House of Lords
Hydrogen Heating
(5 months ago)
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Baroness Sheehan
To ask His Majesty’s Government what assessment they have made of the finding of the National Infrastructure Commission that there is no public policy case for hydrogen heating, set out in the Second National Infrastructure Assessment published in October.
The Parliamentary Under-Secretary of State, Department for Energy Security and Net Zero (Lord Callanan) (Con)
My Lords, heat pumps and heat networks will be the primary means of decarbonising heat for the foreseeable future, and will play an important role in all 2050 scenarios. Of course, we welcome the NIC’s input, are carefully considering the analysis and will respond to the report in due course.
Baroness Sheehan (LD)
I thank the Minister for his reply. My first question is about the residents of Redcar. Their council leader has written to the Secretary of State to say that they do not want a hydrogen heating trial. Am I correct in saying that they will be allowed to follow the residents of Whitby and veto the proposal? After all, the Minister himself has said as much from the Dispatch Box. Secondly, what assessment have the Government made of recent scientific developments that show that hydrogen leaked into the atmosphere has an indirect global warming impact around 12 times greater than that of carbon dioxide?
Lord Callanan (Con)
With respect to the noble Baroness’s first question, I think she needs to read the letter from the leader of Redcar Council more carefully. I do not think it supports the analysis she gave. Nevertheless, I have said on numerous occasions that no hydrogen village trial will take place without strong support from local residents. On the noble Baroness’s second question, yes, hydrogen does have a high global warming potential, which illustrates the importance of not allowing it to leak at all.
Lord Howell of Guildford (Con)
My Lords, is the National Infrastructure Commission’s report really welcome? What it says in that report is that hydrogen molecules are just too difficult for 23 million domestic supplies at home. It wants to dig up or close down entirely the existing retail gas distribution system as well, because it thinks it does not fit in with our global aims—and it is absolutely right. And it wants to turn us into an all-electric economy. But have we got the slightest clue where all this extra electricity will come from, how it will be transmitted and delivered, and how that can be done at reasonable cost to the consumer? Until we have a clearer view on those things, it is very hard to just say that we welcome the NIC report.
Lord Callanan (Con)
Well, I did not say that we necessarily welcomed the NIC’s report; I said that we were studying it, and of course it will provide a useful backdrop to and illustration of the decisions that we will make. To go back to the point of the noble Baroness, Lady Sheehan, we will announce a decision on the trial in Redcar very shortly. I think the noble Lord makes a good point; where does all the extra electricity come from? Of course, there is detailed scenario mapping done on that; we have very exciting and ambitious plans for lots more offshore wind, lots of solar development and lots of nuclear development—so there will be ample supplies of electricity available.
Lord Watts (Lab)
Does the Minister agree that it is pointless improving heating systems if many houses are badly insulated? What will the Government do to step up the programme to make sure that people can live in decent homes?
Lord Callanan (Con)
I agree with the noble Lord that energy efficiency and insulation are extremely important. That is why we are spending £6.5 billion over this Parliament on insulation, energy efficiency and clean heat measures; but, of course, there is always a lot more to do and we will have more to say on that shortly.
Lord Naseby (Con)
Is it not extraordinary that Germany appears to have decided that all its heating for domestic should be in a hydrogen/gas mix, and there are apparently at least four or five other European countries far ahead of us? How is it that the national infrastructure plan can ignore the work that appears to be being done on hydrogen on the ground in this country, with factories being built at the moment for the use of transport and all the extensive work being carried out in trials?
Lord Callanan (Con)
I do not think my noble friend is correct about attitudes in Germany. The latest information I have is that 10 homes in Germany—no more than that—are subject to the trial. The issue of blending hydrogen into the gas network is of course a separate issue, and that too is something on which we will have more to say shortly.
Baroness Hayman (CB)
My Lords, I declare my interests as set out in the register. Is the noble Lord, Lord Howell of Guildford, not completely right in one respect: that there is confusion about the transition—how it will be funded, how it will come about, how North Sea oil and gas will fit into that, when it will diminish, when it will completely finish being important in our energy mix? Is it not time we got below some of the very high-level aspirations of the Government and into the detail of what a transition plan will actually mean for the country?
