chain of command: someone who is not overseeing the operation or in their management chain—a separate element. Any abuse of that system could mean that that individual, or those individuals, are in violation of section 11. I know that the right hon. Member for North Durham takes his responsibilities on the ISC exceptionally seriously and is fully aware that sometimes there can be a pressing need for operational action at pace. That is what this is also designed to help. It is important that officers have the ability to act under a regulatory framework that means that abuses are, at worst, extremely limited due to various constraints.

[Mr Jones]

I accept that and I have confidence in the internal protocols—do not get me wrong on that—but the Minister does not have to convince me or members of this Committee; it is about the public perception. What is the problem? If we are not going to have judicial oversight in terms of judicial authorisation, what is to stop us having another system whereby, when it is used, the IPC is informed? We could send a simple email so that it would at least have ongoing oversight when these powers are being used.

[Tom Tugendhat]

The right hon. Gentleman is creating his own haystack here. Although I hope as ever that this power will be used only exceptionally rarely, sadly the nature of serious and organised crime and terror in this country means that it will be used more often. There is a slight misunderstanding as to how this will be used. Targeting a train website or a single authority would not be proportionate or meet the necessity provisions within the Bill. It would be neither necessary nor proportionate. In fact, it would be unnecessary and would be vastly disproportionate, because it would be a mass collection exercise that would neither be targeted in a way that would satisfy the proportionality requirement, and nor would it give a useful answer—it would give such bulk data as to be useless—and therefore it would not be necessary.

The whole point of this is that it sets out a series of conditions in which these powers could be used—perhaps against a certain website, that is true—but on the basis of intelligence. It would have to have a particular cause and a particular time. This is not a Venn diagram with a single circle, but a Venn diagram with four or five circles; it must be in the centre of those for it to be necessary and proportionate.

[Stuart C. McDonald]

I would be reassured if there was independent advanced judicial oversight. The Minister has said a couple of times that the powers will be used “exceptionally”. What is the difficulty in making sure that there is an exception for urgent cases of advanced judicial authorisation for use of these powers?

[Tom Tugendhat]

“Exceptional” does not mean that there is necessarily huge amounts of time to act; exceptional means that the seriousness of the offence is extremely grave. These powers are for things such as child sexual exploitation. I wish it were not so, but even in this country, the police very often have to act extremely speedily to prevent harm to a child and sometimes, very sadly, multiple children. They have also to act extremely speedily to prevent terrorist plots or other forms of very serious organised violence or criminal activity.

That is why “exceptional” does not necessarily mean that it can be dealt with in a procedural way over a number of weeks; exceptional may mean absolutely pressing as well, and that is what this is designed for. The right hon. Member for North Durham may have been aware from briefings that I believe he has received that, in some circumstances, this Bill will reduce the time taken to interrupt serious abuse of children, from months and occasionally years down to days and weeks. That is surely an absolutely essential thing to do, but that will not work unless these powers are used according to the Act, with the important words being “proportionate” and “necessary”. The reason I repeat those words is that were the intelligence services to go on some sort of fishing expedition—and I know that the right hon. Gentleman is not suggesting that they would—that would not be legally permissible under this Act and nor would it achieve the required results, because it would turn up so much data that it would simply be an unusable, vast collection of fluff. Effectively, instead of targeting the needle, they would have merely collected another haystack.

[Mr Jones]

It is not about a fishing expedition, but they will get into a fishing expedition anyway. He says that train lines would not be affected, but they would. If someone wants to see an individual’s travel pattern, that is what they may do. Therefore, a lot of people’s data will be dragged in, not because it has been looked for but because it will come in anyway.

The problem is that if the argument is about speed—which I do not necessarily think is the case in some cases—the Minister has to do two things to reassure people that the powers are going to be used in the right way. First, he must provide pre-authorisation judicial oversight, and secondly, the IPC should be told, perhaps via a simple email, when the powers are used. That would at least allow it to look at the trends and uncover any concerns. I accept the protocols in place and am 100% sure that they are being followed, but it is possible that some people will not follow them and that is what we have to guard against.

[Tom Tugendhat]

This is a somewhat odd argument, because the right hon. Gentleman and I are slightly together but also arguing at cross purposes. Both of us have a very high regard for the intelligence services and are confident in their integrity, but we are slightly at cross purposes because he believes that we are not satisfying the oversight element, but I believe we are.

Let me be clear. I am not being a stick in the mud about this for any political reason. I actually happen to believe that this is the right way to approach this. There is a constant balance in all forms of oversight between the ability to act quickly and the ability to be controlled from outside. I believe that this sets in place a very significant, burdensome requirement on those who are taking these responsibilities to act according to certain principles. To repeat, the principles are necessity and proportionality. I do not think anybody in here would argue against those. What this requires them to do is make sure that the principles are met by effectively targeting in advance.

The right hon. Gentleman’s comment about train line use would, I am afraid, not satisfy that proportional need. The individual would have to be specifically identified in advance. The pattern of use of the website from the single point and to the point of contact—from a phone to an internet server or whatever it might happen to be—would have to be clarified. These ICRs are Venn diagram circles that are getting narrower and narrower. The idea that this would end up with some sort of week-long or month-long trawl of a train line website is, I am afraid, not permissible under the 2016 Act. Were any intelligence officers to do it—though I do not believe that they would—they would fall foul of section 11 and would not be acting necessarily and proportionately. Therefore, it would not be permissible.

It is pretty clear that existing conditions B and C already enable public authorities to make an application for a known individual’s internet connections. New condition D only enables a request for details to identify individuals who have used one or more specified internet services in a specified time.

[Owen Thompson (Midlothian) (SNP)]

I think that is the point. I do not think anyone is arguing against the fact that there will sometimes be exceptional circumstances that require haste. Everybody accepts that, but the issue with condition D is that it is explicit in removing the targeted nature of the other conditions. It is where they do not know the time or person and do not have the data available that they are using condition D. There is nothing in the Bill to make clear that it can only be used in exceptional circumstances. How can we square that circle? I do not think that anyone would disagree with the fact that there needs to be an ability to move at pace at times, but there is nothing here that says that power could only be used in those sorts of circumstances. Condition D creates a situation where we are going to hoover up data on a huge number of people, but there is nothing to say how long we are going to hold on to that data for, or what would be done with it.

[Tom Tugendhat]

To answer the last part of the question first, the holding on to data and what is to be done with it is the same as under the IPA generally. Information can be held or not held according to those provisions. This Bill does not change any of that, which is why that is not covered here, and I know the hon. Gentleman would not expect it to be.

It is worth pointing out that condition D is not only no more intrusive than conditions A, B or C, in terms of data—

[Owen Thompson]

rose—

[Tom Tugendhat]

Let me just finish the point; I know the hon. Member will come back to me.

Condition D is no more intrusive, and it does require the serious crime threshold, which does add an extra layer before it can be used. I hear the hon. Member’s point; the condition still requires proportionality and necessity, so it could not be simply anybody who is using Facebook, because clearly that is not proportionate. It still requires that targeting; it still requires those Venn diagrams, if he likes, to close over a target; and, even then, it requires the serious crime threshold.

[Sir John Hayes]

The key thing to understand here is that the agencies have always had the ability to intercept communications data. Communications data is one’s letters. Communications data is one’s phone calls. We speak about communications data now, mindful of the way that people communicate now, and we think of the internet and telephones, but the process of intercepting communications has been a core part of the work of the agencies since the agencies began, so we need to put this in context.

The difference here is the nature of how people communicate. It is right to say that—I rise to be helpful to the Minister—the character of encryption, in particular, is making it harder, even in the kind of serious cases that have been described, for those who are missioned to keep us safe to do so by accessing the information they need. So it is right that the law needs to be updated. The critical thing for me, therefore, is this matter of the threshold, which was debated when we debated the original Act.

As far as I understand, this Bill does not change the threshold; it reinforces the threshold. If that is the case and, as has been said, exceptionality is a measure of significance and not complexity—some cases will be complicated, but it is about significance—then the only outstanding difference, as the Minister has said, is oversight. I think the reporting in the annual report matters—the right hon. Member for North Durham made that point—and that would be a small concession to make, if I can describe it as such. I take the point about alacrity, too. What we cannot do is slow down the process by making it bureaucratic.

I think there is an easy way out of this. Being very clear about thresholds, as the Minister very helpfully has been today, is perhaps the way out of it. To clarify that in writing might be helpful.

[Tom Tugendhat]

I will give way to the right hon. Member for North Durham.

[Mr Jones]

I do not think anyone could describe the right hon. Member for South Holland and The Deepings or myself as woolly liberals, but I do have a concern with this. Where we are giving an extra power—which is what this is, although the Minister disagrees about the breadth—I want to ensure somehow that, in a democracy, we have oversight of it. I do not want to make it difficult for the agencies to implement their powers, but there are simple ways of doing so. That could mean telling the IPC when it occurs.

I have faith in the internal mechanisms that the Minister refers to, but I was also on the Intelligence and Security Committee in 2017, when we did our rendition and detention inquiry. All the safeguards were in there then, and they were ignored. That led to some fundamental changes, including the Fulford principles. There are occasions when the best things in legislation are not followed through, and that can lead to some very serious consequences.

[Tom Tugendhat]

I take the right hon. Gentleman’s point and the spirit in which it was made. I reiterate that requests for communications data must be approved by the Investigatory Powers Commissioner’s Office, as he knows, unless they are urgent or for the purposes of national security. That is where this is being focused. Condition D, which we have spoken about, will be restricted to only the intelligence services and the National Crime Agency when it is pursuing a national security element within its remit—that is a separate area, as he knows. Those organisations have the necessary expertise to raise compliant and proportionate restrictions.

Again and again, the principle in the Bill is that the least intrusive power must be used. The oversight starts internally, but very rapidly goes externally, whether it is to IPCO or a judicial commissioner. The ability to review is always there, and the penalties under section 11 of the 2016 Act, which we all hope will never be needed or used, are pretty onerous on anybody who abuses their power or in any way exploits their ability in order to conduct themselves in a way that we would all agree is unsatisfactory in a democracy. It is really important to say that.

Going back to the question raised by the hon. Member for Midlothian, the reality is that condition D applications will limit collateral intrusion as much as is reasonably practical. The returned data may only provide an indication of involvement in an investigation, and further analysis will likely be necessary to allow fuller determination. That is the nature of handling intelligence data and then conducting an analysis on the back of it. In all cases, that activity will have to be justified, and will be no more than is necessary to achieve the desired outcome.

To be absolutely clear, that has to be targeted. This is a series of circles in a Venn diagram to target as narrowly as possible. Were others to be captured in that narrowest possible target, that data could not be held, or a separate application would have to be made in order to hold it. For example, one can imagine a circumstance in which an intelligence agency is targeting a paedophile on a particular street. Using different forms of communication technique, it narrows it down from a handset to an operator, a particular website, a particular time, and so on, so the Venn diagram narrows—it is very focused. If it turns out that there is another paedophile operating in exactly the same area at that time, that would require a separate application, because it is a separate target. The data could not just be held. Nor would it be ignored—I am sure the hon. Gentleman would not suggest it should be. But the judicial oversight needs to be gone through and the application needs to be made. It is a separate warrant, and so on.

[Mr Jones]

In the example the Minister gives, at the same time the agency targets that individual, it will have a lot of other people who communicated with that individual. How long will that information be kept? That is the concern people have. It is not the depth, but this is broad. Most of those people would be completely innocent of anything. There is then the issue of how long that information is kept and who makes the decision about how long to keep it.

[Tom Tugendhat]

Forgive me, but I disagree with the right hon. Member on this. It is unlikely that there would be a large number of people at a specific geographic location, using a specific cell site, from a specific handset, viewing a specific website at a specific time. Once it is narrowed down like that, the numbers are very small. That does not mean that any intrusion that is not legally authorised is acceptable—that is absolutely not what I am saying. But we are getting down to very small numbers of people, and quite deliberately so, in order to achieve an intelligence outcome.

[Stuart C. McDonald]

As I understand it, the Minister is describing the powers that already exist under the 2016 Act. If we are down to that level of knowledge of where, when and who, then what in the Bill goes beyond that? I do not follow.

[Tom Tugendhat]

In the existing Act, one would have to be entirely specific about a particular time. It could not be 5.30 pm to 6.30 pm; an internet connection record could be done only at 5.30 pm exactly. The Bill extends that a bit, but it still has to be very targeted. This is a proportionate change in the law to allow the intelligence services to collect information that would enable the targeting of serious and organised crime.

[Mr Jones]

Let me go back to the Trainline example. Suppose it is not child exploitation—the Minister is possibly right that it is specific, and hopefully there are not many people in one street—and someone is trying to look for a person’s travel plans, so they want to know how many people in an area have contacted Trainline. It will be more than one person, so there will be a lot of other people they are not looking for in there. That is the problem, and that is all that the ISC, the hon. Members for Midlothian and for Glasgow South and the Labour Front Benchers are saying.

Earlier the Minister used the words “control from outside”. I am sorry if he sees oversight as control, but I certainly do not. It is about giving confidence to the public that there is independent oversight over these powers, whether that is informing the IPCO when they are used or having pre-authorisation, as was suggested earlier. I do not see the problem with keeping people informed. The Minister is hiding behind IPCO, but it was introduced in the first place to give the public confidence.

[Tom Tugendhat]

I suspect we are not going to come to an agreement on this, so I will probably leave it after this point. The IPCO oversight means that IPCO can look at a request at any point. The maximum period it can go without looking at it is 12 months, but it can look at any point. We have said that requests for communications data must be approved by the Investigatory Powers Commissioner’s Office

“except where they are urgent or are for the purpose of national security”.

That interaction, which the right hon. Gentleman rightly supports, is already there, so I do not accept it is lacking.

On the question of proportionality, the amount of information that one may need to investigate a paedophile network, for example, may mean being slightly vaguer about the specific time, whereas following a known individual may require different forms of flexibility and proportionality. I am afraid I am going to be very cautious about setting out what each one means, because these principles will have to adapt and be applied as appropriate.

[Sir John Hayes]

We are going to have to close this down and move on because we have other things to do. Perhaps the way through is, as was suggested a few moments ago, that this be reviewed over time. If in the annual report we have a really thorough examination of how the measure has been applied and in what circumstances—in broad terms, of course, because we do not need the details of the crimes—that would give us the assurance we need. Our Committee has made that point emphatically. That would be a terribly good way out of this and it would not be a huge step. If the Minister agrees to that, I would certainly be satisfied.

[Tom Tugendhat]

It is not for me to tell the ISC what it should look into, but I would be surprised if it did not want to look into this in great depth.

[Sir John Hayes]

I think the Minister might have misunderstood. Forgive me; I did not mean that. I meant that this could be reviewed in the IPCO annual report. That would obviously be considered by the ISC in the way he describes. I think we need a summary of how this will work in practice and a commitment that we do that now. He sort of talked about a retrospective review. Rather than debate this further now, that would be a very good way forward.

[Tom Tugendhat]

I am entirely supportive of the idea that IPCO should update the ISC and the Secretary of State about how it is working and provide information so that a proper view can be taken. I think that is entirely appropriate.

[Mr Jones]

Well, that would be fine if the Government did not redact things in IPCO reports and try to stop us getting access to—[Interruption.] I am sorry, but the Government are doing that. They have done it over the past few years. That is the problem. The Government are paying lip service to the ISC. We are not trying to thwart the work of our security services; we are an important part of the democratic oversight of them. That is why we were set up under the Justice and Security Act 2013. I am sorry to say that the Government are trying to drive a coach and horses through it, including by preventing information from IPCO from being given to us.

[Tom Tugendhat]

I think we have covered the area, and I have said all I am going to about the matter.

Question put and agreed to.

Clause 15 accordingly ordered to stand part of the Bill.

Clause 16

Powers to require retention of certain data

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

[The Chair]

With this it will be convenient to discuss clause 17 stand part.

[Tom Tugendhat]

Section 87(4) of the IPA provides that a data retention notice cannot require the operator to retain so-called “third party data”. There is no intention to revisit the principle of this important provision, but technological advancements have highlighted some discrete and unintended consequences. For example, the Secretary of State is prevented from placing communications data retention obligations on a UK telecommunications operator in relation to data associated with users of a foreign SIM card within the UK.

Clause 16 addresses those unintended consequences and makes an exception for that data within Section 87(4), so that data in relation to roamers using a foreign SIM in the UK would be treated in an equivalent way to the data that could be retained in relation to users of UK SIM cards. Clause 16 also clarifies that communication data required for an internet connection record can be subject to a data retention notice. All existing safeguards will continue to apply.

Continuing to clause 17, the IPA already has extraterritorial effect. Data retention notices—or DRNs—and interception technical capability notices—or TCNs—can be given to a person overseas where there is an operational requirement, and it is necessary and proportionate to do so. However, only TCNs are currently enforceable in relation to a person overseas.

Clause 17 amends section 95 and 97 of the IPA to allow extraterritorial enforcement of DRNs, if required, for UK security purposes when addressing emerging technology and the increasing volume of data being held overseas, bringing them in line with interception TCNs. It is vital to have this further legal lever, if needed, to maintain the capabilities that the intelligence and law enforcement agencies need to access the communications data that they need to in the interests of national security and to tackle serious crime.

[Stuart C. McDonald]

I have some comments to make about extraterritoriality, but I will do so in the next debate.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clause 17 ordered to stand part of the Bill.

Clause 18

Review of notices by the Secretary of State

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

[The Chair]

With this it will be convenient to discuss clause 19 stand part.

[Tom Tugendhat]

The notice review mechanism is an important safeguard. If operators are dissatisfied with a notice that they are given, or with any part of it, they have a statutory right to refer it to the Secretary of State for a review. Clause 18 is essential to ensure that operators do not make any technical changes during the review period that would have a negative impact on existing lawful access capabilities.

Operators will not be required to make changes to specifically comply with the notice. However, they will be required to maintain the status quo. If there was lawful access at the point at which a notice was given, access to data must be maintained by the operator while the notice is being comprehensively reviewed. This will ensure that law enforcement and intelligence agencies continue to have access to vital data during that period in order to keep people safe.

To be clear, companies can continue to make technical changes or roll out new services during the review period, so long as lawful access remains unaffected. The status quo will apply only to services or systems specified within the notice; anything outside the scope of the notice will be unaffected. If, at the conclusion of a review, the Secretary of State confirms the effect or varies the notice, maintaining the status quo will be vital to ensure that law enforcement and intelligence communities do not lose access to data during the review period that they would otherwise have been able lawfully to obtain. In the Lords, the Government amended the Bill to introduce a timeline for the review of a notice.

[Dan Jarvis]

I will be very brief. I am grateful for the Minister’s remarks, but I want to raise the concerns of some telecommunications operators and of organisations representing the sector about clauses 18 and 19. These include a view that the role of the proposed new notices regime would hinder and even veto product development.

I know that the Minister and his Department have engaged with stakeholders about those concerns, as have Labour Members. I would be grateful if the Minister briefly set out whether recent engagement has taken place with stakeholders with regard to these matters, and whether he has any further plans to address the concerns that they have expressed about clauses 18 and 19.

[Stuart C. McDonald]

I want to make a similar case. We are now getting into territory where I struggle to understand exactly what is going on, because I am not a tech geek. We are speeding past this measure almost as if it were inconsequential, but the language in some of the briefings that we have received about it is pretty dramatic.

The bundle that was emailed to Committee members this morning includes evidence from Apple that I think needs to be addressed:

“At present, the SoS must navigate important oversight mechanisms before they can block the offering of a new product or service they believe will impact…ability to access private user data.”

Apple summarises the suite of clauses that the Committee is considering, including the requirement in clause 18 to maintain the status quo during the review process, as allowing the Secretary of State

“to block, in secret, the release of a product or service even before the legality of a Technical Capability Notice can be reviewed by independent oversight bodies. The effect of this amendment will be to, extraordinarily, hand the SoS the power to block new products or services prior to their legality being ascertained. This result upends the balance of authority and independent oversight Parliament struck in the IPA.”

Given the new definition of “telecommunications operator” in clause 19, Apple has also warned that there will be serious implications for conflicts with other laws, including the EU GDPR and with US legislation.

As well as Apple, we have heard from various other organisations. TechUK has highlighted problems with broadening the definition of “telecommunications provider” before control of provision of a telecoms service, including to UK users, is established overseas. It also highlights the potential conflict of laws. What if the domestic law in the country in which a company is based does not allow for compliance with the notice that the Home Secretary has delivered? That company might not even be able to raise the issue of a conflict of laws, because it would be sworn to secrecy under the Bill.

According to TechUK, the proposed changes mark a departure in the way that the UK approaches the extraterritorial reach of the UK or UK laws and the consequential conflicts of laws. That was all recognised in the 2016 Act, in which a partial solution was found in the form of a UK-US agreement. Currently, however, the Government have not set out any plans to work towards equivalent solutions.

In relation to clause 21, I will raise similar concerns from other experts, but it is clear that some very serious companies and organisations have significant concerns about what the combination of these notices may end up delivering. Those concerns need addressed.

[Tom Tugendhat]

I thank hon. Members for the spirit in which they have engaged. To be clear, it is absolutely right that we listen to representations from companies around the world, as I am absolutely sure all Members across the House would expect. We are still engaged in conversations: the Home Secretary was on the west coast of the United States only last week, I think, and I maintain regular communication with many different companies, including many of the same companies to which the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East referred.

Let me be quite clear about one aspect. There is a real challenge here, and it is absolutely worth getting to the heart of it. The way in which communications data has evolved means that there are now jurisdictions in which the UK cannot protect its citizens without the co-operation of certain companies overseas. That was always bound to happen to a certain degree, but it is now very much the case: I do not know whether the hon. Gentleman has children, but he will know that many children use tablets and internet-connected devices in their bedroom.

The reach of these companies into the personal life of children in our country has to be a matter of concern to the British Government—it just has to be. The question is who governs these spaces. Are they governed by the association agreements and terms and conditions of the companies, or are they governed by the laws of the United Kingdom passed by Members of this House, of whichever party? That is the fundamental question.

The jurisdiction of this House must be sovereign. If sovereignty is to mean anything, it must mean the ability to protect our children from serious harm. That is basic. Under the IPA and previous legislation going back to the 1980s, this House has always exercised a certain element of influence. Yes, the Bill is extraterritorial, but so are many other Bills that this House passes in relation to the protection of our citizens and our interests. We can have operational reach further than the UK border in order to protect our citizens. That is what we are doing here, and that is what makes it proportional.

It is true that there are conflicts of interest that we have to resolve. I must be honest with the hon. Gentleman: this has come up before. It has even come up in my time. It is something that we have to look at in order to ensure that we address those conflicts and see where the balance of proportionality lies.

It is our very good fortune that many of the conflicts arise between jurisdictions with which we are extremely close. The United States, for example, is an extremely close ally. We regularly—in fact, I regularly—have conversations with the US Justice Department and others to make sure that we manage those conflicts of interest in the best interests of all our citizens. It is unusual for us not to find a resolution, but there are means of dispute resolution when we do not. Although I take the hon. Gentleman’s point, it is not exceptional for companies rightly and understandably to defend their interests where they feel that they have a commercial advantage. That is, of course, reasonable.

The reality is that we are not stopping companies doing anything; we are asking them not to change our ability to protect our citizens, until we have found a fix. If they want to introduce a new product or service or change the way they operate, that is fine: it is nothing to do with us. All we ask is that they maintain our ability to protect our citizens during that translation and into the future.

[Stuart C. McDonald]

I will come on later to another line of argument that relates to the unintended consequences of these permissions, but for now I have a specific question. The Minister has spoken about how conflicts of law can be resolved. Is there not an added complication? If we put a notification notice—if we are calling it that—on a company, it cannot share the fact of that notification with anybody at all. Does that not make it well-nigh impossible to resolve the issue with conflicts of law?

[Tom Tugendhat]

Without going into details that it would be inappropriate to share: no, it does not. I can assure the hon. Member that this is a long-standing practice that has been tested, and it does operate.

On clause 19, I wish to put one further point on the record. The clause will amend the definition of a telecommunications operator, out of an abundance of caution, to ensure that the IPA continues to apply to those to whom it was intended to apply, building on the work that my right hon. Friend the Member for South Holland and The Deepings has laid out. There are circumstances in which a telecommunications system that is used to provide a telecommunications service to persons in the United Kingdom is not itself controlled from the United Kingdom; we have talked about some of those services. The clause will ensure that multinational companies are covered in their totality in the context of the IPA, rather than just specific entities.

