Grand Committee
Arrangement of Business
The Deputy Chairman of Committees (Baroness Pitkeathley) (Lab)
My Lords, it is very unlikely that there will be a Division in the Chamber, so we will get going.
Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 2) Order 2023
(1 year, 1 month ago)
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Lord Callanan
That the Grand Committee do consider the Greenhouse Gas Emissions Trading Scheme (Amendment) (No. 2) Order 2023.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, this order was laid before the House on 19 September. The UK Emissions Trading Scheme—the ETS—was established under the Climate Change Act 2008 by the Greenhouse Gas Emissions Trading Scheme Order 2020 as a UK-wide greenhouse gas emissions trading scheme to encourage cost-effective emissions reductions, contributing to the UK’s emissions reduction target and, of course, ultimately our net-zero goal.
The scheme is run by the UK ETS authority, which is a joint body comprising the UK Government and the devolved Governments. Our aim is to be predictable and responsible guardians of the scheme and its markets. In doing so, we will ensure that the scheme remains a cornerstone of our ambitious climate policy.
We have brought forward this SI to implement a number of necessary changes and improvements to the scheme. The changes relating to aviation free allocation rules and to the treatment of electricity generators follow the announcements made by the UK ETS authority in July in our response to last year’s consultation on developing the UK ETS. The final change remedies an inconsistency around free allocation and carbon capture at UK ETS installations. On aviation, this SI will cap the total amount of aviation free allocation that operators are eligible to receive at 100% of their verified emissions.
This SI makes technical changes to free allocation rules regarding the electricity generator classification for industrial installations. It will amend the electricity generator classification to consider only electricity exports in the baseline period, instead of all electricity exports since 2005, allowing operators to change their installation’s electricity generator classification if they have put a stop to the export of electricity. Electricity exports represent no more than 5% of the total produced allowances and will also be excluded from consideration in this classification.
The SI will amend the electricity generator definition to exclude installations that have produced electricity for sale if that electricity was produced by means of a high-quality combined heat and power plant, operating as part of an operator’s industrial activity. This will limit reductions in free allocation entitlements and provide further encouragement for industrial operators to achieve improved efficiency for their combined heat and power plants.
The SI also makes an operational amendment to the electricity generator classification. The SI will allow electricity generators to be eligible for free allowances after the application date if they can demonstrate that they produced measurable heat by means of high-efficiency co-generation during the allocation period.
The SI also remedies an inconsistency in the legislation to make it clear that carbon capture and other types of regulated activity may be carried out on the site of the same installation. The SI will allow provision of free allowances to industrial installations at the same site as a carbon capture plant.
As the Northern Ireland Assembly is not sitting and cannot consider affirmative legislation, this statutory instrument therefore covers only Great Britain. Officials in Northern Ireland have agreed that that none of the provisions currently affects operators in Northern Ireland.
These changes deliver on commitments made by the UK ETS authority and improve the operation of the scheme. For aviation, the SI will ensure that aviation free allocation is distributed appropriately until full auctioning for the aviation sector in 2026. This follows the decision announced in July that aviation free allocation will be phased out by 2026.
On free allocation technical changes, the SI will ensure that installations classed as electricity generators, whose eligibility for free allocation is limited, are able to change their classification if they are no longer exporting electricity. The SI will also ensure that industrial installations with high-quality combined heat and power plants which export excess electricity to the grid are not classified as electricity generators so as to not limit eligibility for free allowances.
On the electricity generator operational amendment, the SI will ensure that electricity generators can become eligible for free allowances during an allocation period if they meet the eligibility criteria. On free allocation rules around carbon capture, the SI will prevent industrial installations being disqualified from receiving free allowances if they are on the same site as a carbon capture plant—a situation that could pose a risk of disincentivising the uptake of carbon capture technology.
These changes either follow appropriate and comprehensive consultation with stakeholders or did not require consultation. In developing the UK ETS consultation in 2022, the UK ETS authority considered what technical improvements can be made to the current aviation free allocation methodology until free allocation is phased out. The responses to the consultation called for an end to the overallocation of aviation free allocation. In addition, the policy intent of aviation free allocation is to mitigate the risk of carbon leakage, and the policy did not intend for aircraft operators to receive more allowances than their verified emissions. To that end, in July the UK ETS authority announced the decision to cap aviation free allocation at 100% of verified emissions.
In the consultation on developing the UK ETS, we considered technical changes to free allocation rules regarding the electricity generator classification. The majority of respondents agreed with our suggested amendments, and the UK ETS authority announced that it would proceed with changes to the electricity generator classification. A consultation was not carried out for the CCUS free allocation amendment as this is a clarification of existing policy intention and not a change in policy.
In conclusion, these alterations to the UK Emissions Trading Scheme will support its role as a key pillar of the UK’s climate policy. They show that we will take action to improve the scheme where necessary and continue our record of delivering on our commitments. I therefore commend this order to the Committee.
Lord Teverson (LD)
My Lords, perhaps I may make a few comments in front of the crowd here. I welcome the SI generally , obviously, and want to try to ensure that it works properly. I have a couple of specific questions.
I am interested in understanding how the free allocations were allocated or what the baseline was for the airlines. Also, in the scheme as a whole, what proportion of units are free issue these days? I would be very interested to hear that for the current period, which I think goes up to 2026.
The Minister referred to the UK ETS as the cornerstone of ambition in terms of net zero, but of course, that cornerstone is crumbling at the moment. I would be very interested to hear, more strategically, how the Minister sees the fall in the carbon price per tonne, which has moved this year from around £100 at one point down to under £50.
To me, that seems to be, in the words of Energy UK, a major disincentive to investment in the renewables sector. As I understand it, it has threatened the Treasury to the tune of £1 billion so far this year and will mean a hit of something like £3 billion on the Treasury per annum if that price continues. As we know, there is also a threat from the European Union’s move to a carbon border adjustment mechanism—particularly in 2026, when those measures will really start to bite. There is a feeling that UK industry’s exports to the European Union could be threatened by some £500 million per year if that price remains as it is. I want to know the Minister’s understanding of why the price has fallen so much. My economics A-level tells me that, with supply and demand, when demand stays roughly the same but the price goes down, there is an all-round surplus in the supply of those units. However, there is also a volatility there, perhaps through a lack of liquidity in the scheme as a whole.
Looking again at the trade and co-operation agreement, particularly the area of energy in 2025, I would be interested to understand whether this is an opportunity to bring those trading schemes more together again, which was a target that the Government sought to achieve when that agreement was first made. Clearly, the fall in price strongly affects the renewables and clean energy industries. It seems to me that, not just from a Treasury point of view but from an industry and net zero point of view, we need to get that price back up again. I would be interested to hear the Minister’s comments on how that can be achieved—or indeed whether the Government wish to achieve it.
Lord Lennie (Lab)
My Lords, when the UK ETS was established due to the UK’s participation in the EU ETS ending, the Opposition supported it. It is essential that the UK has a robust carbon price to help reduce emissions. So when the UK ETS was launched, we expressed a preference for a link with the EU ETS. Indeed, the EU-UK Trade and Cooperation Agreement states that both parties
“shall give serious consideration to linking”,
which would lower the cost of decarbonisation through more price efficiency discovery and easier trade. Most importantly, it would ensure that UK exports of high-carbon products to the EU are exempt from the EU’s carbon border adjustment mechanism. This remains our preference, to support UK businesses in remaining competitive and retaining trade access to critical markets. Can the Minister tell the Committee whether an update on any such consideration is still being considered? Can he also say whether the Government have made any projections on the impact that the CBAM will have on our exports? What is welcome is the seriousness with which the Government are treating this while we remain unliked.
I turn to the instrument itself, which amends the ETS in five areas; I will touch on each of them but do not oppose any of them. As these changes do not seem simply to be updates on the system, I am keen to hear from the Minister how foreseeable the situations that led to them were and what impact the delay in implementing them, from when the UK ETS was established, has had.
First, as we heard from the Minister, the instrument implements a cap on the maximum amount of free allocation that aircraft operators are eligible to receive at 100% of their verified emissions. Not only does this seem to be common sense but, for the next two years, by 2021’s figures, it will save around a fifth by putting an end to overallocations in the sector. That is welcome. Again, by 2021’s numbers, this will prevent around £100 million of potential profits from operators selling these overallocations. Do the Government have any projection for 2024-25 or are the figures on pounds and percentage of emissions expected to be roughly the same? Going back to the first question, could this not have been seen from the start, or was it by design?
Lord Callanan (Con)
I thank the noble Lords, Lord Teverson and Lord Lennie, for their contributions. As I said in opening, the SI will implement a number of necessary changes and improvements to the scheme. The UK ETS is a cornerstone of our climate policy and it sets a cap on emissions in the sectors covered—currently, about a quarter of the UK’s emissions. In doing so, it guarantees that these sectors will reduce their emissions in line with our overall net-zero target. The carbon price generated by the need to acquire allowances within this cap incentivises the investment in decarbonisation that is needed to make sure that we can build a thriving net-zero economy.
In July, the UK Government and the devolved Governments, who all comprise the joint UK ETS authority, set out a comprehensive package of reforms to the scheme. These reforms increase the ambition of the UK ETS, setting its cap on a path to net zero. As set out in that package of reforms in July, a wide range of changes is required to ensure that the ETS remains a key part of the UK’s approach to achieving net zero.
As part of the UK ETS authority, with the devolved Governments, we are determined to run and develop the scheme in the most effective way possible. Our aim is to be predictable and responsible guardians of the scheme and its markets. That is fundamentally why the changes in this SI are being brought forward: to deliver on our previous commitments and make essential improvements to the scheme. The alterations to the scheme that this SI brings about will support its role as a key pillar of the UK’s climate policy. They demonstrate the value of the detailed consultation that we have carried out with scheme participants. We are committed to listening to views and implementing changes where necessary to make the scheme run as efficiently as possible, so that it ultimately achieves its aims. The changes to aviation free allocation and technical changes to free allocation follow the comprehensive consultation on developing the UK ETS carried out last year. They deliver on commitments made in the response to that consultation in July.
I will now pick up on the points made in the debate, first in response to the noble Lord, Lord Teverson. We have decided to cap the total amount of aviation free allocation that operators are eligible to receive to ensure that aviation free allocation is distributed appropriately until full auctioning in 2026. In 2021, the level of aviation free allocation issued to operators surpassed the sector’s verified emissions, primarily due to the impacts of Covid-19 on aviation activity. However, even prior to the impacts of Covid-19, under the EU ETS, a number of operators received more free allocations than their verified emissions.
The current aviation free allocation methodology calculation is based on 2010 activity data, which is now of course inconsistent with current aviation activity and creates competitive distortions between participants. Not capping the amount aircraft operators are eligible to receive therefore effectively shields them from the price signal and provides an opportunity to benefit from the scheme, which, I am sure we would all agree, was not the intended aim of the policy. To answer the noble Lord’s question, in 2022, the proportion of UK ETS emissions covered by free allocations was approximately 36%.
On the noble Lord’s point on the fall of the UK ETS price, it is of course a market mechanism, and the price of carbon allowances in the emissions trading scheme is ultimately set by that market. However, in line with the net-zero cap that we announced in July, the supply of emissions allowances entering the market will fall significantly every year from 2024. Using the noble Lord’s supply and demand analogy, we can probably predict—without saying it—what will happen to the price in such circumstances.
Lord Teverson (LD)
Is the Minister happy that the price has fallen by half this year?
Lord Callanan (Con)
As it is a market mechanism, I have some sympathy with the noble Lord’s point of view, but it would probably not be wise for me to comment on the overall price. I will let the market determine what it should be. If I say what I think the ideal target price should be, that would clearly be interfering in the market, which the noble Lord can understand I should not do.
We are committed to continuing to deliver these changes, as shown by our legislating to amend the supply of allowances over the coming years and the publication of the auction calendar for 2024. The authority has also committed to exploring measures for the future of the UK ETS market, including examining the merits of the supply adjustment mechanism, which would be a means of amending the supply of carbon allowances in response to market conditions.
The noble Lord, Lord Teverson, asked about the impact of the EU CBAM. We are of course following developments closely and engaging with the Commission to discuss the technical considerations relevant to UK manufacturing because, even though EU CBAM charging does not start until 2026, companies will have to report on their emissions from 2024 to 2026, prior to charging. We will see whether the EU proceeds with charging, but it will clearly have a significant effect on many UK companies supplying into the EU market, given the additional bureaucracy they will have to go through. Noble Lords should watch this space: I am sure the Government will have more to say on this shortly.
As I said, UK ETS prices are set by the market, as it is ultimately a market mechanism. The UK market is clearly separate from the EU market. It is therefore possible that prices will fluctuate and differ, although it is worth saying that both have similar levels of ambition. We will continue to work domestically and internationally to find solutions to any risk of carbon leakage and our ambitious climate commitments rightly require our industries to decarbonise. This includes our running a consultation earlier this year on domestic measures to mitigate carbon leakage, including a potential UK CBAM and mandatory product standards. We are looking at all these issues holistically to see which is the most appropriate carbon leakage mitigation across a number of policy designs. The response to that consultation will be published—to use the phraseology—in due course, and a further consultation on free allocation policy is due later this year.
On the point of the noble Lord, Lord Lennie, on linking the UK ETS and the EU ETS, as he correctly pointed out, under the terms of the TCA, the UK and the EU agreed to consider linking our respective carbon pricing schemes and to co-operate on carbon pricing. We are open to the possibility of discussing linking the UK ETS internationally with other schemes—it is not just the EU’s; there are a number of other schemes across the world—and we will continue to work collaboratively with other jurisdictions to tackle shared challenges and learn from the experience of others as we continue to develop the UK ETS. Indeed, I attended a meeting with a number of other jurisdictions only last week to discuss that very topic.
On the point raised by the noble Lord, Lord Lennie, on carbon capture and storage, there is currently an inconsistency in how capture activities and installations are dealt with in the ETS legislation, and that does not currently reflect the department’s policy. Some areas of the legislation recognise that capture and other regulated activities might occur at the same installation, but in other areas it is assumed that capture activities will be self-contained. The amendments clarify that carbon capture may take place on the same site as other UK ETS installations or regulated activities without the loss of free allocation in respect, of course, of non-capture activities. There has been no negative impact to date, as this technology is still very new and CCUS activity is not yet taking place, but the amendment will help incentivise the uptake of CCUS technology in the future and ensure that no negative impacts occur as it continues to develop.
On the electricity generator amendments and the impact of the previous baseline period, these rules were simply carried over from the existing EU ETS for consistency and we are now amending them to tailor them to the UK system. I hope I have answered all the points I was asked about and commend the order to the House.
Green Gas Support Scheme (Amendment) Regulations 2023
(1 year, 1 month ago)
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Lord Callanan
That the Grand Committee do consider the Green Gas Support Scheme (Amendment) Regulations 2023.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, the regulations were laid before the House on Monday 16 October 2023. They make a set of changes to improve the administration of the green gas levy, which is charged to licensed gas suppliers in Great Britain, and to ensure that it works in line with the original policy intent. The legislation will ensure that the levy operates as intended and seeks to minimise the burdens arising from it for the scheme’s administrator, Ofgem, and for the gas suppliers that have to pay it.
The green gas levy, as noble Lords are aware, funds the green gas support scheme, which is a Great Britain-wide tariff-based scheme supporting new biomethane plants injecting biomethane into the gas grid. It facilitates ongoing investment in the biomethane industry and enables the development of new production plants. The green gas support scheme is expected to contribute 3.7 million tonnes of CO2 equivalent of carbon savings over carbon budgets 4 and 5, and 8.2 million tonnes of CO2 equivalent of carbon savings over its lifetime. During the peak years of production, biomethane plants incentivised by the GGSS will produce enough green gas to heat around 200,000 homes.
All funds raised by the green gas levy are used to fund the green gas support scheme. The GGL funds both tariff payments to plants on the GGSS and the scheme’s administration by Ofgem. The levy is charged to suppliers based on the number of meters they supply. Currently, the cost is relatively low, at 45p per meter in 2023-24. It will increase in the coming years as deployment of the green gas support scheme increases, with costs expected to peak at around £7.50 per meter in the late 2030s.
Lord Teverson (LD)
My Lords, I congratulate the Minister on a hugely extensive explanation of the SI. Unless I have missed something, which the noble Lord, Lord Lennie, will soon uncover, I will give the Minister the full support of the Liberal Democrat Benches on this SI.
Lord Lennie (Lab)
The noble Lord has high expectations. As with the scheme we just discussed, we were very supportive of this scheme when it came out and we still are. Supporting the injection of biomethane into the gas grid, replacing other gases, produces substantial carbon savings and is very welcome indeed. As such, I will not speak for long on this instrument, which simply makes changes to improve the administration of what is already a very positive scheme.
The extent of these changes is to improve the administration of the green gas levy, as the Minister said, to reduce the administrative burden for Ofgem and the gas suppliers that pay it, and to ensure a maintained link between the regulations and policy intent. We welcome the lower administrative burden for Ofgem. It is due, not least, to successful efforts during the passage of the Energy Bill, and it now has a specific mandate to support the Government to meet their net-zero obligation.
I have a few questions, which may help the noble Lord, Lord Teverson, in his curiosity about this. Where the instrument changed the green gas levy formerly, it implied that gas suppliers were paying too much due to how interest on funds is allocated. Specifically, interest that had accrued in Ofgem’s account was added to the levy collection target rather than deducted from it, which makes little sense. How did that apparent mistake happen? While it feels peculiar arguing against more money for a scheme that we support—for once, I am not suggesting that gas suppliers’ profits should be better used—it is important that such a scheme is administered fairly. What happened to the previous levies that were collected at too high a rate?
Lord Lennie (Lab)
The instrument also allows the Secretary of State to review and update the maximum levy amount to ensure that the levy remains able to sufficiently finance the GGSS after 2008-09, as the Minister said. This of course makes sense, as it is a good scheme and should be financed, but I am cautious on both sides of the argument. If the Secretary of State is to have this new power, why was the scheme not initially created with it written in? Also, if the predicted funding requirement increase is in part predicated on a welcome increase in biomethane production, do the Government foresee a situation where the other reason for the increase—inflation, which I should note was previously caused by the Government—could make a decision to increase the MLA difficult? If so, what happens to the scheme and, if not, could the MLA not increase automatically?
I am curious about the de minimis payments the Minister mentioned. Is this expected to make a net loss or profit for the levy, and has any review been done of the administrative functions that make small payments disproportionately burdensome?
As the Minister said, the other changes are minor, so I will conclude, other than to restate that it is welcome that this positive scheme is being further improved.
Lord Callanan (Con)
I thank the noble Lord, Lord Teverson, for his very brief contribution and his support. I will come on to the questions from the noble Lord, Lord Lennie, in a moment.
As I said, the green gas levy is charged to licensed gas suppliers in Great Britain to fund the green gas support scheme. These policies make an important contribution to achieving our emissions reduction target by incentivising the production of biomethane and its injection into the gas grid. This reduces the emissions intensity of the UK’s gas supply and ensures the capture and use of emissions from waste, which is used as feedstock for green gas production.
The SI will ensure that the green gas levy can run optimally and will reduce administrative burdens for Ofgem and gas suppliers, thus reducing costs. It will also ensure that the levy is set as intended by altering the collection formula and by adding flexibility to the setting of the maximum levy amount. Overall, this will help the delivery of a cost-effective levy, benefiting policy administration and gas suppliers and, therefore, bill payers.
I will pick up the first question from the noble Lord, Lord Lennie. As I said in my introduction, the interest is charged two years in arrears. There has therefore been no net effect from what was an administrative error when the regulations were tabled. We want this modification to the SI approved now so that, when those interest payments subsequently become due, they will be used to subtract and not add to the overall amount—as was originally stated in error.
The further changes will improve the administration of the levy by Ofgem and for all gas suppliers, and the instrument gives us the opportunity to make these changes. The levy was launched on 30 November 2021, and the intervening years to this point have given us the opportunity to identify one or two minor technical changes to the levy to help reduce the administrative burden. In answer to the noble Lord’s second question, again, we do not expect the de minimis level to make any difference to the overall rate—it is purely that for those very few gas suppliers that have a tiny number of meter points, the administration cost of the levy exceeds the sum raised, so actually it will probably save money in the longer term. However, of course it has no effect on all the big suppliers.
I have dealt with both questions from the noble Lord, Lord Lennie, and I commend this regulation to the House.
Resolution of Central Counterparties (Modified Application of Corporate Law and Consequential Amendments) Regulations 2023
(1 year, 1 month ago)
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Baroness Vere of Norbiton
That the Grand Committee do consider the Resolution of Central Counterparties (Modified Application of Corporate Law and Consequential Amendments) Regulations 2023.
The Parliamentary Secretary, HM Treasury (Baroness Vere of Norbiton) (Con)
My Lords, these draft regulations make necessary technical and consequential legislative changes and provide legal protection for contractual arrangements to ensure that the expanded resolution regime for central counterparties, or CCPs, operates as intended.
Resolution is the framework for managing the failure of certain financial institutions. Within this framework, the Bank of England is the UK’s resolution authority and leads on resolution processes once instigated. The UK’s current resolution regime for banks and building societies was introduced in 2009, and this was partially extended to CCPs in 2014. A new, bespoke and expanded regime for CCPs was created this year through Schedule 11 to the Financial Services and Markets Act 2023.
CCPs are firms that provide clearing services for large volumes of financial trading activity. They sit between buyers and sellers and guarantee the terms of the trade. They are systemically important pieces of market infrastructure—without them, the financial system cannot function effectively. The failure of a CCP and the resulting loss of its clearing services could lead to serious consequences for financial markets, financial stability and public funds. The UK’s expanded CCP resolution regime will enhance the Bank of England’s resolution powers and ensure that the UK is aligned with international standards on CCP resolution. To fully implement the expanded CCP resolution regime, the Government must lay a number of statutory instruments. Two of these are being debated by your Lordships’ House today.
The first set of regulations, the Resolution of Central Counterparties (Modified Application of Corporate Law and Consequential Amendments) Regulations, make the necessary changes to existing legislation to ensure that the expanded CCP resolution regime can function as intended. These modifications have two main parts. The regulations will ensure that resolution powers under Schedule 11 will continue to be treated in a similar way to the existing CCP resolution regime in the Banking Act 2009. This largely consists of mirroring changes made under the Banking Act to the Companies Acts 1989 and 2006.
Baroness Kramer (LD)
My Lords, when the original legislation that sits behind all this was debated in the House—for many hours—I remember a conversation afterwards with one of the clerks, who had sat through nearly all of the proceedings. The clerk said to me, “I have sat in this House for years and have been through many debates of all kinds, but this is the first time I have sat through a debate and not understood a single word of the entire discussion”. I am feeling some brotherhood with that clerk at the moment. I remember the past, but I have to admit that I still find utterly daunting the complexity of CCPs and the various pieces of legislation.
I have been digging through my memory and am trying to understand whether these SIs are essentially tidying-up measures designed to give more flexibility to the Bank of England—in its role as the resolution authority—in somewhat changed circumstances, and measures to increase its efficiency. I ask the Minister: is there anything in here to which she would draw our attention as representing a more fundamental change? I admit that I cannot find it, but I thought I should ask the question, given the narrowness of my understanding of this complexity.
As I remember, the resolution of the insolvency of a CCP was structured using a waterfall of liability. First, equity and the CCP came into use, and, after that, if necessary, so did a default fund, to which the clearing members had contributed. My colleague, my noble friend Lord Sharkey, and I pushed on this question, because it seemed apparent to us that the combination of equity and a default fund could work if, say, one clearing member collapsed, or perhaps even two. But, if the collapse were systemic, very quickly only the taxpayer would have the resource to step in. The taxpayer would need to do so immediately to prevent chaos in the financial sector nationally and, probably, globally. The Minister will be aware that virtually all CCPs around the globe essentially have common ownership and, in many ways, need to be looked at almost as a network, rather than a series of individual operations—certainly when one thinks about resolution.
So we asked the then Minister—I believe it was the noble Lord, Lord Sassoon—to clarify why members should not be forced to make bigger contributions in the case of insolvency, above and beyond equity and the default fund, because, obviously, sitting behind CCPs are huge banking institutions and, in other cases, oil companies. As I remember, we were told that, if faced with additional liability, those who operate or participate in the CCPs would choose to use exchanges outside, rather than inside, the UK. So, do these additional SIs empower the Bank of England to require members to make additional cash contributions? I am somewhat concerned that the negative SI—which we are not debating today but which sits with these, as the Minister rightly said—and its cash call powers might have that possibility. I am not saying that I am opposed to that, but I just wonder whether the Minister can do anything to help me understand it and whether there are therefore any implications for the attractiveness of the UK as a location for clearing.
The Minister kindly assured all of us that assets held in the CCPs as margin—collateral, in effect—are fully protected, and there are no implications for netting or off-set. I think I have understood that correctly. But, in a dynamic situation, there must be some adjustment to netting and off-set because, if there is an insolvency, changes in value take place on a moment-by-moment basis. Is there a way to encapsulate how that piece of it works? I am concerned about saying that there are absolutely no implications for netting and off-set, when it is very hard to see that there would not be in an insolvency situation.
I just want to confirm again with the Minister that the “no creditor worse off” safeguard is still fully robust and whether the SIs—the negative and the positive together—weaken it in any way. Is the taxpayer liability, as the ultimate backstop, changed at all by these SIs? Are there, therefore, any implications for public sector net debt? In other words, regarding this liability to act as the rescuer of last resort—it is implicit in CCPs because we are looking at a “too big to fail” situation if we have systemic insolvency—are there any accounting implications for the national debt? Is there any possibility that these changes would drive towards putting the liability on the books?
The notional value of outstanding over-the-counter derivates, which represent the largest body cleared through CCPs, exceeds $600 trillion at any point in time. What is now LCH—I still call it the London Clearing House—dominates that market. A third of that business reflects the clearance of euro-based derivatives under an equivalence granted by the European Commission for UK clearing houses. However, that will last only until June 2025. I know that the City and the Treasury are convinced that the EU will extend that equivalence grant out of necessity, but if it does not, the implications for the City of London will be huge. This is not a time for complacency. I ask again: are there any competitive issues to which we should be alerted in these SIs and which may have consequences for either the EU grant of equivalence or our dealing with the consequences if that grant is not given?
Lord Livermore (Lab)
My Lords, I begin by warmly welcoming the Minister to her new role. I very much look forward to working with her in the months ahead.