Clause 19 does not seek to bring additional companies within the scope of the definition, nor does it seek to constrain how a company structures itself. It is a clarificatory amendment that will improve the effectiveness and efficiency of the regime and the process of giving notices.

Question put and agreed to.

Clause 18 accordingly ordered to stand part of the Bill.

Clause 19 ordered to stand part of the Bill.

Clause 20

Renewal of notices

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

[Tom Tugendhat]

Currently, a notice must be kept under regular review by the Secretary of State, but it does not cease to have effect unless the Secretary of State revokes it. The clause will introduce a notices renewal process such that if two years have passed since a notice was given, varied or renewed, it must go through the double lock process to obtain the approval of a judicial commissioner, in addition to a full necessity and proportionality assessment by the Secretary of State. This change will provide reassurance to operators that their notice remains necessary and proportionate.

Question put and agreed to.

Clause 20 accordingly ordered to stand part of the Bill.

Clause 21

Notification of proposed changes to telecommunications services etc

[Tom Tugendhat]

I beg to move amendment 6, in clause 21, page 45, line 7, leave out first “person” and insert “relevant operator”.

This amendment and amendments 7, 8, 10, 11, 12 and 13 provide that the expression “relevant operator” is used consistently in inserted sections 258A and 258B of the Investigatory Powers Act 2016.

[The Chair]

With this it will be convenient to discuss the following:

Government amendments 7 to 13.

Clause stand part.

[Tom Tugendhat]

Clause 21 is required to safeguard lawful access to critical data, which is needed by law enforcement and intelligence agencies to keep the public safe from serious threats such as terrorism and child sexual exploitation.

Technology has advanced rapidly since 2016, presenting a risk to lawful access capabilities. Notification notices have been introduced in response to technological advancements and will require relevant operators who provide, or are expected to provide, lawful access to data of significant operational value to inform the Secretary of State of any technical changes that they intend to make that will have an impact on existing lawful access capabilities.

The requirement will apply only to relevant services or systems specified within the notice, which will be agreed in consultation with the operator, prior to the notice being given, and will not necessarily apply to all elements of their business. It should be noted that technical capability notices already contain a notification requirement; this is not a new concept to the IPA. The clause replicates the power as a standalone obligation within notification notices.

To be clear, there is no ability within the notification process for the Secretary of State to delay, prevent or alter the roll-out of the operator’s intended change. The requirement is needed to provide the Secretary of State—and, by extension, operational partners—with time to identify and evaluate any potential impact that the change may have on lawful access capabilities. It will also be important in giving operational partners time to adjust their ways of working to ensure that lawful access is maintained. The primary objective of the obligation is to create an opportunity for collaborative working between operators and Government to protect the crucial capabilities required to keep people safe.

Amendments 6 to 13 are minor and technical amendments to ensure consistency of language throughout the clause and the IPA.

[Stuart C. McDonald]

I want to pursue another line of argument that has been put to members of the Committee. I spoke earlier about the principles of the notification regime; I now want to probe the Government on the extent to which they have considered the possible unintended consequences of setting it up.

The evidence circulated this morning includes a letter from academics and experts from the United Kingdom and across North America, who express considerable concern about the outcome of the proposal. During the last debate, the Minister explained that the justification is that companies from across the world have a reach into children’s homes in the United Kingdom, and it is the duty of this Parliament and legislators to keep them safe. I do not think anyone would dispute that at all.

The experts argue that an unintended consequence of being as radical as the proposal in the Bill is that citizens in the United Kingdom could be less safe. Although the Government are trying to restrict the scope of the regime to what happens in the United Kingdom, in reality it will mean that certain updates and security features will not be rolled out to the United Kingdom. In fact, certain organisations may think twice about developing products for the UK market at all.

I am way outside my comfort zone, so I will go straight to what the experts argue in their evidence:

“If enacted, these proposals would have disastrous consequences for the security of users of services operating in the UK, by introducing bureaucratic hurdles that slow the development and deployment of security updates. They would orchestrate a situation in which the UK Government effectively directs how technology is built and maintained, significantly undermining user trust in the safety and security of services and products.”

They argue that this contains a significant risk of increased cyber-crime, as well as of endangering the encryption of important services. They conclude that

“these proposals are anathema to the best interests of UK citizens and businesses and internet users everywhere, and contradict universally accepted security best practices.”

I want to probe the Government on the extent to which they have considered the possible unintended consequences of how these companies may react to their proposals.

[Tom Tugendhat]

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for the way in which he has approached the issue, and I am grateful to him for raising it, but I simply disagree. I disagree on the basis of advice that I have received from intelligence services, from UK-based companies, from the National Cyber Security Centre and indeed from many others.

Let us be quite clear. A notification notice does not create any conflicts of law, prevent any updates or prevent the application of any security patches. The only thing that it does is ask a company to keep the UK Government informed if it is going to change the way the UK Government will be able to protect British people. That has led to somewhat more caution in the reading than is necessary in reality; I have had many conversations with companies about that.

[Stuart C. McDonald]

This is a difficult area, but as I understand it, the argument is not that the notification notices themselves have that issue, but that the combination of notices, together with the technical capability notice, the new provisions in relation to review and the status quo, could give the Government that sort of power. That is the argument.

[Tom Tugendhat]

I hear the hon. Gentleman’s point. I will just say that many of these powers have been in place for a significant period. The situation that he describes is not one that we have found or noticed in any way at all. I believe that this is a case of people gilding a lily to turn it into lead.

Amendment 6 agreed to.

Amendments made: 7, in clause 21, page 45, line 8, leave out “person’s” and insert “relevant operator’s”.

See amendment 6.

Amendment 8, in clause 21, page 45, line 29, at end insert—

“‘relevant operator’ has the same meaning as in that section.”

See amendment 6.

Amendment 9, in clause 21, page 45, line 35, leave out “notice, as varied,” and insert “variation”.

This amendment provides that references to the variation of a notice are used consistently in Chapter 1 of Part 9 of the Investigatory Powers Act 2016.

Amendment 10, in clause 21, page 46, line 2, leave out first “person” and insert “relevant operator”.

See amendment 6.

Amendment 11, in clause 21, page 46, line 2, leave out second “person” and insert “relevant operator”.

See amendment 6.

Amendment 12, in clause 21, page 46, line 5, leave out “person” and insert “relevant operator”.

See amendment 6.

Amendment 13, in clause 21, page 46, line 6, leave out “person” and insert “relevant operator”—(Tom Tugendhat.)

See amendment 6.

Clause 21, as amended, ordered to stand part of the Bill.

Clause 22

Interception and examination of communications: Members of Parliament etc

[Tom Tugendhat]

I beg to move amendment 3, in clause 22, page 47, line 17, leave out from “and” to end of line 19 and insert—

“(b) has the necessary operational awareness to decide whether to give approvals under subsection (2).”

This amendment replaces the reference to an individual being required in their routine duties to issue warrants under the Investigatory Powers Act 2016 with a reference to an individual being required to have the necessary operational awareness to decide whether to give approvals under section 26 of that Act.

[The Chair]

With this it will be convenient to discuss Government amendment 4.

[Tom Tugendhat]

Government amendments 3 and 4 require that any Secretary of State to be designated by the Prime Minister as an alternative approver must have the necessary operational awareness of the warrantry process to undertake the role. This change will replace the current drafting inserted in the House of Lords relating to “routine duties”, which is over-restrictive and will undermine the resilience of the triple-lock process that the clauses seek to safeguard.

Requiring relevant operational awareness will ensure the necessary flexibility and resilience while maintaining a proportionate scope for delegation. It will allow scope to include those who may be new to their role and do not yet carry out such duties routinely, or who no longer carry them out routinely due to machinery-of-government changes but have valuable pre-existing knowledge that makes them a suitable alternative approver.

[Sir John Hayes]

I am grateful to the Minister for the fact that his amendment goes some way to dealing with the issues that I and others raised in relation to the change from existing practice. At the moment, the Prime Minister provides the element of what has been described as the triple lock. The Government proposal is that other Secretaries of State should perform the role when the Prime Minister is unable to for a number of reasons. My anxiety, reflected by the Intelligence and Security Committee, is that those Secretaries of State who act for the Prime Minister in such circumstances should be people with operational experience. Typically, that would mean people with warranting powers—people accustomed to the business of issuing warrants, with all that that suggests.

The Government amendment speaks of operational awareness. I think “operational experience” is a better turn of phrase, although I accept the Government’s point that if there was a new Secretary of State—a new Home Secretary would be a good example—they would not necessarily have experience. By definition, they would be new in the job, whether that was the Home Secretary or Foreign Secretary and so on. It might be possible to speak of experience and responsibilities, so it could be either responsibilities or experience. Of course, the Government rightly say that a former Home Secretary, Foreign Secretary or Northern Ireland Secretary who was then doing a different job in Government could be one of the people designated, so I take that point.

The issue here is ensuring that the people who perform the role are competent to do so, and I know that is something on which we agree. It is really a matter of the semantics, but semantics are not always insignificant. I am aware of bolshevism and liberalism, but I would not want anything to do with either of them. I am aware of the separatist case on the United Kingdom, but awareness is as far as I want to go with that—I say that without contention or, indeed, acrimony of any kind. I am not sure that “awareness” is quite the right word, and I simply offer that semantic but not insignificant point to the Minister for his consideration.

--- Later in debate ---

[Mr Jones]

I thought we had had a victory—one of those rare things we get with this Government—from the ISC in the House of Lords, but clearly the Minister has found a way of clawing that back.

[Tom Tugendhat]

I don’t think so!

[Mr Jones]

I think so, because the original wording talked about being able to nominate basically anybody. It was then defined, but the amendment widens it again. It says, “necessary operational awareness”; is that, for example, that any Secretary of State is aware that it is a voluntary process? For example, the Foreign Secretary and the Home Secretary sign warrants, and another Secretary of State could say, “Yes, I’m aware of that.” As the right hon. Member for South Holland and The Deepings said, “operational experience” would be better wording, because “necessary operational awareness” is too broad. What does it actually mean in practice? For example, must they have any experience of having signed a warrant before? Or do they just need to know that the warrantry system exists?

--- Later in debate ---

[Tom Tugendhat]

First, I place on the record my gratitude to the ISC, to which I have listened extremely carefully on this matter; indeed, the Bill has been changed because of it. Let me be clear that although many people are aware of things, to be operationally aware is not the same as to be just aware. Many people were aware of the conflict in Helmand, but I argue that only the hon. Member for Barnsley Central and I were operationally aware of the conflict in Helmand. It is rather a different requirement. It does not mean that one knows about the operation; it means one is aware in an operational sense of it. It is not just an observation of the challenge.

[Mr Jones]

I have to say that from my experience as a former Minister in the Ministry of Defence—I said I was never a Secretary of State—I was not only aware of what was going on but operationally aware. Could an Under-Secretary of State at the Ministry of Defence therefore be designated as one of these people? On Tuesday mornings every week, I was very operationally aware of what was going on in Helmand, for example.

[Tom Tugendhat]

First, this goes alongside the code of practice, which challenges the right hon. Gentleman’s point. It would need to be people who were briefed into the warrantry process. It needs to be somebody who understands what a warrant is, so it is not somebody who is merely observing it, such as a Secretary of State for Culture, Media and Sport.

On the point that my right hon. Friend the Member for South Holland and The Deepings made about experience, I understand the debate. There is a possibility—I know that he and I will do everything we can to prevent it—that there will be a change of Government soon. In that case, there will be an awful lot of people who have absolutely no experience at all of these matters. It would therefore be wise not to set up a provision that would immediately require amendment. Disappointed though we would be at that outcome, my right hon. Friend would agree that he would not want a law to be amended in its first year, if we could possibly avoid it.

To be clear, the Government view the four alternative approvers as being likely to be the Home Secretary, the Foreign Secretary, the Defence Secretary and the Northern Ireland Secretary. Only three would be able to act as the triple-locking Secretaries of State, because of course we would have already used up two of them to do the first two functions. That is why the numbers are required, and why I am incredibly grateful to the ISC for pointing it out and being very cautious on it.

[Mr Jones]

If what the Minister has just said is the case, why do the Government push back on a suggestion that I think they actually made earlier on? The Minister is now pushing back on it. Although I understand the need for the code of practice, if there was a change in it—because there might be sometime—would that come back to Parliament to be approved? We are dancing on the head of a pin here. I do not know why, but that is quite common with the Home Office. The Minister says that it will be mainly four people, but I would love to know what he means by “necessary operational awareness”, which is clunky language.

--- Later in debate ---

[Tom Tugendhat]

Codes of practice will be brought forward through regulations in the usual way, as the right hon. Gentleman is aware, and the House will scrutinise them in the usual way. This is a very legalistic process, as I recognise from the inside as much as he does from the outside. It is true that if, for example, the Northern Ireland Secretary became the Education Secretary, they could then be included. The idea is to ensure that it is somebody who is appropriate to the task, which is why the measure is worded as it is. I always listen to right hon. and hon. Members across the House. I believe that the amendment is the best version that we have come to so far. I will continue to listen to the right hon. Gentleman, as always.

[Mr Jones]

May I make a simple suggestion, then? “Necessary operational awareness” is clunky language; surely what is meant is operational experience. That would cover it, would it not?

[Sir John Hayes]

Given what the Minister said about a change in Government—I do not expect one, but I suppose it is a remote possibility—perhaps the words “operational responsibility or experience” would cover the point made and be slightly tighter than “awareness”. Also, there is the matter of notifying the PM. The Committee made the good suggestion that the PM should be notified as soon as practicable, which may be something with which the Minister agrees. If the Prime Minister were indisposed because of illness or whatever, they would be notified as soon as is practicable that a warrant had been issued.

[Tom Tugendhat]

On the second point, I am sure that, like me, my right hon. Friend finds it absolutely inconceivable that that PM would not be notified. I am not convinced that that must be in primary legislation. I find it genuinely inconceivable that the Prime Minister would not be notified at the earliest opportunity. Obviously, if they could be notified immediately, the provision would not be required.

[Mr Jones]

I made that point to the Home Secretary on Second Reading. Yes, I think that is logical—

[Tom Tugendhat]

Thank you—I am astonished. [Laughter.]

[Mr Jones]

But, Minister, let us be honest: a lot of things that we would have taken for granted were ignored in Downing Street over the last few years. Until Boris Johnson became Prime Minister, it had been a great part of our constitution that convention was followed. Surely it would therefore be better to have the point about notification in the Bill; otherwise, we are leaving it to the free will of convention. I would have trusted convention, but we have had Boris Johnson as Prime Minister.

[Sir John Hayes]

I want to help the Minister, because I do not necessarily agree with the right hon. Member for North Durham; occasionally, he and I do disagree, despite the impression that we have created in this Committee. Notification could be covered in a piece of statutory guidance that supports the Bill. It could state that the Prime Minister should be notified as soon as reasonable practicable, exactly in the terms just described. How’s that?

[Tom Tugendhat]

As is so often the case, I absolutely agree with my right hon. Friend.

[Mr Jones]

Will the Minister put it in the guidance, then?

[Tom Tugendhat]

I will look at putting it in the guidance, as suggested by the right hon. Member.

[Mr Jones]

Just say it. If the Minister says it to the Committee, his civil servants will not have to do it. It is easier doing it that way than having negotiations in the office later on.

[Tom Tugendhat]

I have said what I am going to say on the matter.

Amendment 3 agreed to.

[Dan Jarvis]

I beg to move amendment 17, in clause 22, page 47, line 26, at end insert—

“(2G) If a warrant is issued by an individual designated by the Prime Minister, the Prime Minister must be informed of that decision as soon as it is reasonably practical to do so.”

This amendment would require the Prime Minister to be notified of a decision of a designated Secretary of State to authorise the interception of certain elected representatives’ communications as soon as is reasonably practicable.

[Dan Jarvis]

I am conscious of the debate that has just taken place, so I anticipate what the Minister may say in response. Let us give him another go anyway.

Amendments 17 and 18 relate to the decision of a designated Secretary of State to authorise the interception of elected representatives’ communications and interference with equipment relating to elected representatives. As the Minister will know, two similar amendments were proposed by Lord West in Committee in the other place. The reason for tabling the amendments in Committee in the Commons is that the Opposition believe that the Prime Minister’s overall involvement in the warrants must be retained, even if, in designated cases, it could be retrospective. As I said, I am mindful of the debate that has just taken place.

In the other place, Lord Sharpe rejected Lord West’s amendment on the basis that the oversight arrangements for warrant decisions taken by a designated Secretary of State, which include review by the judicial commissioner, are sufficient scrutiny. I understand that argument, but I wonder why it should not be the case that a Prime Minister is at least notified about decisions to issue warrants that they have had to delegate due to their being unable to do so. Furthermore, would a Prime Minister not being notified of a decision unnecessarily diminish their operational awareness in making future decisions to issue warrants?

My amendment would require the Prime Minister to be informed of a decision taken by a designated Secretary of State on their behalf as soon as the circumstances that have prevented the Prime Minister from approving a warrant in the first place have passed. I hope the Minister and the Committee will understand the emphasis on the important nuance in the difference between review and notification. Mindful of the earlier debate, I hope that the Minister will consider accepting the amendments.

[Tom Tugendhat]

For want of repeating myself, I will probably leave that to stand.

[Mr Tobias Ellwood (Bournemouth East) (Con)]

We are speaking about elected representatives who are then appointed into Government and make decisions, and we have rightly had an important debate, to which the Minister has responded. If possible, it would be helpful if he could confirm who from the agencies would also be involved in the decision making. That would add some faith as to the robustness of the decision making that takes place when such actions are taken.

[Tom Tugendhat]

I am cautious about answering that question, for the simple reason that it depends on where and how the information was gathered, whether it was gathered deliberately or accidentally as part of an existing operation, and whether it was tangential. It is absolutely inconceivable that the chief of whichever agency it was would not be aware and therefore not part of that conversation.

[Mr Ellwood]

That is the confirmation I was seeking.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

Clause 23 stand part.

New clause 1—Requirement for the Prime Minister to appear before the Intelligence and Security Committee—

“After section 26 of the Investigatory Powers Act 2016, insert—

‘26A Requirement for the Prime Minister to appear before the Intelligence and Security Committee

(1) The Prime Minister must appear before the Intelligence and Security Committee of Parliament to provide oral evidence on the matter set out in subsection (2).

(2) The matter is decisions made by the Prime Minister or an individual designated under section 26 to—

(a) give approval to issue warrants to intercept and examine communications of Members of Parliament;

(b) interfere with equipment belonging to Members of Parliament;

(c) other relevant decisions relating to Members of Parliament in the interests of national security

(3) The duty in subsection (1) applies once every session of Parliament.

(4) Subsection (1) does not apply if the Intelligence and Security Committee does not require the Prime Minister to attend.’”

This new clause would require the Prime Minister to appear before the Intelligence and Security Committee to provide oral evidence on decisions made to approve warrants to intercept and examine communications of MPs or to interfere with equipment belonging to MPs, and other relevant decisions relating to MPs.

New clause 4—Interception notification for Members of Parliament etc.—

“After section 26 of the Investigatory Powers Act 2016 (Members of Parliament etc.) insert—

‘26A Interception notification for Members of Parliament etc.

(1) Upon completion of conduct authorised by a warrant under section 26, or the cancellation of a warrant issued under that section, a Judicial Commissioner must notify the subject of the warrant, in writing, of—

(a) the conduct that has taken place, and

(b) the provisions under which the conduct has taken place.

(2) The notification under subsection (1) must be sent within thirty days of the completion of the conduct or cancellation of the warrant.

(3) A Judicial Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (2) if the Judicial Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security investigation relating to the subject of the warrant.

(4) A Judicial Commissioner must consult the person who applied for the warrant in order to fulfil an assessment under subsection (3).’”

This new clause would require members of a relevant legislation who are targets of interception to be notified after the fact, as long as it does not compromise any ongoing investigation.

[Tom Tugendhat]

Clauses 22 and 23 will increase the resilience and flexibility of the warrant system. They will ensure the effective processing of warrants that authorise the interception of, or the use of equipment interference to obtain, the communications of a Member of a relevant legislature when the Prime Minister cannot fulfil their duties due to medical incapacitation or a lack of access to secure communications. The changes will enable the authorisation process to function in an agile manner, thereby enabling the important work of the intelligence agencies to continue while maintaining a high bar for the authorisation of some of the most sensitive warrants.

[Dan Jarvis]

I rise to speak to new clause 1, which relates to oversight by the Intelligence and Security Committee of warrants to intersect and examine the communications of Members or the interference with equipment relating to Members. The context of the new clause will be clear to those who followed the debates in the other place about the role of the ISC. To be absolutely clear, I am not seeking to debate the Wilson doctrine—I know that Members will be relieved to hear that.

The purpose of the new clause is to probe and seek further safeguards for the ISC to provide essential oversight of this extremely sensitive matter, codified by the 2016 Act as part of a wider context of decisions made by the Prime Minister in the interests of national security. Members of this Bill Committee who also serve on the ISC will know that successive Prime Ministers have, unfortunately, not appeared in front of that Committee since, I believe, 2014. As a result, there has been no opportunity for direct accountability over prime ministerial decision making on warrants to intercept and examine Members’ communications, or on interference with equipment relating to Members.

--- Later in debate ---

[Stuart C. McDonald]

I shall speak to new clause 4. We are discussing our very important role as legislators—people who have to scrutinise the Government to represent our constituents. Any interference with that role, and any surveillance of us, is a matter of great significance and some controversy, so there should be as much oversight and transparency as possible. I am not a member of the ISC, and I do not know whether this is something the Minister will be able to tell us, but I would be interested to know how often powers have been used to institute surveillance on MPs in each and every of the past few years.

New clause 4 allows us to debate the possibility of post-surveillance notification. That proposal was debated in the House of Lords, but I think it is something that MPs should be alive to as well. Post-surveillance notification would give judicial commissioners a mandatory duty to notify parliamentarians subject to surveillance once a particular operation or investigation had ended. That would typically introduce a further safeguard to protect democracy and our role as legislators, and would ensure the Government are complying with their obligations under article 8 of the European convention on human rights.

Various objections were made to that line of argument in the House of Lords. For example, it was argued that notification would risk revealing sources or methods. That does not have to be the case; post-surveillance notification can inform an individual of the fact of past surveillance without having to disclose such information. Such a post-surveillance notification regime works in Germany, for example.

In particular, there would be no risk—this was alleged by the Government in the House of Lords—of affording judicial commissioners any operational decision-making power. That is because notification would occur only when a surveillance operation was no longer active and, secondly, any such notification regime could allow the judicial commissioner to consult whomever applied for the warrant in the first place. I am absolutely open to a discussion with the Government about the safeguards that would needed to allow such a measure to be implemented.

The other line of argument pursued by the Government in the House of Lords was that redress is already available to parliamentarians thorough the Investigatory Powers Tribunal. As we all know, however, if someone does not know that they have been subject to surveillance, they have no reason to go to the tribunal in the first place.

This proposal is not without some difficultly, but it is worthy of discussion. The Government’s resistance to it has not always stacked up so far, so I look forward with interest to hearing what the Minister will say.

[Tom Tugendhat]

On the point about notification: forgive me, but it is inconceivable that it should be required in law to inform somebody that they have been subject to an investigation by the intelligence services in such a way. I would be delighted to discuss with the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in a more secure environment why, for a whole series of reasons, that may not be such a good idea. On the question of the Prime Minister appearing before the ISC, my friend the hon. Member for Barnsley Central knows my views—I have expressed them on many occasions—but that is way above my pay grade.

[Dan Jarvis]

For now!

Question put and agreed to.

Clause 22 accordingly ordered to stand part of the Bill.

Clause 23

Equipment interference: Members of Parliament etc

Amendment made: 4, in clause 23, page 48, line 15, leave out from “and” to end of line 17 and insert—

“(b) has the necessary operational awareness to decide whether to give approvals under subsection (3) or (6).”—(Tom Tugendhat.)

This amendment replaces the reference to an individual being required in their routine duties to issue warrants under the Investigatory Powers Act 2016 with a reference to an individual being required to have the necessary operational awareness to decide whether to give approvals under section 111 of that Act.

Clause 23, as amended, ordered to stand part of the Bill.

Clause 24

Issue of equipment interference warrants

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

--- Later in debate ---

[The Chair]

With this it will be convenient to discuss clauses 25 and 26 stand part.

[Tom Tugendhat]

The Bill makes minor changes to the equipment interference regime, specifically in relation to the warrantry processes associated with its authorisation. The purposes behind those changes are to correct minor drafting errors in the IPA to provide greater clarity, and to improve the efficiency of the warrantry process for equipment interference.