Baroness Kramer (LD)
May I offer my apologies for not having welcomed the Minister to her role? We talk to each other across the House so often that I hardly realised a change had happened; I apologise.
Lord Livermore (Lab)
As the Explanatory Memoranda accompanying these two SIs note, the current CCP regime was implemented around a decade ago, in part as a response to the global financial crisis. The Financial Services and Markets Act 2023 has introduced an expanded CCP resolution regime, with that Act giving the Bank of England, as the UK’s resolution authority, what the Government call
“an expanded toolkit to mitigate the risk and impact of a CCP failure and the subsequent risks to financial stability and public funds.”
Preserving market stability is of paramount importance. The UK’s financial services industry plays a vital role in boosting economic growth and delivering skilled jobs in every part of the UK. Almost 2.5 million people are employed in financial services, with two-thirds of those jobs based outside London, and the sector contributes more than £170 billion a year to GDP.
The City of London is one of only two global financial capitals and is at the very heart of the international monetary system. The UK’s reputation and success as a leading international financial centre depends on high standards of regulation as well as a stable and independent regulatory regime. Much of what is being implemented by these two SIs is a carryover between the old and new CCP regimes. Paragraph 3 of the impact assessment outlines that, if these steps were not taken, it
“would mean that there is no protection in place to ensure that the Bank’s powers do not disrupt normal market procedure.”
We therefore fully support both these SIs.
However, I want to ask the Minister a number of questions. First, an issue frequently raised with this type of SI is the sheer breadth of legislation that it tends to amend and the difficulty that those in the sector may face in familiarising themselves with all the changes once they have taken effect. The first of the SIs we are debating today makes a long list of changes to corporate law to ensure that the new Schedule 11 CCP regime will function effectively. The second SI somehow manages to be even more technical; it deals with partial property transfers and the writing down of liabilities, needed to ensure that they do not disrupt the new system’s operation. I ask the Minister, therefore, how interested parties will be, or have been, notified of the contents of these instruments, and when the guidance referenced in paragraph 11.1 of both Explanatory Memoranda will be laid. Will that guidance be laid before Parliament, or at least sent to the relevant parliamentary committees?
Baroness Vere of Norbiton (Con)
I am grateful to the noble Baroness, Lady Kramer, and to the noble Lord, Lord Livermore, for their kind welcome to my new role. From Transport to Treasury—how exciting. This is indeed my first outing, and I get to do some very, let us be honest, technical SIs. Like the noble Baroness, I too looked for the exciting or the unusual in these SIs and, unfortunately, I have not necessarily succeeded either. They are important and necessary to bring the new expanded regime into operationalisation, but I do not think there is anything in them that would trouble noble Lords. Judging by the questions raised by the noble Baroness and the noble Lord, it is more about the process, making sure that people are aware and ensuring that the CCPs actually function, which the noble Baroness pointed out.
I turn first to the noble Lord’s questions, because he was kind enough to give me sight of them before the debate, which is always incredibly helpful, because I always try to do my very best. I know I will not answer all today’s questions so I will, of course, write. I will start with notifying the interested parties. It should be noted that the CCP resolution liaison panel was convened in June this year to discuss the secondary legislation under Schedule 11, including the substance of these instruments. This panel includes a variety of industry stakeholders, including the three UK CCPs, organisations that represent large numbers of clearing members, insolvency experts and regulators. We have a wide range of people there, which feeds into the noble Lord’s point that it is disappointing to receive 14 responses to a consultation. However, for a consultation such as this we got responses from trade bodies and we are satisfied that the industry is well aware of what is going on and that it will be implemented on 31 December. The panel was not only consulted on these SIs but also on the code of practice, which describes how the Bank will use its powers under Schedule 11. This will be published when the new regime comes into force.
I am content that the industry is well aware of what is happening. We will continue to liaise with the industry as the regime comes into force and as the code of practice is published. That code will, of course, be laid before Parliament and updated and reissued—and therefore re-laid—as appropriate should any amendments be made.
In addressing the consultation responses, it is fair to say that we looked at all the feedback we had from the initial consultation and covered all the issues that were raised in the response. There has been ongoing consultation since then to ensure that the detail is correct, and that the relevant trade bodies and CCPs were fully involved in ensuring that not only the provisions of the FSMA but the subsequent delegated legislation required were robust. So we have done quite a lot of consultation and I do not believe that we could have done much more. It is certainly not my feeling that we have missed anybody out or that there is a groundswell of opinion out there that people needed to be heard.
With the FSMA, we very much tried to set out which elements should be in primary legislation versus some more technical measures which should be in secondary legislation. This legislation does not change the policy set out in the FSMA; it makes necessary changes to company law, which sometimes needs to be changed separately. It creates protections for important contractual arrangements, as necessary.
Noble Lords will have noticed the cash call limit. There are some things that everybody knows may need to be lifted in 10 or 20 years’ time; these are entirely appropriate for secondary legislation.
The noble Baroness, Lady Kramer, asked me a number of questions about the operationalisation—not only the way that these clearing houses work but who bears the biggest cost when they get into financial trouble. At the moment, given the potential impact on the UK’s financial stability from a CCP’s inability to continue to provide these clearing services, what we have done, and it is prudent to have done so, is ensure that the Bank of England has all the powers it may need in a full range of possible market stress scenarios. As the noble Baroness rightly pointed out, these things are often global and happen very quickly. Some may fare worse than others. In the unlikely event that this happens, it would be a highly unpredictable scenario. That is why we have tended more to set out a framework for how it would happen rather than go through the detail of any possible scenario.
The UK already has effective rules for CCPs’ own recovery arrangements. These include the requirement that a CCP’s total prefunded financial resources cover the losses from the default of two clearing members—not just two clearing members but those with the largest exposure. That is a fair balance between the likelihood of something happening and the necessity of tying up capital to provide a sufficient cushion. However, the Bank of England has a range of other powers that it would be able to bring to bear over the course of resolution not only on the CCPs but on those members within them to ensure that we end up with market confidence and that the system continues.
The noble Baroness mentioned “no creditor worse off”. The Treasury is required to have regard to the “no creditor worse off” safeguard in the event that a resolution occurs. Therefore, no individual will be worse off after a resolution than they would have been if the CCP had gone into insolvency. So, yes, these are not tidying-up measures but just key technical points to bring the regime into being.
I will write to the noble Baroness on how there can be no implications for set-off and netting. I understand what they are, but I want to reassure myself that I used the right words, and I will reply in writing, if that is okay. I have a little more information on whether clearing members should be required to make a bigger contribution, but I will also set that out in writing. There are probably one or two other points but, for the time being, I commend this instrument to the Committee.
Financial Services and Markets Act 2023 (Resolution of Central Counterparties: Partial Property Transfers and Safeguarding of Protected Arrangements) Regulations 2023
(1 year, 1 month ago)
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Baroness Vere of Norbiton
That the Grand Committee do consider the Financial Services and Markets Act 2023 (Resolution of Central Counterparties: Partial Property Transfers and Safeguarding of Protected Arrangements) Regulations 2023.
Design Right, Artist’s Resale Right and Copyright (Amendment) Regulations 2023
(1 year, 1 month ago)
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Viscount Camrose
That the Grand Committee do consider the Design Right, Artist’s Resale Right and Copyright (Amendment) Regulations 2023.
The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)
My Lords, I beg to move that these regulations be considered. They and the Intellectual Property (Exhaustion of Rights) (Amendment) Regulations 2023 were laid before the House on 16 October 2023. Intellectual property—IP—matters. The IP framework protects creations of the mind, such as inventions, literary works, symbols and names used in commerce. The UK system is widely regarded as among the best in the world. Our IP system is built on laws that ensure consistency, certainty and balance. It has not only helped to incentivise innovation and the creation of new technologies and products but promoted competitive markets and consumer choice. Maintaining a balanced, consistent and stable IP framework is crucial for businesses, consumers and investors.
The draft regulations before the Committee today use powers contained in the Retained EU Law (Revocation and Reform) Act 2023—the REUL Act—to amend or restate certain provisions in IP legislation. They make targeted changes, to the benefit of our IP framework, in line with the aims of the Act. I will take each set of draft regulations in turn, beginning with the Design Right, Artist’s Resale Right and Copyright (Amendment) Regulations 2023. Subject to noble Lords’ approval, they will amend provisions in four pieces of IP legislation. I will explain more about these.
The Design Right (Semiconductor Topographies) Regulations 1989 provide protection for designs that are semiconductor topographies, implementing international obligations under the World Trade Organization’s TRIPS Agreement. Semiconductors, commonly referred to as chips, are the core component of all electronic devices. The semiconductor topography design right is an IP right intended to protect the design of specific semiconductor products, such as circuit boards, which can be relatively easy to copy.
The Earl of Clancarty (CB)
My Lords, I declare an interest as a visual artist. Some of my remarks will, I hope, be of interest to DCMS as well.
Many of the areas covered by these regulations are important to the arts and creative industries, but I want in particular to highlight the concerns of the visual arts. On 23 February this year, the noble Baroness, Lady Brinton, and I argued strongly for the retention of the artist’s resale right, having supported an amendment to that effect that was helpfully tabled by the noble Lord, Lord Clement-Jones, during the passage of the Retained EU Law (Revocation and Reform) Bill. I will not repeat all the arguments made in that debate, but I am glad—as will be the artists affected and, of course, the relevant rights management organisation, the Design and Artists Copyright Society—that the Government have rightly decided to allow this extremely useful scheme to be continued. I am grateful to DACS for its briefing on this.
The ARR has been in operation in the UK for 17 years. As the timely report produced by DACS this year shows, it has paid more than £120 million in royalties to over 6,000 artists and their heirs. UK artists themselves earn on average between £5,000 and £8,000 a year for their work—very little for the important work that they do, really—and much of these royalties gets reinvested in their practice, which will include studio rents and materials. Heirs use the royalties to store, restore and archive artists’ work, so this scheme is hugely beneficial not just to the individual artists concerned but, crucially, to the overall culture of the visual arts in this country.
DACS has confirmed what the Minister said, which is that the change from euros to sterling is useful, in that it will simplify the collection process for the royalty, as well as providing a currency that, to UK beneficiaries, will have a consistent value in the sense of not having to go through an exchange rate. I understand that, in response to the IPO, DACS also looked at the number of sales that would qualify under a new threshold—£1,000 rather than €1,000—which turns out to be a small percentage of total qualifying sales per year.
However, I want to make the wider point that, important as this scheme is, it will most benefit artists who are a few rungs up the ladder and have a reasonable secondary market, although the poorer artists will get the greater remuneration through ARR. Times are extraordinarily tough for a variety of reasons for those artists who are starting out or whose work has not yet achieved much value in the secondary market.
By supporting this scheme, the Government are signalling that they support visual artists, but one of the things that a Government could do better is ensure that artists are properly remunerated for the work they do, in particular for inclusion in publicly funded exhibitions. Beyond ARR, we can and should do much better in this country to support visual artists, particularly at the very beginning of their careers.
My only regret with the present legislation is that it was necessary in the first place. We have not had the gap that those who have benefited from the Horizon programme have endured, although the uncertainty will have caused some sleepless nights for the artists affected. As we know, there is no upside whatever to Brexit for the arts and creative industries. We have, quite rightly, talked a fair amount about the multitude of problems facing touring musicians, and it is too easy to forget that other forms, including the visual arts and the arts trade more generally, are significantly affected by Brexit. As I have said before, artists, particularly those without galleries to represent them, have been reduced to unwillingly smuggling their own work across borders, even for prearranged exhibitions in Europe, which is a ludicrous state of affairs. These are artists who are not just making great work but often very engaged in cultural exchange, which, even in an age of globalisation, feels even more important today, given how much communities, even within Europe, can be riven apart from each other.
In this internationalist vein, whatever one thinks, in the round, about the trade agreements that the UK has been making with other countries, it is good that ARR has been included in these deals, such as with Australia, with which we have a reciprocal agreement. Of course, these regulations honour that commitment that this country is making with other countries that also operate this scheme, as well as encouraging others to implement ARR. When the Minister comes to reply, could he provide us with a full list of those deals in which ARR features, and perhaps explain why the resale right has been left out of trade deals with Canada and India, if that is the case?
I thank the Alliance for Intellectual Property, DACS and the Authors’ Licensing and Collecting Society for their briefings on IP exhaustion. I hope that the Government understand by now how significant it is that so many artists in so many disciplines are united in wishing to continue with the current regime and not move to an international exhaustion scenario, which would so detrimentally affect these industries at every level.
Continuing the UK-plus regime is very much to be welcomed, although industry is mindful that it is officially an interim decision. Designers, writers and publishers alike, the music industry, visual artists and so many others within the creative industries are very much in agreement on this. We are very good at exporting our creative product. For example, 60% of the UK’s book sector income comes through exports, yet it is estimated that a significant proportion of its revenue—about £2 billion—could be at risk under an international exhaustion scenario, with the threat in particular to the domestic market. ALCS says:
“If we were to have a regime of international exhaustion the consequences could be less pay for authors and fewer publishers”
based in the UK able to
“take a chance and invest in creative talent across the country.”
It will be no help to the consumer whatever if, in the end, there is no product to buy.
It is worth thinking in this respect about the structure of the arts and creative industries. It is not a few large companies for which shocks to the system just might conceivably benefit consumers. The UK’s IP-rich creative industries are composed of many businesses of differing sizes, with many small businesses and freelancers. They need support. Within this context, what they need above all else is stability—a key word in the Minister’s speech—which the current regime enables. However, I welcome the new government decision on this, which will provide the necessary continuity that the arts and creative industries require, but we need to make this arrangement permanent.
Lord Clement-Jones (LD)
My Lords, it is a pleasure to follow the noble Earl, Lord Clancarty; I wholeheartedly agree with everything that he said. I should say from the outset that we on these Benches support both sets of regulations, which will, I hope, gladden the Minister’s heart as we start debating them.
There are, however, a number of points to be made in relation to them. I very much support what the noble Earl had to say about DACS, the not-for-profit visual artists’ rights management organisation. It recently helpfully published a report that highlights the pivotal role that artists’ resale rights play in supporting artists and the wider art market. As the noble Earl said, they have been somewhat controversial in the past, but, now that they have been included in trade agreements, I feel confident that they are now bolted fully into our intellectual and moral property rights. They are an absolutely vital source of income for many artists. The noble Earl talked about more than £120 million in ARR royalties, directly benefiting more than 6,000 artists and their heirs. Artists selling at the lower end of the art market benefit in particular from ARR: two-thirds of ARR payments in 2021 were less than £500 and 10% of artists received ARR royalties for the first time that year.
I will not repeat most of the rest of what the noble Earl had to say, just that I very much agree with a great deal of what he said. More than 90 countries worldwide have implemented some form of ARR legislation so we are in good company as regards what I see as this moral right. We have heard about the trade agreements; it would be useful to get from the Minister an idea of which agreements we have included this in. Christian Zimmermann, the CEO of DACS is definitely worth quoting. He said:
“The Artist’s Resale Right is more than a legislative mandate—it is a commitment to fairness, a recognition of the value of artists’ contributions, and an indispensable support for artists and their estates.”
The Minister may notice that I have used pounds sterling in my figures throughout so, naturally, I support that aspect of these regulations and, of course, the other aspects that are provided for in the regulations.
The Intellectual Property (Exhaustion of Rights) (Amendment) Regulations 2023 are, in many senses, a much weightier aspect of the regulations we are considering today. I am grateful to the Alliance for Intellectual Property and the British Brands Group for providing briefings and, indeed, their strong views on these issues. I know that the Minister will have heard many of their arguments in person but I want to put on record those views, with which, I should say, I and the All-Party Parliamentary Group for Intellectual Property strongly agree.
Members of both groups strongly consider that the status quo will deliver the strongest overall outcomes for shoppers, business and the UK economy. Following the UK’s departure from the EU, the UK Government now have control over the exhaustion regime. As the Alliance for Intellectual Property says, the importance of the decision on which exhaustion regime the Government choose cannot be underestimated. Although it seems a technical area of policy, it will have a real-life impact on businesses, consumers and regulatory authorities across the UK. Exhaustion regimes have the greatest impact on export-driven UK sectors as they underpin their ability to determine when, how and what goods to sell in international markets and at what price.
The noble Earl quoted the publishing sector. Industries of that kind are particularly successful at exporting; for example, the UK book sector derives 60% of its income from exports. We have heard that the Government have consulted on which regime the UK should select. In January 2022, the Government made an interim decision to select a UK+ regime that would maintain existing protections. As we have heard, this statutory instrument is being introduced by the Government relating to that interim decision. As the Minister said, though, the Government have not made a final decision on which regime to choose but are likely to announce their decision in the next few months. I hope that the Minister will give us some idea of the time in which he expects that decision to be made.
The British Brands Group believes that advice from officials is to make the interim decision permanent—at least, that is its impression—which would be widely welcomed. I want to take this opportunity to voice support for the interim decision and express concerns regarding any shift to an international regime that might arise in future. I am not going to explain what the alternatives are; I do not think I need to. National exhaustion is one alternative and international exhaustion is another; neither is practical nor attractive.
The current regime is regional exhaustion, an approach that has been working well for 50 years. Rights are exhausted once goods are placed on the UK or EU market, although they can be used to prevent the distribution of goods placed on markets outside those countries. This status quo operates well, as we know; it strikes us on these Benches and those organisations as proportionate, hence our strong support. The SI rightly provides for an IP exhaustion regime meaning that the holders of trademarks would not be able to object to the further distribution of their goods once they are placed on the market in the UK and the EU. They would, however, be able to object to imports from other countries.
The Government’s decision on the UK’s future exhaustion regime will be among the most important taken in relation to intellectual property policy during this Parliament. Its impact will affect businesses, consumers and regulatory authorities across the UK; as I have said, it will particularly affect export-driven UK sectors as it underpins their ability to determine how and what goods to sell in international markets and at what price.
Any shift to an international regime would also affect many of the UK’s leading design and branded goods companies. This would make it significantly more difficult to launch new products in countries around the world as those firms would not be able to vary pricing at launch for fear of those products re-entering the UK. A move to an international regime would also lead to consumer confusion since product and regulatory standards differ across countries internationally. Any “free for all” in parallel imports to the UK would undermine the UK’s product standards regulatory framework and would create uncertainty and confusion for the public.
Opponents of maintaining the status quo and supporters of an international regime suggest that there would be a reduction in pricing for consumers from an increase in parallel imports. Where parallel imports occur currently, in contravention of our regime, prices are not lower. As an example, you occasionally see bottles of Coca-Cola with foreign language labelling in some small shops but at the same pricing as compliant products.
We believe that the retail supply chain, including wholesalers and parallel importers, would therefore be the major beneficiary, rather than the UK public. The cost-benefit equation is likely to be between established creative industry sectors that find their home in the UK market but could choose to move elsewhere against a parallel import sector that does not currently exist and would not even need to be located on UK shores, nor to create UK jobs.
In summary, an international exhaustion regime would represent a significant policy shift away from innovation and growth. It would weaken competition, harm consumers and not help lower consumer prices, in our view. The SI as drafted sustains the current exhaustion regime until the Government confirm their long-term policy approach. The most recent government consultation identified no evidence at all to support a change in regime, so this debate is important.
I hope that the Minister, IPO and others in government resist calls for any change that could reduce IP rights holders’ ability to influence the distribution of their products in markets outside the EU and weaken their IP rights. A change in the UK’s trademark exhaustion regime would be a significant policy shift negatively affecting consumers, brand owners, UK exporters and public enforcement agencies, while not reducing inflation. I hope the Minister has got my message that this would not be a welcome change away from the current exhaustion regime.
Lord Stevenson of Balmacara (Lab)
I apologise for my slightly late arrival at the Committee. I hope that it was not noted too carefully, but we are doing two SIs as one group and I was here for the whole second part. I hope that that qualifies me to speak.
Also, it would be a terrible shame not to recapture the spirit of a few years ago, when a little group of three of four colleagues, including the noble Baroness, Lady Neville-Rolfe, debated a number of issues to do with intellectual property that came up at that time. It was interesting that a group from within the confines of Parliament then was able to get together and become quite expert at some of these issues. We had some very enjoyable debates and some of these issues have played out again today. Those who benefited from going on that journey gained a lot of knowledge and expertise, so I am not able to stun the Committee with some new insights; they have largely been covered by those who have built up their expertise from the same route that I have been on, so what I would say would be otiose.
I will congratulate both the noble Earl, Lord Clancarty, and the noble Lord, Lord Clement-Jones, for covering the points I would otherwise have made and piggyback on them to save the time of the Committee, which is a good thing.
However, it is interesting that we are still talking about issues that were live three or four years ago. I am sure the noble Baroness, Lady Neville-Rolfe, remembers them with some interest. We are still not clear what distinguishes our particular configuration of design rights. I still worry about those and hope that the department is working on a way forward with some of them. We had some clarity when we were thinking, within the EU context, of a way of trying to balance the difference between those which operated within the UK only and those that were being developed in Europe but were not able to go back to that. I do not think we quite got over the variations that can occur between the triad of patent, trademark and intellectual property in other forms, because they bump into each other. Although they have been dealt with rather well within these statutory instruments, there are occasions when they point in different directions and it is very hard to get a sense of the Government’s policy on them. There is still a need to do more work on that.
In turning to the SIs before us today, I want to raise a very narrow point on design right, ARR and copyright, from the Explanatory Memorandum. Although the noble Viscount touched on this in his introduction, he did not spend a lot of time on it. It is a question of broadly taking forward the arrangements that existed before we left the EU and making them slightly up to date as we go forward. I have no problem with the Design Right (Semiconductor Topographies) Regulations 1989, which were notably not mentioned by my two colleagues nor dealt with in any detail. That is a sensible move forward. We covered ARR and the copyright tribunal rules in some detail. That is a good change and an important way forward.
Viscount Camrose (Con)
My Lords, I very much thank the three noble Lords for their valuable and interesting contributions to this debate. As I said in opening, IP matters. The IP system exists to encourage innovation and the sharing of information, creativity and knowledge. It provides individuals and businesses with the confidence to invest their time, money and energy into developing something new. That is why the Government remain committed to a world-leading IP framework. We hope these regulations will ensure that the IP system continues to support innovation across the economy and will make some targeted changes to the benefit of our IP framework.
I shall respond to some of the important questions raised in the debate. The noble Earl, Lord Clancarty, asked about ARR. I thank him for his kind words and support for the changes to ARR in relation to the change of currency. He mentioned the benefits to smaller artists of the ARR regime and the noble Lord, Lord Clement-Jones, expressed similar support. Under that change, artists who continue to receive ARR payments will see an estimated average increase of around 7%, with the highest-value artworks obviously experiencing the largest increase. In addition, when UK inflation is taken into consideration, the minimum threshold resale price for ARR eligibility will actually be lower in real terms than when it was set in 2006.
The noble Earl and the noble Lord, Lord Clement-Jones, asked about government policy for ARR in free trade agreements and why ARR is not included in some negotiations; the noble Lord, Lord Stevenson, also touched on that matter. It is current government policy to support ARR globally via international fora as well as via UK free trade agreements. For example, in our recent free trade agreements with Australia and New Zealand we negotiated provisions to provide ARR on a reciprocal basis—that is, the UK will provide ARR royalties to Australian artists and vice versa.
Noble Lords asked about provisions in FTAs that are still being negotiated, specifically with India and Canada. They will forgive me if I cannot comment at this point on negotiations that have not yet concluded. Needless to say, I am happy to set out more information as it emerges on where we are with these or other free trade agreements.
I turn to the issue of exhaustion. I note the views of the noble Earl, Lord Clancarty, on the UK’s existing UK-plus exhaustion regime and on making the UK-plus regime permanent. As I think everybody in the Room agrees, this is an important matter. As the noble Earl is aware, the Government have consulted widely on it and continue to consider what the UK’s eventual IP exhaustion regime should be. Work to consider the decision on the UK’s future exhaustion regime is ongoing. We intend our future regime to strike the right balance between consumer choice and fair market pricing, protecting creators and promoting competition. The Government are aware that businesses would like certainty about future arrangements that will be affected by this decision. We will let stakeholders know the outcome of the policy decision in due course.
Lord Stevenson of Balmacara (Lab)
I think we all asked for a bit more detail than the Minister’s “in due course”. Could he be a bit more specific?
Viscount Camrose (Con)
Indeed. DSIT has been making representations to precisely that effect across government and that process is in train. I cannot provide a date for when it is going to be complete.
Lord Stevenson of Balmacara (Lab)
Could the Minister perhaps hint at what form it might take? Are we at the White Paper stage of the process or will it just be a statement that the issues are finished?
Viscount Camrose (Con)
Perhaps I had better write to all noble Lords present to say exactly what form that will take.
Lord Clement-Jones (LD)
I am sorry to interrupt the Minister as well. In addition to the timing, it would be useful to know what the instrument is going to be. Will it be another consultation? We have had a consultation, which finished last year, and now we have the SI. Is there going to be another consultation with another SI? The whole process needs unpacking a bit.
Viscount Camrose (Con)
That is fair enough. What I am hearing is that noble Lords want to know not just when it will be but what it will look like when it happens. That is an entirely reasonable request, to which I am happy to accede.
I note the views of the noble Lord, Lord Clement-Jones, on how the UK-plus regime supports the publishing industry in particular. I recognise the importance of this issue to a variety of businesses, which have provided extensive contributions to the public consultation on this matter. On behalf of the Government, I thank those businesses for their constructive engagement during the consultation and since. The noble Lord also—no, I am getting ahead of myself. I will move on, except to note that this issue has the potential to impact so many business sectors and therefore it is important for the Government to take the time to get it right.
The noble Lord also mentioned his concerns about a potential move to an international exhaustion regime. As I mentioned, no decision has been made. However, I should advise noble Lords that we intend a future regime to strike the right balance between consumer choice, fair market pricing, protecting creators and promoting competition.
I turn to the matters raised by the noble Lord, Lord Stevenson. I am grateful for his and his colleagues’ expertise on this important area of policy. He raised the review of design rights. The IPO began a review of that legislation last year, with a call for views published in January 2022. We want to make sure that the UK design system best meets the needs of designers and businesses. The IPO is now working on policy proposals on which to consult, which will likely happen in the first half of 2024. The review is fairly wide ranging, as the law around designs is complex and has not been reformed in any meaningful way for some time. It is important to do this work properly to make sure that any changes work for users and all stakeholders.