Question put and agreed to.

Clause 24 accordingly ordered to stand part of the Bill.

Clauses 25 and 26 ordered to stand part of the Bill.

Clause 27

Bulk equipment interference: safeguards for confidential journalistic material etc

[Dan Jarvis]

I beg to move amendment 19, in clause 27, page 50, line 9, at end insert—

“(2A) Where a senior official acts on behalf of the Secretary of State under subsection (2), they must inform the Investigatory Powers Commissioner of the selection for examination of BEI material as soon as reasonably practicable.”

This amendment would require a senior official acting on behalf of the Secretary of State who has selected BEI material for examination when there has been an urgent need to do so to inform the Investigatory Powers Commissioner as soon as reasonably practicable.

[Dan Jarvis]

Amendment 19 would require a senior official acting on behalf of the Secretary of State who has selected bulk equipment interference material for examination, when there has been an urgent need to do so, to inform the Investigatory Powers Commissioner as soon as is reasonably practical. It would ensure that every reasonable oversight arrangement was in place concerning the Bill’s investigatory powers provisions.

The amendment does not suggest that the Investigatory Powers Commissioner retrospectively reviews the approval, but instead proposes that they be informed to ensure that there are the most comprehensive and effective oversight arrangements on investigatory powers. We intend not to burden the police and the security services with additional duties, but to ensure that there is the maximum possible oversight with the minimum possible additional work. I hope that the Minister will at least agree with the intentions of the amendment and consider its merits in further strengthening the Bill’s oversight arrangements.

[Tom Tugendhat]

I welcome the amendment, and not only do I agree with it, but I feel that we have already done it. My understanding is that the provision duplicates what already occurs in practice under the current regime, as well as the changes made by clause 27. Currently, the Investigatory Powers Commissioner is already effectively notified when a senior official acting on behalf of the Secretary of State, in urgent circumstances, approves the selection for examination of journalistic material derived from bulk equipment interference. Clause 27 already inserts into the IPA new section 195A(2), which will ensure that the Investigatory Powers Commissioner is notified as soon as is reasonably practical by the Secretary of State when a senior official approves the use of criteria to select for examination journalistic material in reliance on an urgent approval. Effectively, the senior official is informing on behalf of the Secretary of State, or indeed the Secretary of State is informing on behalf of the senior official. We all very much hope it is the former of the two.

Clause 27 enhances the safeguards already afforded to journalistic material within the IPA, and the Government recognise the importance of journalistic freedom within free and democratic societies, which is why we are introducing this measure. Under the current regime, the Investigatory Powers Commissioner must be informed when a communication that contains confidential journalistic material or sources of journalistic material is retained following its examination for purposes other than its destruction. The clause introduces a requirement for prior independent approval by the IPC before any search criteria are used to select such material. Prior independent approval is also required before it is removed.

[Dan Jarvis]

I am grateful to the Minister for that clarification. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 ordered to stand part of the Bill.

Clause 28

Exclusion of matters from legal proceedings etc: exceptions

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

[Tom Tugendhat]

Clause 28 will amend schedule 3 to the Investigatory Powers Act 2016 to provide exceptions for disclosures of intercepted materials to inquiries or inquests in Northern Ireland or Scotland into a person’s death. The clause will create parity with existing provisions for coroners in England and Wales. It also adds an exception to enable panel members of the Parole Board in England and Wales to access intercepted materials when considering parole applications and any subsequent appeals. It will also enable relevant coroners in Northern Ireland and sheriffs investigating deaths in Scotland to access intercepted material in connection with their inquiry or inquest.

Question put and agreed to.

Clause 28 accordingly ordered to stand part of the Bill.

Clause 29

Freedom of information: bodies dealing with security matters

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

[Tom Tugendhat]

Under the Freedom of Information Act 2000, the Investigatory Powers Commissioner’s Office is not, and never has been, a public authority within the scope of the Act. The lack of control over the onward disclosure of information related to the functions of the judicial commissioners raises security concerns and has the potential to compromise the IPC’s inspections, which are often, by their very nature, intrinsically sensitive. The clause would prevent sensitive intelligence being further disclosed under the FOIA once such information is supplied by IPCO to a public body.

Question put and agreed to.

Clause 29 accordingly ordered to stand part of the Bill.

Clause 30

Power to make consequential provision

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

[The Chair]

With this it will be convenient to discuss the following:

Clauses 31 and 32 stand part.

Government amendment 5.

Clause 33 stand part.

[Tom Tugendhat]

Clauses 30 to 33 are typical clauses that are included in the vast majority of legislation. Clause 30 allows the Secretary of State, by regulations made by statutory instrument, to make provision that is consequential on this Act. Clause 31 details the extent of the Bill. The Bill extends and applies to the whole of the United Kingdom, with the exception of measures contained in clause 28, in which subsection (2) applies to England and Wales only and subsection (3) applies to Northern Ireland and Scotland only.

As national security is a reserved matter, a legislative consent motion is required from Scotland only in relation to a small number of clauses in part 2—the oversight aspect—of the Bill. I am pleased that the Scottish Government have recommended that legislative consent be given.

Clause 32 details when the Bill commences. Part 6 comes into force on the day on which the Bill is passed; the other provisions come into force on such day as is appointed by regulations made by the Secretary of State.

Question put and agreed to.

Clause 30 accordingly ordered to stand part of the Bill.

Clauses 31 and 32 ordered to stand part of the Bill.

Clause 33

Short title

Amendment made: 5, in clause 33, page 56, line 1, leave out subsection (2).—(Tom Tugendhat.)

This amendment removes the privilege amendment inserted by the Lords.

Clause 33, as amended, ordered to stand part of the Bill.

New Clause 2

Report on the Prime Minister’s engagement with the Intelligence and Security Committee

“After section 240 of the Investigatory Powers Act 2016 insert—

“240A Report on the Prime Minister’s engagement with the Intelligence and Security Committee

(1) The Secretary of State must publish a report about the Prime Minister’s engagement with the Intelligence and Security Committee in relation to the investigatory powers regime and lay the report before Parliament.

(2) The report must be published within six months of the passage of the Investigatory Powers (Amendment) Act 2024, and annually thereafter.””—(Dan Jarvis.)

This new clause would ensure the Secretary of State publishes a report on the engagement, including any meeting held, between the Prime Minister and the Intelligence and Security Committee in relation to the investigatory powers regime.

Brought up.

[Dan Jarvis]

I recognise that we have already had an extensive debate on this matter. I do not intend to detain the Committee any longer, and there is therefore nothing further I wish to say about new clause 2, so I do not wish to move it.

New Clause 3

Impact of Act on EU data adequacy decisions

“Within six months of the passage of this Act, the Secretary of State must publish a report assessing the potential impact of this Act on EU data adequacy decisions relating to the United Kingdom.”—(Dan Jarvis.)

This new clause would require the Secretary of State to publish a report on potential impact of the provisions within this Bill on the requirements necessary to maintain a data adequacy decision by the EU.

Brought up, and read the First time.

[Dan Jarvis]

I beg to move, That the clause be read a Second time.

New clause 3 relates to the impact of the Act on EU data adequacy decisions. When a similar measure to this new clause was proposed by my noble Friend Lord Coaker during the Bill’s passage through the other place, the response from the Minister, Lord Sharpe, confirmed the UK Government’s regular contact with the European Commission about the Bill to ensure that any changes are understood. We welcome that but, as I hope the Minister will understand, such engagement is a continuous process, not a single event or even a series of events. As part of this continuous process, we believe that the Secretary of State should publish a report assessing the potential impact of the Act on EU adequacy decisions.

As Lord Coaker said in the other place:

“The adequacy agreement is dependent on the overall landscape of UK data protections”.—[Official Report, House of Lords, 23 January 2024; Vol. 835, c. 688.]

That is even though the UK protections require some further work. However, given the time pressures, Mrs Cummins, that is all I will say about new clause 3.

[Tom Tugendhat]

First, I welcome the interactions we have had on this point, as well as the work of Lord Coaker and Lord Sharpe to ensure that this is widely understood. The work that has been done is important. We face the challenge that although we obviously commit to fulfilling our side of the TCA and the various agreements we have struck, this is really a matter for the European Commission to determine, so it is not one that we can pass into UK law. It is really a matter for them.

[Dan Jarvis]

I have nothing further to add. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

[Tom Tugendhat]

On a point of order, Mrs Cummins. I would like to express my extreme personal thanks to Tom Ball and the Bill team, Phoebe, the Lucys, and the many others who have contributed brilliantly to ensure that this Bill has proceeded with speed and professionalism. I thank not only the members of the Committee, but all Members of many parties, and particularly the ISC, which has contributed so much to this Bill, despite what the right hon. Member for North Durham claims. May I say a particular thanks to my very good friend and shadow, the hon. Member for Barnsley Central? It is an enormous pleasure to think that we have gone from fighting the Queen’s enemies to passing the King’s laws together.

[Dan Jarvis]

Further to that point of order, Mrs Cummins. I join the Minister in warmly extending my thanks on behalf of Labour to all members of the Public Bill Committee and all the officials, both in the Department and in the House, who have done a sterling job in getting us to this point. I am grateful to the Minister for his collegiate approach, which I very much hope we will be able to maintain during the further passage of the Bill. Thank you, Mrs Cummins.

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

Tom Tugendhat Excerpts

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

[The Chair]

Copies of written evidence received by the Committee will be made available in the Committee Room, and will be circulated to Members by email.

We now begin line-by-line consideration of the Bill. The selection list for today’s sitting is available in the room; this shows how the selected amendments have been grouped together for debate. Amendments grouped together are generally on the same or a similar issue. Please note that decisions on amendments do not take place in the order they are debated, but in the order they appear on the amendment paper. The selection and grouping list shows the order of debates. Decisions on each amendment are taken when they come to the clause to which the amendment relates. Decisions on new clauses will be taken once we have completed consideration of the existing clauses of that Bill. Members wishing to press a grouped amendment or new clause to a Division should indicate when speaking to it that they wish to do so.

Clause 1

Requirement for authorisation

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

[The Minister for Security (Tom Tugendhat)]

It is a pleasure to be here under your chairship, Mrs Cummins. The exceptional growth in volume and types of data across society globally since 2016 has affected the intelligence services’ ability to work and collaborate at the necessary operational pace. The existing bulk personal dataset safeguards do not account for the way that data and its availability have evolved since the Investigatory Powers Act 2016 was passed. This creates a negative impact on operational agility, while making it increasingly difficult for the intelligence services to develop the necessary capabilities.

Clauses 1 and 2 introduce an alternative regime for bulk personal datasets where there is low or no reasonable expectation of privacy—the so-called low/no regime. Clause 1 specifically provides a mechanism for the intelligence agencies to determine whether bulk personal datasets should be authorised under part 7 of the 2016 Act for sensitive datasets, or proposed new part 7A for low/no datasets.

[Dan Jarvis (Barnsley Central) (Lab)]

It is a pleasure to serve under your chairship, Mrs Cummins. I rise to speak very briefly to clause 1, and to thank the Minister for his opening remarks.

At the outset of our consideration, we should all take the opportunity to pay tribute to the exceptional men and women who have served in our law enforcement and security services. We owe them a deep debt of gratitude. Let me say that the Opposition support the Bill, which updates aspects of the Investigatory Powers Act 2016. It is imperative that legal frameworks are updated to ensure that our security and law enforcement services keep up with the challenges to communications technology in an increasingly challenging and complex landscape of threats to our safety and national security. None the less, the important provisions proposed in this Bill need to be scrutinised carefully. The shadow Home Secretary and I made it clear on Second Reading that we will work with the Government to improve it in places, following the example of the constructive cross-party work that was done in the other place.

--- Later in debate ---

With that initial foray into this territory, I will conclude, except to say that in my career in Parliament, I regard taking the original legislation through as my greatest achievement. [Interruption.] My former Parliamentary Private Secretary, my hon. Friend the Member for North Cornwall, is saying it is one among many, but I regard it as the most important thing I have done in Parliament because it is an important matter, not a party political matter; it is important for the safety and security of all our people.

[Tom Tugendhat]

What can I say? We have got a little further on clause 1 than I anticipated. I am grateful to my right hon. Friend the Member for South Holland and The Deepings, the right hon. Member for North Durham and other hon. Members who have spoken. Bulk personal dataset authorisation is clearly an important change, as my shadow, the hon. Member for Barnsley Central, has set out; I was interested to hear the suggestion from my right hon. Friend the Member for South Holland and The Deepings that this was the shadow Minister’s first step on the path to greatness and to leading the Opposition. I am grateful for the points that hon. Members have made.

The type of data that may fall into part 7A is indeed covered—things like news articles, academic papers, public and official records, and the sort of bulk personal data that many people would have access to routinely. The changing nature of the need to hold data has meant that bulk personal data must be authorised in a different way than was previously thought. Paragraphs 4.14 and 4.20 of the draft code of practice set out further details of the datasets that would fall under the section 22A test, of which the hon. Member for Barnsley Central is no doubt aware.

The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East touched on various aspects of data that might fall within this approach. He will remember that Lord Anderson noted in his independent review that MI5 and MI6 estimate that roughly 20% of their bulk personal data holdings would fall into the category of “low and no”; for GCHQ, the figure would be nearer to 8%. Clearly, these things will evolve. To answer the point made by the right hon. Member for North Durham, the simple fact is that our world is producing incomparably greater volumes of data than ever before. The need to understand, handle and triage that data is therefore essential.

It is worth making the point, right at the beginning, that creating and storing huge volumes of data is to nobody’s advantage, and particularly not that of the intelligence services. The only purpose of having or examining data is to enable investigatory operations to get to targets of interest. It is not about anything other than ensuring that investigations can be properly targeted against those who threaten the interests of the British people, under various existing laws. This measure does not change those laws; it merely assists the targeting.

Question put and agreed to.

Clause 1 accordingly ordered to stand part of the Bill.

Clause 2

Low or no reasonable expectation of privacy

[Dan Jarvis]

I beg to move amendment 14, in clause 2, page 3, line 18, at end insert—

“(1A) This section does not apply to a bulk personal dataset unless it has been published in accordance with the Data Protection Act 2018.”

This amendment would ensure bulk personal datasets with low or no expectation of privacy have been published lawfully and in accordance with General Data Protection Regulation (GDPR) set out in the Data Protection Act 2018.

--- Later in debate ---

[Owen Thompson (Midlothian) (SNP)]

I will be brief. I back up the comments of the right hon. Member for North Durham: much more needs to be done to define clearly what we mean by “low or no”. In many ways, separating the two out would make everything clearer. Everybody can tell what “no expectation of privacy” means. It is when we get to low expectation of privacy that we have debates: “Is it this or is it that?”

The factors considered in determining whether something qualifies as low or no include

“the extent to which…the data has been made public”.

If there is no expectation of privacy, that is obvious, so I do not understand why we cannot have more clarity and say, “This is what we mean by no expectation of privacy, and this is what we mean by low.” It might be fine for us in this room to have an understanding of what we mean, but there needs to be public understanding.

We all know that every time we go on any website, we are asked to click to accept the cookies, and sometimes we cannot progress any further unless we do. Data is being gathered left, right and centre. With the best will in the world, not everyone reads every single line of the terms and conditions. We need to be absolutely clear about exactly what we mean so that legal challenges do not occur down the line.

[Tom Tugendhat]

Before I address those points, I want to address the shadow Minister’s somewhat contentious argument that learning French is not a security issue —that was a bold innovation from him.

The points that have been raised are essential to understanding exactly why the Bill is so important. I will cover the “no” and “low” areas separately, for the reason that the hon. Member for Midlothian touched on. We all know what no expectation is; that has been largely covered, and the reality is that even the slightly more restricted version of the electoral register is shared with political parties, as the right hon. Member for North Durham knows.

[Mr Jones]

I agree with the Minister on party access— we get access to it, for example. However, does the person who ticks that box and takes their name out have a reasonable expectation? Do they know that it is being shared? No, they do not.

[Tom Tugendhat]

That is what I was going to say. Although the register is not publicly available and therefore would not fit in this category, that is where we get to the line. The “no” is for publicly available data, and that is relatively clear.

The “low” comes in areas such as the idea of leaked papers, which somebody raised—forgive me, I cannot remember who. That is where the Bill sets out terms under which datasets should be considered, because of course it is impossible for me to give an answer that applies to every single dataset into the future. One example that came up recently, as right hon. and hon. Members will remember, is the Panama papers. One would not argue for a second that the people listed in those papers had an expectation of openness initially. However, after those papers had been published and republished over many years, at what stage do we really think the expectation of privacy is maintained?

That is where the dataset becomes low expectation. We have set out the oversight regime in another area of the Bill, but I will touch on it. The Investigatory Powers Commissioner has a range of responsibilities, the judicial commissioners have other responsibilities for approving warrants and IPCO has responsibility for overseeing the regime. That is where that is addressed—in slightly ways at each moment of influence and each moment of power, but everything is covered.

[Kevin Foster (Torbay) (Con)]

I am interested in the Minister’s example of the Panama papers. As he rightly says, when those papers were originally held by a bank or a financial institution, there would be an expectation of privacy. However, he is alluding to where they are sourced from. Those papers have been freely circulating on the open internet and anyone can download them, and it is at that point that the low or no expectation would come in. Rather than the nature of the document itself, it is the fact that it is easily available online that matters.

[Tom Tugendhat]

My hon. Friend is absolutely right. The reality is that once papers are effectively public, the argument for privacy somewhat falls away. That is exactly where we are getting to in this area, which is why we have looked at how to oversee it and the different elements within it. Part 7A explains the oversight regime clearly and section 226A really gets to the nub of it.

It is important that we focus there, where the argument comes back to the essential element: when considering whether intelligence services have applied the test correctly, the judicial commissioner will apply the same principles that a court would apply on application for judicial review. We therefore have an internal legal process overseeing this before it would even get to any legal challenge. That is why it is more robust than some voices have gently suggested, and covers many of those internal challenges.

[Dan Jarvis]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Stuart C. McDonald]

First, unless I was distracted, I do not think I got a specific answer on the types of data mentioned in the amendment—for example a Facebook post, CCTV footage or anything else.

[Tom Tugendhat]

Those are covered under sensitive data areas; they would not be covered under bulk personal data. The hon. Gentleman also mentioned health data, and he is absolutely right that I did not answer that. I should be absolutely clear: it is hard to envision a case in which health data would be considered “low or no”, unless it was of very ancient historical standing, or there were other exceptional reasons.

--- Later in debate ---

[Tom Tugendhat]

I will just answer that directly, as the hon. Gentleman seems to be running away with this issue slightly. The test set out in proposed new section 226A still applies to all datasets. It is not removed; it goes through the whole thing.

[Stuart C. McDonald]

That is useful to know. I will pray in aid the fact that we did not have any witnesses; anything I say that is daft, and anywhere that I do not understand how the Bill operates, I will blame on the lack of witnesses.

That is useful to know. I will go away and look at that and make sure that that all makes sense to me. That just leaves me with my earlier request: can we have some examples of what a category authorisation looks like? I can imagine that they could be incredibly broadly drafted, but they could also be very narrow. It would be useful to get a better understanding of how they will operate.

My final point is that the Government’s case appears to centre quite largely on using the material for machine learning. We have heard about language, online encyclopaedias and whatever else. If nothing else, why not use this streamlined process on that category of information and keep the existing processes in place for everything else?

[Tom Tugendhat]

I welcome the spirit in which the hon. Gentleman approaches this issue. He is asking important questions, and I do not challenge at all the validity of the way he has approached the issue; in fact, I should put on record that I am grateful for the way the whole House, and this Committee in particular, have approached it. It is important that any questions that any Member has, particularly the questions honourably and reasonably raised by the hon. Gentleman, are addressed.

The hon. Gentleman’s question on category authorisation is important, because the individual authorisation authorises the retention or retention and examination of a bulk personal dataset, to which part 7A applies. In other words, for every individual dataset there will be an individual authorisation. The normal rule is that each individual authorisation must be approved in advance by a traditional commissioner, as my right hon. Friend the Member for South Holland and The Deepings quite rightly addressed.

A category authorisation does not itself authorise the retention or retention and examination of a dataset; rather, the category itself is the means by which the normal rule of prior judicial approval may be disapplied in respect of the individual authorisation of datasets that fall within the description approved by the category authorisation. As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East knows, that allows for the internal authorisation of an individual dataset that falls within an existing category. By definition, those categories are narrow enough to be identifiable but large enough to be useful. The reality is that that must be done on a case-by-case basis, but under the watchful eye of not just the unit within the intelligence service that requests it, but a senior officer in that service and a judicial commissioner.

That oversight means that we have an effective way of ensuring that we are able to use bulk personal data as categorised in different areas in a speedy fashion to enable the detection and prevention of harm, but with the oversight regime that the hon. Gentleman quite rightly expects of any apparatus of the state. The intelligence services in particular, for reasons of operational necessity, operate in the shadows, and therefore require an extra guarantee of reliance.

[Stuart C. McDonald]

I will go away and consider what the Minister said. Our basic issue here is that a process is in place whereby every single individual dataset must be approved and have the approval and authorisation of a judicial commissioner. Under this scheme, if there is a category authorisation and then an individual authorisation under it, there will not necessarily be any involvement from a judicial commissioner. That is the bit that we have an issue with.

[Tom Tugendhat]

May I come back straightaway on that? To be clear, category authorisations are reviewed by IPCO at the very latest a year—12 months—after the authorisation, but they could actually be reviewed at any point. I am afraid the idea that a category authorisation stands forever just because it has been allowed is not accurate—I know that is not what the hon. Gentleman is suggesting. The judicial commissioner would have oversight of the wider category authorisation, and the IPCO review means that the whole thing is checked at the very latest every 12 months, and probably more frequently than that.

[Stuart C. McDonald]

Again, I get all that, and I do not think that we are really at cross-purposes. However, we are talking about 12 months of access to datasets without necessarily having them before a judicial commissioner.

I do not think that anyone disputes that this is a slightly weaker form of oversight, which is because the services want to access this material at scale and regard the existing oversight mechanisms as cumbersome, slow and whatever else. We still ask the question of whether there is another way to do that that would still involve judicial commissioners but happen much more randomly and at scale. However, we will go away and consider that. I repeat my request—I know it is not easy—for some examples to reassure members of the public on how exactly this will work. That would be useful. In the meantime, I do not intend to push the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

--- Later in debate ---

[Stuart C. McDonald]

I will be very brief, because I fully support what the shadow Minister and the right hon. Member for North Durham have said. If we are going to go down the route of somewhat watering down the oversight of certain bulk personal datasets, we need greater transparency and accountability. Our amendment 38 has very similar motivations. It requires complete transparency with the ISC by listing all the bulk personal datasets that would be retained under a category authorisation in the report the Bill requires to be sent to the ISC. It answers the question of how we are supposed to know how these new powers will be and are being used unless we have one of these methods of transparency.

[Tom Tugendhat]

If I may, I will come to the last point first. The information going to the ISC on this basis would be, as far as possible, the same as that going to the Secretary of State. Obviously, the operational data may not be included, depending on the relevant operational case. I hope that will reassure this Committee and, indeed, the ISC that the intention is to make sure that the ISC is as fully informed as possible.

On the point made by the right hon. Member for North Durham, he will know that the Bill, in many ways, has been a joint project between the Government and the ISC. I have spent many hours with members of the ISC, including the Chair, my right hon. Friend the Member for New Forest East (Sir Julian Lewis), and with various members of the Committee. Their input has been exceptionally important to me and has been included in many areas of drafting on this.

Turning to amendment 15, the right hon. Member for North Durham and the hon. Member for Barnsley Central, in many ways, have both been the Occam’s razor of the Bill process, not just here, but in other areas. They have been rightly keen that we should not include powers or requirements that would otherwise constrain or block processes or confuse the law. I understand the argument that hon. Members are making about a one-line email, but the reason that I am not convinced—though I am very happy to have the conversation suggested—is that the reality is that it is possible for IPCO to investigate at any point, and it must investigate at 12 months. Therefore, if we ask for a legal requirement on the services, that would force an extra legal duty into the various elements and it will be an extra change.

[Mr Jones]

I disagree with the Minister. Yes, IPCO can look back and can go in at any time to look at things, but if it does not know where the needle in the haystack is, how is it going to actually find it in the first place? This is not an onerous proposal, and I do not understand why the Minister is resisting it, to be honest. This measure would just send another reassurance to the public that, again, the extra powers being given to the security services, which I fully support, at least have some oversight. We need to address the Bill in detail and in such a way that we cannot be accused of handing over powers without also providing very light-touch reassurance that there is outside oversight. I accept that, in most cases, IPCO would not actually look at any of these.

[Tom Tugendhat]

In the spirit with which the right hon. Gentleman has approached this, may I commit to meeting him and the hon. Member for Barnsley Central to discuss this?

[Mr Jones]

We might do it in the wash-up anyway.

[Tom Tugendhat]

Well, the right hon. Gentleman could make a virtue of a necessity if he wishes. I certainly will. I shall enjoy meeting him to discuss this, and I hope that he will take that commitment in the spirit with which it is made.

[Dan Jarvis]

I think that this has been a useful debate. There have been a number of sensible and constructive contributions from both sides of the Committee. The Minister has made a commitment to sit down and discuss this further, and I am grateful for that undertaking. As I have said, we do not intend to push this amendment to a vote.

--- Later in debate ---

[Dan Jarvis]

I am grateful to my hon. Friend the Member for Bootle. I am happy to give way to the Minister if he wants to respond directly to that point.

[Tom Tugendhat]

The point about these powers is indeed to make better use of resources. One challenge is that many intelligence officers are tied up doing things that are no longer genuinely necessary for the protection of personal privacy, but they are following processes that, were they to be working for a private organisation —a company or whatever—would no longer be necessary because bulk personal data could simply be bought. Therefore, what we are actually looking at doing is using resources much more efficiently and therefore helping the protection of the British people, from a better financial position. However, the point made by the hon. Member for Bootle on resources is always one that I welcome.

[Dan Jarvis]

I have nothing further to add, other than to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 ordered to stand part of the Bill.

Clause 3

Duration of bulk personal dataset warrants

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

[The Chair]

With this it will be convenient to discuss clause 4 stand part.

[Tom Tugendhat]

Clause 3—

[Sir John Hayes]

We are making sufficient progress, which perhaps permits me to say a word about why, as we have now dealt with those publicly contentious matters around bulk powers, we can move to the next part of the Bill with greater confidence. The Minister has been crystal clear that he—like me, the right hon. Member for North Durham and other members of this Committee—understands fully the important role of oversight and checks and balances. Those checks and balances are multidimensional because of the role of both those elected to this House and the judiciary. I know he will want to expand on that a little as we come to the next part of the Bill.

--- Later in debate ---

[Tom Tugendhat]

I thank my right hon. Friend. Clause 3 amends the duration of bulk personal dataset warrants under section 213 of the IPA from six to 12 months. BPDs tend to be used to support long-term strategic intelligence activities, and a longer warrant duration will enable the value of the BPD to be better demonstrated, which will provide the relevant Secretary of State with a more accurate picture of the necessity and proportionality when an application for renewal is made. The existing part 7 safeguards will remain in place, including the double lock by the judicial commissioner.

Question put and agreed to.

Clause 3 accordingly ordered to stand part of the Bill.

Clause 4 ordered to stand part of the Bill.

Clause 5

Third party bulk personal datasets

[Dan Jarvis]

I beg to move amendment 16, in clause 5, page 14, line 34, at end insert—

“(4) A third party BPD warrant may not authorise the examination of a dataset consisting of the contents of the marked electoral register.”

This amendment would prevent a third-party bulk personal dataset consisting of the electoral register, which sets out whether people have voted, from being examined by the intelligence services.

--- Later in debate ---

[Tom Tugendhat]

I thank hon. Members for their points. The examination of third-party bulk personal datasets by the intelligence services is vital to their role of protecting the national security and economic wellbeing of the United Kingdom and preventing and detecting serious crime.

Clause 5 places an explicit statutory regime around the intelligence services’ examination, in situ, of bulk datasets held by third parties. The regime would apply only to the intelligence services, in line with the wider part 7 BPD powers in the IPA. The clause puts in place robust oversight and safeguards. For example, third-part dataset warrants are to be subject to a double lock, and the decision to authorise the warrant will need to be approved by both the Secretary of State and an independent judicial commissioner. The Investigatory Powers Commissioner and his office will oversee the regime to ensure the intelligence services’ examination of third-party datasets is both necessary and proportionate. That relates to the point made by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East about proportionality and need.

To answer the point made by the hon. Member for Barnsley Central, we do not consider it appropriate to exclude specific types of dataset from those for which a third-party dataset warrant can be sought. The reason is, as he knows, that we can begin to go down very tricky routes on this area, as the intelligence services have a requirement to keep safe not just our democracy but our wider nation. Therefore, limiting those different arguments can be problematic. What we are aiming to do is ensure the proportionality requirement is the test applied by both judicial commissioners and the Investigatory Powers Commissioner.

The Secretary of State may issue a warrant authorising the examination of a third-party dataset only where it is necessary and proportionate—that is going to be quite a high bar in some of the areas asked about—for the intelligence service to examine the dataset to which the warrant relates. That decision will be double-locked by an independent judicial commissioner who, among other things, is required expressly to review the Secretary of State’s conclusions in respect of necessity and proportionality when deciding whether to approve the decision to issue a warrant. That is already in the Bill. Each decision will be made on a case-by-case basis and will be subject to prior judicial approval.

[Dan Jarvis]

I am grateful for the Minister’s response. I have to say, I am struggling to think of a scenario in which it might be necessary and proportionate to examine the marked electoral register. This is something we will reflect on.

--- Later in debate ---

[Dan Jarvis]

That is a helpful and useful suggestion. I am happy to proceed on that basis, if the Minister is.

[Tom Tugendhat]

I am happy to write to the hon. Member.

[Dan Jarvis]

On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 5 ordered to stand part of the Bill.

Clause 6

Minor and consequential amendments

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

[Tom Tugendhat]

Clause 6 makes minor amendments to the 2016 Act to reflect the introduction of parts 7A and 7B, including making it clear that the Investigatory Powers Commissioner is responsible for oversight of the part 7B regime.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Scott Mann.)

Security of Elected Representatives

Tom Tugendhat Excerpts

Thursday 29th February 2024 Commons Chamber

[The Minister for Security (Tom Tugendhat)]

With permission, Madam Deputy Speaker, I would like to make a statement on the security of elected representatives.

This House brings together our nation. People from every part of the United Kingdom and from every background are represented here to debate, to argue, to challenge and to find the best course for our country to take. That is the way it should be, because this House does not belong to any one community or interest group; it belongs to every citizen from every corner of the kingdom. The decisions we take affect not just the lives of our friends, our neighbours and our community, but every community, and every community’s voice—even those we disagree with—must be properly represented. That principle is at the heart of who we are as a country and as a democracy. Our democracy works only if those who elect us are free to choose the individual they wish, and if that individual—the one they have chosen—has the freedom to say what they think.

In recent days, we have seen those principles waver, and the strain of rising community tensions is beginning to show. Instead of debate and accountability, we have seen intimidation and threats. Members of this House have told me that they feel they have to vote a certain way not because it is the right thing for their communities or even because the majority in their community wishes it, but because a few—a threatening few—have made their voices heard, and made them fear for their safety and the safety of their families. Even this House—the House that has persevered through fire and through war—has been pressured into changing the way we debate. We all understand why. The assassinations of our friends Jo Cox and Sir David Amess have affected us all. We know that there are extremists out there, and the truth is clear: the danger is real. We also know that bending to the threat of violence and intimidation is wrong. It does not just betray those who sent us; it encourages those who, through us, are bullying them.

Last Wednesday, demonstrators threatened to force Parliament to “lock its doors”. What these thugs were actually asking us to do was to put our constituents second, and to bow to those who were shouting loudest. That is more than a threat to us. It is a threat to the very democratic principles and values that define who we are as a country. Let me be absolutely clear: they must fail. If we were to stumble or to succumb to these pressures, we would not just see this House diminished; our communities across the country would suffer. Some things are more important than any of us as individuals.

The pressures have always existed, but since the 7 October attacks on Israel, they have spiked, along with a dramatic rise in antisemitism, accompanied by demonstrations that have caused profound distress and fear in the Jewish community and beyond. We are seeing a darkness return to our streets.

British Muslims also face threats. Islamist extremists call other Muslims apostates unless they are willing to destroy the society that has given everyone, including the many expressions of Islam practised here today, the freedom to worship as they choose. Far-right extremists are joining them in claiming that Islam has no place in Britain. Both claim that Britain is a divided nation, not a United Kingdom. Both are wrong.

This Government reject that agenda of isolation and fear. We will ensure that all voices in our democracy are heard. We are ensuring that those who have been elected to serve their community are able to do so without fear. That is why we are committing an additional £31 million to protect the democratic process and our elected representatives. This funding will primarily support MPs, councillors, police and crime commissioners and Mayors. The Operation Bridger network, which already provides police support to MPs, will be expanded so that all elected representatives and candidates have a dedicated, named police officer to contact on security matters, where needed. Forces around the country will be able to draw on a new fund to deliver additional patrols, so they will be better able to respond to heightened community tensions. Working closely with Parliament and the police, we will provide access to private security for Members who face the highest risk.

Yesterday, the Prime Minister, the Home Secretary, the Policing Minister and I met senior policing leaders to discuss these issues. Together, the Home Office, the National Police Chiefs’ Council, the Association of Police and Crime Commissioners and the College of Policing, with input from the Crown Prosecution Service, have agreed a new defending democracy policing protocol. It contains seven key commitments to implement minimum standards of policing at events, to prevent intimidatory protest at homes, and to ensure protests at party offices, town halls, Parliaments or other democratic venues do not inhibit the democratic process. PCCs and chief constables have been asked to report back on the implementation of these measures by April.

Before I finish, may I pay tribute to our law enforcement and intelligence agencies, which keep us safe at all times? This additional funding will help them support us in undertaking our democratic duty.

I take the safety and security of all Members of this House extremely seriously, as I know do you, Madam Deputy Speaker, and Mr Speaker. The truth is that there are some things that transcend political dividing lines. There are principles that are so fundamental—so sacred, even—that we must all of us guard them against all threats, regardless of party allegiance. Defending our democracy is at the core of who we are as a nation. It is the living expression of the concepts of freedom of thought and freedom of speech. As we legislate and debate, as we argue and criticise, we must be robust. We must continue to test ideas and each other to serve the British people best. We must challenge each other, and remember that this is not just about us. We are only the temporary guardians of liberties that we have inherited. Today, it is our turn to defend them. This is our watch, and it is for us to rise above the fray and to say, with total clarity, that we will not be cowed, we will not be silenced and we will not be bullied. The people we are privileged to represent deserve nothing less. I commend this statement to the House.

[Madam Deputy Speaker (Dame Eleanor Laing)]

I call the shadow Minister.

[Dan Jarvis (Barnsley Central) (Lab)]

I thank the Minister for his statement and for advance sight of it. I join him in expressing our gratitude to all those who work to keep us safe. Our democracy is strong, but we can never stand for threats or attempts to intimidate. We cannot and will not allow a minority to pose security threats, or allow racial hatred to ever go unchallenged or to undermine our democracy.

Let me say to the Minister at the outset that we welcome the £31 million of additional funding. We recognise the extremely difficult situation faced by Members of this House, with all of us the target of intimidation and threats of violence, especially women. We must not forget that that targeting also extends to local councillors, Mayors, police and crime commissioners, Members of a devolved Parliament and an Assembly, and of course candidates. Nobody in this House needs any reminding of the terrible price we have paid in recent years and the loss of much-loved colleagues. We must ensure that this additional resource is focused in the right place and at the right time, and that long-term arrangements are in place to provide those who step forward to serve as elected representatives and their families with the reassurance they deserve to do their vital work without fear or favour.

Those arrangements must also ensure that others are not dissuaded from stepping forward to serve, because the threat is undermining the core principles of our representative democracy. Our country must return to a state of affairs where the only fear that politicians ever feel is from the ballot box. Although we absolutely respect the fundamental freedom to legitimate peaceful protest—it is a core democratic right—if that freedom is used to intimidate, harass or harm MPs and other representatives, including outside their home, safeguards must be put in place to protect them and our wider democratic system.

Such protective measures are now essential, but we also need to look at the underlying causes. What is it about our society that has changed that allows some to think that they can intimidate and threaten MPs and other elected representatives with impunity? What are the roots of this poison? It is hard not to see a connection between the increasingly polarised and acrimonious debate that has flourished online, particularly on social media, and the greater threat of physical harm in the real world. We also need to focus on the deeper roots of division that fuel this danger, not least by exercising good judgment in what we say. Words have consequences.

I would be grateful if the Minister answered a few questions. Is the £31 million a one-off uplift, or will it be made available on a recurring basis? How does that relate to Scotland and Northern Ireland? In this general election year, all Members standing for re-election will become candidates again for the short campaign. Can he give an assurance that all who need additional protection will continue to get it? Will he also give an assurance that work is under way to ensure that Operation Bridger is configured and resourced to provide appropriate support locally, not least to our councillors?

Recent protests, alongside threats to and intimidation of politicians, have also raised the issue of what is defined as hateful extremism. The Government have not yet brought forward a definition, but that would be helpful in countering threats and intimidation. Can the Minister say when the Government or the Levelling Up Secretary will bring forward a definition, and outline when the Government will bring forward an updated counter-extremism strategy?

The defending democracy taskforce set up by the Security Minister in November 2022 is an important operational mechanism for co-ordinating activity across Government to protect and bolster our democratic system and institutions. Given the proximity to the general election, perhaps now is the time to look at how we can bring this work together on a cross-party basis. We all have a shared interest in ensuring that elections can be contested in a way that not just defends but strengthens our democracy.

Protecting our democracy and those who serve as elected representatives is mission critical. We must ensure that all who step forward to serve as democratically elected politicians are properly protected, and that the sovereignty of our democratic processes are not undermined. We on this side of the House will work with the Minister and the Government to do everything we can to make sure that is the case.

[Tom Tugendhat]

May I say how pleased I am to be working with my very good friend the hon. Member for Barnsley Central (Dan Jarvis), who I have known for a lot longer than either of us has been in this place? The questions he asks are important, and the tone in which he approaches this subject is even more so, and I am hugely grateful for the spirit of co-operation with which he has approached not just today’s statement but the work he has put in before today, and indeed with which the hon. Member for Halifax (Holly Lynch) approached it before him.

Turning to the questions, the £31 million is this year’s allocation, but there are consequences that will flow into other years. I will not give the hon. Gentleman a figure because that is variable; as he will appreciate, we are almost through the current financial year, and the consequences will depend on what is drawn down and what is required.

The hon. Gentleman’s question about Scotland and Northern Ireland is of course entirely valid. Let me be clear: the security of the democratic process in the United Kingdom is not a devolved matter; it is down to this Government, and it is my responsibility and this Government’s responsibility to make sure that elections in the United Kingdom are free and fair. Of course, we must have a huge amount of co-operation with other Parliaments and Governments inside the United Kingdom; with, in some cases, returning officers and councils; and with Ministers in Holyrood—and Stormont, now that it has, thank God, returned to operating. This area is a sovereign responsibility, for the simple reason that it is about the national security of the United Kingdom.

The hon. Gentleman raised an important point about parliamentary candidates. He is right that when the election is called, there will be no more MPs, and any rights and privileges that we enjoy as Members of this House will immediately cease. The Government are looking at ways of maintaining the security requirements necessary to ensure that those who wish to stand as candidates again can do so, free from fear and from the threat of violence.

The hon. Gentleman’s question about counter-extremism is important, and I would like first to pay tribute to William Shawcross for his work on updating the Prevent review, and to Robin Simcox, whose work on the counter-extremism strategy has been so important. This is about countering extremism in many different forms. I mentioned that we must be clear that Islamist violence and threats are primarily a threat to the Muslim community in the United Kingdom. The number of friends of mine in the Muslim community whom some have tried to silence, because my friends’ version of Islam does not tie in with that of thugs and loudmouths who claim to speak on behalf of others, is remarkable. We must champion all voices in this country, and that includes all Muslim voices—there isn’t a single one; there are many. As for the definition, there is an existing definition, as the hon. Gentleman is aware, and work is ongoing to see how that could or should be updated. I am afraid that I do not have an update for him now, but I will certainly bring one forward as soon as I have it.

As for the cross-party nature of the defending democracy taskforce, the hon. Gentleman raises an important point, and I am looking at it now, although I think he will be the first to admit that the work has been very cross-party to date.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call the Father of the House, Sir Peter Bottomley.

[Sir Peter Bottomley (Worthing West) (Con)]

It has been an honour to listen both to the Opposition spokesman, the hon. Member for Barnsley Central (Dan Jarvis), and my right hon. Friend the Minister. I stand with three shields behind me: one for Airey Neave, assassinated in 1979; one for Robert Bradford, killed in his constituency surgery; and one for Ian Gow, who was blown up a week after the IRA killed Sister Catherine Dunne, a Roman Catholic Sister of Mercy, by mistake, and they thought, rightly, that by killing Ian Gow they would wipe that atrocity off the news. There are also other shields behind the Speaker’s Chair.

On average, one MP is killed every seven years. We are not the only ones exposed to risk; there is also the psychiatric social worker, the emergency blue-light responder, people fishing at sea, those working in a permanent way on the railways, and the like—so we should not think that we are the only people who need to have our safety looked at.

I hope the police will understand that those who need the most protection should get the most protection, and those of us who are not at much risk should not get too much money or attention given to us. There should be a risk-based analysis, so more is given to those who often speak up bravely, or those who, often because they are women or from ethnic minorities, get more attention from the thugs and extremists than is given to someone like me. Our constituents will understand, too, that candidates standing for election with us, who get the same attention as us, should get the same kind of protection as us.

[Tom Tugendhat]

I thank the Father of the House for his kind words. He is absolutely right. I remember hearing as a child about the murder of Airey Neave, and it marked me then, and it marks me now, that somebody with such a record of service to our country during the second world war, when he escaped from Colditz, and who shaped one of our great political parties, had their life ended by the brutality and violence of a small group of murderous individuals whose agenda was not even shared by the majority in their own community, let alone the majority in the country. That is one of the most striking examples of anti-democratic forces in our country winning; they silenced a hero who had served our country for many decades. I appreciate very much my hon. Friend’s comments.

I hope right hon. and hon. Members will forgive me, but I will not go into the details of for whom and how security allocations will be made. If Members require a private briefing on how that is achieved, I am sure that I can arrange something, but the reality is that we will focus on those most at risk, to ensure that those who have credible threats against them are supported. My hon. Friend the Father of the House highlighted sad cases. A colleague of ours who has a seat in this House— I hope she will be returned at the next election—has to wear a stab vest to constituency surgeries. She is threatened by a nationalist movement in her seat. Supporters of hers have been silenced by threats of violence and intimidation. She rightly raised with me this morning the issue of hustings; her opponents will call her any number of names if she fails to attend them. The reality is that the threats against her are credible and real. We are working with the police to make sure that they are mitigated, so that she can carry out her responsibilities, not just to herself, but to constituents who may or may not wish to send her here. We must give them the chance to choose, and not allow a few threatening individuals to prevent her electors having that choice.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call the SNP spokesperson.

[Kirsty Blackman (Aberdeen North) (SNP)]

I thank the Minister for advance sight of his statement. When David Amess was murdered, one of the hardest things I have ever had to do was explain it to my children before they saw it on the news, or before one of their friends spoke to them about it. They were too young when Jo Cox was murdered for me to have that conversation with them. It is the reality of life that this sits on our shoulders as MPs. Last time I had to give a statement to the police about somebody’s behaviour, I asked to do it at the police station, rather than my house, so that my children would not be aware that I was giving a statement to the police.

The Minister talks about the importance of democratic representation, and it is important. So are the measures that he has put in place, but it is also important to realise that some people do not stand for Parliament because of the fear. They do not even get to the point of being candidates, because they are so scared about the risk, not just of serious threats or death, but of the abuse that people receive as a result of being involved in the democratic processes.

I have a couple of questions for the Minister. One is about the assessment of the number and severity of threats to MPs from far-right extremists, versus Islamic extremists. One of my colleagues asked me to raise that with him. If the Minister has any information on the numbers, that would be helpful. I welcome the focus on candidates and councillors, and I appreciate his comments on policing of this issue being reserved, but if he expects Police Scotland to carry out some of this work, there needs to be funding for that. How he intends to ensure that there is—whether through the Scottish Parliament or not—is clearly for him, but can he give some reassurance that the forces expected to carry out that work will be funded appropriately, either from the centre or from the devolved Parliaments?

[Tom Tugendhat]

May I likewise thank the hon. Lady for the approach that she and many Members of her party have taken? She is right about Police Scotland funding. Any extra requirements, and the Op Bridger network, which applies, as she knows, across the whole United Kingdom, will be funded centrally to ensure that Members of this House get the same support. Police Scotland will have access to the same funding as other forces across the United Kingdom.

The hon. Lady is absolutely right about candidates. The message has to be clear from us. We have seen a level of threats of violence towards Members of this House and elected individuals, including various Mayors, across the United Kingdom in recent years, but this job is still a huge privilege. We need to put it clearly: many of us realise the privilege of serving our constituents, and having our voices heard here and, as a result, around the world. That is a huge privilege and a rare honour for anyone to achieve, and it is worth striving for. It is one of the best ways that any of us, whatever our opinions, can serve our communities and help to make this country and, I hope, our world a better place. It is true that there are threats, and we are organising, as the hon. Lady recognises, extremely carefully to mitigate and reduce them, so that anybody can stand for election free from fear. I urge people who feel that they have something to offer our country to put themselves forward, to test their ideas in debate and at election, and to come and serve our country here on the green Benches.

On the hon. Lady’s question about balance, if she will forgive me, I will not go into the details, but I can assure her that I am not particularly bothered whether someone’s fascism comes from some weird form of nationalist extremism, or religious extremism, or political extremism of any kind—I don’t really care. If you threaten Members of this House, threaten democracy and threaten the British people, we will go after you. We will get you, and you will be detained.

[Caroline Nokes (Romsey and Southampton North) (Con)]

My right hon. Friend is absolutely right that this is about defending democracy, but I am very concerned when we start talking about risk. The shadow spokesman, the hon. Member for Barnsley Central (Dan Jarvis) spoke about having to have the right protections in the right place at the right time. We know that women, people of colour and LGBTQ Members will be at most risk, but none of us could have predicted that a man who was most famous for campaigning to make Southend a city, and Jo Cox, who spoke in her maiden speech about our having more in common, would be the individuals targeted. I urge some caution, particularly when it comes to hustings and to the involvement of weird conspiracy theorists in politics who openly incite division, whether out on the street, in our constituency surgeries or in this House. [Hon. Members: “Hear, hear.”] We need to make sure that we have protections against them as well. There is the question.

[Tom Tugendhat]

My right hon. Friend has made her point extremely clear, and it is one I would support.

[Stella Creasy (Walthamstow) (Lab/Co-op)]

May I echo the comments of the right hon. Member for Romsey and Southampton North (Caroline Nokes)? I do not think this is a partisan issue, and it is important to recognise that in the culture we now have, it is not about the issues either. The Minister talked about recent events, but many of us have been living with this problem for years, particularly my colleagues who are women of colour.

May I ask the Minister two specific questions, which I ask as somebody who does not want to live in a gilded cage? I want to go out and debate with people. I enjoy robust discussion, as he knows. I enjoy talking to my constituents, and I do not want to be asked to have a travel plan to go to my local park or my local pub or to be cut off from the people I am privileged to serve. At the moment, the approach we are taking suggests that it is all about the individual. I was told by the police that because I was a Back Bencher, my family were not covered, yet my family have been persistently targeted by people trying to intimidate me, from both left and right. Can he clarify whether there will be an understanding in the protection offered about our families in the analysis of risk? Many of the people being put off are not people who look like the people here.

Secondly, the Minister knows I am concerned about 527 groups—the organisations that often promote violence and hatred and incite campaigning which are not registered as charities and perhaps not abiding by the laws on imprints that many of us would recognise, yet increasingly part of British politics. Many of us have been warning for several years about these organisations. Will he now take that threat seriously, because it is undermining democracy?

[Tom Tugendhat]

I thank the hon. Lady. May I be clear that her family, if threatened, are covered? There is no question about that. The programme is based on the threats faced, not what position the hon. Lady may or may not hold in her own party; that is not one of the considerations.

May I also be clear that this £31 million is additional? It does not replace or undermine the work already ongoing in various ways. The hon. Lady will understand that all of us—every citizen of the United Kingdom—are covered by security infrastructure that includes everything from cyber-protection to intelligence agencies and staff who are helping us to stay safe. Many of the actions taken will come from warnings or investigations that have nothing to do with the area that I have just covered. What I was just talking about was the additional security requirements for protecting our democracy from today’s threats. As to her point about 527 groups, I am aware of that—she has raised it with me—and I take it very seriously.