The noble Lord raised concerns about transparency reports issued by collective management organisations not being audited. The purpose here is to align the treatment of CMOs with that of other organisations in Companies House of similar size; to not treat them differently simply because of the nature of the work they do as CMOs, and therefore not to require organisations that qualify as small to conduct a formal audit in that way, along with other organisations of their size, scope and scale.
Small CMOs will still be required to produce annual transparency reports and to abide by the regulations that govern their conduct and operations. Removing the statutory audit requirement strikes a fairer, more proportionate balance between risk and cost for these small entities. The changes to the audit requirements were in recommendations evidenced by the additional burden imposed on them during a 2021 post-implementation review of the regulations. To provide some reassurance, I hope: this change affects just seven of the smallest CMOs.
The noble Lord, Lord Stevenson, also mentioned the expansion of the European Economic Area and how it would affect our exhaustion regime. Currently, the geographical scope of our exhaustion regime covers the UK and the European Economic Area. If the European Economic Area expanded the Government would consider how that would affect our exhaustion regime, but we would not wish to prejudice such a decision.
I hope all noble Lords will recognise that these proposed changes support a balanced, consistent and stable IP framework that is crucial for businesses, consumers and investors. I absolutely recognise the strength of feeling and argument in favour of maintaining this regime, but meanwhile I commend these regulations to the Committee.
Intellectual Property (Exhaustion of Rights) (Amendment) Regulations 2023
(1 year, 1 month ago)
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Viscount Camrose
That the Grand Committee do consider the Intellectual Property (Exhaustion of Rights) (Amendment) Regulations 2023
Digital Government (Disclosure of Information) (Identity Verification Services) Regulations 2023
(1 year, 1 month ago)
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Baroness Neville-Rolfe
That the Grand Committee do consider the Digital Government (Disclosure of Information) (Identity Verification Services) Regulations 2023
Relevant document: 54th Report from the Secondary Legislation Scrutiny Committee, Session 2022-23.
The Minister of State, Cabinet Office (Baroness Neville-Rolfe) (Con)
My Lords, I am glad to see the noble Lord, Lord Stevenson of Balmacara, and others, and I echo what he said about our constructive discussions in 2014-16. I am also pleased to see my noble friend Lord Camrose championing intellectual property, as we try to do, and to see him accompanied by my noble friend Lord Evans of Rainow in his new position as Cabinet Office Whip.
The Digital Government (Disclosure of Information) (Identity Verification Services) Regulations 2023 are an important part of this Government’s commitment to strengthen the use of data and information across the public sector. We are bringing these forward so we can deliver better and more joined-up services and, in turn, improve outcomes for our citizens.
The regulations aim to allow information sharing between named bodies for the specific purpose of supporting cross-government identity checking when it is needed. Verifying a user’s identity—ensuring that a person is who they say they are—is a key part of delivering many government services. The draft regulations enable this by establishing a new data-sharing objective under Section 35 of the Digital Economy Act 2017 and by setting out which public bodies may use the new objective. This will create a legislative gateway, enabling us to use existing data sets, which public bodies already hold, to help as many people as possible to access the government services that they need online. It is therefore central to the development of more inclusive and accessible systems.
Specifically, the proposed objective would unlock the full benefits of the new cross-government digital system known as GOV.UK One Login. This is now live; users are able to set up an account, log in and prove their identity in order to access an initial set of 24 government services, with more being added all the time. However, at the moment, users must have photographic documentation, such as a passport or driving licence. This will change following the introduction of the new objective, as it will unlock new ways for people without photo ID to prove who they are, opening up the system to more users.
The delivery of One Login is a step change in simple joined-up access to government services online. This, in turn, delivers substantial cost and time savings for the Government and users by reducing duplication and providing enhanced capability to identify and stop fraudsters. In summary, the proposed objective will, first, enable checks against existing government-held information, such as PAYE and benefits data, to build confidence in the user’s identity, which will be particularly key where service users do not have a passport or driving licence. Secondly, it will provide a specific legal framework for checks against documents currently used in identity verification, such as driving licences. Thirdly, it will enable the sharing of the results of identity checks performed by one named body with another, so that users need to prove their identity only once.
The draft regulations set out which of the bodies already listed in Schedule 4 to the Digital Economy Act can use the new identity-verification data-sharing power, such as HM Revenue & Customs and the Department for Work and Pensions. They also add four new public bodies to the schedule that will be able to use the power: the Cabinet Office, the Department for Transport, the Department for Environment, Food and Rural Affairs and the Disclosure and Barring Service.
The public bodies listed in the regulations are either bodies that hold information that could be used in support of proving that someone is whom they say they are or those that own and manage services that people need to access, which they therefore need to receive the results of identity checks. Of course, some public bodies do both.
The territorial extent of the draft regulations is England, Wales and Scotland. The Information Commissioner’s Office and the devolved Administrations support the draft regulations, and indeed the Scottish and Welsh Administrations have requested that certain Scottish and Welsh bodies be included in the draft regulations to enable them to use the new data-sharing power—so it is devolved friendly.
I am sure noble Lords will be pleased to know that these draft regulations have been subject to the standard rigorous processes of internal and external review. In the first instance, the objective has been subject to scrutiny by the Public Service Delivery Review Board, as set out in the underpinning code of practice on public service delivery, debt and fraud of the Digital Economy Act 2017. The board recommended that Ministers take forward these draft regulations since they meet the required criteria of supporting the improvement, or targeting, of public services to individuals in order to enhance their well-being.
Furthermore, the objective has been subject to a public consultation, which received more than 66,000 responses. Some respondents recognised the benefits to individuals of improved and more inclusive services. Some mistakenly expressed concern that this was a back-door route to identity cards. Therefore, in response to the consultation, the Government confirmed that they have no plans to introduce mandatory digital ID or identity cards. We also published additional information on how GOV.UK One Login will operate within these regulations and within the overall data protection framework. We extended the time between the regulations being approved and coming into force, and we amended some of the wording to reflect that of the Act. Of course, the Government understand that people want to protect their personal information and this is central to our approach. The draft regulations relate to using data only for the purpose of identity verification.
Part 5 of the 2017 Act gives the Government powers to share personal information across organisational boundaries to improve public services. It lays down what data can be shared and for which purposes. Data sharing must also have regard to the accompanying statutory code of practice on public service delivery, debt and fraud, which sets out how the power must be operated, including how any data shared must be processed lawfully, securely and proportionately in compliance with data protection legislation and UK GDPR.
The Digital Economy Act statutory code of practice on public service delivery, debt and fraud also requires information-sharing agreements to be listed on a public register of information-sharing activity under the powers. The framework for data sharing under the DEA provides a supportive background to help organisations to share data in ways that benefit the public, as confirmed by the Information Commissioner’s Office in its recent review. It includes robust safeguards that ensure that organisations share data responsibly and in alignment with data protection principles, while also safeguarding people’s rights.
I think these regulations are relatively straightforward and important, and I hope that colleagues will join me in supporting them.
Lord Clement-Jones (LD)
My Lords, it is good to see the Minister move seamlessly from intellectual property to digital and data, but both can sometimes create their own questions. Since this is the first time we have debated One Login in the Lords, I hope that the Minister will not mind if she gets a large number of questions about the scheme. As I understand it, the goal of the One Login programme is to create a log-in database owned by the Government and containing the verified names, addresses, dates of birth, phone numbers and email addresses of everyone who uses—eventually—all Government-owned digital services, which is likely to be everyone in the country.
Perhaps unfairly, I have always thought of One Login with some scepticism, as the son or daughter of Verify, and not in a good way. The cost of the failed Verify scheme was over £200 million. It would be very useful as part of this debate to hear the cost of OneLogin so far and how much more is budgeted to be spent on its rollout. It does seem strange that the Government are having another crack at a single verification system, given the many other trustworthy existing systems that could be adopted.
First, I think it worth mentioning what the Secondary Legislation Scrutiny Committee said in its 55th report in October. I think it was rather baffled and scathing at the same time:
“This is a classic example of an Explanatory Memorandum … with too narrow a focus”.
I think it felt it was being bounced to some extent, without the context in which One Login was going to be designed to work. It said:
“We therefore request that the Cabinet Office revises its”
Explanatory Memorandum
“to include sufficient background information to enable any reader to understand the legislation’s practical effects”.
I suppose I am lucky in that I followed the gory progress of Verify through to One Login and the current date. I have some idea of the purpose behind One Login. As I understand it, the principal effect of these regulations is to allow the Government to share data for the purposes of identification. The SI does not restrict those flows of data; data can flow into the Cabinet Office as envisaged but identity data can also flow from the Cabinet Office to any other listed department. I hope that the Minister will be able to confirm that.
Will the Government allow population databases to be copied, whether openly or not? The revised Explanatory Memorandum is silent on this, and it is unclear if this assurance from the Government’s consultation response will be delivered. The response said:
“In particular, information will set out which departmental services are using identity verification services to support delivery and which will provide data to help departments establish who a person is”.
Will that actually happen? Will there be that level of transparency? There are apparently no safeguards on sharing bulk data if the Government want to share for this purpose across government. What transparency will there be if and when this takes place?
There is then the question of for whose benefit One Login really is. Is this a “better login to government” project, which many people might applaud, or is it a “one identity to government” project? The answer at the moment appears to be the latter. I say this because medConfidential, which I thank for its briefing, reports that a
“meeting held during the consultation was told that the Government’s intent is to actively prevent individuals from having multiple login accounts. A person may be able to have multiple email addresses— indeed, they may already do—but Government would attach them to a single ‘identity’. This regulation allows that database to be shared in bulk”.
Not to put too fine a point on it, that turns One Login into a tool of a centralising state—with implications for the privacy of the citizen—which the Government have previously assured us many times they were not building. I would therefore be extremely grateful if the Minister described the reality of One Login, as well as its purpose and operation.
At a roundtable on the consultation, the Government Digital Service apparently said that the regulation’s “first use is One Login”, which suggests there will be a second use. It is unclear to us to what extent the DWP will embrace One Login for government, for universal credit, for HMRC’s services, or indeed for the MoJ’s digital courts. What commitment from government departments and agencies is there? I can see that they are all listed, but Verify fell down precisely because of the lack of commitment from many government departments. What about the identities, too, of public servants? Will they be able to have multiple identities as both citizen and employee? What is the reality of that?
Baroness Chapman of Darlington (Lab)
My Lords, I am grateful to the Minister for her helpful introductory remarks. This regulation concerns the sharing of information between public authorities to ensure that any information sharing under Section 35 is justified and proportionate. It permits public authorities to share information only for purposes consistent with tightly constrained objectives which are set out in regulations. This measure adds a new objective relating to identity verification.
In future, individuals will be able to create a reusable digital identity, which the Government say would be secure, convenient and efficient. Instinctively, we would be very supportive of this, but it would be helpful, certainly to me, if the Minister could perhaps explain with a practical example exactly how this will work from a citizen’s perspective, imagining perhaps that she is applying for universal credit. What will she be able to do that she cannot do now? How would her interaction with the service provider be enhanced by this new objective? Will there be a benefit to those who do not have a passport or a driving licence and who, on occasions, find it difficult to prove their identity? What future use does the Minister anticipate?
There are some future uses. The noble Lord, Lord Clement-Jones, quite rightly highlighted some of the potential problems with this, but there are potential benefits that I can see. For instance, could digital verification, in time, be helpful at polling stations in enabling individuals without passports or driving licences to vote, without having to obtain a certificate in advance? I do not know if noble Lords have ever seen one of these certificates that people have to get at the moment, but the one I saw recently was just a blurry picture on a piece of A4 paper. These things are meant to last for years. Perhaps the Minister could make inquiries as to whether digital verification at polling stations might be more convenient, perhaps even allowing real-time voter registration. It does matter, and it is vital that digital transformation benefits and enhances citizens’ experience and access to services, as well as making public services more efficient.
A number of respondents to the consultation were concerned—and I think everyone will have anticipated this—about the security of their information, and whether or not this could be the thin end of the wedge as they see it. We are pleased that this amendment would make things, I think, more convenient for individuals. To anticipate what the Minister may say, this is because they will no longer have to prove their identity multiple times, and should have a more seamless experience when accessing public services online.
However, there is concern from some that digital verification may become in some sense compulsory. It is rather like the banks, which have a strong high street presence—then online banking becomes very popular, and suddenly the more traditional methods of accessing the service become less viable and therefore less available, which arguably excludes some individuals. It is important that individuals are able to decline to access services digitally, if they wish, for whatever reason, and are not coerced or nudged into accessing services, which goes against their preference over time. With this in mind, it is important that individuals are provided with the right amount of information, so that they can understand what data is being shared, with whom, and what the benefits to them are in consenting to the data sharing. Can the Minister tell us more about how exactly this will be done and how consent will be obtained?
Having in mind the NAO’s report on digital transformation of government services from earlier this year, there are a number of potential issues that the Minister might also wish to comment on. The NAO found that departments are finding that in current market conditions, they cannot acquire sufficient digital skills and expertise in their teams. Can the Minister tell us what the Cabinet Office are doing to make sure that departments have the skills needed to safely progress with this change and future digital transformation across Government?
Also, what oversight are the Government planning? This is vital in establishing public confidence. What will the complaints process be? How are the Government planning to monitor the departmental use of this new objective and assess any inequalities created or made worse by its introduction? Will the Government check whether, in time, the less well off, older people, or people with certain disabilities or certain language issues, for example, are being disadvantaged by the preference of service providers to move to digital access? I look forward to the Minister’s responses to those questions.
Baroness Neville-Rolfe (Con)
My Lords, I thank the Committee—thin though we are—for its time and excellent questions in scrutinising the draft regulations. I think it is right to say that we have learned from Verify. One of the key things is always to learn from errors and learn how to improve things. This is a very different proposition.
The regulations will enable us to harness data more effectively, ensuring that as many people as possible can access the government services that they need online. This is particularly important where citizens and residents lack access to a passport or a driving licence, compelling them to resort to slower and costlier offline alternatives; the noble Baroness, Lady Chapman of Darlington, made that point. Approving the new objective allows us to construct more inclusive and accessible identity verification systems, namely GOV.UK One Login, which will deliver substantial user benefits and savings by minimising duplication and fraud risks.
The noble Lord, Lord Clement-Jones, asked many questions, mostly on the GOV.UK One Login programme, of course. This legislation is relatively narrow and is not about the programme as a whole, but I will try to answer some of his questions. I am sure that we can talk about things on another occasion, because I detect a lot of support for the principle of making it easier for people, particularly more vulnerable people, to access government services.
On the PCAG principle, GOV.UK One Login is being delivered in line with existing privacy principles. GDS has been working closely with members of its advisory groups to ensure this. The principles are a framework that GDS works within; they have never been official government policy. However, the data protection regime certainly gives me quite a lot of reassurance about how this will work. I tried to bring that out in my opening remarks.
On the question of population data, the purpose of GOV.UK One Login is to allow citizens who choose to use the service to prove their identity safely and securely in order to access government services online. It is not new that users need to prove who they are to access certain government services, nor that departments have to store information as a result. Let me assure noble Lords that users can delete their accounts at any time. The service standard requires services to provide a joined-up experience across all channels, so doing so would not lock a user out of all government services.
In response to the questions about benefits to individuals, let me say that the objective on data sharing would enable public bodies to share a wider range of specified data than is currently possible. This will allow GOV.UK One Login to draw on a broader range of government-held data sources when users need to verify their identity. This will benefit individuals and households by improving digital inclusion as people without photographic documentation, such as a passport, will still be able to provide their identity online and access government services by answering questions based on additional datasets. They will not have to provide the same data again and again. This will underpin users’ ability to reuse their verified identity across all government services without needing repeatedly to re-enter the same information each and every time they interact with a new service. Of course, that also brings savings to individuals and to government.
Lord Clement-Jones (LD)
Let me understand this. In effect, data is being shared across departments so it is not simply a way of having a wallet, if you like, within the Cabinet Office that then gives you a clear identity for the purposes of accessing government services across government; it is a question of sharing that identity data across government departments. It is data sharing in bulk across government departments.
Baroness Neville-Rolfe (Con)
It is data sharing for the purposes of digital identity. Ultimately, by April 2025, we hope to have approximately 145 central government services that can be accessed via One Login. It is a mistake to think that this is somehow going to be used in the bulk way that the noble Lord describes. It is about identity checking, not collecting huge amounts of data for use in a Big Brother sort of way; the noble Lord may have misunderstood this. Users can delete their account at any time. I think that the noble Lord’s concern is perhaps misplaced.
Baroness Neville-Rolfe (Con)
While I am on the subject of benefits to the individual, there is an example that I would like to share with the committee; it reflects a question that I asked. Sometimes, married women have two different names. I am in that lucky, or unfortunate, position. We understand that some users will need or want to use multiple accounts, so users can already set up multiple accounts on One Login using different email addresses that can relate to different names. From next year, we plan to allow users to link accounts under the same verified identity. The noble Baroness, Lady Chapman, asked us to look through the eyes of the individual. This is one of the things we have been trying to do in this programme, learning from the past.
Baroness Chapman of Darlington (Lab)
I am on my third surname as I have had two marriages, but that is not really where I was going. I was looking at it from the perspective of somebody trying to access a service. I cannot imagine that many people would be that interested in how you could link your different accounts, although I can see that it might be important at certain stages in someone’s life. In accessing a service, what will I be asked for or not asked for? It is about the practicality of it. If I am turning up at the benefits office, what is the difference?
Baroness Neville-Rolfe (Con)
The difference is that, at the moment, you tend to have to provide a passport. It is difficult to log in to some of these services without a passport or a driving licence. In future, as I made clear in my introductory remarks, it will be possible to use different sorts of identity data and to have a system within government that allows us to do that. That will have the effect of making it easier for more people who are finding establishing their identity difficult without encouraging a lot of identity fraud, which is obviously another concern that one has to take account of in putting these systems together.
Lord Clement-Jones (LD)
I entirely appreciate the Minister taking the trouble to talk us through this. The question is: for whose benefit is this? Is this so that government departments can identify somebody right across the board, so that you can have only one identity in government and so that the Home Office will share data with universal credit and every other department that interfaces with an individual? Is that the idea of this One Login? Or is it possible to have more than one digital identity?
Baroness Neville-Rolfe (Con)
As I said, it will be possible. You are not confined to one. It is very much coming at the problem from the user, not simply from the government department, which I think was one of the problems with Verify.
Baroness Chapman of Darlington (Lab)
I am still not quite sure that I get this. Let us say that I am going to the benefits office; I do not have a passport or a driving licence, and I am asked for other information instead to verify who I am. How will this benefit me in the future, assuming I have never had a driving licence or a passport? What difference will I experience? I am not trying to pick at this; I just want to see the benefit.
Baroness Neville-Rolfe (Con)
One obvious benefit is that more and more government departments are using digital. The technology is transforming our lives, after all. Once you have this single digital identity, you will then be able to use it to access services and opportunities from other government departments as well. That is the point: the digital identity will be used across the board. That is helpful to individuals. I should add that a document is published on GOV.UK outlining what data is being used by One Login. I think it is worth noble Lords looking at that.
The noble Lord, Lord Clement-Jones, rightly asked a question about cost—something we always used to ask about in our previous debates. The One Login programme’s total budget for 2022-23 to 2024-25 is £305.4 million. Of this, the programme forecasts expenditure of £132.7 million on the development and rollout of the system by the end of the current financial year.
The noble Lord mentioned the Explanatory Memorandum. We did indeed make some changes, as he acknowledged, to the Explanatory Memorandum, which was made available to the SLSC, to provide a clearer explanation of which part of the law the instrument is changing and why. He mentioned that the revised Explanatory Memorandum was laid on 2 November, and provided more contextual information. In particular, it explained that the SI provides the statutory basis for specified public bodies to share data in order to verify an individual’s identity in a safe and secure way so that they can access public services online, and that duplicative systems are being replaced with a single account. This is an obvious benefit.
The SI will also enable the GOV.UK One Login to draw on a broader range of government-held data sources when users need to verify their identity. That is an important point, because it is difficult for people who do not have a passport or a driving licence under the current system.
We are committed to being open and transparent by making information about data shared under the Digital Economy Act easily available for all to find and understand in the public register of data-sharing agreements. That was one of the safeguards laid down in that Act, so we have obviously taken that on board. That is an important point of transparency.
This is also underpinned by a robust code of practice—I have read it—which was created by Section 43 of the DEA. That sets out how the power must be operated, and includes setting out how any data shared under this power must be processed lawfully, securely and proportionately, in line with data protection legislation. We therefore have the DEA and data protection legislation coming together to allow us to implement this, hopefully life-changing, bit of technology in a way that protects the citizen. Obviously, the Cabinet Office is responsible for maintaining that register, and the Public Service Delivery Review Board is overseeing strategic consistency.
We have not seen that many regulations made under this Act—I think there was one on social care before—but we can see the value of the Act and the safeguards that Parliament added to it coming through.
On voter registration, the noble Baroness, Lady Chapman, raised a very good point, to my mind. I will have to follow up in writing. Fundamentally, as she said, these regulations will enhance the user experience. Despite many improvements over the last few years, today’s experience of interacting with government is too fragmented. We have multiple logins, and we are repeatedly asked the same information, which sometimes one has recorded on the phone—and sometimes recorded wrongly, as I know from my own experience. This is the same for everyone trying to access government. One Login will replace this with one system; we are used to this on our phones and so on, and there is a lot to be said for this new arrangement. We will have better data sharing to help those people without traditional forms of ID to access the services online that they need.
I hope noble Lords, having heard the benefits of the regulation—
Lord Clement-Jones (LD)
My Lords, I am sorry to interrupt the Minister as she comes to the final furlong, but the question of oversight raised by the noble Baroness, Lady Chapman, and by me, and the standards that will apply to this system, are extremely important.
Baroness Neville-Rolfe (Con)
Given the time, I will take that away, along with the voting point, if I may. I drew attention to the code of practice and the parent Act; we have every intention of following the principles, but the point about review and oversight is well made by the noble Lord, as always. I will come back to him on that point.
I am sorry that I have not been able to answer every question on the login area. I can introduce noble Lords to my honourable friend in the other place, Alex Burghart, who has spent a great deal of time developing these regulations. The point is that these narrow regulations before us today are a necessary enabler for this major change for the citizen. I hope that noble Lords, having heard the benefits, will join me in supporting the draft regulations. I commend them to the Committee.
House of Lords
Introduction: Lord Cameron of Chipping Norton
Research, Development and Innovation Organisational Landscape Report
(1 year, 1 month ago)
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Baroness Jones of Whitchurch
To ask His Majesty’s Government when they intend to respond to the Independent Review of the UK’s Research, Development and Innovation Organisational Landscape, published in March 2023.
The Parliamentary Under-Secretary of State, Department for Science, Innovation and Technology (Viscount Camrose) (Con)
The Government’s response to the landscape review is in its final stages of preparation and will be published imminently. The response will outline the ambitious actions that we have taken since the review’s publication, including through the Science and Technology Framework and the creation of DSIT. It will also announce further commitments to create a research, development and innovation landscape that makes the most of our strategic advantages and builds a more diverse, resilient and investable landscape.
Baroness Jones of Whitchurch (Lab)
I thank the Minister for that reply, but he will know that the review identified significant problems in the UK’s RDI landscape, some of which are long-term and serious, and are preventing us from becoming a science superpower. So can he assure us that the Government will take on board the integrated set of recommendations proposed in the review and establish an authoritative working group to implement them, rather than adopting a piecemeal approach to what it is a very serious challenge?
Viscount Camrose (Con)
Indeed it is a serious challenge. The review identified, I think, 29 separate recommendations. The approach that the Government are taking is to address them not merely singly but, as the noble Baroness suggests, collectively, as a whole, as well. In fact, since its creation, two of our major steps build on the foundations laid by the Nurse review: that is, the creation of DSIT itself and the laying down of the Science and Technology Framework, which builds on the review, to set up the approach along many of the lines that the review suggested.
Lord Krebs (CB)
My Lords, I apologise to the noble Baroness, Lady Jones of Whitchurch, for intervening too soon. The Nurse review points out that government investment in R&D in the UK, at 0.12% of GDP, is five times lower than the OECD average. The UK ranks 27th out of 36 OECD countries. Where does the Minister think we should rank if we are to unlock the UK’s full potential in science?
Viscount Camrose (Con)
I am not entirely sure where those figures come from. The R&D intensity of the UK—that is to say, the amount spent on R&D as a percentage of GDP—is between 2.8% and 2.9%. That places us fourth in the G7 behind Japan, Germany and the US, and behind Israel and Korea, so it certainly can be higher. That is why we have committed to spending £20 billion per year by the 2024-25 spending review.
Lord Wallace of Saltaire (LD)
My Lords, the figures that the noble Lord, Lord Krebs, spoke of are in the review; I read it this morning. Will the Minister reassure us that the response will represent the views of the whole of Whitehall, not just the Treasury but the Department for Education and the Home Office, for the advance spending? The review says we need a workforce of several hundred thousand more by 2030, half from the UK and half from abroad. That will require a change in science education in schools and higher pay for research at British universities, while from abroad it would require the Home Office to reverse the huge increase in visa and health charges that it intends to impose up front on researchers attracted to work in this country.
Viscount Camrose (Con)
Indeed. The noble Lord is right: we have identified that from the base now of roughly 1 million people in this country working in R&D, taking into account retirements, by 2027 we probably need another 380,000 R&D workers. Inevitably, a great many of those are going to need to come via the immigration route. A wide variety of visa programmes can meet that need. The Government take the view that the going-in position is that those benefiting from visas, rather than the taxpayer, should bear the immediate costs of visas and healthcare. However, that is always kept under review and, should evidence emerge that we are not getting either the quantity or the quality of integration applications, then we will take appropriate action.
Lord Patel (CB)
My Lords, there are two streams of funding that universities rely on: quality-related funding and charity research support funding. Both those funding streams are necessary for universities to develop infrastructure but both of them have been eroded over time. As charities have increased their funding for research, the amount of money available to support the universities has declined. Will the Minister commit to addressing those two issues and at least bringing funding up to inflationary levels?
Viscount Camrose (Con)
Yes, indeed. I am happy to look at that. I note that the Government currently contribute about 20% of R&D funding through UKR I and other sources, with non-profits accounting for around 3% of funding. As I say, the Government are committed to increasing by about one-third their R&D funding by the 2024-25 spending review, which should go some way towards addressing that gap. Meanwhile, I take on board the noble Lord’s comments.
Lord Leigh of Hurley (Con)
Does my noble friend the Minister agree that, in addition to government spend, R&D tax credits have risen to £7.3 billion from £6.6 billion last year, which is very welcome, but perhaps the figure could be higher if there were a campaign to explain to SMEs the availability of R&D tax credits?
Viscount Camrose (Con)
Yes, indeed. As I say, businesses fund about 60% of R&D in this country and conduct just over 70% of it. I certainly would keenly look into any ability to campaign to encourage more people to take advantage of the generous tax credits scheme.
Viscount Stansgate (Lab)
My Lords, when the review is published, will the Minister undertake to persuade the Leader of the House to arrange a debate in government time on it and all the issues related to it? Or, at the very least, can the Government arrange for a Statement to be made from the Dispatch Box so that Members in this Chamber can ask questions as a result of its publication?
Viscount Camrose (Con)
I thank the noble Lord for the suggestion. I will happily take that up with the Leader of the House and all the usual channels.
Baroness Wolf of Dulwich (CB)
My Lords, one very well-established principle for effective research is institutional autonomy and freedom of action. The Nurse review identified numerous places and occasions where, at present, government-funded research does not allow for such freedom of action. Can the Minister assure us that the response to the review will pay due attention to these principles, which the Government acknowledged in the very welcome establishment of ARIA?
Viscount Camrose (Con)
Yes, indeed: these are very important principles to allow research institutions, whether publicly or privately funded, autonomy in the research they undertake. As well as the Nurse review, the Tickell review into bureaucracy in the R&D landscape addresses these things and we will also shortly be publishing our response to the latter review.
Lord Watts (Lab)
My Lords, is there evidence that the successive cuts in business taxes have led to increases in investment and research in the UK?
Viscount Camrose (Con)
If there any such evidence, I am afraid I am not familiar with it.
Baroness Bennett of Manor Castle (GP)
My Lords, when talking about research, the Government often seem to be most excited by and focus on the kind of research that generates new profits and services. But very often research is into social innovation: for example, the subject of antimicrobial resistance. Looking for new drugs is something that we need to do, but social innovation and changes in medical practice can reduce the need to produce new drugs and protect the drugs we have now. Will the Minister perhaps look into seeing how we can focus more on that social innovation as well as the profit-making kinds of research?
Viscount Camrose (Con)
The science and technology framework sets out five priority areas for research and innovation and those areas are then pursued across a mix of public sector, private sector and other bodies, each with their own goals for the research they are conducting. Within that, there is certainly room for all manner of research as the noble Baroness suggests.
NHS: General Medical Practitioners
(1 year, 1 month ago)
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Lord Warner
To ask His Majesty’s Government what was the net change in the number of NHS general medical practitioners (GPs) in England, after taking account of resignations and additional recruits, in the past three years; and how much improvement in the retention of GPs they are planning to make as a result of the NHS Long Term Plan published on 30 June.
Lord Evans of Rainow (Con)
My Lords, as of September 2023 there are 2,025 more full-time equivalent doctors in general practice than in September 2020. We are working with NHS England to increase the general practice workforce. This includes measures to boost recruitment, address why doctors leave the profession and encourage them to return to practice. Last year, a record 4,000 doctors accepted a GP training place. The long-term workforce plan has committed to increasing this to 6,000 by 2031-32.
Lord Warner (CB)
I suppose I should thank the Minister for that rather optimistic reply, but is he aware that the number of patients has increased by 20% since 2015 while the number of GPs has actually declined? I can tell him that 464 GP partners were lost last year and that a quarter of GPs work only part-time. A recent survey by the Royal College of General Practitioners revealed that 57% of GPs are now saying they will not be in general practice in five years. Can the Minister explain how the new long-term workforce plan will get us anywhere near the number of 6,000 that he mentioned, when the plan expects a retention figure that will expand the number of GPs by only 700 by 2036-37?
Lord Warner (CB)
I am coming to the conclusion. Are we not in a situation where NHS England and the Department of Health and Social Care have failed and we need some new thinking to sort out the problems of GPs?
Lord Evans of Rainow (Con)
My Lords, I take this opportunity to congratulate the noble Lord on the work he did as a Labour Government Minister between 2003 and 2007. I am grateful for his question. We are incredibly grateful to GPs and their staff, whose hard work ensured that more than 32.6 million appointments were carried out until September 2023, more than two-thirds of which were face to face. On 30 June, NHS England published the NHS Long Term Workforce Plan. The plan sets out the steps that the NHS and its partners need to take to deliver the NHS workforce, including GPs, that meets the changing needs of the population over the next 15 years. We are working with NHS England to increase the general practice workforce in England. This includes measures to boost recruitment, to address the reasons why doctors leave the profession and to encourage them to return to practice. NHS England has made a number of retention schemes available to boost the general practice workforce.
Lord Kirkhope of Harrogate (Con)
My Lords, does my noble friend agree that it is also important to congratulate GPs and practices that are introducing innovations, such as weekend working, and their attention to the patients? They get an awful lot of attacks, but in my view they are in need of some congratulation as well.
Lord Evans of Rainow (Con)
I completely agree with my noble friend. The 2022 GP patient survey showed that 72% of patients reported a good overall experience at their GP practices. GP practices that innovate tend to get better results in customer patient satisfaction.
The Lord Bishop of St Albans
My Lords, how many doctors, including GPs, have come from outside the UK in the last year for which we have records? What long-term plan is there to stop us relying on having to bring in doctors from countries that need them far more than we do because they are much poorer than here in the UK?
Lord Evans of Rainow (Con)
The right reverend Prelate the Bishop of St Albans asks an important question but the recovery plan introduced new measures to support international medical students, who make up more than half of all doctors in GP training, so if we were to stop those students coming over we would be in real trouble ourselves. On his wider point he is absolutely right, but it is not just GPs and doctors; it is also healthcare professionals in social services and elsewhere.
Lord Hunt of Kings Heath (Lab)
My Lords, I declare an interest as a member of the GMC. On the increase in training places in medical schools, which is of course very welcome, does the Minister agree that this will not come off unless we increase the number of people training the GPs? Will he arrange for discussions between himself, the GMC, medical schools and NHS England to ensure that we get enough people to come in as trainers to enable even the modest workforce projections that are in the plan for medical schools to be put into action?
Lord Evans of Rainow (Con)
I absolutely agree with the noble Lord. If he is inviting me to do something with that, I will certainly take it back to the department based on his question.
Lord Allan of Hallam (LD)
My Lords, among the fastest-growing groups on the doctors register are so-called specialty and associate specialist doctors and locally employed doctors. These doctors are not currently able to work in primary care, although they are very skilled, and the long-term workforce plan says the Government will look into that. What progress have the Government made in talking to the relevant professional bodies about opening up general practice so that more sessions are available?
Lord Evans of Rainow (Con)
I do not have an answer in my pack to that specific question, but the noble Lord raises a very good point. It is very important that we bring more specialist skills into primary care, and GP practices are exactly the right place, but I will come back to the noble Lord on that specific point.
Lord Patel (CB)
My Lords, what assessment have the Government made of the number of general practitioners required to meet the needs of the population and for training purposes by the year 2030?
Lord Evans of Rainow (Con)
We are working with NHS England to increase the general practice workforce in England but, as the population grows, with the amount of building that goes on throughout the country, it is the responsibility of local authorities. There are two ways to do this: they can apply for capital funding for new GP practices; or they can apply through Section 106 agreements through local authorities. It is for the regions and for local authorities to plan ahead on that front.
Lord Naseby (Con)
Has not the time come for every new medical student to contract that they will, on qualification, work for perhaps five years in the NHS, similar to the existing contract for men and women in the Armed Forces who are medical practitioners, and perhaps modelled also on the Singapore scheme?
Lord Evans of Rainow (Con)
I am grateful to my noble friend. I am aware of the Armed Forces scheme—that if you train as a pilot, for example, you cannot leave the Royal Air Force to become an airline pilot. It is not the first time that this question has been asked, and I will feed it back to the department.
Baroness Merron (Lab)
My Lords, the Royal College of GPs reports that 40% of its members consider their premises not fit for purpose, something that is not addressed by the workforce plan. As the £10.2 billion backlog in maintenance continues to worsen as capital budgets continue to be raided for day-to-day spending, what strategy do the Government have to ensure that patients can receive care in modern, safe and properly maintained buildings, particularly where an increase in GPs and primary care staff teams is being promised?
Lord Evans of Rainow (Con)
The noble Baroness is absolutely right. GP practices’ premises vary throughout the country but, as I said earlier, there is capital funding available for new practices. From my own experience, when GP practices merge it gives an opportunity for them to have a purpose-built building. When I was a Member of Parliament there was a very good example of that where four GP practices throughout the constituency came together to form an outstanding modern GP practice with a new GP practice building.
Lord Stirrup (CB)
My Lords, it is clear that allowing doctors to spend more time with their patients would permit more searching diagnoses, leading to fewer unnecessary referrals and helping to take some of the pressure off secondary care waiting lists. What allowance has been made for this in the calculation of the total GP requirement?
Lord Evans of Rainow (Con)
The noble and gallant Lord raises a very important point. The delivery plan for recovering access is backed by a major investment in primary care services, up to £645 million over two years, to expand services such as community pharmacies. Getting more people to use community pharmacies and other such facilities enables GPs to focus on exactly what the noble and gallant Lord is talking about: those people who need to have diagnoses and very quick scans in hospitals.
Lord Sikka (Lab)
My Lords, England has 7.8 GPs per 10,000 of population, compared with the OECD average of 10.8. That is a gap of 16,700 GPs. Can the Minister explain how England has fallen so far behind other OECD countries and what the human consequences of this are?
Lord Evans of Rainow (Con)
The Government are working hard to make sure that we recruit more GPs. Last year we saw the highest ever number of doctors accepting a place on GP training—more than 4,000 trainees, up from 2,600 in 2014. The number of places available will grow to 6,000 by 2031-32.
Abortion Clinics: Safe Access Zones
(1 year, 1 month ago)
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Baroness Deech
To ask His Majesty’s Government what progress they have made towards the implementation of safe access zones around abortion clinics as legislated for in section 9 of the Public Order Act 2023.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the Government will issue non-statutory guidance to ensure that law enforcement agencies have a clear and consistent understanding around enforcement, and that abortion service providers and protesters are clear as to what is expected under the new law. The Government will launch a public consultation on the contents of the guidance at the earliest possible opportunity, and following consultation we anticipate commencing Section 9 in the spring of 2024.
Baroness Deech (CB)
My Lords, there is a great deal of foot-dragging in this. Both Houses supported the Public Order Act six months ago, which was to protect women accessing legal healthcare for their necessary rights. Yet in these months the most cruel demonstrations are going on outside clinics—for example, people wearing bodycams and holding out posters saying that babies are being murdered there. I do not see that a consultation is necessary; I urge the Minister not to delay the will of Parliament any longer but to get on with it and protect women from these very cruel demonstrations.
Lord Sharpe of Epsom (Con)
My Lords, I quite agree with the noble Baroness—it is totally unacceptable for anybody to be harassed or intimidated simply for exercising their legal right to abortion services. Personally, I find that very depressing to see. However, in terms of the public consultation, this is new legislation on an emotive topic, and there are strong views on all sides of the debate. Determining the appropriate balance will not always be straightforward. Therefore, to make sure that the legislation can be implemented effectively—that is the point—the Government have decided to launch a public consultation on the non-statutory guidance for safe access zones.
Baroness Thornton (Lab)
My Lords, we need to take account of the fact that the previous Home Secretary voted against safe access zones and has a history of opposing abortion rights. The noble Lord needs to give us an example of where—when the will of Parliament is so clear, as it is in this case—it has been necessary to have this kind of public consultation. We are very familiar with pre-legislative scrutiny and consultation in this House, but why are we seeing months-long delays? Can the noble Lord please give us a timeline?
Lord Sharpe of Epsom (Con)
I say to the noble Baroness that I already have: it will be commenced by the spring of 2024, and I am very happy to commit to making sure that that happens. The guidance is not straightforward because of the broad nature of the prohibited behaviours. For example, it is a criminal offence to intentionally or recklessly influence, which means that members of the public, the police and prosecutors will benefit from being aware of what could be criminalised within the zones. I totally take the noble Baroness’s point: I want to see this happen as soon as possible too.
Viscount Hailsham (Con)
Does my noble friend agree that these women will be in a very fragile state of mind, and it is highly undesirable that they should be subjected to coercive behaviour by the opponents of abortion?
Baroness Barker (LD)
Can the Minister confirm whether the Home Office plans to be in touch with local councils, abortion care providers and the police in coming weeks to discuss how these zones are best implemented?
Lord Sharpe of Epsom (Con)
As I say, there will be a public consultation, and I hope that all those whom the noble Baroness mentioned will engage with the consultation process.
Lord Carlile of Berriew (CB)
Will the noble Lord guarantee that Section 9 will be in force and implemented before the next general election?
Lord Sharpe of Epsom (Con)
That would invite me to speculate as to when the next general election might be.
Baroness Finn (Con)
Can my noble friend tell the House what advice will be given to police in the interim period to deal with those causing harassment and intimidation at the gates of abortion clinics?
Lord Sharpe of Epsom (Con)
My noble friend will be aware that a number of powers already exist, particularly around public space protection orders, which have been issued in a number of cases. Some guidance is already being deployed to local authorities, which have the powers to impose those public space protection orders where harmful behaviours are having, or are likely to have, a detrimental effect on the quality of life of those in the locality. There is plenty that the police can do already, but, as I say, the commencement will be by spring 2024.
Lord Anderson of Swansea (Lab)
My Lords, when will the consultation period end?
Lord Sharpe of Epsom (Con)
I am afraid that it has not started yet; it will start imminently—and I mean imminently. The draft is ready; it is just a question of bureaucratic dotting of “i”s and crossing of “t”s. As soon as that is done, I will come back to the House to update your Lordships on the precise timelines of the consultation.
Lord Hogan-Howe (CB)
My Lords, I am assured by the Minister’s own commitment to this legislation; he has made a clear statement. However, the concern that I have—having argued and voted for this legislation—is that the victims are still worried. They are already terrified sometimes when having this treatment and are further intimidated by some of the protests. Does the Minister agree that the consultation, important as it is, should not take so long? It is not very complex to implement; we have implemented greater criminal changes far more quickly.
Lord Sharpe of Epsom (Con)
First, I associate myself with the noble Lord’s remarks about the victims; I completely agree with everything that he said on that subject. I have tried to explain why the consultation will take the time that it will. I would like it to be concluded as speedily as possible, and I promise to come back to the House and update on that timeline.
Baroness Burt of Solihull (LD)
My Lords, anti-abortion protesters and groups were spreading their misinformation and distressing images when I was at university, which is more years ago than I care to admit. Their horrific images stay with me to this day. They are still trying to intimidate women outside abortion clinics all these years later—so what is there to consult on? Does the Minister agree that the Government should stop the intimidation and the additional suffering that those women are going through once and for all?
Lord Sharpe of Epsom (Con)
I agree, but I also say that the protesters should stop their intimidation now and leave those women well alone, as the noble Baroness suggests. I have tried to explain the context of the consultation and the reasons for it. There is nothing more to say on that at the moment.
Lord Cormack (Con)
My Lords, although no one could defend intimidation or harassment, there are those who quietly pray. This came up when we debated the subject earlier in the year, and considerable concern was expressed in a number of quarters of the House. Can my noble friend assure me that the consultation that will follow will take account of those who merely stand quietly and pray silently?
Lord Sharpe of Epsom (Con)
My noble friend should probably consult some of the providers to find out the precise types of behaviour happening outside their clinics. Plenty of examples are available online. The most recent I saw was on 4 November from BPAS. However, training will have to reflect Article 9 of the ECHR; as the House knows, that is around the freedom of expression and manifestation of religion and belief. I also say that those rights are heavily qualified.
Baroness Fox of Buckley (Non-Afl)
My Lords, having spent many an hour debating the clause, I think it requires careful consideration. I want to talk about context. First, people have been arrested for praying outside abortion clinics. However wacky we might consider it, that is a free-speech matter. Secondly, as the police do not seem to be able to know what intimidation is—whether outside a Labour MP’s office or on the streets in terms of anti-Semitism—I hope the consultation will be as helpful as possible so that they arrest the right people and do not end up policing easy targets instead.
Lord Sharpe of Epsom (Con)
The noble Baroness invites me to speculate on operational policing. As we discussed many times from this Dispatch Box recently, I cannot and will not do that. What I can say is that, in my understanding, some of the context around previous arrests is that they are more to do with breach of PSPOs than with the behaviour that she describes. In that case, I think it was repeated breach of a PSPO, so I am not sure that she is completely correct in her assertion, but I take her point.
Lord Pannick (CB)
My Lords, the Minister spoke earlier about the need for the guidance to address an appropriate balance. He spoke a few moments ago about the relevance of freedom of religion and freedom of expression. Was not the whole point of the parliamentary debates earlier this year to specify in legislation where the balance lay? Surely it is therefore time to get on with implementing it.
Lord Sharpe of Epsom (Con)
Again, I have tried to explain the context. I do not think those two things are entirely mutually exclusive. The fact is that some of the language in the law is relatively unusual. Therefore, the consultation is necessary to make sure that people are aware of what it is.
Lord Watts (Lab)
Does the Minister agree that people who wish to pray can do that at home or in church? They do not have to do it outside an abortion clinic. Does he further agree that plenty of people around the world have found solutions to this problem? Why do we not implement the same legislation that other countries have to protect these women?
Lord Sharpe of Epsom (Con)
We have legislation which we are discussing now, and I am not going to go against the will of Parliament and suggest alternative forms of legislation. The noble Lord is quite right: people are perfectly at liberty to pray wherever they wish. Intimidating behaviour, however, crosses the line.
Children’s Care Homes: Reform
(1 year, 1 month ago)
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Lord Bach
To ask His Majesty’s Government what plans they have to reform the system of children’s care homes.
The Parliamentary Under-Secretary of State, Department for Education (Baroness Barran) (Con)
My Lords, we want all looked-after children to live in stable, loving homes where they are safe and cared for. We are taking forward the commitments already made to improve the quality and consistency of safeguards across residential settings through new standards of care; to develop a new financial oversight regime for the market; to increase provision; and to take steps to ensure a stable and skilled children’s home workforce.
Lord Bach (Lab)
My Lords, I thank the Minister for her Answer. What is obvious, I am afraid, is how desperately unambitious the Government have been in reforming a broken system. In spite of the commitment of all who work in this area, it is a system that adversely affects the life chances of the most vulnerable children in our society. Is the Minister aware, as reported in the Observer on 8 October, that the 20 largest private operators of children’s homes, 10 of which have private equity or sovereign fund ownership, made a £300 million profit—I repeat: £300 million—last year, at the same time as local authority spending was being squeezed? Does the Minister agree that this is just plain wrong? What urgent steps will the Government take to stop so obvious an outrage happening again this year?
Baroness Barran (Con)
I do not accept the noble Lord’s assertion that the Government’s plans are unambitious, but I do recognise some of the concerns he raises about profiteering, which, as he knows, we would distinguish from being profitable. We are particularly concerned about those larger providers which have complex and sometimes very opaque ownership structures. That is why we want to bring much greater transparency to the market.
Baroness McIntosh of Pickering (Con)
My Lords, will my noble friend look very favourably on the work done by local authorities for looked-after children? Will she ensure that in the Autumn Statement sufficient resources are available for the excellent work they do? Have the Government ever looked at the possibility of extending looked-after care beyond 18?
Baroness Barran (Con)
The noble Baroness will be aware that in some cases there is a duty of care up to age 25 for children who have certain special educational needs and disabilities. I share my noble friend’s gratitude for local authorities and the work they do in this area.
Lord Laming (CB)
My Lords, the Minister understands that many local authorities rushed into outsourcing these services. They then quickly discovered that not only were they facing increased demands, but the new providers could set their fees wherever they wanted and could select whichever young people they wanted. One of the terrible results of this is that young people are being placed in hugely distant parts of the United Kingdom and are losing contact with their extended family, their schools and their friends. Would the Minister consider setting up a review of the current situation in residential childcare so that we can do better for the most vulnerable young people?
Baroness Barran (Con)
I absolutely accept that far too many children who are in children’s homes—around two-thirds last year—were placed outside their local authority area. Obviously, I enormously respect the noble Lord’s expertise in this area. I hope he would agree with me that we have done a lot of reviewing. We are doing a lot of consulting, and we are very focused on growing the response from foster carers and increasing that part of the market, particularly in relation to kinship care, which I think the House believes may be the best solution for many of these children.
Lord Addington (LD)
My Lords, in understanding that certain of these firms that are running children’s homes are making an excessive profit, would it not be a good idea if we addressed one of the accepted problems with the childcare system: the transition to adult life? If services were required to give active support to these individuals, we might have fewer problems carrying on, and we would make sure that this transition to being an independent person is easier. There is the money there because there is an excessive profit. Surely it should be used for this.
Baroness Barran (Con)
To be fair, we need to be careful not to generalise too much. We have had some egregious examples, of which the most notable recently was the Hesley Group, with terrible abuses happening in children’s homes. We also have some very high-quality providers which are focused on many things, including the transition to which the noble Lord refers.
Baroness Wilcox of Newport (Lab)
Local authority budgets are absolutely squeezed; profiteering is eye-watering; there are reports of horrendous abuse; and vulnerable children are being sent half way across the UK. What will the Government do to end the profiteering and ensure that children in care receive the best the system can offer?
Baroness Barran (Con)
I have already talked about the change to the financial oversight that we want to bring in the children’s social care market. The noble Baroness will also be aware that we are introducing a regional model for providing homes for children and we are working with partners both within the sector and in health and justice to co-design this. We will be piloting two regional care co-operatives, which we hope will rebalance that power dynamic between the providers and the local authorities.
Lord Balfe (Con)
For those who were fortunate enough to grow up in a Sheffield City Council children’s home at a time when councils had children’s departments, the input of private equity into this sector is totally wrong. It sends all the wrong messages, and it also prevents integrated care between a local authority and the homes that are provided. All of this about loving care is, frankly, nonsense. What are needed are decent homes, and the realisation that some children actually like living in a children’s home, as I did, because it provided security and a good environment. Can we look at chasing private equity out of the system?
Baroness Barran (Con)
I thank my noble friend and have great respect for him sharing his own experience from Sheffield. The reality of our situation today is that just over 80% of children’s home places are provided by the private sector, so we need to make sure that the sector is resilient. We are working on this in a number of ways, including increasing funding and provision, and reform, before we chase people out in a way that could destabilise provision.
Lord Hannay of Chiswick (CB)
My Lords, would the Minister accept thanks for having mentioned kinship care, which is a very important part of dealing with this problem? Could she also tell us when the Government’s kinship care strategy, which has been trailed umpteen times, is actually going to see the light of day?
Baroness Barran (Con)
We are going to publish the long-awaited kinship care strategy by the end of this year, which will set out our national direction. Over the next two years, we will establish a new kinship carer training offer, with an investment of over £45 million to begin implementing practical and financial support packages, so that children can stay safely within a kinship group.
Lord Sahota (Lab)
My Lords, for many years, I served on a fostering panel in my local authority. Research shows that, for various reasons, children in care homes have a higher rate of mental health problems. We always put that down to the shortage of funds in local authorities; does the Minister agree? For the last 10 years or so, local authorities have experienced something like 50% cuts to their funding.
Baroness Barran (Con)
I do not agree with that. While I agree that children in care homes potentially have more severe mental health issues, I think that, typically, children who go into a care home have also experienced severe neglect and abuse, and have more complex needs than those who are fostered.
Baroness Butler-Sloss (CB)
My Lords, what efforts are the Government making to support a lot more foster carers?
Baroness Barran (Con)
The Government are making a great deal of effort in this area. We are investing over £27 million, in this spending review period, in a foster care recruitment and retention programme. That will start in the north-east, with £3 million for a pathfinder hub; the additional £24 million will be for a wider rollout.
Conversion Therapy Prohibition (Sexual Orientation and Gender Identity) Bill [HL]
Monday 20th November 2023
(1 year, 1 month ago)
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Succession to Peerages and Baronetcies Bill [HL]
Monday 20th November 2023
(1 year, 1 month ago)
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Lord Northbrook (Con)
My Lords, I declare my interest as having a daughter who would become eligible to succeed to my peerage.
Illegal Immigration
(1 year, 1 month ago)
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Lord Coaker (Lab)
My Lords, does not the Rwanda judgment made by the Supreme Court make damning reading for the Government? Does it not expose once again the complete failure of the Prime Minister to get a grip, even at the most basic level, on the boats and asylum crisis?
The previous Home Secretary, appointed by this Prime Minister and then sacked, said to him:
“If we lose in the supreme court, … you will have wasted a year … only to arrive back at square one … your magical thinking … has meant you have failed to prepare any sort of credible plan B”.
Those are the words of one who was Home Secretary until only a week ago. The noble Lord, Lord Murray, who is also now not in post, was repeatedly told of problems with the Rwanda scheme as he drove the then Illegal Migration Bill through this House. Does the Minister agree that the former Minister was wrong to ignore the warnings that this House repeatedly made? These warnings were contained in the Supreme Court judgment, which outlined a number of problems with the policy. Ministers were warned about the failings in the Rwanda asylum system, so why did they just press on? They were told repeatedly of the failings of the Israel-Rwanda deal, so why did they just press on again?
The Government say that they will introduce a new treaty to deal with all of this, but why only now? Why has so much time been wasted, when these problems were known about? Can the Minister explain how the Rwanda policy, if implemented, can actually work? Since the Act came into force—since the 20 July date that the noble Lord, Lord Carlile, brought forward in an amendment in Committee—approximately 13,000 people have arrived illegally. According to the Act, they are deemed illegal and therefore need to be sent abroad. How are they to be sent to Rwanda? Are they all expected to go to Rwanda, or are the reports we read in today’s media accurate that the Government are considering giving thousands of people deemed to be here illegally, in light of the Supreme Court judgment and since the passage of the Act, access to the asylum system? Is not the truth of the matter that thousands upon thousands of people deemed illegal are being held here indefinitely, with families often traumatised, and women and children in limbo? What sort of policy is that?
The Government are bringing forward new legislation, which we will consider fully and to which we will give proper consideration in such an important area in your Lordships’ House. But what do we learn? We learned today that the Government are split on what this should be. Is it the case that the current Immigration Minister is pushing for this new legislation to disapply the Human Rights Act and ignore the ECHR, even though the Supreme Court, in its judgment, said that the ECHR had nothing to do with it? Does the Minister—and indeed the Home Secretary—therefore agree with the Immigration Minister, or with those who say that this hard-line approach, as proposed by his colleague, the current Immigration Minister, is actually mad? Does he agree with the Home Secretary, who in private—as reported in the newspapers—also confirmed, in colourful language, that he regarded the policy as to be less than satisfactory?