[Dame Maria Miller (Basingstoke) (Con)]

I welcome my right hon. Friend’s statement. He has made it clear that this is not only about security and policing and that we need to look for new ways to tackle what is fuelling anti-democratic abuse, which many hon. and right hon. Members are facing in their day-to-day work. Too often, that culture is developing online. Will he consider my call for a Committee of this House to monitor the effectiveness of the Online Safety Act 2023 and to make recommendations to Government on ways that we can tackle this issue and many others that start online? Surely we need to tackle that cultural change as well as the important issues that he has raised.

--- Later in debate ---

[Tom Tugendhat]

My right hon. Friend has raised many interesting points about the Online Safety Act over recent months, and indeed years. As it has just passed and is only beginning to come into force, I hope she will forgive me for not making any commitments immediately. However, her points are certainly important, and I will look at them.

[Dawn Butler (Brent Central) (Lab)]

I thank the Minister for his statement. If I heard correctly, he said that the Government have not quite got a definition of anti-Muslim hate. I wonder if that could urgently be rectified. The post of independent adviser on Islamophobia has been vacant for over a year, but the Government are in desperate need of one.

I thank hon. Members for acknowledging the hate crime against women of colour. May I just mention my hon. Friend the Member for Coventry South (Zarah Sultana), who has had an obscene amount of hate levelled at her, and my hon. Friend the Member for Poplar and Limehouse (Apsana Begum), the first hijab-wearing MP? The abuse they have faced is terrible.

MI5 and the Intelligence and Security Committee have stated that extreme right-wing terrorism is sadly here to stay, with the threat fuelled in part by racism. MI5 has said that teenagers as young as 13 are joining in extremist activity, often online. Last week, the Minister in the other place revealed that the Government are

“not intending to publish a hate crime strategy”—[Official Report, House of Lords, 21 February 2024; Vol. 836, c. 599.]

despite the last one being four years out of date. With the Community Security Trust report stating that there has been a rise in antisemitic abuse and a 300% rise in Islamophobia, why are the Government abandoning their work on hate crime?

[Tom Tugendhat]

I thank the hon. Lady for the question. We are not abandoning our work on hate crime. May I just cover some of those issues in order?

First, I was talking about a definition of extremism, not of anti-Muslim hate, in response to the question from the hon. Member for Barnsley Central (Dan Jarvis). The Government are absolutely clear that racism in all its forms, including anti-Muslim hatred, is absolutely wrong, and there is no question about that. The only area of discussion has to be about how we deal with it, not whether we recognise it. We do recognise it.

As the hon. Lady recognises, hate crime in this country is sadly rising, and there are individuals who have faced the force of that from various different areas. Very sadly, many in the Muslim community, as she is aware, feel that hatred not from outside the community but from within it—from those who are trying to preach an extremist message of Islam that is not accepted within the Muslim community, let alone in other parts of the country.

We must be absolutely clear that this country protects someone’s status for who they are and not for what they happen to believe. There is freedom of belief and freedom of religious expression, which also means the freedom not to believe or to believe differently from one’s family or community. Those things are also protected.

[David Mundell (Dumfriesshire, Clydesdale and Tweeddale) (Con)]

I am grateful for the support that I have had from Police Scotland, and it is a matter of considerable regret to me that officers have had to attend my recent surgeries, as well as those of my hon. Friend the Member for Berwickshire, Roxburgh and Selkirk (John Lamont). I am conscious that the last time I spoke in Parliament on policing issues was to highlight the lack of police in the south of Scotland, where they operate with minimum numbers. My concern is that the police attending demonstrations and the events I am involved in are displaced from attending and supporting the constituents for whom I am here to speak. I fully agree with everything the Minister said, but will he assure us that the deployment of resources to protect us and protect democracy does not displace resources from protecting our constituents, the very people we are here to serve?

[Tom Tugendhat]

I thank my right hon. Friend for his comments. It will surprise nobody in the House that he quite correctly raised the fact that we must not put ourselves above our constituents. That is not what the statement is about. We are making sure that our constituents’ voices are defended and that their values, their expressions and the choices they make are able to stand. That is all we are doing. He is absolutely right that we would not take away from the protection of our wider society to protect those elected to serve it—what we are doing is part of the same thing.

As my right hon. Friend knows, we are also increasing police numbers. Sadly, in Scotland, that has not yet followed.

[Wendy Chamberlain (North East Fife) (LD)]

I thank the Minister for his statement and for the letter he sent to Members. I have been grateful to get clarity from the Dispatch Box in relation to myself as a Scottish MP. It would be nice to get a letter sent to all Scottish MPs that appreciates the complexity, because the seven points of the defending democracy protocol continually mention England and Wales, the National Police Chiefs’ Council and the College of Policing. I am sure that all the required engagement and connections are in place, but such a letter would give us an increased degree of confidence.

My questions are on two things. The Minister said he was looking at what can be provided during the election period, when we are no longer MPs. From a risk assessment perspective, my ask is that social media monitoring continues—I hope that would be one of the more cost- effective measures—so that we can see risks that we were not expecting.

On the point made by the hon. Member for Walthamstow (Stella Creasy), I do not want to live in a gilded cage either. I also associate myself with the remarks made by the hon. Member for Finchley and Golders Green (Mike Freer): we need to ensure that we are not preventing MPs from being close to their constituents while tackling the root problems. I would be grateful for the Minister giving us an update on that.

[Tom Tugendhat]

I thank the hon. Lady for the feedback on that letter. I will ensure that that clarity is given. This statement absolutely applies to whole of the United Kingdom, as I have said, but I will ensure that I clarify that. Social media monitoring will not end at the election. Indeed, it is provided not just by the House, but, as the hon. Lady knows, by other elements of the Government. As to the wider challenges, this is an area where we are continuing to work. I would appreciate—this is an unusual and perhaps reckless thing to say at the Dispatch Box—feedback from all Members on the effect they see of these policies operating in their constituencies.

[John McDonnell (Hayes and Harlington) (Lab)]

If the security services are advising that this £30 million is needed, I welcome that if it keeps our Members safe. The Minister has referred to the national demonstrations. May I say, as someone who has had to learn lessons over the years about the nature of statements I have made, that we must be careful about how we use words in relation to those demonstrations? I have been on virtually every one of them, and, just as the police reported to the Home Affairs Committee, they have been overwhelmingly peaceful. The people I have walked with are members of the Jewish community. Where signs—they have been appalling —have been identified, the police, working with the stewards of those demonstrations, have dealt with them effectively and, yes, prosecuted people. I am pleased with that. We must be careful in our language, because I would not want distorted language to lead to conclusions such as that we should restrict the right to protests. We should be proud of the people of our country because, as a result of their concerns about human suffering, they have come out on to the streets in such large numbers to urge that that suffering is ended.

[Tom Tugendhat]

I am enormously proud of the British people. I have always been proud to be British and I will remain so until the day I die. This is the most remarkable country. My grandfather came here just over 100 years ago as a student. His family followed, fleeing the persecution and murder that sadly engulfed Europe for those horrific years of fascism. This country has given protection, security and safety not just to me but to millions like me. Not only has it enabled us to prosper and thrive, but it has afforded me the huge honour of representing the community that I love, and has allowed me to speak on behalf of His Majesty as his Minister here at the Dispatch Box. This is an amazing country, and I am deeply proud to serve it.

Let me touch on some of those protests. I was very measured in my language, and I was careful in the way that I put it because many good people protest on every side of every debate. There are always people who rightly raise concerns about aspects of foreign policy over which we may or may not have influence. Many of us have raised personal concerns about the horrific treatment of over 100 hostages who are still held, even now, in tunnels by a terrorist group who murdered their families in a surprise attack 120 or 150 days ago. Many of us have showed our horror at that. Others, sadly, have chosen to march with some who have shown signs of hate and racism. Others have chosen to stay silent when they have seen those signs. Others, completely by chance, find themselves photographed in front of signs of the deepest, most hateful antisemitism that we have seen on our streets since the Cable Street marches of almost a century ago. Is it not a strange quirk of fate how the same people are accidentally photographed in front of the same signs on a regular basis? What poor, poor luck they must have.

[Florence Eshalomi (Vauxhall) (Lab/Co-op)]

I thank the Minister for his statement which, rightly, looks at the security of elected representatives. He referred to hustings; in practice, how does he feel that would work? Thinking back to my election in 2019, there were nine hustings in my constituency alone. I managed to go to eight; I was nearly keeling over by the ninth. They will be happening right across the country, and rightly so, because our constituents must be able to come to us and ask what our policies are.

I also want to mention the staff members who support us. None of us would do our jobs as elected representatives —including councillors, elected Mayors and MPs—without the support of our staff. Will there be any support for staff members?

[Tom Tugendhat]

I am sure that no one in this House would judge the hon. Lady for missing one hustings out of nine. We are all in the process of training and strengthening up to get ready for whatever comes. She is absolutely right about staff members. Many of them will be affected in different ways. She will understand that I will not prescribe a single policy for hustings or for staff members because her seat—wonderful as it is—is not the same as mine or those of other hon. Members. Everyone’s seat is different and everyone’s staff work in differently ways, quite rightly, to serve their communities. It would not be right for me to prescribe that. However, the funding is available to the police—for her, it is the Metropolitan police—in order to support her in whatever way is most appropriate. It will require some judgment and perhaps some wider information and additional support. If changes are required, I would be grateful if she could let me know.

[Pete Wishart (Perth and North Perthshire) (SNP)]

I served on the House of Commons Commission for three years, with you, Madam Deputy Speaker. I know that the security of Members of Parliament is essential for this House. Last week, precedent and convention were turned on their head, because concerns were expressed about the safety of some Members. There was a real sense that because we did that, mob rule has somehow prevailed. If that is the case, it will only encourage those who seek to disrupt our proceedings. Can the Minister assure me and the rest of the House that, although security of Members is essential and paramount, we will never again change the democratic practices of this House to satisfy the concerns and demands of a mob?

[Tom Tugendhat]

I thank the hon. Member for his comments. They remind me of those famous words of Speaker Lenthall: “I have neither eyes to see nor voice to speak, save that as given to me by this House”, in answer to King Charles—an earlier, less beloved sovereign of this Kingdom. When he spoke, he was rightly rejecting all force except that of the sovereignty of the British people, who have chosen their representation here, to have any voice in this place. In rejecting that outside force, he was rejecting the King. Now, thank God, we have a wonderful King whose voice is only munificence and light. We need to reject the mob. It is an outside power and it is unacceptable that it should have a voice in here. That silences the legitimate voice of our constituents and our country, and it must never be tolerated.

[Andrew Gwynne (Denton and Reddish) (Lab)]

I have not spoken about my own personal security before, and I hope it will become apparent to the Minister why I need to do so today. I have been subject to serious threats, including death threats. I have been offered police support and protection. At one stage, we had to ensure that our teenage daughter was physically escorted to and from sixth form college, and she was not allowed off campus at break times. I have one live police investigation into harassment, one pending Crown court case into death threats, and I have physical security at my house, some of which I really did not want.

The security of MPs and their families is a serious matter, and it is not appropriate for it to become a political football. The Minister will therefore understand, I hope, my gut-wrenching anxiety and dismay when Tameside Conservative Councillor Liam Billington sought to politicise the physical measures at my house. Indeed, that was amplified by his Tory party chairman on social media. That is not acceptable. I hope that it does not happen to any other Member of this House.

[Tom Tugendhat]

Let me be very clear. Security for a Member, whether at home, police protection or whatever it happens to be, is not a luxury or a benefit. It is a burden and an intrusion into their personal life that is essential for the conduct of our democracy in our country. It is not something that any of us would choose— I certainly would not. It is deeply disturbing that anyone’s children should be targeted or threatened, and I hope the whole House will be clear and speak as one that no one should ever be criticised for having security and protection. I am sure that others outside will have heard that.

[Beth Winter (Cynon Valley) (Lab)]

MPs must be safe to express their views. As we have heard from hon. Members on both sides, they face real threats, intimidation and abuse. That must be condemned at all times. But at a time of heightened tension, the Prime Minister’s talk of mob rule and some of the Minister’s comments today in relation to legitimate, peaceful protests, dangerously distort those events for political reasons, and detract from real risks. This morning, the Met’s former chief super- intendent, Dal Babu, made similar comments when he challenged unhelpful language, saying that there is a level of frustration, but we are in a democracy and the overwhelming majority of people at protests are peaceful. Do we not have a duty, as my right hon. Friend the Member for Hayes and Harlington (John McDonnell) said, to speak very carefully, address real concerns and not abuse events in that way? We must protect MPs, but we must also ensure that the public’s right to peaceful protest is protected.

[Tom Tugendhat]

I am slightly surprised by the hon. Lady’s comments. My prime duty to this House, and to those who elected me to serve them here, is to be honest. There is no point in lying to them or deceiving you, Madam Deputy Speaker. There is absolutely no point in spreading untruths, leading to an outcome that would not serve us well. All I have done today is speak truthfully about the nature of the protests we have seen and repeat the words of some of those who organised those protests: that they would have us lock our doors, that they would close this Parliament, that they would silence our voices and that they would end our democratic processes. That is what they are advocating. If she does not like the truth, maybe she should stop supporting them.

Oral Answers to Questions

Tom Tugendhat Excerpts

Monday 26th February 2024 Commons Chamber

[Preet Kaur Gill (Birmingham, Edgbaston) (Lab/Co-op)]

5. What assessment he has made of the effectiveness of steps taken by his Department to tackle transnational repression by hostile states.

[The Minister for Security (Tom Tugendhat)]

I thank the hon. Lady for her question. She is aware that the Government are continually assessing the potential threats to individual rights and freedoms and to safety across the United Kingdom. I thank her for the efforts she made to represent her views to me in a different forum.

Whenever we identify such threats, we will always use every measure at our disposal, including our intelligence services, to mitigate any threat to individuals. In the first instance, I urge anyone concerned for their safety to contact the police. The hon. Lady will no doubt be aware that the National Security Act 2023 includes measures to tackle foreign interference, including transnational repression. The defending democracy taskforce is reviewing the UK’s response to develop our understanding of the issue and ensure a system-wide response.

[Preet Kaur Gill]

Transnational repression to silence dissent in democracies is extremely serious. In recent months, Five Eyes nations have raised concerns about the actions of agents with links to India targeting Sikh activists in the United Kingdom. Most disturbingly, there have been alleged assassinations and foiled assassination plots. The US and Canadian authorities have taken the lead at senior levels to publicly call out this challenge to their sovereignty, the rule of law and their democratic values. Given the reports of British Sikhs facing similar threats, what steps are the Government taking to secure their safety? Will the Minister show the same strength as our partners do in publicly defending their democratic rights?

[Tom Tugendhat]

Let me be completely clear: if there are any specific threats against any British citizen by any foreign power, we will take immediate action. The Sikh community should be as safe as every other community in the United Kingdom. All British citizens are equal, whatever their colour, creed, faith or political allegiance. The reality is that we have taken all the action we believe is appropriate at this stage. We of course maintain a very close relationship with our Five Eyes partners, and we are absolutely clear that if the situation changes and we need to take action, we will do so.

[Dan Jarvis (Barnsley Central) (Lab)]

Russia’s deadly poison attack in Salisbury, Iran’s intimidation of Iran International journalists and China’s secret police stations have long showed the need for a robust strategy to counter transnational repression on British soil. The Minister mentioned that a review is under way into the UK’s approach to transnational repression. When will it be published, and will it be part of a wider strategy to counter hostile state activity in this country?

[Tom Tugendhat]

I thank the hon. Gentleman for his question. The review is under way, and it includes many different elements from communities from around the world who are now settled happily in the United Kingdom. He will understand why I will not go into individual details. Certain communities have been targeted, such as the Hong Kong Chinese community, which is now very welcome in the United Kingdom under a policy that this Government introduced—I am very proud of the number who have claimed asylum and taken the opportunity as British nationals overseas to settle here—and we are looking at others. We are open to any reports of transnational repression, and we are listening.

[Alex Cunningham (Stockton North) (Lab)]

8. What steps his Department is taking to identify young people most at risk of being drawn into violent crime.

--- Later in debate ---

[Chris Stephens (Glasgow South West) (SNP)]

T1. If he will make a statement on his departmental responsibilities.

[The Minister for Security (Tom Tugendhat)]

With permission, Mr Speaker, I will make a brief statement. Over the past few weeks, we have seen disgraceful attempts to intimidate this House, to undermine the democratic process and to spread fear among those who have been elected to represent our country. That is unacceptable. It must end.

To this House, I want to say clearly that the Government will defend our democracy. We are working with the police and with Parliament to ensure that disagreements are resolved in this House through debate, not outside with threats of violence. To those who seek to threaten this House, I say this: we will not be cowed; we will not be intimidated; and we will not be silenced. We will do whatever is necessary to protect those elected to represent us, to safeguard our freedoms and to protect our rights. I know I speak for colleagues across the whole House when I say we will always act in the interests of our constituents and our country.

[Chris Stephens]

I thank the Minister for that answer. He will be aware that there has been a 335% increase in Islamophobic hate cases in the UK since 7 October, and a 589% rise in antisemitic incidents compared with 2022. That is affecting our most marginalised and vulnerable groups. What steps is the Minister taking to protect worshippers and faith schools and to reduce unprecedented levels of hate across these islands?

[Tom Tugendhat]

Over the past year this Government have increased the funding to the Community Security Trust by around £3 million, taking the total to around £18 million. We have spent a similar amount on other places of worship—only last week I approved spending on security measures to mosques and churches around the country, exactly to counter the kind of hate crimes that the hon. Member described. We have engaged with not just the Community Security Trust but organisations such as Tell MAMA, which do a fantastic job of engaging with us on anti-Muslim hatred. It is extremely important that we all work together, not just to support and protect every religion and community in our country but to ensure that we lower the tension so that we can all be free to express our views.

[Rob Butler (Aylesbury) (Con)]

T2. Stealing from small convenience stories is causing concern because of both the financial impact on owners and the threat of violence towards staff. I am grateful to the Minister for meeting colleagues and me to discuss this last week. I pay tribute to the Thames Valley police and crime commissioner Matthew Barber for his excellent retail crime strategy. Will my right hon. Friend set out how the Government plan to tackle those thefts and threats?

--- Later in debate ---

[Yvette Cooper (Normanton, Pontefract and Castleford) (Lab)]

Last week, Tell MAMA reported that anti-Muslim hate incidents have trebled. That follows recent reports that antisemitic incidents have hit a record high. We all must challenge all forms of threat, prejudice, racism and hate. Having heard the words from the former deputy chair of the Conservative party of a Muslim Mayor, who said that his “mates” are Islamist extremists and that he has been taken over by “Islamists”, is any Home Office Minister now prepared to stand up and say not only that those words about the London Mayor are wrong, but that they believe they were Islamophobic and should be condemned as such?

[Tom Tugendhat]

Within 24 hours of those words being used, this Prime Minister took immediate action by removing the Whip from that individual. If only all leaders of every political party were as quick to remove the Whip from those who spread hatred in our community. As Rochdale sadly demonstrates, they are not.

[Yvette Cooper]

I am sorry that the Minister, who I know takes issues seriously, chose not to respond to my question. Rightly, on all sides of the House we have called out and condemned antisemitism, and we must continue to do so. If Government Ministers cannot openly challenge Islamophobia, they play into the hands of extremists—both far right and Islamist. The Minister will know that hate crime fuels extremism. If the Government took any of this seriously, they would not have just ditched plans for a new hate crime strategy or left it nine years to update the countering extremism strategy. Does he agree that it is not just their inability to say the words but their failure to act that is leaving our communities exposed?

[Tom Tugendhat]

I am sorry that the right hon. Lady does not see the action as clearly as others in this House. The Whip was removed immediately because anti-Muslim hatred is wrong. There is no hierarchy in hatred or racism. It is all wrong. Anti-Muslim hatred is wrong. The support that some have given to Islamist communities in our country is tragic and this Government will work against it. That is exactly why we have proscribed Hizb ut-Tahrir—because we will work against hatred from whichever community, in whatever way it comes.

[Mr Laurence Robertson (Tewkesbury) (Con)]

T4. I understand that the Government are looking to further restrict the ability of sex offenders to change their name. Should we not impose at least the same restrictions, or perhaps an outright ban, on those convicted of murder, because they can continue to be a threat to the families of those they murdered?

--- Later in debate ---

[Grahame Morris (Easington) (Lab)]

Banking protocols clearly state that banks should contact the police when they detect fraud. HSBC rightly prevented a vulnerable constituent of mine from conducting a bank transfer to fraudsters in South Africa. However, owing to a failure to notify the police, the fraud continued, and as a result my constituent lost more than £32,000, transferred with the use of Apple gift cards. What advice can the Minister give? What recourse has my constituent to recover the money from HSBC? If it had followed the protocols laid down, appropriate safeguards would have been put in place.

[Tom Tugendhat]

I am grateful to the hon. Gentleman for raising this issue. Fraud is a blight on our society and leaves many people feeling vulnerable and extremely nervous about using online services and the wider economy. I am delighted to say that fraud is already down by 13%, and there is more we are doing on this issue. I urge his constituent to follow the advice of the advertising campaign we are launching, which is Stop! Think Fraud. This is a huge issue on which we are working with police forces around the country, which is why we have 400 new police officers in the national fraud service and the national fraud intelligence unit.

[Greg Clark (Tunbridge Wells) (Con)]

Last September my private Member’s Bill, which made public sexual harassment a criminal offence, received Royal Assent. Will the Minister say when that Act of Parliament will be commenced and when guidance to police forces will be issued?

Unauthorised Entry to Football Matches Bill

Tom Tugendhat Excerpts

2nd reading
Friday 23rd February 2024 Commons Chamber

[Alex Norris]

I absolutely agree. My friendship with the right hon. Member for Staffordshire Moorlands (Dame Karen Bradley) came about because she goes to City, as I do—that is something we talk about—and as does the hon. Member for Crewe and Nantwich (Dr Mullan). In fact, I can name every City fan in Parliament with absolute certainty, and I reckon I could do pretty well at naming everybody’s teams, although not that of the right hon. Member for Tonbridge and Malling (Tom Tugendhat).

[The Minister for Security (Tom Tugendhat)]

Will the hon. Gentleman give way?

[Alex Norris]

I am looking forward to this.

[Tom Tugendhat]

I am absolutely shocked that the hon. Gentleman is not an avid follower of the Tonbridge Angels.

[Alex Norris]

There we go. I will resist the temptation to ask the right hon. Member who their left back is, because I think that could expose him.

--- Later in debate ---

[The Minister for Security (Tom Tugendhat)]

It is a huge honour to be here under your chairship, Madam Deputy Speaker, and a huge pleasure to speak about a Bill on what I must admit is not what I would have immediately thought was my specialist subject.

[Mark Fletcher (Bolsover) (Con)]

Resign!

[Tom Tugendhat]

Hang on—that is a bit harsh. The Bill raises very important security considerations, so it has been an enormous pleasure to read about the Bill and the impressive work done by the hon. Member for Cardiff West (Kevin Brennan). The debate has shown quite simply that the passion in the House for what has always been known as the beautiful game twins with the passion for it in our country. Though it does not always attract the affections of everybody in the Chamber—I know that I disappoint some in the Tonbridge Angels when I say that, though many other sports clubs are obviously spared the pain of my support—it really does bring people together. When travelling or serving overseas, I was often touched by the fact that a community of Brits from any part of our country could immediately find an easy conversation and bond over various football teams, which some may support and others may vigorously and majestically oppose. I do not know why I find myself looking at my hon. Friend the Member for South Ribble (Katherine Fletcher), as a Manchester United fan, but for some reason Manchester United seemed to come up quite a lot as a divisive subject.

[Katherine Fletcher]

Like the Minister, I have lived and worked around the world. He makes a humorous point about the opportunity for bonding, but I would say that it happens not just with Brits. I lived and worked in Africa: at that time, the first words out the mouths of people there were “Bobby Charlton” and the second words were “David Beckham”. Although “jumpers for goalposts” is often used and can be a trite phrase, I have had conversations with people whose language I could speak not a jot, but we were united by the language of football. Does the Minister agree and is that perhaps something he has experienced?