What of the plan in the new legislation to simply declare Rwanda a safe country in its upgrade to change it from an agreement to a treaty? Again, the latter is something that many in your Lordships’ House have said should actually have happened. How long will it take? What do the Government say to Lord Sumption’s criticism that you cannot
“change the facts, by law”
by proposing legislation that would, as I say, declare Rwanda safe? How would that work? As the former Supreme Court judge said, you cannot say that black is white.
Would it not have been a much better thing—rather than the wasting of time that we have seen from the Government, with over £140 million spent without a single person sent to Rwanda—to have had a proper plan to tackle the criminal gangs? That is something that I moved in Committee, only to see it rejected, and then to see the Prime Minister announce the same policy two weeks after the passing of the Act. Would it not also have been a good idea to improve our agreement with France, to speed up asylum decisions, to establish safe and legal routes and to tackle the problem at source? We have this chaos: a Government who are divided, no clarity on the new legislation to come, Ministers sacked, briefings and counter-briefings, and some even saying at the highest level in our governing party that we should just ignore the law, which is simply outrageous.
We all know that there have to be effective border controls and that illegal immigration needs to be tackled, but to do so the Government must get a grip for the sake of our international reputation. They must deliver the effective humane immigration system that this country deserves, and not the chaos that we have now. It is simply not good enough and the Government need to get a grip.
Lord German (LD)
My Lords, this Statement is welcome; of course, we could have had it last week, but that was not to be the case. However, that has allowed us the whole weekend to understand slightly more the Government’s intentions—at least some of the Government’s intentions, some of which are being challenged. It means that we have to examine this Statement very carefully. The Statement says that the Government of course “respect the Supreme Court”, but we are being asked to suspend belief—to convert black into white on the say-so of the Government.
Are the Government intending to implement legislation that simply allows them to make an opposing declaration to that of the Supreme Court on the safety of Rwanda for refugees? To what extent is that respecting the Supreme Court’s decision? Do the Government agree with the Supreme Court that, in order to see their Rwanda policy in operation, they would need to disregard the ECHR and the United Nations system of international treaties, including the refugee convention, the United Nations convention against torture, and the International Covenant on Civil and Political Rights, and also change not just the Human Rights Act but also domestic asylum legislation from 1993 and 2002?
Further, the Supreme Court judgment states about the Rwanda system that
“necessary changes may not be straightforward, as they require an appreciation that the current approach is inadequate, a change of attitudes, and effective training and monitoring”.
Therefore, in the past 12 months, have the UK Government provided any effective training to Rwandan officials?
Thirdly, this Statement says that arrivals are down, decisions are up, returns are up—we are getting on with the job. Believe that if you wish. Small boat arrivals are down on last year, but if you remove Albanians—clearly, we must accept the policy that returns those who are not genuine asylum seekers to their safe home country—total numbers are up from 2022. Going by the recent annual grant rates, 75% of those who crossed this year would be granted asylum. Of course, because clauses of the Illegal Migration Act have not yet been brought into force, the Government will have to hear this backlog of cases. The current backlog of cases is 122,585, taking legacy and flow numbers together. In addition, government figures show that small boat arrivals represent only 37% of people claiming asylum, up to June 2023.
What actions are being taken to ensure that those from high grant rate countries have a safe way to travel to the United Kingdom to claim asylum: for example, an Iranian female political protester, a Russian anti-war activist, a young man at risk of forced conscription from Eritrea, and so on?
Finally, I note that the Statement says:
“we are not going to put forward proposals simply to manufacture an unnecessary row”
for short-term political gain. Good luck with getting people to agree to that.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, it goes without saying that Wednesday’s outcome was not what the Government wanted to see, but we have spent the last few months planning for all eventualities and we remain completely committed to stopping the boats.
The core part of our policy—to relocate those who entered illegally and have no right to be here to another country—remains lawful. We have also made progress on other fronts of our plan to tackle the small boats—which I will come back to in a minute—but crossings are down, the backlog is being cut, and it is interesting to note that countries across Europe have seen what we are doing and are interested in following suit.
The Supreme Court recognised that changes may be delivered in future which would address the issues it raised. The Prime Minister has spoken to President Kagame of Rwanda and both countries reaffirmed their unwavering commitment to deliver on our landmark partnership. We will work with Rwanda to address the Supreme Court’s concerns by setting out strong assurances in a new treaty binding in international law. However, we are also going a step further. As has been noted, the Prime Minister has announced that we will take the extraordinary step of introducing emergency legislation to enable Parliament to confirm that, with our new treaty, Rwanda is safe.
As to the questions from the noble Lord, Lord Coaker, on the various newspaper-based speculation about what people, including the new Home Secretary, may have said, I will not speculate but I note that he did not recognise the phrase that I think the noble Lord, Lord Coaker, described as colourful, and therefore I wish to take him at his word. What the current Immigration Minister thinks on this, I do not know.
When people know that if they come here illegally, they will not get to stay, they will stop coming altogether and we will stop the boats. Illegal immigration destroys lives and costs British taxpayers billions of pounds a year. We need to end it, so we will do whatever it takes.
However, as the new Home Secretary has pointed out, the Rwanda plan has only ever been one tool in our toolbox, and we have other schemes to drive down these numbers. We are tackling illegal immigration at every stage of the journey of a would-be illegal migrant, and our plan is working. Last year, the Prime Minister signed the largest ever small boats deal with France—I believe that 22,000 crossing attempts have been prevented because of the close co-ordination between British and French officials, and that is in 2023 alone.
Cutting-edge surveillance technology is in play, and we have beefed up security infrastructure, such as more CCTV at key border crossing points along the channel. We have ensured that there are more French officials and officers patrolling French beaches, and, as I said, they are working closely with their UK counterparts. So that is less money that British taxpayers have to spend on hotels, less profit for the criminal gangs and fewer people to process—fewer people also, I should add, putting their lives at risk. That sends a clear message to those who want to cross that we will stop them.
The noble Lord referred to the fact that we now have a returns agreement with Albania, and seemed rather dismissive of it, but the fact is that so far during 2023 we have returned more than 4,600 people in just 10 months. He should be applauding that. We are targeting the movement of goods, such as dinghies and engines, that are used to facilitate the crossings in order to undermine a key component of the smugglers’ business model. Apart from Albania, we have expedited returns arrangements with countries including France, Turkey and Italy. We have increased the number of illegal-working raids by almost 70%. We have cut the asylum legacy backlog by more than 59,000 cases. We have freed up hundreds of hotel beds with the use of alternative sites. We have announced the closure of the first 50 asylum hotels and we have passed the Illegal Migration Act 2023, which is the most ambitious immigration legislation in decades. It makes it clear that the only route to asylum in the UK is via one of the safe and legal routes that are in place.
Noble Lords asked about treaties and why this was not considered at the start. The fact is that a memorandum of understanding is a common mechanism for establishing an arrangement or partnership between countries. The Supreme Court was clear that Rwanda entered into the partnership and signed the MoU in good faith, and both countries remain committed to the partnership. We always knew that the partnership would face challenges, but we have been clear that we will do whatever it takes to deliver it.
On the Supreme Court’s decision and conclusion, the Prime Minister has said that we respect the Supreme Court’s decision. The rule of law is fundamental to our democracy, but it is also of fundamental importance that we stop the boats. I have of course taken note of the comments of Lord Sumption, but at the moment the only fact that is changing is that that MoU is being, shall we say, converted into a treaty. I do not know the details of that piece of legislation, but I have little doubt that we will be discussing it all at considerable length.
Something else that the Supreme Court said which I think is worth pointing out is that
“changes and capacity-building needed to eliminate the risk”—
it was talking, of course, of refoulement—
“may be delivered in future, but they were not shown to be in place when the lawfulness of the policy had to be considered in these proceedings”.
I make the point that the lawfulness of the policy that needed to be tested dated back to June 2022, more than a year ago. So, in answer to the noble Lord, Coaker, about what we have done since, the answer is that we have taken considerable measures since the Court of Appeal’s judgment in terms of getting skills and people into Rwanda to help them with their processes.
The noble Lord asked me about commencing parts of the Illegal Migration Act. We are moving ahead with operationalising other measures in the Illegal Migration Act, which will make it easier to remove people with no right to be here—for example, those who have travelled from fundamentally safe countries. On the cohort to which he referred who arrived under the new terms, I believe that they are still expected to be returned to Rwanda, but, obviously, at some point that will be tested in this House and the other House, so, as yet, there is no point in speculating as to how that might happen.
The ECHR has also come up. It is clear that this was a judgment from our domestic courts, not the ECHR. We always said that our plan will deliver the changes necessary to take away the incentive for people to risk their lives through illegal crossings, while complying with our international obligations. But, as the Prime Minister said, if people continue to put obstacles in the way of this policy, we will remove those barriers. As I said, we have already started the process on the treaty to address the Supreme Court’s concerns. The Prime Minister’s announcement of emergency legislation was clear, but I do not know what the content of that legislation will be.
Lastly, I pay tribute to my noble friend Lord Murray of Blidworth for his hard work, professionalism and absolute dedication to stopping the boats. He is a friend, he was an excellent colleague and I am going to miss him.
Lord Carlile of Berriew (CB)
My Lords, first, I too praise the noble Lord, Lord Murray of Blidworth, at least for his determination with this Bill and the courtesy that he showed to the whole House at all times. However, why do the Minister and the Government not see that the proposal of a treaty with Rwanda would produce a document that would be yet another historically worthless piece of paper? Rwanda, on the facts and merits, has been found to be unsafe and, once somebody was sent to Rwanda, there would be no realistic possibility of enforcing their rights, whatever they were, through the Rwandan courts.
Secondly, does the Minister not agree that the ignominious squabbling among senior and former members of the Government is demeaning a serious subject on which we all have merited concerns, apart from a few who seem to regard it as trivial? Is it not now time for the Government to set about a doubled programme which would produce value, in cost terms, of dealing with the people in the backlog, wherever they are, as quickly as possible, by increasing the number of officials and putting the relevant courts and tribunals around the country so that they can deal with these cases on a day-by-day basis? Does he not agree that most of these cases could be dealt with within a few days if they were properly managed?
Finally, does the Minister agree that the Government should put all people who are de facto refugees back into the refugee system so that they can be dealt with according to the law and not by some artificial construct?
Lord Sharpe of Epsom (Con)
The noble Lord has asked me a number of questions. There is another one in there inviting me to speculate about something. Again, I will not do that. I do not know what will be going into the treaty or how it will look, so there is very little point in me commenting on that.
I do not regard the subject as trivial. It is of fundamental importance to the country and to Parliament. I respect the fact that we can debate it and look forward to many more debates on it. As regards the arguments that are allegedly going on behind the scenes, I am afraid I have not seen any evidence of that. How they are being leaked and whether they are happening, I do not know—but of course passions do run high on this subject.
The noble Lord asked another question. I have totally forgotten what it is, but I am sure that somebody else will remind me and I can then answer it.
Lord Sharpe of Epsom (Con)
I cannot comment on that at the moment, but, again, I am sure we will come back to it in due course.
Viscount Hailsham (Con)
Does my noble friend agree that whether Rwanda is or is not a safe country is a matter of fact and that to displace such a finding of fact by the Supreme Court using a statute is very hard to reconcile with the rule of law? Perhaps I may make this suggestion. If we must have this Bill, we could have a delayed implementation date, to be triggered only by an affirmative resolution of both Houses of Parliament, with that debate to be preceded by a report of a Joint Committee of both Houses advising on whether Rwanda is a safe country.
Lord Sharpe of Epsom (Con)
My Lords, I agree with my noble friend, regarding the Supreme Court’s decision, that as of 14 June 2022 it did indeed regard it as a fact that there was a risk of refoulement. However, that is a fairly narrow interpretation of the rest of the system that is currently set up in Rwanda. Again, I will not speculate on how things may change. I also note that the Supreme Court specifically acknowledged that there were cases where it could see the situation changing in the fullness of time. I expect that this is the area we are looking to explore.
As regards my noble friend’s suggestion of an affirmative SI, I am happy to take that back and enter that into the conversation that is taking place.
Baroness Chakrabarti (Lab)
My Lords, it is of course quite right that when the facts change or, to put it better, are emphatically revealed by the Supreme Court, wise people change their minds. They do not attempt to legislate to change the facts. Will the Minister acknowledge that, contrary to various statements that have been made in this House by Benches opposite, the Supreme Court acknowledged the special role and expertise of the United Nations High Commissioner for Refugees in evaluating the facts—that is, the safety of countries?
As for treaties, does the Minister agree that, whatever new treaty comes, there is a treaty in this area. It is a very well-established treaty called the refugee convention. It is so well established that aspects of it are arguably now part of customary international law. I know that the Minister cares about the rule of law. If the Government are going to disapply or abrogate the European Convention on Human Rights, will he encourage his colleagues to counsel what effects there might be on the behaviour of the Russian Federation and others—and those currently in jeopardy, including Ukrainian prisoners who are relying on interim orders for their lives and protection from the Strasbourg court?
Lord Sharpe of Epsom (Con)
Of course, I agree with the noble Baroness. The Supreme Court did acknowledge that the UN has a role to play in this; indeed, it was heavily referenced in the Supreme Court’s judgment. I also accept that a treaty already exists regarding refugees; that is incontestable. As regards what might happen regarding the ECHR, I have already said that that was not part of any of the discussions around this particular decision. This was a domestic court’s decision. I think it is a few steps away to discuss the ECHR, and the noble Baroness is well aware of my views on the subject.
The Lord Bishop of St Albans
My Lords, we on these Benches are quite clear that we cannot have open borders, that we must stop people risking their lives, and that we need to stop the people smugglers. But we are also clear that we cannot export our moral responsibilities towards those seeking sanctuary on to the shores of another country, be it Rwanda or anywhere else. This is such a long-term, complex, worldwide problem that we need a long-term strategy for tackling this refugee crisis, in concert with our global partners, so while the Government are proposing some immediate new laws, what are they doing to address the scale of the problem, to provide long-term certainty? Will the Minister commit to developing and publishing a long-term strategy so that we can all try to engage with this in a much more measured way?
Lord Sharpe of Epsom (Con)
I thank the right reverend Prelate for those comments. I agree with his point that it is obviously also morally wrong for criminal gangs to profit from this evil trade, and to ship people across the Channel at incredible risk to themselves. In fact, I think we are very close to the anniversary of that particularly unpleasant tragedy that happened in the Channel last year. As regards this problem of illegal migration becoming long-term, the right reverend Prelate is of course right. There are many drivers of this, and it therefore seems likely to me that the world will have to get together to address the various things that are driving these movements of people—what makes people so desperate to leave their homes—and try to do something about it. So far, it seems to have eluded the world, but I sincerely hope the right reverend Prelate is right, and that we can do something about it sooner rather than later.
Baroness Ludford (LD)
My Lords, I am not sure that the Minister fully answered the questions of the noble Lord, Lord Carlile, and the noble Viscount, Lord Hailsham. Will he now explain how a treaty or indeed legislation declaring Rwanda safe will solve the problem, given that the Supreme Court said that it was not the lack of
“good faith of the government of Rwanda”
that was the problem, but
“its practical ability to fulfil its assurances … in the light of the present deficiencies of the Rwandan asylum system”?
Presumably, they can make whatever binding commitments they like in a treaty, but the issue is the practical ability to deliver. Also, given that the Home Secretary says that the Government take their
“obligations to the courts very seriously”,
how can they change the law to “do whatever it takes”? What does “whatever it takes” actually mean?
Lord Sharpe of Epsom (Con)
I would not try to explain that. I do not know what will be in the new legislation. I do not know how it is worded; I do not know what the intention is for it, so I cannot answer any of those questions, for obvious reasons. I do not know whether it will solve the problem; I sincerely hope it does, for obvious reasons. One thing I would expect to be in a treaty—I am just speculating—is that it will be enforceable in some way. Whether that is through the Rwandan courts or through other international means, I really do not know. But we are going some way to try to address the Supreme Court’s concerns.
Lord Cormack (Con)
My Lords, does my noble friend accept that we need a solution that is accepted across the political parties, particularly as there will be a general election within the next 14 months? Is there not an overriding case for saying that if ever a Bill needed pre-legislative scrutiny by a Committee of both Houses, it is this Bill?
Lord Sharpe of Epsom (Con)
The noble Lord probably makes a good point, but my understanding from reading the likely timetable is that parliamentary time would not allow.
Lord Hannay of Chiswick (CB)
My Lords, does the Minister recognise that his noble colleague told me several times—times beyond count, really—that I was totally wrong when I said that the Government’s attempts to send people to Rwanda were contrary to the refugee convention? So will he be very kind and tell me that now it has been upheld unanimously by the Supreme Court that view was correct? He will know that the Prime Minister has described the European Court of Human Rights as a foreign court. Does the Prime Minister regard the International Court of Justice, whose compulsory jurisdiction we accept and on which court we have no judge, as a foreign court?
Lord Sharpe of Epsom (Con)
I was not present in the debate when the noble Lord said he was right, so I am not going to say whether or not my noble friend was right because I do not know what he said. As regards the Prime Minister’s views on the International Court of Justice, I am afraid I do not know as I have not asked him.
Lord Dubs (Lab)
My Lords, the Minister more or less said that the Government had no intention of leaving the European Convention on Human Rights—he is shaking his head. In which case, are the Government aware that if they tamper with the ECHR, they are also tampering with the Good Friday agreement, which is linked to it? Is the Minister furthermore aware that there is still the Human Rights Act that the Government are talking about getting rid of? There is the 1951 refugee convention. There is the convention against torture and the International Covenant on Civil and Political Rights. There is a range of conventions, treaties and agreements. Are the Government saying that they are all liable to be changed as a result of the Supreme Court decision?
Lord Sharpe of Epsom (Con)
I did not say what the noble Lord asserts about the ECHR. I said that I do not know. The fact is that this decision was a domestic decision, not a European one. I am well aware that the ECHR is a cornerstone of the Good Friday agreement, and of course we recognise the significance of that. However, I reiterate that the Prime Minister has committed to stopping the boats and to removing barriers if necessary. The detail and any implications of doing so would obviously be carefully considered at the time.
Lord Hamilton of Epsom (Con)
Has my noble friend had any luck in securing the conviction of so-called human rights lawyers who tell illegal migrants to throw away their passport and pretend that they come from a war zone when they do not or tell them to say that they are subject to child trafficking or modern slavery? Surely these people should be convicted and should not be part of the legal system in any way whatever.
Lord Sharpe of Epsom (Con)
If my noble friend is right in his assertions, yes, they should be convicted, but I do not what has happened with prosecutions and convictions in that space. I will endeavour to find out.
Lord Kerr of Kinlochard (CB)
Does the Minister recall that the International Agreements Committee criticised the form taken for the previous agreement with Rwanda—a memorandum of understanding—and thought it should have been a treaty, partly because it was so weighty and partly to provide this House and the other place with an opportunity to scrutinise it properly. I think this new agreement will be scrutinised properly in this House so I am very glad that it is taking the form of a treaty, which will enable us to do that. The Statement said that it will be amended
“to make it clear that those sent”—
to Rwanda
“cannot be sent to any country other than the UK”.
That is what the Home Secretary said in the other place. How is that consistent with our Illegal Migration Act, which says that those who come illegally, in its terms, to this country can never be admitted to this country, will be sent to Rwanda and will be processed there by Rwanda for asylum in Rwanda?
The Minister said that other countries are seeing what we are doing and following suit. With respect, that is not the case. We are the only country that is saying, “If you come by a route that we do not like, we refuse to look at your claim”. We are telling people they may claim asylum in Rwanda but they can never come back here. No other country is doing that. Other countries are considering outsourcing the process and having the processing done abroad, but then the people could go on claiming asylum in the country they intended to go to. How does the Minister reconcile the statement that these people will never be sent to any country other than the UK with the Act, which we spent so long debating here and which I thoroughly disagreed with, that says they can never be sent back to the UK?
Lord Sharpe of Epsom (Con)
First, I agree with the noble Lord about the International Agreements Committee and the previous comments made there. The fact is that the International Agreements Committee is now getting its wish. Legally enforceable treaties should be the vehicle of choice; obviously, it will be scrutinised in both Houses of Parliament. As regards the apparent anomaly between what the Home Secretary has said and what the noble Lord has just pointed out, to respond to that would be to speculate as to what will be in the forthcoming legislation when I simply do not know. I will make sure that point is well made, and I hope to come back to the noble Lord with a strong answer very soon.
Baroness Hamwee (LD)
My Lords, the Supreme Court quite rightly emphasised the importance of the experience of the UNHCR, which had been disregarded. Are the Government now consulting with it and with other relevant NGOs?
Lord Sharpe of Epsom (Con)
My Lords, the UNHCR was not disregarded by the Court of Appeal; that was really the subject of the Supreme Court’s decision. It very much took the court at its word. As I already said, the Government have made a lot of effort to pre-empt the Supreme Court’s decision by doing some of the things that were suggested by the Court of Appeal. Having said all that, we of course maintain close co-operation with all our international partners whether they be states, NGOs or whatever.
Lord Browne of Ladyton (Lab)
My Lords, on 15 November, last Wednesday, the Home Secretary told Parliament in the other place that the Government have
“for the last few months”—[Official Report, Commons, 15/11/23; col. 649.]
been working in Rwanda, building capacity—of decision-makers, I presume—and trying to amend the agreement with Rwanda. Since the Appeal Court decision in June this year, the Government have known that our courts thought there was a real risk of claims being wrongly determined in Rwanda, resulting in asylum seekers being wrongly returned to their country of origin. Can the Minister help me? Where in our deliberations on the then Illegal Migration Bill was either the House of Commons or our House told that this training was going on because the Government thought that real risk needed to be engaged with, or that the treaty that had been entered into was being renegotiated? If we were not told, why not?
Lord Sharpe of Epsom (Con)
I was not present in all the debates regarding the Illegal Migration Act so I cannot honestly answer that question: I do not know whether we were told. I do not know whether the subject came up, whether it was a subject for discussion or any of those things. I am not sure it was relevant to the debates—maybe it was, maybe not; I do not know. I will endeavour to find out and come back to the noble Lord.
Lord Horam (Con)
My Lords, has the Minister seen the suggestion of Lord Sumption that the Rwanda scheme would be more acceptable if more of the assessment were done by British officials rather than Rwandan officials? Will he undertake to look into that in any review of the situation?
Lord Sharpe of Epsom (Con)
My noble friend makes a good point. I will absolutely take that back. We have been capacity building in Rwanda—the noble Lord just referred to it—and I know that a lot of that work is ongoing.
Lord Paddick (Non-Afl)
My Lords, press reports at the weekend stated that, between 2020 and 2022, 100% of asylum claims by people from Afghanistan and Syria were rejected by the Rwandan authorities while almost 100% of asylum claims by people from Afghanistan and Syria were accepted by the UK authorities. How can the Government maintain that Rwanda has been treating asylum seekers fairly in the light of these statistics?
Lord Sharpe of Epsom (Con)
My Lords, it does not matter whether the Government assert that we have been treating them fairly; the fact is that the Supreme Court has ruled otherwise. As I said, we are capacity building; we are working with the Rwandans. We are working on a new treaty. I am sure that the noble Lord’s concerns will be addressed in the fullness of time.
Investigatory Powers (Amendment) Bill [HL]
Monday 20th November 2023
(1 year, 1 month ago)
Lords ChamberRead Full debate Investigatory Powers (Amendment) Act 2024 View all Investigatory Powers (Amendment) Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts
Lord Sharpe of Epsom
That the Bill be now read a second time.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, the number one priority of any Government is to keep our citizens and our country safe. The Investigatory Powers (Amendment) Bill seeks to make a set of targeted amendments to the Investigatory Powers Act 2016, which I shall refer to throughout as the IPA.
The measures in this Bill will support the security and intelligence services to keep pace with a range of evolving threats against a backdrop of accelerating technological advancements. Such advancements provide new opportunities for terrorists, hostile state actors, child abusers and criminal gangs. They also mean that data is generated in more places, in more formats and by more different entities than before. The security and intelligence services need to identify nuggets of threat in increasing quantities of data.
Importantly, the Bill will also ensure that we maintain and strengthen the world-leading safeguards that underpin the use of the powers in the IPA. The measures in the Bill are narrow and relatively modest in scope, which reflects the strength of the existing legislation, but they are none the less critical to the task of protecting national security and countering other serious threats.
It may be helpful to briefly remind the House of the parent legislation that this Bill seeks to amend. The IPA provides a clear legal framework for the security and intelligence services, law enforcement and other public authorities to obtain and utilise communications, and data about communications. These powers and the resulting capabilities are essential in supporting these public authorities in carrying out their statutory functions, including detecting and preventing terrorism, state threats and serious crime.
But since 2016 the nature of the threats we face has evolved, and we need to ensure that the UK’s investigatory powers framework remains fit for purpose. The use of these powers is underpinned by the IPA’s robust and world-leading safeguards—including the double lock for most of the powers, whereby a judicial commissioner must approve the decision by the Secretary of State to issue a warrant under the IPA. All use of the powers must be assessed as necessary and proportionate, with strong independent oversight by the Investigatory Powers Commissioner. The right to seek redress is available to anyone via the Investigatory Powers Tribunal.
I emphasise that this Bill is about delivering focused and targeted changes to the existing regime and not about creating new powers beyond those to which Parliament has previously given its agreement during passage of the IPA.
This Bill follows the publication of a statutory report on the implementation of the IPA in February this year by the previous Home Secretary, and a subsequent independent review by the noble Lord, Lord Anderson of Ipswich, which was published in June this year. These reports set out the operational case for change and have informed the contents of the Bill. I thank the noble Lord, Lord Anderson, for his considered review of the IPA; he was instrumental in its initial design as the author of A Question of Trust during his tenure as the Independent Reviewer of Terrorism Legislation.
Building on the areas of focus identified in the Home Office review, the noble Lord’s report focused on: the effectiveness of the bulk personal dataset regime; criteria for obtaining internet connection records; the suitability of certain definitions within the Act; and the resilience and agility of warrantry processes and the oversight regime. His review helpfully highlighted several areas in which the IPA could be improved, and we are pleased to say that this Bill aligns nigh on entirely with his recommendations.
Your Lordships may note that there is one area of the Bill that the review by the noble Lord, Lord Anderson, did not touch on: the changes to the notices regimes. This was subject to a separate public consultation, and the Government are grateful to those who responded for helping to shape this element of the Bill.
I will turn now to the main elements of the Bill. Part 1 deals with bulk personal datasets, more commonly known as BPDs, and makes changes to the way in which the intelligence services may use them. Building on the findings of the review by the noble Lord, Lord Anderson, the Bill provides a narrow group of provisions to: create a set of new safeguards for the retention and examination of BPDs where there is low or no reasonable expectation of privacy; allow for the extension of the duration of a BPD warrant under Part 7 of the Act from 6 to 12 months; and make clear that agency heads can delegate certain existing functions in relation to BPD warrants. Under the current regime, all BPDs—including those that are publicly or commercially available—must be subject to the double-lock warrantry process and strict examination safeguards.
While these safeguards are in many cases entirely appropriate, that is not always so, particularly where a dataset is publicly available and widely used. This has a detrimental effect on the agility of the agencies, particularly where these datasets could be used to develop new capabilities. It also inhibits their ability to work flexibly with allies and partners in academia or the private sector.
Creating a new regime for datasets that have low or no expectation of privacy will increase operational agility while ensuring that proportionate safeguards are in place, including prior judicial approval. This change will be an important step in preventing our agencies falling behind our adversaries.
The Bill also seeks to insert a new statutory oversight regime for examination by the intelligence services of third-party BPDs. Under the new measures, an intelligence service may examine a dataset on a third-party’s systems without taking control of the set itself. However, if the dataset is not publicly or commercially available to other users, the new warrantry process and requirements will apply. The regime will be subject to safeguards such as the double lock already in other parts of the IPA.
Part 2 will make changes to the role and remit of the Investigatory Powers Commissioner and their supporting functions. The Bill will enhance the world-leading oversight regime in the Act, including the role of the IPC. The changes will ensure that the regime is resilient and that the IPC can effectively carry out their functions. This will maintain and enhance the robust, transparent safeguards in the regime.
In addition to putting oversight of third-party BPDs on a statutory basis, the proposed amendments to the oversight regime aim to increase resilience and ensure that it remains fit for purpose. As highlighted in the then Home Secretary’s review, the IPA does not provide an easy mechanism to manage change. This has caused issues regarding the resilience and flexibility of the IPC and the wider IPA oversight regime, such as during the Covid-19 pandemic. The Bill therefore seeks to place the ability to appoint deputy investigatory powers commissioners and temporary judicial commissioners on to a statutory footing, to provide resilience where there is a shortage of judicial commissioners.
The Bill will also formalise some of the IPC’s non-statutory oversight functions—for example, their oversight of compliance by the Ministry of Defence of the use and conduct of surveillance and covert human intelligence sources outside the UK. The measures also provide greater legislative clarity in respect of the error-reporting obligations imposed on public authorities. The IPC has been consulted on all these measures and has endorsed the approach to ensuring that the oversight regime remains fit for purpose.
Part 3 makes changes to Part 3 of the IPA, which relates to powers for public authorities listed in Schedule 4 to the IPA to acquire communications data. CD is the data around the communication rather than the content of that communication. Section 11 of the IPA made it an offence for a relevant person within a relevant public authority to “knowingly or recklessly” obtain CD from a telecoms operator or a postal operator without lawful authority. The Bill will set out examples of the acquisition routes that amount to lawful authority. This will provide greater clarity to public authorities that they are not committing a Section 11 offence when acquiring CD from a telecommunications operator under those routes.
The Bill will additionally make targeted amendments to ensure that public sector organisations are not unintentionally prevented or discouraged from sharing data in order to meet their statutory duties and obligations when administering public services or systems. Part 3 also makes a clarificatory amendment to the definition of CD in Section 261 of the IPA, to make it clear that subscriber data or data use to identify an entity will be CD.
Part 3 also makes changes to allow bodies with regulatory functions to acquire communications data. The use of regulatory powers under the IPA is limited to organisations such as Ofcom and the Information Commissioner’s Office for their regulation of telecoms operators. The Bill seeks to amend the IPA to expand the definition of regulatory powers to include public authorities with wider, lawfully established and recognised regulatory or supervisory responsibilities. The effect of this change will be such that authorities will be able to acquire CD using their own statutory powers and not rely on IPA powers. However, where the CD is being acquired with a view to using it for a criminal prosecution, authorities must use their IPA powers to acquire that CD.
Targeted changes will also be made to support the use of internet connection records by the NCA and intelligence agencies. The Bill will add a further condition which allows the service in use and time period to be specified within the application without the requirement that they are unequivocally known. This will enhance the ability of the NCA and the intelligence services to identify serious criminals, including paedophiles and people traffickers, helping to protect victims and counter threats to the UK’s national security.
Part 4 will ensure the efficacy of the existing notices regimes in the face of technological changes and the complex commercial structures associated with the modern digital economy. These measures have been carefully calibrated to address these issues in a proportionate way. Furthermore, the notices regimes have existed since the 1980s, and these reforms are just the latest iteration of that regime. This is not about introducing any new powers. The Bill will create a notification requirement which will allow the Secretary of State to place specific companies under an obligation to inform the Secretary of State of proposed changes to their telecommunications services or systems that could have an impact on lawful access. I wish to be clear that this is not a blanket obligation on the tech sector. It will be placed on companies on a case-by-case basis and with full consideration of the necessity and proportionality justifications of doing so each time.
Furthermore, the notification requirement does not give the Secretary of State any powers to intervene in the rollout of a product or a service or to veto such a rollout. It is intended to ensure that there is time for appropriate consideration of the operational impact and potentially for discussion with the company in question about possible mitigations. This notification requirement has replicated the existing notices standards wherever possible and is itself already part of the wider notices regime, where the Government are able to require companies under notice to inform us of relevant changes which affect their ability to provide assistance under any warrant, authorisation or notice.
The Bill also amends the effect of a notice during the review period. A notice must go through the full double-lock process before it may be issued to a company. On receipt of that notice, a company may request a review of that notice. Currently, the notice has no legal effect during the review period. The Bill amends this to require the company to maintain the status quo during the review period. This will mean that the company does not have to take any steps to comply with elements of the notice, other than to maintain its existing services at the point it is given the notice. The result will be that the company cannot take any action that will negatively affect the level of lawful access for our operational partners during the review period. This is without prejudice to the final outcome of the review and ensures that this outcome cannot be pre-judged.
The Bill also makes a clarificatory amendment to the definition of a telecommunications operator. This makes clear that large companies with complex corporate structures which together provide or control telecommunications services and systems fall within the remit of the IPA. It also clarifies that a notice may be given to one entity in relation to the capability of another entity. It does not seek to bring new companies into the scope of the IPA. Furthermore, the Bill creates a new safeguard for the renewal of notices. This will require a notice to be put through the full double-lock process after two years, if it has not been varied, renewed or revoked in that time.
Finally, Part 5 includes several minor changes to the IPA to ensure sufficient clarity and resilience within the regime. This includes increasing the resiliency of the triple lock, which is the additional safeguard for targeted interception and equipment interference warrants relating to members of relevant legislatures, such as this Parliament. Clauses in Part 5 will allow for the Prime Minister—in the event that they are unavailable—to delegate their responsibility for providing the triple lock to named Secretaries of State. This change is purely about ensuring resilience in the authorisation process and does nothing to alter the existing power or introduce any new power.
I conclude by highlighting the opportunity that the Bill affords us and the impact it will have on the safety and security of the UK and its citizens. Without making changes now, the ability of our agencies to tackle evolving threats—including terrorism, state threats, and serious crime—will be increasingly constrained. In the face of greater global instability and technological advancements, now is not the time for inaction. I welcome the further scrutiny that noble Lords will provide. From looking at the list of speakers, I am in no doubt that they will start with a typically insightful debate today. I beg to move.
Lord Coaker (Lab)
My Lords, I am sure the Minister was referring to me. But, seriously, I thank him for that helpful introduction and for the briefings that he and his officials have organised, including in buildings nearby later this week.
This is an important Bill, and we all need to ensure that it delivers effectively what we all wish for as we seek to defend our country and our freedoms against outside threats. I say to noble Lords including the Minister that we fully support the passage of the Bill, for the reasons that he outlined in his conclusions, and recognise the changed security environment that necessitates the need for this piece of legislation updating and improving the Investigatory Powers Act 2016.
There have clearly been significant changes to the threat picture, with developments that had perhaps not been fully foreseen over the last few years. Of course we have to remain vigilant against any terrorist threat, but even that has been overshadowed by other factors—in particular, the pace of geopolitical change and the extent of its impact on the UK and its people. The invasion of Ukraine, the weaponisation of energy and food supplies, artificial intelligence, the actions of Iran and the more aggressive stance with China in the South China Sea and beyond are just some of many examples. Importantly, this also manifests, as the Minister will know better than anyone, as threats such as economic espionage, the buying of influence, cyberattacks, disinformation and indeed, as we saw, the Salisbury poisoning. In the face of that hostile state activity, we have to change.
I join the Minister, and no doubt many others, in saying that we are very fortunate in having had the extremely helpful—and for me, I might add, understandable—report by the noble Lord, Lord Anderson, to guide us in this. It is also good to see other Members of your Lordships’ House who have extensive experience in this area to inform our debate. In congratulating the noble Lord, Lord Anderson, I shall raise some general points from his report and then deal with specifics as appropriate for a Second Reading debate.
It is of huge significance and importance that the noble Lord, Lord Anderson, did not produce a classified annex to his report. In an area of this importance and sensitivity, you obviously need secrecy and confidentiality, but there has to be as wide a public and parliamentary debate as possible. There are real issues of principle being discussed here, not least the right to privacy and the protection of an individual’s information or personal data. As I say, there is a need for the security services, law enforcement and others to act and to have the intelligence tools that they need, but the balance between national security, tackling serious crime and an individual’s privacy should and must, quite rightly, be a matter for public debate. When fundamental rights are at stake, that needs to be cautiously challenged, and this House will need to do that in Committee, while, as I say, fully supporting the overall passage of the Bill.
Chapter 10 of the report asks what comes next. Such is the pace of change and challenge, the noble Lord, Lord Anderson, recommends that, once this amending legislation is on the statute book, we need to move on very quickly to what comes next.
I shall turn to the Bill with some general comments, with the more specific questions coming in Committee. Bulk personal datasets are clearly important, and the Bill will allow a lighter-touch regulatory regime. The threshold will be where individuals have a low or no expectation of privacy in respect of that data. The Bill seeks to set out examples of the sorts of cases where such a regime would apply for the examination of material by the UK intelligence community. I believe there will need to be a careful debate about what such a threshold means. What does “low” mean? Would all such activity be subject to the approval of a judicial commissioner? Some have already expressed particular concern about new subsection (3A)(e), inserted into Section 11 by Clause 11(3), which says that communications data can be obtained
“where the communications data had been published before the relevant person obtained it”.
Does that mean it is available simply by having been published?
On a more general point, how does all this relate to the Data Protection Act, where personal data may be protected but is potentially not so by the new Bill? Big Brother Watch gives the example of the potential concern over Clearview, which has a mass of facial images—approaching 30 billion—harvested from social media. That could be considered a low-privacy database since the photos had been made public by the individuals, but the Information Commissioner’s Office found Clearview in breach of the Data Protection Act. This argument could therefore potentially be extended to many areas, such as Facebook posts, and will therefore need careful scrutiny, along with the more general point about the relationship between this Act and the Data Protection Act.
There are to be new proposals for internet connection records; they are clearly important, but changes are again being made. In particular, on the justification for target discovery—which, in essence, is a more generalised surveillance, if I have understood it correctly—is it the case therefore that there may not necessarily be a need for suspicion to lead to a particular form of surveillance? It is also interesting to note that, according to the report by the noble Lord, Lord Anderson, as I understand it, this extension or facilitation of target discovery for internet connection records should be limited to UK intelligence. So why have the Government extended this to the National Crime Agency as well as to the UK intelligence community? In other words, why has it gone beyond the recommendations of the noble Lord’s report?
The need for the communications of legislators to be secure and confidential—say, in discussing matters with constituents or other bodies—except in the most exceptional circumstances, is of real importance. Following the IPT case in 2015, there was legislation in the 2016 Act that tried to protect this principle by allowing any interception or obtaining of any communication to be allowed only with the so-called triple lock—in other words, after Prime Ministerial authority was given. The question this Bill seeks to answer is: what happens if the PM is, in the Minister’s words, “unavailable”? This seems to me to be a reasonable question to ask. We need to probe Clause 21 carefully and ask whether the inclusion of any Secretary of State is too broad a definition, what the involvement should be of senior officials, as laid out in the clause, and whether the proposed definition is correct. For example, would it not be better to specify the Secretaries of State as the Home Secretary or the Defence Secretary, or other senior Secretaries of State, rather than the broad blanket of any Secretary of State? The senior officials are explained, to an extent, but we need to explore in Committee whether we need to be more circumspect with what we mean by that.
We have also received a briefing from Apple, and it is important for us to reflect on its concerns. As I have made clear, we support the passage of the Bill, subject to proper scrutiny, which we and others will give in Committee, but Apple’s concerns need to be addressed by the Government in a public forum, to ensure trust and confidence in the new system we seek to introduce. Why is Apple wrong to have concerns about pre-clearance requirements?
On extraterritoriality, the noble Lord, Lord Anderson, says on page 57 of his report that he makes “no recommendation” on a policy issue for DRNs or the importance of end-to-end encryption. End-to-end encryption is a key security tool for us all, but it is also one that can be used, and is used, by malicious actors. We understand that, so how do we strike a balance between the necessity for the privacy and protection of an individual’s data and the need for security services and others to have potential access to that data to uncover serious crime or terrorist activity? In Committee, we need to discuss where that balance should be made and where that line should be drawn; it is an important area of discussion.
Throughout the report by the noble Lord, Lord Anderson, and the subsequent Bill before us, we see various adaptions of warrant processes, judicial oversight and the role of the commissioner, with many proposals. While we are generally supportive, we will need to examine these in more detail in Committee, but I have a few general points to raise now. For example, does the Bill help to sort out confusion in government? Incredibly, on page 28 of the noble Lord’s report, the MoD cannot, even when co-located in a hostile environment, transfer some data to the UKIC. Does the Bill sort that out? That is an important question that I put on the table for an answer—not necessarily now, but certainly in Committee.
Domestically, on the same page, we are told that it was a revelation to UK intelligence community officers to see how easily other government departments subject only to normal data protection requirements could access, retain and process bulk personal data. This Bill should not go through without the corresponding changes to policy and practice, highlighted by the above two apparent anomalies. No doubt there are many more. It would be a wasted opportunity were we not to address some of those examples which seem to draw attention to anomalies within the existing system which many of us would expect a Bill such as this to sort out.
Co-operating should not be as difficult as it seems to be. Openness and transparency are crucial so that we can be sure that, as far as possible, the number of various warrants applied for and refused is made public. More generally, what role is there for parliamentary oversight as well as the intelligence commissioner and so on? The Intelligence and Security Committee is our important eyes and ears on this matter. What part will it play in all this? Are its terms of reference, which I have said in other debates are in need of review, sufficient to allow the necessary level of scrutiny? If it is not appropriate for the committee to be involved, where is the parliamentary scrutiny? Where is the mechanism for reporting to Parliament? It would be interesting to hear that from the Minister. Yes, there are various commissioners and there is senior ministerial involvement, but what of Parliament? Parliament cannot be seen in areas as important as this as an afterthought or an irritant. It should be a proper custodian of our values in this difficult area.
I have laid out some of the key issues, although there are many more. I conclude by saying that, as the noble Lord, Lord Anderson, pointed out in his report, we cannot allow the debate to be characterised as being between those who stand up for security, for our country, and who understand what needs to be done, versus a privacy lobby that does not live in the real world. Of course, operational security cannot be compromised and changed threats require policy to be developed. We support the Government in this through the changes which are needed in this Bill. The challenge is to do so in a way that is consistent with our principles of democracy and human rights. Sensible debate and discussion surely will help us towards something that we all want—to build a consensus as far as possible over protecting our nation and allies against those who would do us harm, and not to undermine privacy or freedoms unless it is essential to do so.
Lord Fox (LD)
My Lords, it is a great pleasure to follow the noble Lord, Lord Coaker. I look forward to a fascinating and intimidatingly expert debate. Before commenting on the Bill, I feel that it is important to contextualise what we are discussing today.
Many of us enjoy books that depict the intelligence services. In the main, the George Smileys who appear within their covers are practising in a world that is very far from the lived experience of most people in this country. However, the reality is very different. The work of the intelligence services impacts very many people’s lives in the UK. It is not just bombs and guns but drugs, people trafficking and other exploitation, financial and cybercrime, extortion and many other crimes. The perpetrators are Governments, terrorist organisations, criminal gangs and lone individuals. Crime and terror merge and are socially unjust activities that prey on the weak. The victims are most often the vulnerable and those with the least ability to resist. Within this depressing tapestry, we rely on our intelligence services to help keep us safe and we need a police force that can cope with the complexities of those crimes. Liberal Democrats wholeheartedly support the services that seek to do this and we welcome this debate.
We also believe that these vital tasks have to be balanced against the freedoms and liberties at the heart of our country’s values. Every new power must be weighed in that balance and the noble Lord, Lord Coker, just explained that from his perspective. As we have heard, this Bill proposes some specific amendments to the original Investigatory Powers Act 2016. I was not involved in the scrutiny of the Bill at that time; that fell to my noble friend Lord Paddick, and the noble Baroness, Lady Williams, was in the ministerial chair, so it is a new set of eyes looking at this legislation.
I remind your Lordships’ House of some of the key priorities that my noble friends here and my colleagues in the Commons applied to the 2016 Bill. The first of these is that there should be no weakening of encryption. The second is the vital role of judicial authorisation and the third is that, when it comes to the bulk collection of information or mass surveillance, British residents have a right to expect privacy. These principles were central to our response to the last Bill and will be to this.
Today’s Bill, as we have heard, is the product of deliberation over years. Your Lordships should particularly thank the noble Lord, Lord Anderson, for his work on it. However, given the time taken to get this far, it is very disappointing that the Government chose to introduce the Bill in such a rush that it gave just eight working days for parliamentarians and civil society to prepare for the specific scrutiny of it. If the Government were seeking to ensure that they took people with them, this is a way to antagonise them. There are already comments about haste being an effort to railroad people.
I am afraid my speech today is quite a long one because I did not have time to write a short one. I turn to the Bill. As the Minister set out, the original Bill established a set of protections under Part 7; this Bill introduces two new levels of security, Parts 7A and 7B. Part 7A is introduced in Clause 2 and concerns bulk datasets, as we have heard, with
“low or no reasonable expectation of privacy”.
These so-called low/no datasets may be in three types, each with slightly different rules.
I have enjoyed helpful discussions with the Minister’s department and for that I appreciate his facilitation and engagement. During those discussions, the basic explanation has been that these datasets are needed to train tools using machine learning, that they already exist and are being used in the commercial world, but the Part 7 process makes them at best clumsy and at worst impractical to be used by the intelligence services. I take those points. Furthermore, the introduction to Part 7A includes a requirement for approval from judicial commissioners. Had it not, this discussion would have been much harder.
If training Al tools is the stated prime mover for Part 7A, the inclusion of urgent data as one of the three types of data clearly indicates it is also needed for ongoing investigations. I can imagine why urgent data might be needed, but it is the investigators who will define the urgency. Additionally, new Section 226BC refers to a relevant period of three working days between the acquisition of the urgent data and full judicial approval. Yet, after three days, the judicial commissioner may decline to permit the use of the data that has already been employed in an investigation using rapid Al-enabled analysis.
Taken together, I have my worries. There needs to be a duty to immediately notify the judicial commission. Secondly, there should be guardrails helping define “urgent” and finally we need to discuss how information discovered using data that is subsequently ruled ineligible is, shall we say, unremembered. Without these, the use of low/no datasets in this way for operational issues is concerning.
I have gone into this in some detail because I see it as a serious operational concern but also because I wanted to illustrate the sort of scrutiny the Government should expect from these Benches throughout this debate. There are other examples as we go through the Bill, but I will refer to those only broadly now. Clause 5 introduces a second new category of approval, Part 7B, this time for datasets held in third party assets to which the intelligence services have access. As far as I can deduce, this brings into the orbit of the IPA data which was previously not included and mandates both Secretary of State and judicial commission levels of approval. Unless I learn otherwise, that is a good starting point.
That said, we will seek to initiate explicit discussion around the use of medical, genetic and genomic data and how this can be protected. Here I note that anonymised data can be relatively easily reassigned, so anonymity in health databases is no actual protection. This is important on several levels, not least for public confidence in the digitisation and legitimate use of this very important information.
Part 2 allows the deputisation and delegation of some of the powers to broaden the number of people responsible involved. I just ask whether the Minister believes that this heralds a massive increase in workload.
In Part 3, I thank the Minister for his explanations around Clause 11, which I shall read carefully, and I will be coming back for some more details about how that will work in practice. Clause 14 creates a new condition for the use of internet connection records by the intelligence services and the NCA. Broadly, this removes the need for exact times when seeking connection records, substituting time ranges. This seems acceptable, as long as the Minister can assure your Lordships’ House that this will still require Secretary of State and judicial commission approval.
Part 4 moves into the area of retention notices and away from issues covered by the report of the noble Lord, Lord Anderson. I believe that Clause 15 is focused on bringing inbound roaming on foreign SIM cards into the frame, so I would appreciate details of how this will work. For example, if I am in the UK using a SIM that I bought in Dubai from a UAE-based telecoms provider, how does the intelligence officer proceed?
Clause 20, as we have already heard from the noble Lord, Lord Coaker, is one that has already raised eyebrows in the industry. Proposed new subsection 258A requires telecoms operators to inform the Secretary of State if they propose to make changes to their products or services that would negatively impact existing lawful access capabilities. In reality, this can include changes in encryption, a topic which has recently been on a rocky journey through the passage of the Online Safety Act. This Bill proposes a number of changes, building on the current regime set out in the 2016 Act, that relate to decryption of private messages for law enforcement purposes. In short, we believe the amendments would, or at least could, grant the Home Secretary more extensive powers to intervene in, and in some cases block, communications providers’ operational decisions, including enhancing privacy settings for users, with potential knock-on implications for end-to-end encryption on those services for everyone. I think more debate will be needed in this area.
There are other issues of timing, the possible length of a review, extraterritoriality and the level of judicial commission oversight at the notice level. I am sure I will be told by the Minister that this is a narrow interpretation, but it is an interpretation that has legs outside your Lordships’ Chamber. How will this power be used and what are the implications? Will we perhaps see British law officers beating a path to California to serve these notices? In a sense, how far does this go?
Finally, Part 5 invokes some interesting questions, some of which the noble Lord, Lord Coaker, has already asked and we will surely want to probe. We will want to introduce a requirement that the Investigatory Powers Commissioner is informed of, and records in their annual report, the number of warrants authorised each year to permit surveillance of Members of relevant domestic legislatures. For now, perhaps the Minister could tell your Lordships’ House what the process is for gaining permission to intercept and examine the Prime Minister’s communications.
We will also be probing two other important areas on which there is no time to expand today. The first is specific protections to avoid either cementing or introducing systemic bias against certain sections of the community from the AI models of the future that will be built as a result of this legislation. The second is the use of facial recognition technology on the back of the tools created using the low/no databases, a point that the noble Lord, Lord Coaker, raised.
To conclude, we are concerned that the Bill could push legislation further past the point of balance that we started to discuss. We need to ensure that judicial oversight extends right through the activities enabled by the Bill, and there should be no weakening on the encryption issue. I hope the Minister views this critique in the spirit of constructive support that I have sought to invoke, and I look forward to the rest of the debate and the further stages of the Bill. As he can see, our work will be built on the foundation that British residents have a right to expect privacy.
Lord Anderson of Ipswich (CB)
My Lords, I thank noble Lords who have referred kindly to my independent review of earlier this year, a short sequel to the much longer reviews, A Question of Trust and the Report of the Bulk Powers Review, that I was commissioned to conduct, with all-party agreement, in advance of the Investigatory Powers Act 2016.
Given the controversy surrounding electronic surveillance at that time, in the wake of Edward Snowden’s disclosures, the IPA had a remarkably smooth parliamentary passage—although I say that as someone who was outside Parliament at the time. I put that down to the detailed preparation that preceded that Bill, including reports from the ISC and from RUSI, and of course to the work of the draft Bill committee, chaired by the noble Lord, Lord Murphy of Torfaen, who I am delighted to see in his place. I remember being questioned by its members, including the noble Lord, Lord Strasburger, and Suella Fernandes MP, as she then was. That committee made 86 detailed recommendations, practically all of which found their way into the Act. How much time and testosterone can be saved—and was saved in that instance—by debating these important issues before a Bill is published in final form.
The IPA replicated and, indeed, enhanced the very considerable powers conferred by its predecessor, RIPA, on our intelligence agencies and police. However, its emphasis on transparency and effective oversight, in particular by the judge-led Investigatory Powers Commissioner’s Office—IPCO—with its excellent technical support, brought it into the modern age. I believe we have seen the tangible benefits of that in recent years; I will give three short examples.
The UN special rapporteur on the right to privacy, who had previously described our arrangements as “worse than scary”, reported in 2018 after an inspection visit to the UK that, thanks to the balance struck by the IPA, the UK
“can now justifiably reclaim its leadership role in Europe as well as globally”.
The English Court of Appeal overwhelmingly rejected an extensive series of challenges to the IPA in August this year, citing the authority of the European Court of Human Rights, which, rather more than the EU’s court in Luxembourg, has shown itself impressively ready to accept the use of bulk collection powers, properly safeguarded.
In addition, judicial approval of warrants, introduced here by the IPA but long familiar in North America, was instrumental in securing our data access agreement with the United States—a world first, which, given the American ownership of so many big internet platforms, is of particular significance to law enforcement on this side of the Atlantic.
Therefore, the IPA has been good for this country, including by helping to secure the international acceptance and co-operation that are ever more essential to the fight against organised crime and threats to national security.