[Tom Tugendhat]

Funnily enough, I agree that it is something I have witnessed; I have always struggled to join the conversation. I recently found myself in New York at the funeral of Henry Kissinger, and a few people there were discussing his passion for Arsenal football club and asked me about the latest season in London football. I have to confess that I found myself slightly wanting for words, but it was an environment in which many others were able to supply them, so I was delighted to stay silent as the prowess of the various football teams was discussed. As we are discussing Arsenal, among the research I have been doing into the Bill, it turns out that Cardiff City won the FA cup in 1927 by beating Arsenal, which is a remarkable achievement.

[Kevin Brennan]

One-nil.

[Tom Tugendhat]

One-nil. I believe Hughie Ferguson was the goal scorer—there you go; it’s amazing what you can get help with if you ask the right questions, isn’t it? That game was on St George’s day as well. How is that for a triple? It is absolutely true that football binds people together around the world. The number of conversations that one can have travelling and meeting Heads of State, Heads of Government, Ministers, officials—and, indeed, taxi drivers and folk around the world—is extraordinary, because football really does unite. That is why the Bill is so important.

I will start with one of the points raised by the hon. Member for Shipley (Philip Davies) raised, when he asked, “Why does this apply only to football and not other sports?” The reality is that football is hugely dominant in terms of sporting appearances and interest in the United Kingdom. It is clear that, over the past few decades, football has dominated that sporting appeal for spectators. It has been so dominant and, sadly, that has caused problems. I do not want to blame fans—that would not be right—but when large crowds gather, there are challenges with managing those crowds. Sadly, other sports are yet to attract quite the same interest.

[Philip Davies]

I understand the point the Minister makes, but last year at the grand national at Aintree, we saw lots of people entering the racecourse without a ticket whose only purpose was to cause as much destruction and misery as possible, and it led to quite a lot of disorder. I could be wrong, but my understanding is that nobody has been punished for that particular outrage and carnage, which also led to animal welfare issues. I gently say to him that this issue applies to more than just football, and if he wants to look for another sport, horseracing—what happened at the grand national at Aintree last year and may well happen again this year—would be a good case in point.

[Tom Tugendhat]

I am grateful to my hon. Friend for raising that point; I will certainly look into it. I will ensure that we have a proper scrub of other sporting events that might qualify. The point I was making was that the vast majority of such situations are football events, but he is right that there are standalone sporting events, like Aintree, that attract huge crowds as a one-off. I was delighted to be at the fantastic Market Rasen ground and at Lingfield not long ago, but the reality is that the crowds were not quite the same. It is not quite the same pressure that my hon. Friend describes, but I take his point and he is right to make it.

The hon. Member for Cardiff West has made an extraordinary effort to bring together hon. Members from across the House and to ensure that previous work is summarised into this short Bill to keep fans safe. I am very grateful that he has done that because, as Members have demonstrated, the words he has chosen have reached across the House and united people. When we think about our own sporting events, we know that those precious moments of family time can be threatened by individuals who might disrupt them.

The hon. Gentleman carefully made the point that automatic bans are not within the scope of the Bill. Such bans can be issued only by courts following a conviction for a football-related offence and are covered by other legislation. In reality, the Bill is constrained. As my hon. Friend the Member for Shipley said, the key to good legislation is to write it in a way that works—not so that it expands—and this is a tight piece of legislation that does exactly what it is supposed do.

The Bill will not do some of the things that were feared. My hon. Friend the Member for South Ribble raised a question about whether it would criminalise those who were in possession of a valid ticket, as she was in her leapfrogging days. It certainly will not do that. Those who are in possession of a valid ticket are free to enter a ground and should be able to access the ground. The fact that the turnstile does not work really is a test of her athletics, not of the law. I am delighted to say that I have no doubt that she would vault it again were the same situation to arise.

A question was asked about whether an offence is committed only if a person is attempting to attend a football match. The Bill does not cover those trying to get into pubs or car parks unless they are part of the controlled zone. As we all know, some football stadiums have a controlled zone; others do not. Anybody who has been to the Army and Navy rugby match will know that the car park is the most important part of that controlled zone. In fact, I have had the great privilege over many years of attending the Army and Navy rugby match—I have been on half a dozen to a dozen occasions—and in that time I am proud to say that I have watched 15 minutes of rugby in total. Although I should acknowledge that it is a security nightmare, it is the most extraordinary reunion and the car park of Twickenham stadium becomes a gathering of people who have not seen each other since Iraq, Afghanistan or wherever it might be. It is extraordinary how many formerly terrifying sergeants major or generals seem to be somewhat more friendly shortly before kick-off—I am sure it has absolutely nothing to do with extremely generous sponsorship of Pimm’s, Greene King or any of the other suppliers who ensure those events go with the passion and drive hon. Members would anticipate.

[Philip Davies]

On a more serious point, the Minister has prompted me to think more about the subject of car parks. Maybe I am dwelling on this too much, but if somebody has a valid match ticket but does not have a valid car park ticket, would they be committing an offence? The Bill says that an offence is committed only if they do not have a match ticket at the time of entry, so it seems to me that they may have a match ticket but they could still be trying to enter a place that they are not entitled to enter. I just wondered whether that is by design or a problem in the Bill that needs to be ironed out.

[Tom Tugendhat]

At the risk of being corrected by officials, I am going to say that clearly this is about the match ticket, not about the car park ticket. The reason is that the match ticket allows access to the stadium—to the event—and that is what is being criminalised. The access to the car park, as long as it is not within the controlled zone or an area that would otherwise be impermissible without a match ticket, is not covered by the Bill. A car park ticket can usually, mostly, be bought later. In this circumstance, we are not seeking to criminalise that. We are seeking to make sure that the Bill allows those who have a valid right of access to the event to get into the event without allowing those who think they have grounds for disruption, tailgating or whatever it may be to exploit a loophole in the law to get away with jumping over a wall, pushing through turnstiles or whatever it may be.

[Philip Davies]

The Minister is being very generous, and his explanation makes a great deal of sense. But if he wishes to come to Bradford City on any match day, as part of his research for the Bill, he would be very welcome. I will let him come with me and I will make sure he has a valid ticket so that he does not fall foul of the legislation. What he would find at Bradford City is that there is limited car parking, which is often at a premium and people would very much like to take advantage of it. There might be an issue with lots of people trying to tailgate in and barge their way into the car parking. Even though they had a match ticket, it would still cause quite a problem, but they would not fall foul of the Bill because they had a match ticket.

[Tom Tugendhat]

I would be delighted to take up my hon. Friend’s invitation. I have never seen football played in Bradford—

[Kevin Brennan]

Neither has he!

[Tom Tugendhat]

I will ignore the contribution from the hon. Member for Cardiff West, who is very disparaging about Bradford City. I am sure Bradford City would offer a fantastic afternoon and I would very much enjoy it. I simply cannot believe that my hon. Friend would not be backing a winner, given his reputation, so I will stay silent on that accusation.

The Bill deliberately does not go into car parking. As my hon. Friend will be well aware, in many areas car parking is very different. Some stadiums have car parking available and some have car parking on the street or in neighbouring car parks which would be covered by local government ordinances and so on. It would add complication and not clarity to the Bill. To his eternal point, Occam’s razor is to get to the heart of the matter; he would rightly be the first critic of any Bill that started to be expansive and to look like it might include supermarket car parks, or indeed any other kind of car park. That is why the Bill is written and drafted as tightly as it is, and why so many of us support it—the Bill has given us the space to focus on that part of the offence that is actually important.

The Bill has been very carefully drafted to set out this new offence of unauthorised entry or attempted unauthorised entry to designated football matches in England and Wales. In practice, “designated football matches” really means elite football matches. For these purposes, that does include Manchester United—[Laughter.] The Bill will also enable a court to impose a football banning order against a person convicted of this offence. Banning orders provide an effective tool to combat football-related disorder by preventing disruptive individuals from attending regulated matches for between three and 10 years.

I would like to pay my own tribute to Baroness Casey and her extraordinary work, not just on this issue, but in reforming and reviewing various other aspects of our national life that have required attention. Her independent review of the appalling disorder that occurred during the Euro 2020 final resulted in a clear recommendation that action needed to be taken to deter the practice of tailgating, which is the phenomenon that we have been covering of a ticketless person following a legitimate entrant into the stadium. Of course, the Bill is drafted in this way because tailgating is not the only problematic behaviour.

There are many other routes to attempted entry into football matches, such as jumping over walls, which we have seen at some stadiums, or hanging down from buildings and jumping through windows—we have occasionally seen videos of that happening abroad. That is extremely concerning, not least because it can lead to enormous personal harm and can encourage people to take extremely unwise risks. It can also lead to a crush within the building that could cause harm not just to fans but to those working in the stadium. As we know, stadiums these days are major businesses, and many employ a large number of people on match days.

Estimates suggest that somewhere in the region of 3,000 to 5,000 England fans without tickets gained entry to the Euro 2020 final, largely through mass forced entry. Witnesses spoke of being terrified by their reckless and aggressive behaviour. Despite my own lack of passion in this regard, I have taken my children to football matches and have enjoyed the days with them. I must admit that my children were much more impressed with the games than I ever was, but I enjoyed the experience very much. The opportunity to see it through their eyes was a great blessing; I found it enormously warming.

[Mark Tami]

A very modern parent.

[Tom Tugendhat]

Thank you very much.

It would be concerning—this is why the Bill is so important—if football were closed off to families because people felt threatened and wished to keep their kids away from such events.

[Katherine Fletcher]

Like they used to be.

--- Later in debate ---

[Tom Tugendhat]

Exactly—my hon. Friend correctly points out that they used to be. I suspect that that is one of the reasons we were not encouraged to attend when I was a child, despite my uncle’s great passion for Tottenham Hotspur. In fact, happy birthday to him. It is his birthday today—he is in the other place, so maybe if we shout loudly enough he will hear it.

The reality was that at that point in our national life, football was disrupted by significant violence. Indeed, some areas appeared to be almost lawless. I am very grateful not only to the Football Association but to police forces around the United Kingdom and the various organisations that contributed to making football safe. Even at the Tonbridge Angels, which is not traditionally a hotbed of dissent, the family welcome is remarkable—that is extremely important.

There are other unauthorised methods of entry at football matches, ranging from surreptitious entry—including, as the hon. Member for Cardiff West said, bribing club staff—to various forms of deception. I am therefore very pleased that the Bill seeks to make all forms of unauthorised or attempted entry an offence. That is eminently sensible, given that all attempts at unauthorised entry draw upon stadium security resources and can result in individuals with dangerous disruptive intent gaining access to the stadium and to spectators, and that overcrowding has health and safety risks and implications. This is therefore an important change in the law.

It is also right that the Bill includes not just the entrance points but the outer perimeter security. As the hon. Gentleman set out clearly, it is about preventing a concertina effect, whereby pressure on one area has repercussions on others. He is correct that the Bill sets out carefully why that is so.

We cannot tolerate decent, law-abiding football fans being left frightened or distressed, and neither would it be acceptable for football stadiums to become unsafe because of a selfish minority. The Government are clear that the safety of those attending sporting events is of the highest importance, and it is imperative that football fans are able to enjoy the sport safe in the knowledge that those who attempt to cause disorder will be dealt with swiftly. The Bill will help to achieve that, which is why we support it.

It is right and proper that those who engage in unacceptable criminal behaviour face the full force of the law, and the introduction of a new football-specific offence will send a deterrent message to would-be perpetrators. The measure enables the courts to impose football banning orders against offenders, and I remind the House that football banning orders have historically proved successful in preventing known troublemakers from continuing to offend, and in deterring others from offending. As such, the Government wholeheartedly support their use in the context of unauthorised entry to matches.

[Chris Clarkson (Heywood and Middleton) (Con)]

The Minister speaks with great passion, and I know this subject is close to his heart. Who among us has not enjoyed a matinee performance by England Rovers at the Oval? I must press him on a technical detail raised by the shadow Minister. Who plays left back for Tonbridge Angels?

--- Later in debate ---

[Tom Tugendhat]

Discretion is important at such moments. As my hon. Friend will be aware, Tonbridge Angels have recently bought a few new players. It is far too early for me to start picking the team, which is the manager’s job after all. He would not thank a Minister of the Crown for stepping on his hallowed turf.

It may be helpful for Members to be aware that both the police and the Football Association are similarly supportive of the Bill and have contributed helpfully.

Once again, I thank the hon. Member for Cardiff West for introducing the Bill. I also thank the hon. Member for Nottingham North (Alex Norris) and the Opposition for their approach. I hope the Bill sets an example that is adopted by other Assemblies, which seems appropriate given the importance of football in the national life of Scotland and Northern Ireland. I thank everyone who has contributed to this debate.

This important measure will ensure that the perpetrators of these disruptive and dangerous offences face justice, and it should provide a strong deterrent effect. I therefore join the hon. Member for Cardiff West in urging the House to get behind the Bill.

Investigatory Powers (Amendment) Bill [Lords]

Tom Tugendhat Excerpts

2nd reading
Monday 19th February 2024 Commons Chamber

[Stuart C. McDonald]

My hon. and learned Friend will not be surprised to hear that I completely agree with her.

In fact, that brings me to the next point I want to raise in relation to clause 2. As well as putting in place what I struggle to see as being a reasonably operated assessment, the clause raises concerns in relation to consistency with data protection legislation and with human rights obligations. The factors to be taken into account when undertaking that really difficult assessment do not even expressly include the sensitivity of the data in question, which surely should be central to any question of processing. That is an inconsistency with existing data protection principles and laws, and I agree that the compatibility of such provisions with our human rights obligations is also surely highly dubious. Just because someone has shared personal data does not mean that they automatically lose their right to further protection around how that data is shared and processed, especially when it is sensitive personal data, as my hon. and learned Friend has just said.

The role of judicial commissioners in this area is even further diluted, reduced to reviewing by judicial review standards whether datasets do indeed relate to data where there can be low or no expectation of privacy. Frankly, that is not a safeguard at all. At the very least, their role needs to be strengthened when the Bill is considered in Committee. We also need to seek assurances around how the Bill will impact on the reporting of the retention and use of bulk personal datasets. If large numbers are retained under category authorisations, we may not know how many datasets are actually being gathered.

Let me turn to various aspects of part 4, on notices. Again there are some controversial provisions, particularly in clause 21 and the requirement on selected telecommunications operators to inform the Secretary of State if they propose to make changes to their products or services that would negatively affect existing lawful access capabilities. That seems like an extraordinarily broad power, without anything remotely appropriate in terms of oversight and limitations. These powers are going to make the UK a real outlier. Essentially, the Secretary of State will be empowered to say to tech companies, “You are not allowed to improve your products without consulting us, so that we can still break in to access the data that we need and when we want it”. Despite what the Secretary of State says, taken together with other changes to review processes, such powers could easily be used to significantly delay, or de facto veto, updates to security, rendering everybody’s data more vulnerable to hacking by third-party actors.

[The Minister for Security (Tom Tugendhat)]

That is simply incorrect, and I know that the hon. Gentleman would not wish to continue down a road that he knows to be incorrect. Let me just be very clear: this is a continuation of a power that was granted in 2016. The notice does not extend that power; it merely enables a conversation to begin with companies before any action is taken, to maintain an existing standard and not in fact to change it.

[Stuart C. McDonald]

I am grateful for that clarification from the Minister, and we will of course engage further in this debate in Committee.

These concerns have been raised not just by me but by significant tech companies; this is not something that has come to me simply through perusing the Bill. The key question remains: why is there to be no proper oversight of these notices and notice powers by independent advance authorisation? Why is there not even the double lock that applies to other notices that can be served on communications providers under that Act? Surely that scrutiny should be carried out in advance. There are also lots of question marks around the expanded claims of international jurisdiction. How will potential conflicts of law be resolved, especially if a company subject to one of these notices that is contrary to its domestic laws cannot even say anything about it because it is bound to secrecy by this legislation? What are the prospects of other Governments copying what our Government are doing and seeking to replicate such provisions, and what would the impact of that be on UK companies?

Turning to internet connection records, the starting point is that we should remember that no other European Union or Five Eyes country permits the requiring of ICR generation or retention in relation to its own residents, so this was a hugely controversial development in the 2016 Act. As we have heard, ICRs can reveal huge amounts of deeply sensitive information about a person. For now, secret services can seek ICRs only when certain facts that are already known, such as the identity of a person connecting or the time and use of the connection, so that the retention is at least targeted in some way.

The risk in this Bill is that reasonable suspicion will no longer precede targeted surveillance. Instead, the Bill would seek to use ICRs for the discovery of new targets, which is a really significant jump and development. I can genuinely understand some of the reasons being offered for this change, and I am not unsympathetic to the case being made, but if these powers are not carefully circumscribed, they risk creating a big step towards mass surveillance and fishing exercises. We need to ask whether there are less invasive alternatives and whether these powers are therefore really necessary. Alternatively, we need to look again at the oversight mechanisms for the use of these powers.

We also have concerns about the Bill’s proposals in relation to the offence created by the 2016 Act, where relevant persons in a relevant public body knowingly or recklessly obtain communications data from a telecoms or postal operator without lawful authority. This Bill seeks to set out examples of what would amount to lawful authority, which is a laudable aim. However, there are real questions about whether some of the examples in clause 12 are not in fact redefining the concept of lawful authority. In particular, the assertion that there would be lawful authority simply because

“the communications data had been published before the relevant person obtained it”

is controversial. That is particularly so when

“‘published’ means make available to the public or a section of the public (whether or not on a commercial basis).”

As I said in relation to bulk personal datasets, limited publication is not authority for intrusive surveillance. Could a simple private message not amount to publication of comms data? The implications of this definition of lawful authority need very careful scrutiny indeed.

Finally, on the interception and hacking of parliamentarians, making provision for circumstances where the Prime Minister is unavailable to play his part in a triple lock seems sensible, but the fact that the issue of snooping on MPs and others is being revisited should trigger us all to rethink the whole scheme. Our role of representing our constituents, interrogating legislation and holding the Government to account should not be interfered with lightly. We should take the chance to consider post-surveillance notification of MPs who have been spied upon, by judicial commissioners, once investigations are completed. As matters stand at the moment, redress is almost impossible to obtain. We should also require that the investigatory power commissioners be informed every time these powers are used, so that there is transparency about how often this is happening. All other options should be on the table as well.

I started by thanking intelligence and law enforcement authorities and I am happy to do so again in closing, but our respect for them does not mean we should ever consider writing blank cheques or handing them whatever powers they ask for. They are not perfect. From time to time they exceed their powers and certain individuals abuse their lawful capabilities. The powers that they seek through this Bill are extremely invasive and broad in scope. There is a real danger that key provisions of the Bill will go beyond what is necessary and get the balance with privacy and human rights wrong. These provisions will need serious scrutiny and revision in Committee, and that is what we in the SNP will seek to secure.

--- Later in debate ---

[Mr Kevan Jones (North Durham) (Lab)]

Let me start by thanking our security services. I think I am now the longest-serving member of the ISC, and it is a privilege to work with them and scrutinise their work, as our Committee does. They do not get a great deal of publicity—for the right reasons—but when they do, it is sometimes not factual by any stretch of the imagination. They do an invaluable job, and in protecting our democracy, the threat that they face—that we all face—is changing, so the Investigatory Powers Act 2016 needs revising.

As my hon. Friend the Member for Wallasey (Dame Angela Eagle) said, the important point is that any new powers that we give the security services to act on our behalf should come with an equally balanced level of scrutiny and oversight. I see the scrutiny of our security as like a three-legged stool, with the Investigatory Powers Commissioner, the Investigatory Powers Tribunal, and the ISC. Well, actually, I would say that it is more like a two-and-a-half-legged stool, because the Home Secretary has done what most Ministers do; they say how wonderful the ISC is, how much they value our work, and that they want us fully involved—in passing this legislation, for example—but since 2017, when I first sat on the ISC, there has been a marked increase in lip service paid to it, as I think we see again in the Bill. As my right hon. Friend the Member for Normanton, Pontefract and Castleford (Yvette Cooper) said, we have not met the Prime Minister for 10 years—any of them; I think we had one who offered to come in the dying days of her Administration. We have taken evidence from the security services on the Bill, and I have to say that they are not the problem: it is the Government who are the problem all the time. That was the case with the National Security and Investment Act 2021. Frankly, it is an uphill struggle to get things changed in this Bill—changes that would not only improve the Bill, but make sense. One has just been highlighted by the Chairman of the ISC, the right hon. Member for New Forest East (Sir Julian Lewis).

On occasions, it is a bit like going round in circles. I will give an example. We have actually made one little advance in the other place, in terms of acceptance of the changes to do with the triple lock. Now, though, the sensible thing we are asking for—that it should be in the Bill that the Prime Minister should actually see those warrants—is being resisted as though it would somehow stop the world. I am sorry, but I do not think it would. I think the Government believe that they have to be seen to be resisting any changes. I like the Minister, but the passage of the National Security and Investment Act was a pretty dark day for the Government’s relationship with the ISC, because we had to fight tooth and nail to try to get anything changed in that Bill.

[Tom Tugendhat]

I was not in the Government then.

[Mr Jones]

I think the Minister was, actually. I think he picked up the tail end of that Bill.

The ISC has looked at this issue in detail. We have taken evidence from the heads of the security services, and we want to be supportive of change, but we also want that important role of scrutiny and ensuring the public are protected from the occasions when things might go wrong. The other thing that struck me today is that, although the Home Secretary can read a good speech, I am not sure he had a great grasp of some of the detail of the Bill. All I ask of the Minister is to please take on board some of the things we are saying, so that we can make progress in Committee. They are not radical things that are going to upturn the Bill; they are things that will improve it. I suspect that in certain parts of the Government there is a hatred of the ISC, and the belief that we have to be resisted at all costs. That will lead to a poorer Bill, because the amendments we will be tabling would actually improve the Bill. Lord West also did a great job in the other place.

I now turn to clause 2 of the Bill, which introduces the bulk personal data regime. There is a worrying gap: oversight of what are deemed low or no privacy datasets added to category authorisations. At the moment, the system does not work, because things like the electoral register have to get special permission. That is silly, frankly, but we need to ensure that these provisions are scrutinised.

New part 7A of the Investigatory Powers Act 2016, introduced by clause 2, provides for a light-touch regime for the retention and examination of bulk personal datasets by the intelligence services where the subject of that data is deemed to have low or no reasonable expectation of privacy. As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) said, people are increasingly giving their personal data with little thought to how it is going to be used—not just by the intelligence services, but for commercial purposes. That needs looking at.

Approval of such a dataset will be sought either under a category authorisation, which encompasses a number of individual datasets that have a similar content and may be used for a similar purpose, or by individual authorisation, which covers a single dataset that does not fall neatly into a category authorisation or is subject to a complicating factor. For a category authorisation, a judicial commissioner will approve the overall description of the category authorisation before it can be used. A judicial commissioner will approve renewal of the authorisation after 12 months, and the relevant Secretary of State will receive retrospective annual reports on the use of category and individual authorisations.

However, as the Bill is currently drafted, this oversight is all retrospective. The problem is that what is missing is real-time or even near real-time oversight of changes. Under the present regime, once a category authorisation has been approved, the intelligence services have the ability to add individual datasets to that authorisation through internal processes alone. They examine the dataset without being subject to any political or judicial oversight, and they would be able to use those datasets for potentially a year without anybody being any the wiser.

We do not question why the security services need these powers, but there is potential for mission creep without any oversight of what is being authorised. We are not saying that these powers are not required; they are required. What we are really being asked to do is rely on the good faith of the intelligence services to use the powers in a certain way. I do not think that is strong enough, and no legislation should be solely dependent on good will. We also have to guard against—there are such occasions—situations when mistakes happen or people use powers for purposes that are not in the public interest.

It is important that we fill this 12-month gap, and the ISC thinks that the easiest and simplest way to change this process would be for the Investigatory Powers Commissioner to be notified when an individual bulk personal dataset is added by an agency to an existing authorisation. I understand that Lord Anderson of Ipswich, in his review of 2023, recommended a similar proposal. The argument from the Government—it is similar to what they have used throughout this Bill, as the Committee Chairman has remarked—is that that will be onerous in adding to the work of the intelligence services. Well, it would not, because it would simply mean sending a one-line email to the Investigatory Powers Commissioner containing the name and description of the bulk personal dataset as soon as reasonably practicable.

The decision would be approved internally and then sent to the Investigatory Powers Commissioner, so it is not actually asking for approval. It is just making sure that the Investigatory Powers Commissioner is aware of what is being added, and that the individuals taking such a decision realise that they must inform the Investigatory Powers Commissioner. That would obviously allow the Investigatory Powers Commissioner to look at trends in what is happening. Clearly, after the 12 months, they could look back, but they could also intervene if they thought something was not in touch.