However, the Minister is right to say that in limited areas, the IPA is in need of what I call running repairs. The Home Office invited me earlier this year to look at some of those areas which it had identified as in need of attention. Other parts of the Bill, including elements of Parts 1, 3 and 4, fell outside the scope of my review. In my report published in June, I largely accepted the Home Office diagnosis, although my prescriptions were in some respects different from its. In particular, in relation to the bulk dataset issues that occupy Part 1 of this Bill, I thought it important that the borderline between Part 7 and the proposed new Part 7A of the IPA, concerning datasets in which there is a low or no expectation of privacy, should be patrolled at the moment of decision not just by the intelligence agencies themselves but externally by independent judicial commissioners.
Since my report was submitted in April, there has been a convergence of views on this issue and on others, one of them in relation to the NCA and Clause 14, which was touched on by the noble Lord, Lord Coaker. I am grateful to the Security Minister and to the noble Lord, Lord Sharpe, for our discussions and the open spirit in which they took place.
The Minister knows that it has not always been my habit to give an unqualified welcome to Home Office Bills; judging from the Statement that was debated earlier this afternoon, I cannot guarantee that things will be any different in future.
I understand that Ministers like to come to this place with a few concessions in their back pocket, and there is no harm in that. But too often, elements of the Bills that arrive with us have a lopsided look; one suspects, rightly or wrongly, that they are the opening gambit in a concession strategy, whereby the energy of this House is occupied with the tabling and discussion of amendments, only for the Government eventually to concede what they had a good mind to do all along. This can be both frustrating and counterproductive; those who mistrust the Government see their worst fears confirmed by the initial version of the Bill, while those who trust them are reluctant to express that support, lest the ground be cut from under their feet.
It is to the credit of those concerned that I do not believe that such an approach has been taken with this Bill. No doubt it is capable of improvement; I welcome the challenges that have been made by NGOs and by the noble Lords, Lord Coaker and Lord Fox, not least because I was not able to consult in quite such specific terms as I would have liked on the proposals that were put to me by the Home Office. Indeed, there are a few points that I may seek to probe in Committee. But I consider that the Bill is an honest attempt to strike a fair balance in these difficult areas. We risk reversing the operational gains that it promises if we overload the Bill with unnecessary safeguards, or seek radically to reshape the judgments that it makes.
We need powerful weapons to combat the scourges of hostile state activity, terrorism, fraud, people trafficking and child sexual abuse, and we need to embed them in a strong framework that includes the gold standard of prior judicial authorisation for the most intrusive powers. This Bill gives us both those things, and we should not discard or devalue either.
History suggests that the lifespan of investigatory powers regimes is no more than 15 years or so, and technological developments mean that we are likely to be working towards a more fundamental revision of the IPA by the end of the decade, if not before. My report contains some ideas on what these technological developments are and how the process might be started, but for the time being I am glad that time has been found for this necessary Bill. I am happy to give it my support.
The Lord Bishop of St Albans
My Lords, I too thank the noble Lord, Lord Anderson of Ipswich, for his very helpful and excellent work in his area. With the rapid acceleration of technology and technological capacity, I recognise the need for this Bill to be updated. In this context, I welcome the Government’s sense of urgency in addressing the changing landscape in this area, and seeking to close those gaps that potentially endanger both the security and the safety of our nation. My right reverend friend the Bishop of Leeds had hoped to be here today, as he has taken a particular interest in this area, but he is detained elsewhere. We would both like to express two concerns that we believe must be addressed as this Bill is debated in your Lordships’ House.
First, the proposed amendments give the intelligence services vastly expanded powers not only to investigate individuals but to harvest and exploit vast amounts of personal data—not just of crime or terror suspects but of anyone. The collection of bulk datasets of personal details, including facial images and social media activity, is far reaching and potentially indiscriminate, so we must rightly be concerned about how effective any safeguards might be in controlling the power that such access gives to our intelligence services. The risks, particularly under a regime less ethically aware than those we are used to in this country thus far, are substantial. The weakening of safeguards risks endorsing the need for updating surveillance capacity, at the same time as threatening basic human freedoms.
Secondly, it has become clearer by the day that we are developing technical capacity well ahead of the ethical consideration of risk. Ethical thinking might well be deemed inconvenient by those who wish to forge ahead with greater advances and greater security provision. However, to fail to address ethical considerations now will simply leave us, at best, running fast to catch up later once the train has left the station and is already at full speed away in the far distance—and, at worst, having compromised personal and societal freedoms and having changed the nature of a free society.
The current proposals are likely to lead to a broad and vague definition of “public safety” in which the security and powers of the state in one area reduce essential personal freedoms. To that extent, I believe the helpful comments made by Big Brother Watch should be taken seriously and answered comprehensively if we are to be fully aware of the trade-off between two goods: public safety and personal privacy.
No one would wish to stand in the way of His Majesty’s Government’s intention to tackle terrorism, state threats, serious organised crime such as child sexual exploitation, illegal migration and fraud. These need to be faced head-on. The question is whether the proposed extensions contain sufficient safeguards to ensure that the mass of law-abiding citizens in a free society are not caught up in a form of mass surveillance in which they cannot trust that justice and privacy will be upheld.
When the Bill was first passed in 2016, the then Home Secretary said
“it is … right that these powers are subject to strict safeguards and rigorous oversight”.
It is essential that the Bill meets those conditions, but I worry that it does not do so in all places in its current form. We look forward to interrogating the Bill as we take it through its later stages.
Lord Murphy of Torfaen (Lab)
That was an interesting speech by the right reverend Prelate the Bishop of St Albans, because he put his finger on the dilemma of any legislation like this: the balance between liberty as a subject on the one hand and the security of our citizens on the other. That has become increasingly complicated as the years have gone by.
As the noble Lord, Lord Anderson of Ipswich, has mentioned, I was asked by the then Home Secretary, Theresa May, to chair a Joint Committee of both Houses of Parliament to deal with the original Investigatory Powers Bill exactly eight years ago this week. She asked me because I had been chair of the Intelligence and Security Committee. We met for about three months and made 86 recommendations, nearly all of which were accepted by the Government. Those recommendations were nearly all about the balance between liberty and security, which the right reverend Prelate referred to. The committee had 57 witnesses, including the noble Lord, Lord Anderson, and 148 written submissions. The process that took place all those years ago was vital for this sort of Bill. For various reasons we have not had that, and perhaps we will come to that in Committee.
That balance is also reflected in the work of government. For example, when I was Northern Ireland Secretary I had to sign warrant after warrant to deprive our own citizens of their liberty. They did not know it, of course, but that is what we were doing. If we had not done so, the chances are that many hundreds if not thousands of people would have perished in Northern Ireland, and indeed in Britain, because of the way in which the intelligence services were able to infiltrate the IRA and the loyalist paramilitaries.
Of course, a major recommendation of that committee was to have a review of the legislation five years after the legislation had been finished in Parliament. We have been very fortunate that the noble Lord, Lord Anderson of Ipswich, has actually conducted that review. I read it on the weekend. It is a lot to read on a weekend—138 pages—but it is, although on a very difficult subject, a relatively easy read for lay people such as myself. It is thorough; it is full of common sense, and it is practical. In the absence of a pre-legislative committee of both Houses, the review has, in a way, replaced that. Without the noble Lord’s review, we might not have the same Bill in front of us as we do now.
I agree with every single one of the noble Lord’s recommendations and, indeed, in Committee, there may well be more recommendations that this House can put before the Government. I hope that we do not get into a situation where we have to vote on those, but that we can have proper discussions between Members of this House and the Government on what those might be. They could cover internet communications records, bulk personal datasets, the issue of telecommunications companies and their notification of changes in the way they operate—all these things are significant. I just want to touch on one, which is of interest to all of us in here, and that is how we deal with parliamentarians.
The Wilson doctrine is as old as Harold Wilson, of course: it was a long time ago that that happened. I understand that, because we now need three people, including the Prime Minister, to consider these matters, but if the Prime Minister is incapacitated—as Boris Johnson was when he had Covid at that time—what do you do? Presumably, you go to the Secretary of State to be able to deal with that issue. I think that is sensible, but I take my noble friend Lord Coaker’s point that it should not be just any Secretary of State. It should be confined to either the Foreign Secretary, the Home Secretary, the Defence Secretary or the Northern Ireland Secretary; in other words, Secretaries of State who have experience of dealing with warrants, because these are such hugely important matters.
I also want to take up the point that my noble friend made about the Intelligence and Security Committee itself. The Minister will answer whether the committee has been consulted on these proposals: if it has not, it should have been and if it has, it would be useful for us as parliamentarians to know what it said. That is of vital importance to us.
Clearly, we need to update how we deal with the evil and unpleasant people who threaten our security and our lives. The technological innovation in the past eight years has been absolutely dramatic and will get even more dramatic as the years go by. My noble friend mentioned China, the war in Ukraine and Russia, and all those other authoritarian countries that exist on our planet. That is going to get worse. He also mentioned how much more sophisticated criminals now are, so we have to keep up with all this. What struck me in the last six or seven weeks, in the horrific and terrible war that we now see in the Middle East, was that the intelligence services of Israel, which were notably good, obviously failed. It could have been that if they had worked, we might not have had the horror that we now see in the Holy Land. I support this Bill, but I also support it on the basis that it has had immense scrutiny from the noble Lord, Lord Anderson; but there is still work to be done and I look forward to debating it in Committee.
Lord Strasburger (LD) [V]
My Lords, I apologise before appearing—or, more precisely, not appearing—before your Lordships in this manner, but I understand that there has been a failure in the parliamentary network and I cannot appear in video; it was either by telephone or smoke signals, so I will settle for the phone.
I should begin by declaring my interest as chair of Big Brother Watch, which campaigns for the privacy and freedom of speech of the citizens of our country and seeks to protect them from unwarranted intrusion by the state into their lives and their data. Big Brother Watch has managed to rapidly prepare a briefing for parliamentarians about this Bill, and I commend it to Members of this House. It sets out five areas of concern, which I will cover later in my contribution.
However, Big Brother Watch had to work at pace to complete the briefing for this Second Reading because the Government published the Bill only on 8 November, just eight working days ago. I wonder what the reason could be for this rushed processing. Could it be that the Government want to avoid the thorough examination that this detailed and complex Bill needs? If so, the small number of Members who are ready to speak about it today—just 11, including the Minister—suggests that this strategy might have worked. Therefore, my first question for the Minister is to ask for an explanation of why so little time has been given to prepare for this Second Reading.
I sat on the Joint Committee that carried out the pre-legislative scrutiny of the original Investigatory Powers Bill in 2015 and 2016. The noble Lord, Lord Murphy of Torfaen, whom I am pleased to follow in this debate, was the chair of that committee and a very good job he did too. My view eight years ago was, and still is, that bulk data collection—that is, the interception or collection and indefinite storage of everybody’s innocent internet, phone and computer communication—is a serious intrusion on every citizen’s privacy and requires very strong judicial oversight.
Those who support this mass surveillance seek to reassure us by saying that if you have nothing to hide you have nothing to fear. However, in truth do we not all have something to hide that we would prefer to keep to ourselves? That is why we shut the toilet or bedroom door behind us. That is why we do not speak in public about troubling issues in our family or friendship circle such as addictions, unwanted pregnancies, financial woes and the like. There are some things that we just feel are private—the kind of information that, in the wrong hands, can be used to demean or blackmail any of us. That detailed knowledge about every individual in the country could be used by an unscrupulous Government—who are considering ignoring laws and treaties, for example, if that rings any bells. They could use it to identify all citizens of a particular religion, political persuasion, sexual proclivity or whatever, to single them out for disadvantageous treatment or worse—much worse.
The state is collecting this personal information about us all and we cannot predict who in a future Government will get their hands on it and might totally misuse it. All I can say with certainty is that East Germany’s Stasi would have thought that every day was Christmas if it could have laid its hands on such a rich source of intimate data about all its citizens. Therefore, we must achieve a balance between the privacy needs and rights of individual citizens and protection of those same citizens from terrorists and serious and organised crime. It is not an easy balance to get right. I fear that the Government are still erring in favour of capturing too much data about innocent citizens—of course, the vast majority of us.
There is another very strong reason for not engaging in the collection of everyone’s data. The problem is that the useful information about terrorism or organised crime gets buried in a blizzard of useless data about the vast majority of us who are innocently going about our lives. In 2016, the Joint Committee on the Draft Investigatory Powers Bill heard startling evidence about the problem that this causes for security services from a gentleman called Bill Binney, a retired technical director of the United States National Security Agency and a bit of a folk hero in the intelligence community because he predicted with great accuracy when the Russians would invade Afghanistan just by analysing the patterns of their military signals. However, later in his career Mr Binney concluded that the NSA’s policy of collecting the data of all American citizens was unconstitutional, so his team devised software called ThinThread. It used smart collection to pick out for inspection only the communications of known terrorists, those they were talking to—and who those people were talking to.
The management of the NSA instead chose to go down the road of collecting 100% of the data through a highly expensive project, Trailblazer—which was later abandoned—and ignoring Bill Binney’s method of giving the analysts a much smaller but richer and more relevant set of data. The consequence was that the NSA missed the data that it already had in its systems which would have alerted it to the plot to attack the twin towers on 9/11. If only the NSA had known that it had it and had looked at it. We know that the NSA did have it because shortly after 9/11, Mr Binney’s team ran its ThinThread software against the NSA’s database at the time of 9/11 and found six of the 9/11 conspirators and their command centres. Mr Binney shocked the committee by revealing that 9/11 could, and should, have been prevented—if only the American security analysts had not been swamped with useless information.
The price paid by the American people for their security services’ predilection for bulk data collection was very high indeed. Yet here we have in this Bill the continuation of that folly by our own intelligence services. I invite noble Lords to recall the terrorist attacks of the last 20 years and that, almost every time, it was later revealed that the perpetrators were known to the police or the intelligence services. Our people being swamped with irrelevant data must have contributed to the failure to further investigate these suspects before they acted.
The Government will no doubt argue that the advent of artificial intelligence makes it more possible for them to search for needles in haystacks. That may well be so, but some of that advantage will be negated by the massive explosion of data volumes they are now collecting from a wide variety of sources, especially social media and video. The fact remains that they are still holding, and have available for inquiry, huge amounts of data about all of us in this House and in this country—all of it at risk of being misused. Bill Binney’s solution was to immediately encrypt the 99.9% of the data that was of no interest to protect it from snooping, official or unofficial. In the UK we have none of that protection.
The Investigatory Powers Act, to the credit of the then Government, sought to reassure the public that there are limitations on the use of personal data by law enforcement and the security services, and how those limitations are policed. However, it is worth noting that it was also disclosed that several intrusive powers have been used on the British people for many years, without any such constraint. That was because they had been in use without the consent or even the knowledge of Parliament. If it had not been for the brave whistleblowing of Edward Snowden, the contractor to the American National Security Agency, the scandal of the UK’s surveillance powers would not have been revealed to Parliament and may never have been addressed.
We need an Edward Snowden-type whistleblower every few years to keep our security services and our Government honest, because the safeguards that are in place to ensure compliance by the security services and prevent misuse of these highly intrusive powers seem to be inadequate, as illustrated by the TechEn case. This was a very serious breach of the statutory safeguards in the Investigatory Powers Act and the Regulation of Investigatory Powers Act 2000. It was the subject of the scathing judgment against the Security Service and the Home Office by the Investigatory Powers Tribunal in January this year. MI5 admitted that it had been aware, since May 2016, that there was a very high risk it was in breach of its statutory obligations concerning the holding of personal data under both Acts. It also admitted that it should have immediately reported to the Investigatory Powers Tribunal but failed to do this for three years.
The Investigatory Powers Tribunal found that
“there were serious failings in compliance with the statutory obligations of MI5 from late 2014 onwards”—
that is, two years earlier than MI5 admitted—and that those failings should
“have been addressed … by the Management Board”.
It was also strongly critical of the Home Office’s failure to inquire further into MI5’s long-standing compliance failures, after being made aware of them several times since 2016. The tribunal found that the Secretary of State breached their duty to make adequate inquiries as to whether the statutory safeguards were being met, and that warrants were issued after late 2014, through to 5 April 2019, that were unlawful and did not meet the safeguarding requirements imposed by the Investigatory Powers Act and RIPA. Other breaches of the safeguards were alleged, but we do not know the tribunal’s verdict on them because they were covered only in the secret part of the judgment.
As the noble Lord, Lord Anderson, whom I also thank for this thorough review, points out:
“MI5’s previous non-compliance has led to it being the subject of particularly rigorous oversight by IPCO with four extraordinary inspections taking place in 2019”.
He later warns that the TechEn case is a
“salutary reminder of the principle underlying the IPA: that exceptional powers require strong and independent external oversight”.
We would do well to remember those words when we come to consider the Bill in detail. There is clear, authoritative evidence that all is not well with the compliance mechanism in the Investigatory Powers Act. Some of us predicted this during the Bill’s consideration in this House. We also called for judicial authorisation to manage the risk of these suspicionless electronic surveillance powers, which are on a scale never seen before in a democracy. Instead, the Government set up a much weaker double-lock system, and now we see the consequences. So my second and third questions for the Minister are: what are the Government’s plans to seriously improve compliance with the Investigatory Powers Act, and will they now recognise that the current supervision regime is failing and needs to be replaced with much stronger arrangements? On a related matter, my fourth question is: when will the Government introduce regulation of a highly intrusive technology that is running riot in policing and security with absolutely no rules, safeguards or oversight—namely, facial recognition?
I turn to this Bill. There are five primary concerns that will be covered in detail in future stages in this House. As has been discussed, it weakens the safeguards against the intelligence services collecting bulk datasets of personal information by potentially harvesting millions of facial images and mass social media data. The Bill’s creation of a vague and nebulous category of information where there is deemed to be a low or no reasonable expectation of privacy is a concerning departure from existing privacy law, in particular data protection law. Such an undefined category requires agencies that are motivated to process such data to adjust safeguards according to unqualified assertions about other people’s expectations of the privacy of their data. On the contrary, data protection law is constructed according to the sensitivity of the information rather than guesswork about the individual’s expectation of privacy concerning personal information. In my view, this provision needs to be worded more tightly.
It weakens safeguards when authorities harvest communications data—for example, membership of and Facebook posts to a racial equality group could be seen as data available to a section of the public as defined in this Bill, and therefore the authorities may wrongly believe that they consequently possess lawful authority to obtain associated communications data from the platform. Once again, more precise wording is needed.
Thirdly, it expressly permits the harvesting and processing of internet connection records for generalised mass surveillance, which is a much wider purpose than originally envisioned.
Fourthly, it increases the number of politicians who can authorise the surveillance of British parliamentarians and members of other domestic legislative bodies. Politicians are not above the law but, given their important constitutional role, spying on them must require the highest authority—namely, that of the Prime Minister.
Fifthly and finally, it attempts to force technology companies, including those overseas, to inform the Government of any plans to improve security or privacy measures on their platforms so that the Government can consider serving a notice to prevent such changes. I am sorry to say that the Government must be suffering from delusions of grandeur if they think that Apple, for example, will agree to desist from improving the privacy protection of its products or to produce an iPhone with downgraded privacy features especially for the UK. Superior privacy for its customers is one of Apple’s main selling features, and it is not going to forfeit that to please the current Government in a small part of its worldwide market.
We have much to discuss when this Bill reaches its Committee stage. In the meantime I look forward to hearing the Minister’s response to my four questions at the end of this debate.
Lord Evans of Weardale (CB)
Not at all.
My Lords, I do not intend to make a long speech. This Bill proposes an important but, I suggest, relatively modest updating of the existing authorisation regime for the use of surveillance powers. It is also based on the excellent and clear review undertaken by the noble Lord, Lord Anderson, who has been thanked many times already and to whom I also give my thanks. His expertise and good judgment in these areas is widely acknowledged, not least within the police and intelligence agencies themselves.
The Investigatory Powers Act 2016 was significant in that it brought the authorisation of surveillance powers into the modern, digital age. Before the 2016 Act, the legal justification for surveillance was achieved by stretching and interpreting laws from an earlier era to cope with new conditions. The 2016 Act addressed modern needs directly with an unprecedented degree of frankness about what was actually possible and necessary. The Act also recognised the highly intrusive nature of investigatory powers that were being authorised and therefore matched those intrusive powers with strong and independent oversight mechanisms.
I respectfully disagree with the right reverend Prelate the Bishop of St Albans: I do not believe the Bill vastly expands the powers of the intelligence agencies. In some areas, it introduces more controls, but it is also very careful to balance any powers with independent oversight. The noble Lord, Lord Strasburger, helpfully drew our attention to the effectiveness of independent oversight where problems have arisen, and he demonstrated that the agencies are drawing attention to areas of failure and that the oversight mechanisms are making the appropriate decisions as to what needs to be done about it. I reassure the right reverend Prelate the Bishop of St Albans that, certainly in my experience, the agencies are extremely conscious of the ethical dimension of their work. In terms of both their external relationship with oversight bodies and their internal discussions, ethical factors are strongly considered and taken seriously.
We are all aware of the speed with which data capabilities, new platforms and artificial intelligence as a whole are developing. It is important that the law should be updated from time to time to keep up with the art of the possible. Data is at least as important as interception when it comes to preventing the very real security threats that we face from causing damage. If we do not update the law, one of two things will happen: either security will be put at risk, or those using the powers will rely on an increasingly creative and elaborate interpretation of the law to keep up with a new situation. We cannot operate within old legislation; neither of those alternatives is desirable, so a new Act is needed.
The key proposals in the Bill seem to be the new regime for bulk datasets and the arrangements for bulk datasets held by third parties but to which the intelligence agencies have access. Neither of these proposals involves a significant increase of intrusion into individual privacy, and in each case, tough oversight controls remain in place. On bulk personal datasets, the 2016 Act created what, in retrospect, appears to be a rather odd situation where the intelligence agencies are not able to use completely open data—such as Wikipedia data—without quite stringent authorisation, but which any member of the public can access without permission. A police force can also access that data without restriction. Our close intelligence allies can do so too, but our own security and intelligence agencies cannot. The same constraints apply for historical or open datasets of the sort that are needed to train artificial intelligence systems to operate effectively.
I cannot think of any good reason why these constraints are needed in their current form, and they have a negative impact on the speed and flexibility with which the agencies can respond to threats. I am therefore glad to see that the Government’s proposals for a less restrictive approach to datasets where there is no or low expectation of privacy have been included. The Investigatory Powers Commissioner will continue to police the low/no boundary so that there is no risk that the less stringent regime will be misapplied or that there will be any form of mission creep. I therefore support the Government’s proposals.
On third-party datasets, the situation appears to some extent to have been reversed, in that access to sensitive data held by third parties is currently not covered by as stringent a regime. This appears to be a small loophole in the 2016 regime, and it is right that access to such datasets should be brought within the authorisation regime, as the Bill proposes. Events since the 2016 Act, including the war in Ukraine, increased state threats and political interference and recent terrible events in the Middle East all mean that the security threats that we face and from which the intelligence agencies help to protect us are at least as acute today as they were seven years ago. At the same time, the technical environment within which the agencies work has changed very fast, and it is right that we should update the legislation that enables them to succeed in their work. I therefore support the proposals in the Bill.
Baroness Bennett of Manor Castle (GP)
My Lords, I apologise to the noble Lord, Lord Evans: my enthusiasm to reinforce the contribution of the noble Lord, Lord Strasburger, who I think made many important points in this debate, got me carried away.
I am delighted to present the Green Party’s position on this Bill. I am very aware of the depth of expertise in this debate, but I reinforce the comments of the noble Lord, Lord Strasburger, in reflecting on the narrowness of the contributions and the short time your Lordships’ House has had to absorb this Bill. I note that I am the only female contributor on the speakers’ list for this debate, which is perhaps one measure of the lack of diversity of views that have been able to participate. I also note that we are talking about further strengthening the Investigatory Powers Act, which, when it was brought in in 2016, was known universally as the snoopers’ charter. Liberty described it as
“the most intrusive mass surveillance regime of any democratic country”.
Since then, a number of court cases brought by Liberty have brought in some restrictions in terms of the operations of the Act, which I very much applaud, but the Act was also subject to a petition from 130,000 people to speak out against the snoopers’ charter. Of course, the speed at which we are operating now makes it very difficult to get such level of public engagement as we saw in 2016.
We are talking about a further erosion of privacy and, as many noble Lords have said, this is a question of balance, but we are tilting the balance very clearly with these amendments to the snoopers’ charter. What is particularly worrying is that this Bill is about granting the security services access to bulk data, which will clearly be used to build what are known as artificial intelligence machine learning models. In essence, the Bill lays the foundation for the Government to use rapidly developing artificial intelligence—so-called; I prefer to call it big data wrangling—in mass surveillance. Not only does this have huge ethical ramifications, but its adoption in surveillance would be extremely irresponsible, given that we do not know how these technologies are going to evolve in future. We have talked about trying to keep up with where they are, but we are potentially opening the door to let them race ahead much further than we can currently comprehend, as we stand in the House today.
In other contexts I have drawn to your Lordships’ attention the rapid increase of privatised medical testing and the widespread advertising of it that we have seen. The noble Lord, Lord Fox, referred to genomic data. What is being assembled is a huge amount of intensely private information about individuals, and if that is then to be opened and exposed to the state on a mass, untargeted basis, that surely is cause for grave concern.
The Bill gives the Government unprecedented powers to monitor and target the entire British population and lays the foundation for use of artificial intelligence in surveillance. This is indiscriminate surveillance. Anyone can be monitored, regardless of whether they are a suspect. This is a complete assault on our right to privacy and raises a real question to ask about the Universal Declaration of Human Rights.
Coming down to some of the detail, Clauses 1 to 4 allow for the mass trawling of social media and for the Government to collect data from every person’s web use, and Clause 14 allows the Government to obtain information from companies around every person’s web use—whereas, before, they were able to look only at specific data. In addition, the potential use of artificial intelligence as part of this Bill means that the Government could in theory identify everyone who is behind every single anonymous social media account, meaning that nobody would have anonymity online.
I am well aware that many people express concerns about anonymity and the behaviour of anonymous accounts online. Here I declare my position as co-chair of the All-Party Parliamentary Group on Hong Kong. I am delighted that the UK has welcomed many exiles from Hong Kong who have sought refuge in the UK, but they remain deeply fearful about the very long arm of the Chinese state. Similarly, we have seen that many Russians have had good cause for concern about the long arm of the Russia state, which, despite the best efforts of our intelligence service, has proved itself capable of reaching within our borders. Anonymity is crucial to some people’s safety in the world. Lest we think of this as being just about states regarded as hostile by the UK Government, let us all remember the fate of Jamal Khashoggi and the actions of our friend and ally Saudi Arabia in his horrific death.
The widespread use of surveillance means that this Bill would push the UK further away from what are considered democratic norms. What is more, as a number of other speakers have already said, this blanket surveillance is not necessarily effective. There is a real risk that, the more information you collect, the harder it is to see the needles in the haystack. This Bill erases some of the checks and balances already in place.
We have seen how far this can go. Again, looking on the international stage—what China is doing to its Uighur population, what it has done in Tibet, and what is happening in Burma—these are situations where the more surveillance there is, the more issues arise. If the UK is heading in the wrong direction, what kind of model are we creating on the international stage? The UK likes to present itself as a leader, a model of democracy, speaking up for democracy in international contexts. We must not be a leader in allowing further steps towards autocracy.
I think it was the noble Lord, Lord Coaker, who spoke of how these technologies have often been used in discriminatory ways. We know that the police, certainly, have unfairly singled out people based on their identity, and that has had dangerous, damaging consequences, both in relation to the treatment of individuals and in relation to communities’ views of the police and our security services. If artificial intelligence is added into this mix, we know that there are built-in biases in the way in which the databases have been developed, and that is a real issue.
We also know—I declare an interest here—that the police and security services in the UK have made disproportionate efforts to monitor politically active individuals, trade unionists and whistleblowers. Providing the police and the security services with greater surveillance capacities means that people who are acting democratically in our society could be—in fact, almost certainly will be—subjected to further unwarranted surveillance. As a number of other noble Lords have said, the fact that Part 5 of the Bill allows further extension of the Prime Minister’s powers to approve interception and examination of MPs’ communications is a cause for grave concern.
To conclude, I will share an experience from the weekend. On Saturday, I was at a protest against the proposed new coal mine in Whitehaven in Cumbria, which is opposed by, among others in your Lordships’ House, the noble Lord, Lord Stern of Brentford. He made similar points to mine about the messages we are sending to the international community. The slogan was “No Time for a Coal Mine”. At that protest, there were 100 or so supporters, and the four of us who were speaking had all advertised this fact on social media beforehand. For nearly all the two and a half hours we were there, flying above us was what I am told was a police drone. There were at this protest of 100 people—all advertised and entirely peaceful with no plans for direct action—at least six police officers, one of whom filmed my contribution and all the other contributions. That is the experience of people peacefully protesting within the UK.
There was another story at the weekend that 15 government departments are monitoring the social media activity of potential critics and compiling files to block them from speaking at public events. This is the experience that people have of the UK state today. We have savage reductions in the right to protest; we have deeply concerning directions of travel, and the Bill is a further step in that direction.
Lord Carlile of Berriew (CB)
My Lords, stimulation comes in many forms, so I think I can say, without any disingenuousness, that it is stimulating to follow the noble Baroness, Lady Bennett. Having heard her and the noble Lord, Lord Strasburger, I feel that I should start with a bit of my own experience, that of dealing with those extraordinary and usually highly intelligent people who work in the various security services. It is outrageous to assume that they would look into an individual’s credit card transactions or anything like that in the way that has been implied by at least two speeches that we have heard. I believe—indeed, I know—that their contributions have been key to the introduction of this Bill and that they have done it with intellectual integrity and with only one thing in their mind: the interests of their country, in which they live. Listening to the noble Baroness, I have a fear that she and I, at least in our minds, live in completely different countries.
The noble Lord, Lord Strasburger, expressed some extraordinary conspiracy theories which just do not exist and which, in my judgment, are—I hesitate to use the word, but I will—misleading. Both the speakers to whom I have referred have been on a safari into irrelevant issues which are not pertinent to the reality of what we are discussing. In the years since 9/11, the date on which I became the Independent Reviewer of Terrorism Legislation—to be succeeded some years later by the brilliance of the noble Lord, Lord Anderson of Ipswich—various Governments all over the world have been challenged repeatedly by both evolving change and unexpected events affecting the terrorist threat landscape.
I suggest that the amount of legislation we have had since 9/11 has reached the point at which the Government should give consideration to a consolidation Bill, a codification in which all counterterrorism, interception and counterextremism legislation is included so that we have a living instrument to which lawyers, police officers, the security services and, of course, parliamentarians concerned can refer—a single place in which all this legislation is kept. This Bill is an example in some parts of the way in which extra legislation is being added piecemeal, although it is fair to say that legislation.gov.uk at least tries to include in Bills, if looked up online, the additional parts that have been created. It really is a time for codification, and the template for that is the Sentencing Code, which was created by Professor Ormerod when he was at the Law Commission.
I used the phrase “terrorism threat landscape” deliberately. Terrorism and related forms of extremism have morphed into one of the major and enduring geopolitical issues. It started with the word “terrorism”, but, since 9/11, these issues have become part of the defence and national security policies in every single country, including our own. It was a surprise when national security originally appeared as part of the defence strategy, but it is now completely established in that context.
Attempts to disrupt the stability of sovereign Governments, sovereign Governments themselves disrupting other Governments and the rise of new international factions are all matters that affect our debate; we have to understand the context of what we are considering. I thank the Minister for ensuring that your Lordships have been fully informed and have been given plenty of time; this has been a matter of discussion for a long time. My noble friend Lord Anderson reported some time ago on the background and primary considerations behind the Bill; I too add my special thanks to him for his excellent, detailed report, which is the foundation of the Bill.
Let us consider the context. The first responsibility of our Government is to keep their citizens safe and free to go about their legitimate business and interests. When we go to a concert, as in Manchester, for example, or to a shopping centre, again, as in Manchester, or come and go to this Parliament, along the streets outside without disturbance, which has not been everyone’s experience in recent days, we should be kept as free and safe from the terrorism threat as is possible within the legitimate constraints we set ourselves as a free society. That does not mean that we should resile for one minute from what we rightly regard as fundamental freedoms, but how fundamental those freedoms are is open to argument based on the assessment of proportionality that was mentioned earlier.
In that context—specifically in connection with bulk data, a major part of the Bill—we need to be realistic. In the years since some of us first handled house brick-sized mobile telephones that slotted into racks in our cars—at the time, I was a Member of the other place—we have ourselves given away, to a wide audience, private matters that, in the past, were closely protected. When we—the middle-aged and older men here, for example—buy clothes online, we give away details of our anatomy, including our shoe and waist sizes. That the security services have any interest in that sort of thing is a myth, but we have given away a huge amount of our information. To allow the state to use that information to catch terrorists seems to me to be a reasonable balance, if that use is circumscribed by the high level of judicial protection that the Bill provides and, in some respects, enhances.
When we speak about bulk data, we should bear in the mind the donation we have made of information, sometimes our most intimate details, and we should reflect on the public interest in allowing the authorities, subject to the protections built into the Bill, to use that bulk data—even the meta data that tells them when we made our calls and to whom, and from whom, they have occurred—to carry out their prime duty to protect the public. Maybe, from time to time, there will be people whose information has been mistakenly or improperly prepared, but they are provided, in this country and in this Bill, with greater legal protections than in any other country that I know.
This is an appropriate and good Bill. The Committee should not be distracted by mythology; it should seek to make the Bill better—but within its existing context.
Baroness Manningham-Buller (CB)
Will your Lordships allow me to speak in the gap? I had not intended to speak in this debate because I knew that my noble friend Lord Evans is more up to date than me. I think my noble friend Lord Anderson has had enough praise already, but I shall add a bit. I promote the noble Baroness, Lady Bennett, because nobody else of her gender was going to speak in this debate. I shall make a few comments on the things that have been said. The noble Lord, Lord Murphy, talked about the balance between liberty and security. Of course that is an issue, but there is no liberty without security. Without making sure that our electoral proceedings, our secrets and our citizens, whether shopping or going on the Tube, have safety in their lives, there is no real liberty. I think sometimes it is an artificial distinction.
I noticed that my noble friend Lord Evans and my successor but one, Ken McCallum, the current head of MI5, gave a public speech in California recently at the Five Eyes conference—a first—and it was reported. There were three things he talked about as really at the top of his concerns: first, whether arising out of the tragic events in the Middle East there would be a resurgence of terrorism in that area; secondly, cyber; and thirdly, the threat to our democracy, including our electoral process, from various states. It is not an accident that the law governing the Security Service emphasises that it is there to protect parliamentary democracy. I find quite strange the idea that it is a threat to it.
I would also like to, I am afraid, dismiss as ignorant the spurious argument that having too much information means that you do not find the people you should have found. As my noble friend has said, you can know of people in this country, and MI5 will know some about whom it has significant concerns, but it does not know what they will do. It is also constrained, rightly so, by the law, and cannot suggest to the police that they arrest people unless there is a good case to do so, any more than it can mount intrusive surveillance unless there is a good case to do so.
The final point I would make in endorsing again what my noble friend has said is that my colleagues in the service and in the other agencies were very conscious that the law gives us powers that are not given to the normal citizen. The Murdoch press occasionally took them with the interception of phones, but they are not given to the normal citizen. They are given to the agencies and the police within the law. Precisely because they are not normal abilities to intrude into people’s privacy, that work has to be done with great care to the highest ethical standards and only when proportionate and necessary. Excuse me for delaying the conclusion of this important debate, but I did not think I could sit patiently and not make those remarks.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I think the whole House will be grateful for the noble Baroness’s intervention speaking in the gap. I thank the Minister for facilitating the briefings which we have had and will have in the coming days on the Bill.
The Bill makes changes to the 2016 Act, as we have heard. The 2016 Act provides a framework for the use of investigatory powers by the security and intelligence agencies, law enforcement and other public authorities. They include the power to obtain and retain communications. It also created the post of Investigatory Powers Commissioner and includes a number of safeguards for the use of such investigatory powers, including a two-stage procedure for obtaining authorisations. Many of the powers in the 2016 Act were pre-existing, as we have heard, and already being used by intelligence and law enforcement agencies. The Government stated that one of the intentions behind introducing the 2016 Act was to bring together and build on the statutory powers already available. The Government explained that the Act was also required to replace emergency legislation passed in 2014, the Data Retention and Investigatory Powers Act, which was subject to a sunset clause.
I agreed with the point made by the noble Lord, Lord Carlile, about the desirability of developing some sort of living instrument and a consolidation Bill to try to bring these pieces of legislation together.
The Bill before us proposes changes which include the creation of a new condition for the use of internet connection records to aid target detection, introducing a less stringent regulatory regime for the retention and examination of bulk personal datasets where individuals have little or no expectation of privacy, and a new notification requirement that can be issued to selected telecommunications operators, requiring them to inform the Government of proposed changes to their products and services that could negatively impact the current ability of agencies to lawfully access data.
I was going to say something about the contributions of the noble Lord, Lord Anderson, to the review of this legislation. My understanding is that all the noble Lord’s recommendations have been accepted by the Government, and I too express the Opposition Front Bench’s gratitude for the work he has done on this.
The Bill is a relatively short Bill of six parts, 31 clauses, and two schedules. I was going to step through its various elements, but I will not do that because it has been adequately covered by speakers earlier in this debate.
Like other noble Lords, I have received emails from industry and advocacy groups raising concerns about the Bill. On 7 November, a Financial Times piece reported that firms, including Apple and Meta, have signalled that they may withdraw from the UK market if they can no longer offer end-to-end encryption to their customers. I will quote from the concluding paragraph of a letter I received from Apple:
“The Home Office’s proposals to expand the IPA’s extraterritorial reach and to grant itself the power to pre-clear and block emerging security technologies constitute a serious and direct threat to data security and information privacy. To ensure that individuals have the tools to respond to the ever-increasing threats to information security, the Home Office’s proposal should be rejected”.
The piece, which I am sure we all received, then went on to explain their concerns about providing what they refer to as a back door into end-to-end encryption, and how that undermines the firms’ business model and the security of many other groups operating elsewhere in the world. It is right that we take the points raised by these commercial providers seriously, and maybe we will address them as the Bill progresses.
Similarly, online privacy advocacy groups such as Open Rights Group and Big Brother Watch have expressed their concerns, and we have heard from the noble Lord, Lord Strasburger, and the noble Baroness, Lady Bennett, today. It is worth saying that I agreed with every word of the noble Lord, Lord Carlile, when he said that he and I live in a different country from that spoken about by the noble Lord and the noble Baroness. We need to consider the concerns being addressed in the Bill, but also the wider context that other countries and other very large companies have access to bulk datasets—maybe not our bulk datasets—and are using that data in ways that we need to understand and pre-empt, if they are working against our national interest.
I conclude by talking about my own experience as an engineer, which is relevant to the debate we have just had. It used to be my working life to deal with very large datasets, make predictions based on them, and inform management about those predictions. One of my experiences was that it is very easy to mislead oneself because one is analysing large amounts of data. One needs to be realistic and at the same time see the possibilities of these extremely large datasets. It is a huge challenge. Huge amounts of data are used just to process them, and the maths and the imagination behind it is developing as we speak. The Bill in front of us now is a relatively modest step in the road, and we need to keep reviewing the processes available to us and reviewing the legislation to try to underpin them.
Lord Sharpe of Epsom (Con)
My Lords, I thank all noble Lords who have spoken. There have been many expert and valuable contributions to today’s debate. I particularly thank the noble Lords, Lord Coaker, Lord Ponsonby and Lord Fox, for their broad and very constructive support for the Bill. Obviously, I very much thank—again—the noble Lord, Lord Anderson, for his work. I also thank the noble Lords, Lord Murphy and Lord Evans, and particularly the noble Lord, Lord Carlile, who I thought was very eloquent, for their contributions. I thank the noble Baroness, Lady Bennett, for provoking the noble Baroness, Lady Manningham-Buller—a thing I am always very reluctant to do.
The support was more qualified from the right reverend Prelate the Bishop of St Albans, but I hope to assuage his concerns in my remarks and will certainly endeavour to deal with some of the concerns of the noble Lord, Lord Strasburger, who asked whether we were trying to avoid detailed scrutiny. The answer is: absolutely not. The Bill was ready, having followed the detailed and expert scrutiny of the noble Lord, Lord Anderson—as noted by the noble Lord, Lord Carlile—and, of course, we could not pre-empt what might be in the King’s Speech. In the case of this Bill, parliamentary time currently allows. We have engaged extremely extensively and, frankly, the country needs it. That is a very compelling set of circumstances behind introducing the Bill now.
I feel I ought to take issue with the fact that the noble Lord, Lord Strasburger, said that the country, or all countries, “need a Snowden” occasionally. As I understand it, it has been alleged that people died because of the activities of Snowden, so I am not sure that that is a generally fair point.
I will deal with the questions raised in as much detail as I can in the time available and will start with bulk personal datasets and, in particular, privacy. I thought the noble Lord, Lord Carlile, gave an excellent speech on this subject, but obviously there are concerns so let me do my best to assuage them. The Bill creates a new regime for the retention and examination of bulk personal datasets where there is a low or no reasonable expectation of privacy. The nature of these datasets means that individuals to whom the data relates would have low or no reasonable expectation of privacy in relation to the datasets so, for example, an individual may have consented to the data being made public or the data has already been manifestly made public by the individual. That includes categories of datasets such as public and official records, news articles, content derived from online video-sharing platforms, and publicly available information about public bodies.
For example, a dataset that is likely to meet the test of having no or only a low expectation of privacy is the Companies House register, a government register of company information that is open to the public to search online and download. I have noted the recommendation of Big Brother Watch and I read it in some detail. I think it is based on a misunderstanding but perhaps it is worth going back into the reason why we are making these changes now. The way the existing regime was designed did not foresee the exponential increase in the use of, complexity of and changing nature of data. The scale and different kinds of data that are now available is unrecognisable in comparison to the picture in 2016. It did not foresee the extent to which cloud and commercially available tools would make analysis of datasets possible, the extent to which publicly available data would increase in value for the intelligence agencies compared to sensitive data which used to be obtained through traditional covert powers, and the extent to which intelligence agencies would need vast quantities of publicly available data to train machine learning models.
The intelligence agencies have been inhibited from maximising opportunities when compared with the private sector and academia, as well as our adversaries, as a result of the gold-plating of some of the Part 7 regime. It is important to note that the datasets would not necessarily be authorised under the new regime in Part 7A solely by virtue of their being publicly or commercially available, and that is particularly important when considering datasets which have been hacked and/or leaked.
On the subject of safeguards, there are of course safeguards in place to prevent misuse of the powers in the Bill. The safeguards that will apply to bulk personal datasets with low or no expectation of privacy will be calibrated to reflect the intrusion that is likely to arise from their retention and examination, ensuring that the rights of the individuals to whom the data relates is adequately protected while also enabling the intelligence services to make more effective use of these datasets. This will include requiring prior judicial authorisation on whether a category of datasets or an individual dataset can be considered to meet the test for authorisation under the new Part 7A regime; that is, that they meet the test for low or no expectation of privacy.
In answer to the noble Lord, Lord Fox, the Bill creates an obligation on the head of an intelligence service to stop any activity that relies on any data discovered in a BPD where the low or no reasonable expectation of privacy assessment no longer applies. The safeguards are being recalibrated to ensure that the regime better reflects the threats and opportunities of the modern world, but they remain robust, with the important protection of judicial approval at their heart.
Internet connection records were referred to by the noble Lords, Lord Coaker and Lord Strasburger, among others. They asked why there are no specified time limits for the period that internet connection records can be sought under the new condition. The driver for this change is to enable the intelligence services and the National Crime Agency alone—I will come back to the National Crime Agency—to carry out target detection to identify previously unknown high-harm offenders. The current requirement for unequivocal knowledge of the time a service is accessed, which service is accessed, or the identity of a person, before an internet connection record can be sought is preventing this from happening. So, it is important we do not create similar conditions under this proposal which will continue to restrict this critical investigative work.
These investigations will be targeted and case-specific, so it is not possible to include a time limit which could work across the range of investigations being undertaken. However, I can reassure noble Lords that requests will be time-bound based on the specifics of the case and they will be driven by intelligence, not used as speculative fishing exercises. Furthermore, the new condition is also limited in terms of the purposes it can be utilised for. It can, and I stress this, be used only for national security and serious crime purposes. It is important to note that there are several other safeguards in place, including a requirement for the request to be both necessary and proportionate. A request that sought records over a very long period of time is highly likely to be neither necessary nor proportionate, and all ICR requests are subject to independent ex post facto oversight. All ICR requests are valid for only one month and an application must be renewed at the end of that period.
The noble Lord, Lord Coaker, asked why this is being extended to the NCA. I recognise that the noble Lord, Lord Anderson, initially proposed that the new condition should extend only to the intelligence services, although I understand that he now sees value in it being extended to the NCA because the NCA plays a vital role in protecting children from sexual exploitation and abuse, so it is essential that it has all the tools at its disposal to counter that particular threat.
The noble Lord, Lord Fox, asked about roaming data, and in particular subjects of interest using a foreign SIM card. On that example, in the circumstances where a subject of interest was using a SIM card obtained in a third country and was therefore using international roaming while in the UK, under the proposed amendments an exception for this data will be made, allowing UK telecoms operators to retain it under a retention notice which has been double locked. This will then allow operational partners with the appropriate authorisation to access the retained data when necessary for the purpose of prevention and detection of crime and, again, protecting national security.
On the subject of the notices reforms and the tech companies, which I think most noble Lords referred to, some tech companies have expressed concerns in public fora in advance of the Bill’s publication that these measures may place onerous or burdensome obligations on an operator, could undermine security or could allow the Secretary of State to prevent technical or relevant changes. I assure all noble Lords that these concerns are misplaced. The Bill does not introduce significant changes to the existing powers, ban end-to-end encryption or introduce a veto power for the Secretary of State regarding the rollout of new technologies and security measures by companies, contrary to what some tech companies have incorrectly speculated. Rather, we are making a series of adjustments to ensure that the notices regime continues to be effective in the face of modern technologies and the structures of companies in the modern digital economy.
None of the measures in the Bill seeks to reduce the competitiveness of UK tech firms, or indeed to discourage innovation. Careful consideration has been given with regard to these measures, striking a balance to ensure that the law enables us to mitigate the risks posed by changing technology, while still promoting technological innovation and the legitimate interest in increased privacy of the majority of our citizens.
These measures do not create any new acquisition powers but will maintain the efficacy of long-standing powers. We therefore do not anticipate that they will put disproportionate burdens on businesses. Rather, they formalise processes that are already in place.
The Government support technological innovation and advances and have always been clear that we support strong end-to-end encryption, as long as it does not come at a cost to public safety. Together with our international partners, we believe that tech companies have a moral duty to ensure that they are not blindfolding themselves and law enforcement to abhorrent crimes such as child abuse and terrorism on their platforms. These amendments will not introduce significant changes to the existing powers, ban end-to-end encryption or introduce a veto power for the Secretary of State regarding the rollout of new technologies and security measures.
On a question asked of me by the noble Lord, Lord Fox, with regard to notices and the pre-clearance requirement, these amendments do not introduce a requirement for pre-clearance for the Secretary of State regarding the rollout of new technologies and security measures by companies. Fundamentally, the changes to the notice regime are about ensuring that the decisions on public safety are made by Ministers and are subject to judicial oversight as Parliament intended and as the public would expect, to keep them safe.
On the triple lock, noble Lords—in particular the noble Lords, Lord Coaker and Lord Murphy—asked for clarification as to whether the Prime Minister could delegate an authorisation requiring the triple lock to anyone they wanted to. I can reassure noble Lords that that is not the case. The Bill proposes that the Prime Minister will designate in advance a group of Secretaries of State who could authorise the warrant on his or her behalf. The alternative approver would need to be a Secretary of State and not the same Secretary of State who authorised the warrant at the earlier stage of the triple lock. I hope that provides the necessary reassurance on the restrictions that will be in place under this clause. Restricting the decision on suitable deputies is for the Prime Minister to decide, but it is clear that there needs to be sufficient resilience in the system to ensure that there are enough alternative approvers with the necessary experience.
The noble Lord, Lord Coaker, also asked me about ISC oversight and parliamentary oversight. He will be aware that the Intelligence and Security Committee examines the policies, expenditure, administration and operations of the UK intelligence community, and sets its own agenda and work programme. Obviously, it will maintain that oversight function for the measures in the Bill, but I can tell the noble Lord that the Security Minister will spend some time with him on the subject of the Bill next week, which I hope will assuage any concerns.
I need to go into the subject of safeguards in more detail in light of the speeches given by the noble Lord, Lord Strasburger, the noble Baroness, Lady Bennett, and the right reverend Prelate the Bishop of St Albans. I assure noble Lords that the measures contained in the Bill, and in the IPA, are underpinned by a robust and world-leading safeguards regime. They are not failing.
Numerous safeguards exist to prevent the misuse of investigatory powers, ensuring that they are used in accordance with the law and in the public interest. The Bill contains measures that will introduce new safeguards and improve the resilience of the Investigatory Powers Commissioner. We are improving oversight and increasing safeguards to ensure that powers in the IPA are not misused.
Strong safeguards are already in place to ensure that investigatory powers are used in a necessary and proportionate way. That includes independent oversight by the Investigatory Powers Commissioner’s Office and a right of redress through the Investigatory Powers Tribunal.
The powers can be used only for the statutory purposes set out in the Act, including in connection with the most serious crimes and national security. We are also taking the opportunity to strengthen safeguards in other parts of the regime—for example, by creating a new statutory oversight regime for the intelligence agencies’ access to datasets held by third parties rather than retained by the agencies themselves.
On the subject of retention, the noble Lord, Lord Strasburger, talked about data being held indefinitely. However, retention of data is subject to stringent safeguards under the IPA. It can be retained only provided it is necessary and proportionate, and it is not authorised indefinitely. This is regularly reviewed, and records of holdings are subject to inspection by the Investigatory Powers Commissioner’s Office.
The noble Lord, Lord Strasburger, also referenced the recent TechEn judgment. The investigations carried out by the Investigatory Powers Commissioner and his team in response to TechEn are evidence that the oversight, transparency and safeguarding arrangements provided for in the IPA are working as they should. In the Liberty judgment of 2019, the High Court found that
“The safeguards contained within that Act are capable of preventing abuse”.
While the TechEn case outlined widespread corporate failings between the Home Office and MI5, these issues are historic and the Home Office has taken steps internally to increase collaboration with MI5 and ensure that there is appropriate resourcing in place within the relevant Home Office teams responsible for investigatory powers.
I also wish to be clear that there has been no finding by the tribunal that MI5 misused the data in question nor any suggestion of this at any time during this process. As the then Home Secretary, Sajid Javid, noted in 2019,
“none of the risks identified relate in any way to the conduct and integrity of the staff of MI5”.—[Official Report, Commons, 9/5/19; col. 30WS.].
Finally, I reference the endorsement that the tribunal has provided on the robustness of the oversight regime and safeguards contained within the IPA, including the adequacy of the measures available to the Investigatory Powers Commissioner. TechEn does not, therefore, suggest that the system is fundamentally flawed but shows that it works as intended when non-compliance occurs.
Many noble Lords have made important points about balance in this debate, particularly regarding privacy. I particularly note the noble Baroness, Lady Manningham-Buller, whose comments were spot on. It is fair to express concern about the impact that the Bill will have. Privacy is at the heart of the IPA, and this will remain the case under this Bill. The IPA contains robust, transparent and world-leading safeguards centred around considerations of intrusion into privacy. This includes 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. The Bill builds upon these already world-leading safeguards, further strengthening the oversight regime, as I have just outlined. I also note that in 2018, the then UN special rapporteur on the right to privacy noted that the introduction of the IPA allowed the UK to claim a global leadership role in the protection of civil liberties. I note that this was not referenced by the noble Lord, Lord Strasburger, but I am sure that he would like to read that notification.
The noble Lord, Lord Carlile, made some very good points about codification of the various laws in this space. I defer to his extensive knowledge. I will also ensure that his thoughtful remarks are noted in the appropriate parts of government. Obviously there is very little that I can comment on regarding this now, however.
I have endeavoured to address the contributions made by noble Lords today. I apologise if I have missed any questions that were asked of me. I will scour the record and write if that is the case. I express my commitment to further engagement with noble Lords. I look forward to further discussions as the Bill continues its passage, as we seek to ensure it achieves the crucial objective of making our country and our citizens safer. For now, I commend this Bill to the House.
Lord Sharpe of Epsom
That the Bill be committed to a Committee of the Whole House, and that it be an instruction to the Committee of the Whole House that they consider the Bill in the following order:
Clauses 1 to 13, The Schedule, Clauses 14 to 31, Title.