An argument the Government use quite often about this Bill is that it is to have a light-touch approach, and I think this suggestion is for a light-touch approach. I do not know what is onerous about the security services sending an email to the Investigatory Powers Commissioner. I think it would ensure the oversight that is needed. Real-time oversight is what we are suggesting, and I do not think it would add to the administration of the security services, but it would lead to the Investigatory Powers Commissioner at least having some visibility on another layer at which decisions are taken.

The proposal would be a very simple thing to do, and I do not understand why the Government are resisting it. I suggest they are resisting it for the many reasons they have resisted some of the other sensible things we have put forward: just because they want to do that. I do not know how we go forward with the relationship between this present Government and the ISC. Dragging information out of them screaming and kicking is taking a long time, even though we have a legal duty to get information, and the critical point now is the starvation of resources from the Committee which is creating real problems in the way that it can operate.

I hope that things change and that when we table amendments we will not get the usual response that amendments to this type of legislation should only be done in the Lords. Are we here to cause trouble for the security services? No, we are not; we want to ensure we do our job, which is set out in statute, to supervise the security services and improve the powers, but to ensure that the public have the recognised safeguards we should expect in a democracy such as ours.

--- Later in debate ---

[The Minister for Security (Tom Tugendhat)]

I thank hon. and right hon. Members from across the House for their contributions not just today, but throughout the many different stages of the Bill. I pay huge tribute to the Members of the other place who have contributed enormously, in particular Lord Anderson, who has been an exceptional asset to the passage of the Bill and the condition it is in, and Lord West who, as a member of the Intelligence and Security Committee, not only shepherded some extremely important amendments into the Bill, but was kind enough to say that it was the first time in 14 years that he had ever had an amendment accepted by the Government. I am delighted to say that it was to this Bill. It was because we are so committed to working with all parts of both Houses and with the ISC that we got so much through in the other place. [Interruption.] That said, many comments will no doubt be raised in this House. I can assure hon. Members, especially the right hon. Member for North Durham (Mr Jones), that I will approach all suggestions in the way that I have done to date. Where we may not agree—it may not be that he is right, or that I am right—it will be for good reason and I will set out my reasons in the appropriate way.

The Bill is about one fundamental thing: the security of the British people. We rightly heard from my hon. Friend the Member for Broxbourne (Sir Charles Walker) about the nature of freedom, but the truth is that freedom without security is impossible. It is a chimera. The Bill is about ensuring that the British people have the security to enable that freedom. That is an absolutely vital responsibility not just of this Government, but of this House and the other place. I am grateful for the work that the hon. Member for Barnsley Central (Dan Jarvis) and the shadow Home Secretary, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) have put in to ensure the co-operative, bipartisan and open approach to the Bill, as is merited by the work of our fantastic intelligence services to provide security for our whole country.

As the British public would expect, we keep our approach to national security under constant review. Where we identify the need for change or improvement, we will not hesitate to act. That is why we have brought forward the Bill, which acts on the findings of the Home Secretary’s report and Lord Anderson’s independent review into the Investigatory Powers Act 2016. Hon. and right hon. Members will not need me to rehearse the arguments, but we have seen an extraordinary, rapid evolution in the nature of the threats since the 2016 Act: Russia’s threat to the whole of Europe and not just to Ukraine; the violence that Iran is trying to bring not just in the middle east but even on to our own shores; and the way technology has enabled hostile states not only to steal our technology but to introduce intelligence-gathering platforms into our country through the guise of car sales.

We have seen a change in the way technology works and a change in the nature of the threats, and we must keep up to date with those changes. That is why this work is so important. It is essential that the United Kingdom’s investigatory powers framework remains fit for purpose to help our intelligence agencies detect and stop some of the most serious threats posed to the UK and its citizens, including threats from terrorism, state threats, and child sexual abuse and exploitation.

Because these are exceptional powers, Members have rightly pointed out that they require appropriate, robust and, in this case, world-leading safeguards, and that is what we have sought to set out. The changes in the Bill are relatively narrow in scope, but unless we make them now, the ability of our agencies to tackle evolving threats will be increasingly constrained in the face of global instability, technological advances and state hostility, so now is the time to act.

Let me now deal with some of the points that have been raised. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) raised a rather interesting point about the changes to “lawful authority” in clause 12 in respect of published data. The purpose of new subsection (3A) is for material that has already been published not to require additional authority for its disclosure by a telecommunications operator to a relevant public authority. The definition of “publish” and reference to “a section of the public” would not include private messages unless they had been made public in some other way—just as our sitting room could not be considered a public place unless we opened it up to the public. It would be our choice, and nothing to do with the nature of the building.

The hon. and learned Member for Edinburgh South West (Joanna Cherry), who has made important contributions through her chairmanship of the Joint Committee on Human Rights, raised questions about the transparency safeguards in the 2016 Act. Those extremely robust safeguards are centred on considerations relating to intrusion into privacy, and that will remain the case in the Bill. They include a requirement for investigatory powers to be used in a “necessary and proportionate” way, with independent oversight by the Investigatory Powers Commissioner and redress through the Investigatory Powers Tribunal.

My right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) contributed in his usual robust fashion to the debate—and, I should add, to the session that I was fortunate enough to have with the Intelligence and Security Committee, in which he was enormously helpful in assisting me with some changes to the Bill. He spoke about the five individuals who could be designated by the Prime Minister, and asked why we had not referred specifically to “those with warranting powers”. It is possible that a Minister with warranting powers who had that experience would then be moved to another Department, or indeed that the machinery of government change would alter the nature of the oversight. While we felt that it was right to limit the number to as few as possible, we also felt that it was right to have a relevant selection, which is why we left the number at five—after some very good consultation with the ISC, for which I am extremely grateful to my right hon. Friend the Member for New Forest East (Sir Julian Lewis) .

[Sir John Hayes]

My right hon. Friend has been immensely generous both in giving way and in his earlier comments about my role. Will he briefly deal with the issue of the other bodies with the regulatory function who can compel the release of communications data? As he will remember, the point I made was that the existing law obliges them to take further procedural steps before they do so. Why is that no longer deemed appropriate?

[Tom Tugendhat]

As my right hon. Friend will know, several powers in the earlier Bill—the one that he took through the House—were indeed overseen in various different ways. The Bill does not seek to undermine any of that oversight; what it seeks to do is clarify, in certain areas, where it is necessary. My right hon. Friend has highlighted individual agencies or bodies, and I should be happy to write to him to ensure he is aware of exactly where that is being covered.

The right hon. Member for North Durham spoke about prior judicial authorisation for ICRs. The purpose of the Bill is to try to streamline operations for the intelligence services in areas where the risk is of, as we are calling it, low or no expectation of privacy. He will have seen in the Bill what the expectation means, including areas where information has already been readily made public. I accept his commentary and I would be happy to enter into further conversations with him, but the reason we are not currently going down that route is simply that the existing law, the IPA 2016, allows the collection of bulk data with prior authorisation. This is intended to speed the process up. If we put in the measures he is referring to, we would effectively remain in the same place that we are now. That would make it harder for the volume of data that is now coming to be considered by the intelligence agencies. That is why we have made the provision for a subsequent approval rather than a prior approval. He is right to say that it involves a maximum of a year, although I think it unlikely that it would go to that maximum. That will be in cases where this is low or no expectation of privacy—after it has already been agreed by a judge to be in the correct category. I think the right hon. Gentleman might be looking at this through the other end of the telescope.

[Mr Kevan Jones]

What the Minister has to realise is that the big concern from the public—although let’s be honest, the public are not looking at the detail of this—is that somehow the security services will be getting access to huge amounts of bulk data and just having a free run at it. All that I and the Committee are suggesting is that an email should be sent when there are changes to the Investigatory Powers Commissioner. That would be a simple thing. It would not be onerous, and it would reinforce the point that there was at least some potential oversight of the process.

[Tom Tugendhat]

I think we may be conflating different aspects of the Bill. I do believe that this already has oversight.

Let me answer the point raised by my hon. Friend the Member for Broxbourne, which touches on a similar area. Where people have the right to and expectation of privacy and freedom, this provision does not remove that right. What it does is allow the intelligence agencies to use bulk data to target an individual at a particular point, and the excess collected information will not be able to be used for targeting an individual without the warrant process that would be expected for any initial search. In that sense, this is not undermining anybody’s privacy; it is allowing for the fact that information is now largely in bulk format. The hon. Member for Barnsley Central was talking about steaming open envelopes. It is impossible to steam open a single envelope today; one has to steam open thousands because that is how data comes. Without an amendment such as that set out in the Bill, we would simply be interrupting the work of the intelligence services to the degree that it would hold them back and make the process harder, but I would be happy to take this up with my hon. Friend the Member for Broxbourne later if he wishes.

I thank the hon. Member for Halifax (Holly Lynch), who was here earlier and made an interesting point about the various ways in which the memorandum of understanding should be looked at through the National Security Act 2023. Friends of mine will know my thoughts on that and know that I gave the Conservative party the chance to allow me to change that 10-year absence, but the Conservative party chose somebody else to make that decision so I have sadly lost the ability to have that influence.

My right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) made a typically insightful speech and typically sensible comments on the ways in which we must consider how the authorisation must not be used to mount general surveillance. Condition D will be used only when an applicant makes a clear and compelling case, based on tangible, reliable intelligence leads, information and analysis, that the resulting data will identify parties involved in a relevant serious crime or national security-related specified operation or investigation. The applicant must explain any anticipated collateral intrusion, and how this will be managed to ensure that the application is necessary and proportionate to the outcomes of the investigation.

[Sir Jeremy Wright]

I accept what my right hon. Friend says but, in the context I described, the case is being made to someone else within the intelligence agency. There are, of course, two types of authorisation—D1 and D2—and we are worried about D2, under which the application is made from inside the intelligence agency to inside the intelligence agency. That does not present the sort of external scrutiny that we suggest is necessary.

--- Later in debate ---

[Tom Tugendhat]

My right hon. and learned Friend is right, but he also knows that IPCO has retrospective oversight of these areas. Where it comes under a category allocation through “low or no”, there is an automatic review period within a year. Although he is correct that the application is made within the service, it is within the service subject to a pre-agreed condition and with follow-up oversight, so as to enable that speedy response.

[Sir Julian Lewis]

On a different but not unrelated point, the Minister will recall that I referred to the annual report given to the Secretary of State detailing the individual bulk personal datasets that had been retained and examined. There is no extra work involved in letting the ISC and IPCO see that report. The only possible justifiable exclusion would be something that, at the time of the report, was still current. Is there any reason at all why IPCO and the ISC should not be sent that report, rather than a severely watered-down version?

[Tom Tugendhat]

My right hon. Friend answers his own question. The reason for the difference is the currency element.

[Sir Julian Lewis]

In that case, we can reach agreement if the Minister would like to give us an assurance that the only difference between the two reports will be the exclusion of matters that are current at the time of drawing up the report, but I suspect that there will be many other differences between the two reports.

[Tom Tugendhat]

I will be very happy to talk to my right hon. Friend about that to make sure that he is satisfied. It is important that we make sure that the reports that go to the House—through the ISC, because of the nature of the reports—are relevant and allow appropriate scrutiny. I think we can all agree with that.

I have covered the points raised by my hon. Friend the Member for Broxbourne, so I will turn to the hon. Member for Strangford (Jim Shannon), who made an extremely important point: that his constituents, like any other citizens of the United Kingdom, should expect the right to privacy. He also made a compelling point about the need for security, and I think the Bill strikes that balance extremely carefully. He is right to say that people will be concerned, and he is not alone. I am also concerned that we maintain the right to privacy within our legislative framework, which is why we checked very carefully that the Bill is fully compliant with the ECHR right to a private life. It is also why we looked at the various exceptions.

The hon. Member for Barnsley Central mentioned the notices regime, and he is right that we will keep it under review. We maintain a regular conversation with companies that have an interest in this area, and he is right to say that there is an overseas element. I merely point out that it is the role of this House to legislate for the security of the British people and, in particular, for the safety of our children and families. Such security is not something we can outsource to tech firms on the west coast. We sometimes have a responsibility to pass extraterritorial laws—as he knows very well, we have done that in the past—so although this measure adds to that ability, it is not detrimental because it asks people to maintain their current position before making any changes and to talk to us during that period. There is no requirement to break any policies, change products or introduce new products; it is merely to maintain the status quo, so that we have the same ability to keep the British people safe until we have had a conversation about how that status quo should change.

Finally, the hon. Member for Barnsley Central raised a question about trades unions. He is right that there are many different professions where protected characteristics could come into play, including lawyers, doctors and psychiatrists, and where any such intrusive power should be used with exceptional caution. I would just say that, due to the nature of this place and Parliaments around the United Kingdom, the position of parliamentarian is particular, which is why it is set out specifically and separately in the Bill. That does not mean that any attitude against any other individual should be used cavalierly. It is not a question of the role or the post the person holds, but their rights as a British citizen. Those rights should be absolutely guarded from intrusion or aggression by the state without exceptionally good reason. This amendment, which the hon. Gentleman is kindly supporting, sets out that balance between British citizens’ right to privacy and their right to security. With that, I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Investigatory Powers (Amendment) Bill [Lords] (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),That the following provisions shall apply to the Investigatory Powers (Amendment) Bill [Lords]:

Committal

(1) The Bill shall be committed to a Public Bill Committee. Proceedings in Public Bill Committee

(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 12 March 2024.

(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Consideration and Third Reading

(4) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.

(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and Third Reading.

Other proceedings

(7)Any other proceedings on the Bill may be programmed.—(Mark Fletcher.)

Question agreed to.

Investigatory Powers (Amendment) Bill [Lords] (Money)

King’s recommendation signified.

Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),

That, for the purposes of any Act resulting from the Investigatory Powers (Amendment) Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of:

(a) any expenditure incurred under or by virtue of the Act by the Secretary of State or a government department, and

(b) any increase attributable to the Act in the sums payable under or by virtue of any other Act out of money so provided.—(Mark Fletcher.)

Question agreed to.

Protest Measures

Tom Tugendhat Excerpts

Thursday 8th February 2024 Commons Chamber

[The Minister for Security (Tom Tugendhat)]

With permission, Mr Deputy Speaker, I shall make a statement on new Government measures to tackle unacceptable behaviour at protests.

In the aftermath of the horrific attacks on 7 October, many people took to the streets to make their views heard. Many did so peacefully and respectfully. I had the great privilege of marching alongside many people, including some in this House, against antisemitism on the streets of both Manchester and London. Sadly, those protests do not tell the whole story.

Over the past few months, we have all seen disturbing and distressing examples of hateful abuse, of serious damage, and of law-abiding citizens being intimidated and prevented from going about their daily life. The right to protest is fundamental to our democracy, but when we see people hurling racist abuse, desecrating national memorials of great significance to our country, or taking flares to marches to cause disruption and fear, the only reasonable response is outrage and disgust. Tolerating these actions would be radicalising in itself. This Government will not stand by and allow a small minority to incite hatred and commit crimes, undermining our proud tradition of peaceful protest.

Today, the Government have announced a package of measures to put a stop to this criminality for good. Protesters have for too long been able to claim in law that protest is a “reasonable excuse” for criminal behaviour. Blocking roads, preventing ambulances from getting through and stopping people from getting to work or visiting loved ones are breathtakingly selfish acts. The British public certainly do not see an acceptable justification for that level of disruption to their life. That is why we are removing that defence for relevant crimes. Protesters will no longer be able to cite the right to protest as a reasonable excuse to get away with disruptive offences, such as blocking roads.

Through the package that we are announcing today, we will crack down on those who climb on war memorials. In recent months, we have seen cases where individuals have broken away from large protests and scaled national monuments. War memorials belong to all of us. They are the altars of our national grief, and it is clearly not acceptable to disrespect them in that way; it is an assault on the memory of so many who gave their life for our freedom and to defend our nation. Attacking our national memorials goes beyond the legitimate exercise of free speech. We must not give those who commit criminal acts at protests the ability to get away with it by simply hiding their identity.

Once the legislation comes into force, the police will have new powers to arrest protesters at certain protests who wear face coverings to conceal their identity. Those who shout racist abuse and extremist rhetoric will no longer be able to hide from justice. We are also protecting the public by putting an end to people bringing flares on marches. Flares have been used during large-scale protests, and have been fired at police officers, posing significant risk of injury. A new offence will ban the possession of flares, fireworks and any other pyrotechnics at protests. Anyone who flouts the new rules will face serious consequences, including up to three months in jail and a £1,000 fine for those who climb on war memorials.

The changes that we have announced today build on the legislation that we introduced last year to help the police tackle disruption from protests. We criminalised interfering with key national infrastructure through section 7 of the Public Order Act 2023. Since we passed the Act last year, the Metropolitan police have made more than 600 arrests to minimise the disruption caused by Just Stop Oil. On Tuesday, the Home Secretary met policing leaders to thank them for their work, and to encourage the use of all existing powers at their disposal, as well as these new measures, to maintain order at protests. I am very grateful to frontline officers across the country for their efforts and successes in keeping the British people safe during an immensely challenging period. I know that policing these events on a regular basis is both complex and demanding. It takes officers away from crucial work preventing crime and protecting vulnerable people in our communities.

As I have made clear, freedom of expression is vital to our democracy, and this House champions it every day. People must be able to speak without fear, and have their right to peaceful protest protected, but those freedoms and rights are not absolute, for very good reason. There is no freedom to commit violence or intimidation, or to harass others. This country has laws against vocally supporting terror organisations for a very good reason, and last month, the Government proscribed Hizb ut-Tahrir as a terrorist organisation. That group actively celebrated the 7 October terrorist attacks in Israel that led to the rape and murder of many, many people. It is an organisation that has poisoned minds for far too long.

We must, and we will, continue to stand with communities who feel threatened, and ensure their safety wherever they live and work. The Government are sticking to the plan to give police the powers that they need to crack down on crime and keep our streets safe. We will never tolerate hateful, dangerous or intimidating behaviour. We will always put the decent, law-abiding majority first. We will do what is right and fair. I commend this statement to the House.

[Mr Deputy Speaker (Sir Roger Gale)]

I call the Opposition spokesman.

[Dan Jarvis (Barnsley Central) (Lab)]

I thank the Minister for his statement, and for advance sight of it. The Labour party absolutely respects the fundamental freedom to make legitimate, peaceful protest, but when that freedom is abused to intimidate, harass and harm others, safeguards must be put in place to protect the public. It is essential that the police be able to maintain public order while safeguarding the right to legitimate, peaceful protest. We will therefore scrutinise the details of the proposals to ensure that any new measures are applied appropriately and proportionately.

I will respond to the measures that the Minister has outlined. First, there are the new powers for the police to arrest protesters using face coverings to conceal their identity. While we understand the genuine concern about protesters committing public order offences while wearing face coverings, we are also concerned that there might be, at times, legitimate reasons why some protesters would want to wear face coverings. Let me give an example. When dissidents protest outside foreign embassies—the Minister will know which ones I have in mind—they may well want to conceal their identity to protect their family back home. The UK is, and should always be, a safe haven for dissidents opposing oppressive regimes. Can the Minister provide more detail about how that new power will be applied appropriately?

Secondly, the Opposition welcome a ban on flares and fireworks, which have been used to fuel public disorder and intimidate police officers in recent months. However, the policing of large protests could pose a challenge to enforcing the ban effectively, so I would be grateful if the Minister outlined what guidance will be issued to police forces on enforcing that at large protests with thousands of people in attendance.

Thirdly, on measures to protect the sanctity of war memorials, I know that the Minister will agree—as will, I am sure, every right hon. and hon. Member in the House—that they are extremely important places. They are places to remember those who have made the ultimate sacrifice in the service of our country, and they must always be respected. During protest activity last year, a very small minority of protesters desecrated the sanctity of war memorials, which understandably sparked outrage right around the country.

Protest activity also raised the issue of what is defined as hateful extremism. Despite promises, the Government have not so far been forthcoming with their definition of hateful extremism, which would help the police forces to police protests better. Can the Minister say when that will be brought forward, and outline when the Government will bring forward an updated counter-extremism strategy? The current one is eight years out of date.

The right to peacefully protest is a fundamental freedom in our country. It must not be abused, but it must not be curbed unnecessarily, either. The Opposition will scrutinise these measures further to ensure that they strike the right balance between safeguarding the right to protest and the important duty to safeguard the public.

[Tom Tugendhat]

I thank my hon. Friend—and he is my hon. Friend—for his support and comments. He is quite right that protecting peaceful protest and the right of free citizens to express their views on our streets is essential to the Government’s mission, and it is one of our priorities. The points that he raises are fair; in some cases, I will have to write to him with more detail, but I will cover some of the areas that I think matter greatly.

On face coverings, my hon. Friend raises important questions about when there might be a legitimate reason for somebody to cover their face. The guidelines and the legislation that we are setting out will cover that, because police officers will have discretion to give an order requiring a face covering to be removed. Those commanding the policing of protests will therefore have discretion over when they ask for that instruction to be carried out.

Secondly, on pyrotechnics, the instruction is quite clear: the measure relates to those participating in the protest. If, particularly around Diwali or Guy Fawkes’s day—not a day that I think anybody in this House would ever celebrate—people who have bought fireworks happen to pass a protest, they will not be caught by the offence. It refers to participation in the protest.

On my hon. Friend’s point about war memorials, he and I know far too many names that have been etched on to those stones. We also know that protests on war memorials can tear open extremely painful wounds that have long been closed. That is why I think the British people, quite rightly, saw the protests on war memorials as so offensive. That is why it is right that the Government act against the small minority desecrating such an important place in our hearts.

On my hon. Friend’s question about counter-extremism, the work being done by Robin Simcox is hugely important, and we are doing an awful lot to tighten up various elements of our counter-extremism policy. Indeed, I hope very much that I will be leaving the Chamber very shortly to have a meeting on that subject. The reality is, however, that it is a very complex subject; the Secretary of State for Levelling Up, Housing and Communities is currently working on a definition of extremism alongside the Attorney General. There is an awful lot that we must do to ensure that groups that pose the danger of extremism are addressed in other ways. That is where cross-Government working has been so important in ensuring that groups are transparent in what they are doing, in who is funding them and in where they are targeting their attention.

[Mr Deputy Speaker (Sir Roger Gale)]

I call the Father of the House.

[Sir Peter Bottomley (Worthing West) (Con)]

It is an honour to follow the hon. and gallant Member for Barnsley Central (Dan Jarvis), who has just put a question to my right hon. and gallant Friend the Minister for Security.

Some demonstrations are perfectly acceptable. For example, in my early years as an MP, in order to get a relief road, I escorted mothers and their prams down a major road. We went at three and a half miles an hour, which was faster than the traffic would have gone had we not been there on a demo. It was a Friday evening and people were trying to leave London. We got the relief road.

I also led a march from Speakers’ Corner to Trafalgar Square for the Cambridge Two—two social workers who were wrongly convicted and jailed for helping the homeless.

That is different from the kind of disaster that happens when there are crowd surges, especially if they are created by explosions, be they from firecrackers or other things. I was present at Óscar Romero’s funeral, when 14 people died around me from crushing because explosives or fireworks went off.

I was present at the Heysel stadium in 1985 when 39 Italians were crushed to death. Being able to control demonstrations, which should be held by agreement and understanding with the authorities, is vital for them to be safe.

On a more minor scale, there was a flash protest outside my constituency office yesterday by good-natured people who care about the people in Gaza. Had there been one young worker in that place when suddenly a flashmob appeared around them, it would have been discomfiting. I am sure that that would not be caught by these measures, and nor should it be, but I say to those doing such protests: “Think of others.”

I ask my right hon. Friend to remember a last point about disruption. When there was one of the Just Stop Oil or Extinction Rebellion demonstrations, in which people were allowed to sit around in the streets here—for far too long in my view—I said to one person who had flown in from Vancouver to join the protest that flying halfway across a continent and an ocean to help Extinction Rebellion was odd. I said, “What about the ambulances?” They said, “We’ll let them through.” I replied, “The ambulances are stuck 2 miles away. You can’t let them through. You must let people go about their ordinary business to save lives and for the prosperity of the country.”

I back the Government’s measures, and I hope my right hon. Friend knows that he will have support from across the House and the country for what he has proposed.

[Tom Tugendhat]

First, I thank the Father of the House for his support for these important measures, and indeed for his entirely correct observation that protest is not only necessary but important across the country. Every day, many protests happen politely, courteously and in ways that make their point without causing the kind of societal harms that, sadly, some cause. His longevity in this place, and indeed outside it, is a blessing to the House. He remembers the funeral of the late St Óscar Romero, whose extraordinary work was an inspiration to millions around the world. My hon. Friend reminds us not only that crying “Fire!” in a crowded theatre is not an expression of freedom of speech, but that, in this context, making an explosion in a crowded area can lead to human tragedy beyond expectation. The co-operation between protesters and the police is incredibly important for the protection of the public.

[Mr Deputy Speaker (Sir Roger Gale)]

I call the SNP spokesperson.

[Amy Callaghan (East Dunbartonshire) (SNP)]

We in the SNP oppose these measures to clamp down on people’s right to protest, just as we opposed the Public Order Act 2023 and the Police, Crime, Sentencing and Courts Act 2022. On issues such as the Women Against State Pension Inequality campaign, Iraq, and Israel and Gaza, people from Scotland travel to London, to Westminster, to make their voices heard. People feel helpless in the wake of the Gaza situation, which is unfolding 24/7 on our social media feeds. They donate what they can during a cost of living crisis, and they boycott and protest. How does Westminster respond? It responds by cutting cost of living support, banning public bodies from investing ethically, and clamping down on the right to protest through measures that will impact certain people in society, particularly those living with disabilities.

Human rights lawyer Baroness Shami Chakrabarti has called out today’s announcement as “more culture war nonsense”. She highlighted that individuals may have reasons other than criminality for covering their faces:

“Should rape victims or refugees peacefully protesting really be punished for covering their faces to protect their identities?”

Is this not just another example of the Government pandering to their far-right wing, rather than protecting the legitimate right to protest? This Government are punishing the majority for a tiny minority’s actions, further fuelling their culture war. As for the detail the Minister outlined, a £1,000 fine is significant and unaffordable to people across these isles, but it is nothing to a Prime Minister who is willing to bet that exact amount on people’s lives.

[Tom Tugendhat]

I can honestly say that I am sorry, but not entirely surprised, that the SNP is choosing to make divisive politics out of what has been a moment of national unity. At many of these protests, we have seen extremely dignified individuals raising a point, whether about Gaza or antisemitism. We have heard courageous voices speaking out on all sides of these debates—individuals who have made their voices heard extremely clearly and in a dignified way—but sadly, some extremists have chosen this as the moment to spread hatred and fear and to stoke nationalism or division. I realise that that is something that the hon. Lady and I take different positions on, as after all, she represents a nationalist wing in our country. It is a great shame that she is choosing this moment to spread that hatred. I do wish that the Scottish nationalists would—[Interruption.] You are a nationalist party; therefore, you are Scottish nationalists.

[Amy Callaghan]

It is the Scottish National party.

[Mr Deputy Speaker (Sir Roger Gale)]

Order.

[Tom Tugendhat]

As the Scottish nationalists who are represented in Parliament today have chosen to make a point out of this issue, I will just say that many people have protested across the whole of the United Kingdom in many dignified ways. We are seeking to make sure that those across our country who quite rightly wish to exercise their right to protest can do so in a safe and dignified way.

[Greg Smith (Buckingham) (Con)]

This is an important set of measures, and I welcome everything that my right hon. Friend has announced. Without seeking to interfere with the operational independence of the police, there should be a presumption of instant and immediate application of these new measures where offences occur. Too often in the protests we have seen since 7 October vile antisemitic posters have been displayed and banners have been carried unchallenged, only for the police—particularly the Metropolitan police—to put out appeals later asking, “Do you know this person?” That emboldens those who have these foul views to carry on, and it sends a much deeper and disturbing message, particularly to Jewish communities across the country, that the police are just letting those offences go by.

[Tom Tugendhat]

My hon. Friend is absolutely right. That is exactly why the Home Secretary has already been speaking with police chiefs in the United Kingdom about the powers that will be provided. The police chiefs themselves have asked for the powers. He is also absolutely right that the level of antisemitism we have seen on our streets is simply vile and completely unacceptable, and it is also true that some of the symbols that are being carried and some of the flags that are being displayed are themselves radicalising, so action against them is so important. It is quite noticeable how many of the symbols that people claim should be culturally normalised in the UK are absolutely not tolerated in Muslim countries across the world, for the very clear reason that they do not speak for Muslim people—either in the UK or around the world—but are trying to speak for a narrow Islamist fringe that is utterly hateful and has no place in our society.

[Dame Diana Johnson (Kingston upon Hull North) (Lab)]

I am sure the Minister knows that the Home Affairs Select Committee has been carrying out an inquiry into the policing of protests after the horrific attacks of 7 October. I join both Front Benchers, the Minister and my hon. Friend the Member for Barnsley Central (Dan Jarvis) in thanking the police for the work they have done, keeping people safe on demonstrations and also upholding the law.

We on the Home Affairs Committee have taken evidence from the police, and although people should of course have the right to protest, we were very concerned about the effect that the number of protests is having on the number of rest days that are being cancelled for police officers in the Met, for example. More than 4,000 rest days have been cancelled, and the cost to the Met of policing those protests up to the end of December has been £18.9 million.

Will the Minister explain how these new laws will be supported with any additional resourcing that the police need? What more can be done to support the wellbeing of officers who are either deployed or abstracted to ensure that these protests can go ahead? In the light of Home Secretary’s comments this week about neighbourhood policing and how important that is, can the Minister reassure the House that resources will not be taken away from neighbourhood policing to deal with the policing of protests?

[Tom Tugendhat]

I pay tribute to the right hon. Lady’s work on the policing of protests. Her Committee has already had some important evidence sessions, which I have listened to in part, not in whole—forgive me. We will no doubt be seeing the work she pulls together at the end of that inquiry, and I shall read it with great interest.

It is worth saying that the pressure on policing across the United Kingdom from these protests has been significant. We recognise that, and we have been looking to support police forces, where appropriate, in whatever way is appropriate. It is certainly true that many police forces have been able to manage only because of the uplift in police numbers they have seen in recent years. Sadly, London, as the right hon. Lady knows, has not managed to use that uplift, which is a great shame. Frankly, I am sure that that is something the people of London will consider in the polls in May. Sadly, in Scotland as well, police numbers have fallen, whereas in the rest of the United Kingdom they have by and large risen. These are areas in which I know she will encourage people to make decisions according to how they have been governed, not just policed.

[Bob Blackman (Harrow East) (Con)]

Since the atrocities on 7 October, the regular hate marches that have taken place in London have forced Jewish Londoners to remove their kippahs, remove their Star of David necklaces and, in some cases, even vacate their homes because they are scared—and they are certainly scared to travel to central London when one of these hate marches is taking place. Only 16% of British Jews believe that the police treat antisemitism as equivalent to other forms of hate crime, and two thirds of British Jews believe that the police have double standards on these crimes. When these measures are introduced, will my right hon. Friend make sure that they are actually targeted at the people expressing hatred towards British Jews, and that those people are arrested and taken to court to answer for the charges that are made?

[Tom Tugendhat]

I thank my hon. Friend for his question, and he is absolutely right that the level of antisemitism we have seen has been utterly unacceptable and the fear that has been spread, sadly, among the Jewish community in the United Kingdom has been utterly vile. It is simply intolerable to have parts of our community feeling unsafe to walk, shop or do whatever they choose on the streets of our capital. It is completely wrong.

The powers in this instruction or ruling will be for the police to deploy as operationally appropriate. However, I am sure that police officers and police chiefs around the United Kingdom will have heard my hon. Friend’s point and will have recognised it. I should point out that, since the 7 October protests began, more than 600 arrests have been made in relation to those protests. The police take this extremely seriously, and about 30 of those arrests have been related to TACT—Terrorism Act 2000—offences. That should, I hope, reassure all communities across this country that this Government and these police officers take these offences extremely seriously, and they will be using all the powers at their disposal to protect everyone in the United Kingdom.

[Jim Shannon (Strangford) (DUP)]

I am someone who knows the politics and lifestyle of Northern Ireland and who lived through the troubles, and we protested on many occasions, but the one thing we never did was wear a mask. I therefore very much welcome the legislation coming forward today. The right to protest is an important right in a democratic society and country, but I firmly believe that things should be done decently and in order, which means people having the courage of their convictions and having their face uncovered. People wearing a mask at a protest, whether they be pro-Hamas protesters or hunt saboteurs, are breaking the law, and I would be very pleased to see them jailed and fined for the activity of wearing a mask. Will the Minister outline how soon changes can be put in place, and whether discussions are ongoing with the Northern Ireland Assembly—it is back on its feet again, and Ministers are in place—to ensure that the legislation initiated here can apply across all of this great United Kingdom of Great Britain and Northern Ireland?

[Tom Tugendhat]

I greatly welcome the hon. Member’s comments, but he will know that, perhaps not so often in Strangford, but some people did wear balaclavas in the protests that I saw in Northern Ireland.

[Jim Shannon]

I didn’t.

[Tom Tugendhat]

I am sure the hon. Member was not one of them; there is absolutely no suggestion that he could ever be one of them. I think that would surprise quite literally everyone in this House. I am grateful for his support. This measure will clearly need to be worked on, and we have already begun conversations with the Northern Ireland Office, but areas of work will be required across the United Kingdom. Police chiefs are already aware of this and have been asking for these powers, and that is why they are coming into place.

[Martin Vickers (Cleethorpes) (Con)]

The Minister’s statement will be welcome to the vast majority of decent, law-abiding citizens up and down the country, particularly in respect of the protection of war memorials. Although the proposed three months’ imprisonment or £1,000 fine might be suitable for some who are caught up in demonstrations, three months seems incredibly lenient for those who we can probably describe as “professional protesters”. Of course the final decision rests with the courts, but could a heavier period of imprisonment be available to them?

[Tom Tugendhat]

My hon. Friend raises an interesting point. Sadly, as is quite frequently the case, on the more serious occasions it would not be just one offence that was brought. I think this level of punishment represents, rightly, the offence that such actions cause, and the penalty is, I think, appropriate to that. It is of course possible that other charges will be brought alongside that.

[Clive Efford (Eltham) (Lab)]

I welcome the Minister’s statement, and I support the reference to protecting war memorials. As the son of someone who served in the second world war and as someone who grew up knowing people who lost comrades in the war, those memorials are often the only place where those people are commemorated, because they have no grave of their own, and such memorials should be protected in the way the Minister suggests. None the less, the detail of the proposals will require a great deal of scrutiny, so could he say a little more about where we will get that opportunity? The Criminal Justice Bill is now on Report. Are the measures an amendment to that? Will they be statutory instruments? When will we get the opportunity to scrutinise the Government’s proposals?

[Tom Tugendhat]

There will be amendments to the Criminal Justice Bill, which can be scrutinised on Report. I understand the hon. Member’s comments. These are limited and minor amendments, as he knows. They are measures that the police have been asking for, and they enjoy the support of the House for exactly the reason he gave.

[Robin Millar (Aberconwy) (Con)]

It is expected—and even reasonable—that those who lose the democratic debate in this place will take their protest on to the streets. However, we have seen a recent disturbing trend that the tactics of a minority now undermine and jeopardise the tradition of effective peaceful protest that we enjoy in this democracy. Does my right hon. Friend agree that the measures the Government have taken, and the measures he proposes today, are a reasonable response to such tactics, and that the tactics of the minority that have been employed, and that these measures address, are distorting and abusing the hard-won freedoms of this country to gather, to speak, and to protest peacefully?

[Tom Tugendhat]

My hon. Friend makes an extremely important point and if I may, I will build on it in combination with an earlier point. There are many people who served our country in various different ways over two world wars and in conflicts since then, whose memorials are either lost and known only unto God or are many thousands of miles away from their families. Families who have come to share our lives in the United Kingdom may have left behind them the graves of family members who served in those conflicts. I am thinking in particular of the 140,000 or so Muslim servicemen who served and lost their lives in the last two wars, of the many Jewish ex-servicemen who march as well, and of many others from around the world—from Africa, South America and Asia—who served in the pursuit of liberty and the defence of freedom in our country. This is their home now; those memorials remember their relatives and loved ones, and it is absolutely right that, for all communities in this country, we defend those moments of national memorial and the altars to liberty that they represent.

[Deidre Brock (Edinburgh North and Leith) (SNP)]

These measures may impact on those of my constituents who wish to protest outside this place or elsewhere over the border. The Minister says that enforcement actions will be taken by police officers at their discretion. How will the Government ensure that these measures will be applied uniformly, proportionately and appropriately across all of England’s police forces?

[Tom Tugendhat]

These are police powers, so the enforcement or application of them is operationally independent and down to the discretion of officers and chief constables as appropriate. That is how policing traditionally works. We do not have a national police force through which we can order police officers to arrest or not arrest individuals. We allow individual police officers to apply the law according to the guidelines that chief constables set out, and that is exactly what will happen in this circumstance.

Uddin Inquiry: Terms of Reference

Tom Tugendhat Excerpts

Tuesday 6th February 2024 Written Statements

[The Minister for Security (Tom Tugendhat)]

On 9 November 2023, the Government announced the establishment of a statutory inquiry, to investigate the death of Mr Jalal Uddin in Rochdale, greater Manchester.

A copy of the terms of reference for the inquiry was placed in the Libraries of both Houses.

An inaccuracy has since been identified in the terms of reference and, in line with the Inquiries Act 2005, the chair of the inquiry, His Honour Edward Thomas Henry Teague KC, Chief Coroner of England and Wales, has been consulted about amending the terms of reference to correct the inaccuracy.

The amendment does not materially affect the operation or the remit of the inquiry.

In order to comply with section 6(3) of the Inquiries Act 2005, I will place a copy of the amended terms of reference in the Libraries of both Houses.

[HCWS245]

Terrorism (Protection of Premises) Bill: Public Consultation

Tom Tugendhat Excerpts

Monday 5th February 2024 Written Statements

[The Minister for Security (Tom Tugendhat)]

Today the Government have launched a public consultation on the Terrorism (Protection of Premises) Bill. The Bill is also known as ‘Martyn’s Law’ in tribute to Martyn Hett, who was tragically killed alongside 21 others in the Manchester Arena terrorist attack in 2017.

The Government reaffirmed their commitment to introduce this important piece of legislation in the King’s Speech on 7 November 2023. Extensive engagement and support from security partners, business and victims’ groups, including Figen Murray and the Martyn’s Law Campaign Team, has enabled significant progress on the development of Martyn’s Law to date. The Government would like, once again, to pay particular thanks to Figen Murray for her tireless campaigning and the significant personal contribution she has made to progressing this Bill.

Overview

The threat picture is complex, evolving, and enduring, with terrorists choosing to attack a broad range of locations. Since the start of 2017 there have been 14 terror attacks in the UK. Too many have sadly lost their lives.

The Bill will ensure premises in the UK are better prepared for terrorist attacks by requiring them to take necessary but proportionate steps according to their capacity to mitigate the impact of a terrorist attack and reduce harm. Our expert security partners strongly consider that even basic knowledge will help to protect the public in the event of an attack. Through the Bill, those responsible for premises will be better prepared and ready to respond in the event of a terrorist attack, thereby enhancing public safety.

Following an 18-week public consultation on proposals in 2021, the Government confirmed their intention to bring forward the Bill in December 2022. To ensure the measures can meaningfully enhance public safety while remaining proportionate, we requested that the Home Affairs Select Committee (HASC) conduct pre-legislative scrutiny of the draft Bill, which was published in May 2023.

Pre-legislative scrutiny, as well as our extensive engagement programme, provided important feedback from parliamentarians, businesses and other key stake-holders. This feedback particularly focused on the application of the proposals in relation to standard duty premises. These premises—the Standard Tier—are smaller, being largely those with a capacity of 100 to 799 individuals, e.g. many retail stores, bars, restaurants, theatres and village halls.

Next steps

On the strength of that feedback, we have revised the Standard Tier requirements to make them clearer and more proportionate, while ensuring they deliver on their primary objective: to implement simple procedures which could reduce harm and save lives in the event of a suspected attack. The consultation is focused specifically on this revised approach to the Standard Tier.

Consultation

This new approach is considered to be more proportionate, meaningful, effective and transparent than that previously agreed for the following reasons:



The purpose of the primary duty is now outcome-focused, aligns with comparable regimes—i.e. Health and Safety—and removes any previous assumptions around the Standard Tier requirements being too instructive and rigid, i.e. a “tick box” exercise.

It brings greater clarity to costs and expectations, i.e. the Standard Tier holds no legal requirement for premises to consider physical security measures, but focuses on procedures and the actions people working at the premises should take in response to an attack.

It measures all premises in scope against the same standard of “reasonably practicable”. This approach is better suited to the wide range of organisations that will be within scope of the Standard Tier because they will assess and implement procedures that are suitable for their individual circumstances. The “reasonably practicable” test includes what is financially feasible for premises.

We have moved away from a prescribed training requirement—i.e. a one size fits all package for all relevant staff. Instead, those responsible will be required to ensure that their procedures are adequately communicated and practised by relevant staff. Again, in implementing relevant procedures, those responsible will be held to a “reasonably practicable” standard.

The consultation seeks specific feedback on these measures to ensure the updated requirements proposed for Standard Tier premises are appropriate.

It also seeks respondents’ views on how any costs incurred by the Standard Tier requirements should be met and how premises currently meet similar obligations under Health and Safety and Fire Safety legislation.

The consultation will run until 18 March 2024 and is available on www.gov.uk. It is open to the public, and is targeted at organisations, businesses, and local and public authorities, and/or individuals who own or operate premises that the proposed Bill would affect. We particularly welcome views from those responsible for the smaller premises which would fall within the Standard Tier, especially those in the community and voluntary sector.

I am looking forward to concluding the consultation process, which will support the Government in finalising the legislation and ensuring it is robust and delivers on its core aims ahead of a formal introduction to Parliament.

A copy of the consultation will be placed in the Libraries of both Houses.

[HCWS240]

Draft Investigatory Powers Act 2016 (Remedial) Order 2023

Tom Tugendhat Excerpts

Tuesday 23rd January 2024 General Committees

[The Minister for Security (Tom Tugendhat)]

I beg to move,

That the Committee has considered the draft Investigatory Powers Act 2016 (Remedial) Order 2023.

It is a pleasure to serve under your chairmanship, Mr Hosie. The order was laid before the House on 18 October 2023. Maintaining our national security and keeping the public safe is a priority for the Government. The Investigatory Powers Act 2016, or the IPA, provides extensive and robust privacy safeguards in relation to investigatory powers. We rightly have world-leading standards in place on transparency, privacy, redress and oversight to accompany the exercise of these important powers.

The order will make necessary amendments to the IPA following the judgment of the Grand Chamber of the European Court of Human Rights in May 2021 in the case of Big Brother Watch and Others v. the United Kingdom, which I will refer to as BBW. The Grand Chamber ruling related to the bulk interception regime under the Regulation of Investigatory Powers Act 2000, known as RIPA, which was was the predecessor to the IPA. The Grand Chamber found that there were violations of articles 8 and 10 of the European convention on human rights, which I will refer to as “the convention”.

Although most of the incompatibilities were addressed through the introduction of the IPA, one further change required primary legislation to implement. To be compliant with article 10 of the convention, the IPA’s bulk interception regime needed to include a requirement for prior independent authorisation for the use of criteria to select intercepted material for examination. Such a requirement applied where a purpose of the search was to find confidential journalistic material or information that could identify a source of journalistic material. The requirement also applied to searches carrying a high likelihood of confidential journalistic material or sources of journalistic material being selected for examination.

Finally, prior independent authorisation is also required for the retention of items containing confidential journalistic material or sources of journalistic material. Bulk interception warrants authorised the interception in bulk of communications. That material is then retained for the minimum amount of time necessary for the authorised purposes. Criteria are used to search through that material to find material useful for operational purposes. Useful material is then retained for the minimum amount of time necessary for the authorised purposes. It is the use of these criteria that will require judicial authorisation if a purpose of using them is to identify confidential journalistic material, or to identify or confirm a source of journalistic material, or if the use of them is highly likely to lead to such outcomes. Currently, section 154 of the IPA, which covers the journalistic safeguards for bulk interception, requires only that the Investigatory Powers Commissioner be informed if material thought to contain confidential journalistic material or sources of journalistic material is retained following examination for a purpose other than its own destruction.

There are additional safeguards in the interception code of practice that require the relevant intelligence agency to seek the agreement of a senior official within a warrant-granting department before the agency may select material for examination in order to identify or confirm a source of journalistic information. This remedial order therefore strengthens the existing safeguards. It does this by requiring that approval from the Investigatory Powers Commissioner be obtained before any criteria are used, with the purpose of that being to select material for examination that is confidential journalistic material or a source of journalistic material or where it will be highly likely to do so. The retention of confidential journalistic material or sources of journalistic material must also be authorised by the Investigatory Powers Commissioner. There is also an urgency provision, which I will come to later. [Interruption.] It is an honour to see my hon. Friend the Member for Gloucester.

It is necessary that the Government make this change to the IPA, so that our intelligence agencies can maintain their ability to carry out bulk interception. It is an important operational tool, used to identify threats to national security—it was recognised by the Grand Chamber as such—tackle serious crimes and maintain the United Kingdom’s economic wellbeing.

The Investigatory Powers Commissioner already provides oversight of confidential journalistic material and sources of journalistic material obtained under bulk interception, but legislative change is needed to mandate those safeguards within the IPA. Failure to amend the IPA could result in applications for bulk interception warrants being refused.

The draft remedial order will reform three different areas of the IPA, by amending section 154, inserting proposed new section 154A, and making a minor amendment to section 229(8). The amendment to section 154 will introduce enhanced safeguards relating to the criteria used to select material for examination that will identify confidential journalistic material, or identify or confirm sources of journalistic material derived from material acquired through bulk interception. The permission of the Investigatory Powers Commissioner will be required before such material can be purposefully selected for examination, or knowingly retained for a purpose other than destruction.

Proposed new section 154A introduces an urgency process for dealing with requests that need to be approved out of hours for authorisations to use criteria to select material for examination. Such authorisations will be subject to subsequent judicial authorisation if the relevant condition is met. Activity must cease if that is not the case, so urgent applications will still be subject to rigorous judicial scrutiny.

The amendment to section 229(8) is a consequential amendment that includes references to the new functions of the Investigatory Powers Commissioner in section 154 and proposed new section 154A, so that they are treated consistently within the IPA. Section 229(6) and (7) require judicial commissioners not to act in a way that is contrary to the public interest, national security, the prevention or detection of serious crime, or the economic wellbeing of the United Kingdom. Subsection (8) then disapplies that requirement when the judicial commissioner is exercising various functions, such as considering whether to approve the authorisation of a bulk interception warrant.

Section 229(8) is amended by this draft statutory instrument to include decisions by the judicial commissioner under section 154, as amended, and proposed new section 154A. That is consistent with similar judicial commissioner functions in other parts of the IPA, and ensures that judicial commissioners can exercise their functions properly.

In summary, the changes will ensure that the United Kingdom is meeting its obligations under the convention and that the bulk interception regime is compliant with article 10 of the convention. The changes will also further strengthen the privacy safeguards contained in the IPA, in line with the BBW judgment, while continuing to give our intelligence agencies the powers and flexibility to keep our country safe. I commend the draft order to the Committee.

--- Later in debate ---

[Tom Tugendhat]

I am grateful to the Labour and SNP spokesmen for their comments, especially my friend the hon. Member for Barnsley Central, who correctly set out the reason why oversight is so important. It is right to place on the record my extreme gratitude to journalists in this country who, correctly, see their role as one of the guardians of our unwritten constitution. It is essential that we maintain the integrity of our political process, and journalism—good journalism—is part of doing that.

The hon. Gentleman tempts me to take various other lines, and of course it would be wrong of me not to praise the Scottish Conservatives, who have made such a fantastic impact on our national life, and who I look forward to seeing returned in much greater number after the coming election.

[The Chair]

Order. I think the Minister is out of scope.

[Tom Tugendhat]

I pay huge tribute in particular to Viscount and later Earl of Kilmuir, David Maxwell Fyfe, who was not only the first Home Secretary to have MI5 reporting to him rather than the Prime Minister, but one of the principal drafters of the European convention on human rights and a key individual in building the post-war order, in which British justice was used as the template for a new European convention.

[Richard Graham (Gloucester) (Con)]

Does this remedial order and its compliance with the ECHR worry or reassure allies with whom we share intelligence?

[Tom Tugendhat]

When we make it clear that the work we do, necessarily in secret, is supervised and checked against a legal basis, it hugely reassures our friends and partners. It assures them as well that we are not just a partner to be trusted, but a partner with which intelligence can be shared very freely, because of the clear legal oversight. This is a strong element in building the security and building up the trust that we need to keep our people safe. I commend the order to the Committee.

Question put and agreed to.