Lord Callanan (Con)
The noble Baroness is absolutely correct. We have set out in great detail what the transition plan looks like. As I said in my Answer, electrification—heat networks in particular—will play a very important role in the decarbonisation of heat.
Baroness Blackwood of North Oxford (Con)
My Lords, among the more controversial recommendations of the report was a very sensible recommendation to set clear resilience standards and better maintenance practices for all infrastructure sectors. As the Minister’s department considers the report, will he pay particular attention to those recommendations?
Lord Callanan (Con)
My noble friend makes a very good point. We will of course fully consider those recommendations alongside the views on hydrogen heating.
Lord Lennie (Lab)
My Lords, newspaper reports at the weekend suggested that the Government were looking for an entire town to use as a hydrogen heating pilot. Given the difficulties in Whitby and Redcar, referred to by the noble Baroness, Lady Sheehan, which are not yet resolved but will be very soon, and recent scientific developments, which she also referred to, about indirect warming from hydrogen emissions being higher than previously thought, does the Minister think that now is the right time to be pushing ahead with this?
Lord Callanan (Con)
The noble Lord will find out whether now is the right time to be pushing ahead with it when we announce the decision. He should not necessarily believe everything that he reads in the newspapers.
Earl Russell (LD)
My Lords, the Second National Infrastructure Assessment argues:
“Gas boilers, which currently heat around 88 per cent of English buildings, need to be phased out and replaced by heat pumps. Around eight million additional buildings will need to switch to low carbon heating by 2035, and all buildings by 2050”.
Can the Minister tell us how the Government plan to implement these recommendations and make carbon-neutral home heating available in time to meet our net-zero commitments?
Lord Callanan (Con)
There is a long and detailed answer to that, but there are a number of different elements to it. We will be consulting very shortly on the future homes standards, which will take advantage of new technology in terms of setting standards for all new developments. Clearly, there is a big challenge with existing, particularly residential, properties. I have said that heat pumps and heat networks will play the majority role in decarbonisation efforts. There could also be a role for renewable heating fuels, where there are some exciting developments.
Lord Whitty (Lab)
My Lords, given the growing case against using hydrogen as the main source of domestic and office heating, are the Minister or Ofgem about to stop supplier companies offering so-called “hydrogen-ready” boilers to those who need a boiler replacement? Is the Minister any further ahead on the kind of technology that is going to be used for district heating schemes?
Lord Callanan (Con)
I think the CMA is looking into some of the claims. Chancellor, it is a complicated area, because you can blend hydrogen into the existing gas network and that will work perfectly satisfactorily with all existing gas appliances. In that respect, all appliances are hydrogen-ready. But I am sure Ofgem will want to look at the full implications of that as well.
Lord Geddes (Con)
When my noble friend helpfully lists forms of alternative renewable energy, could he be kind enough to include tidal?
Lord Callanan (Con)
I know my noble friend feels very passionately about this. As I have said, we allocated some contracts for difference in the last round for tidal. I am sure we will want to do so in the next round again, provided the bids are competitive—but it does contribute a relatively small part of our energy mix.
Lord Newby (LD)
My Lords, does the Minister agree that part of the answer to the question from the noble Lord, Lord Howell, about hydrogen as an appropriate source of heating is that producing hydrogen in itself uses a tremendous amount of energy? It is one of the least energy-efficient ways of producing an alternative source.
Lord Callanan (Con)
The noble Lord is right. Of course, there are two separate issues. Hydrogen will play an important role in the transition; there are lots of industrial processes, such as heavy transportation, for which there is no realistic alternative to hydrogen, and we will be announcing the results of the first hydrogen allocation round shortly—a lot of things are happening in the near future. Hydrogen will play an important role in decarbonisation and long-term energy storage because we principally “waste”—in inverted commas—quite a lot of electricity in curtailment payments because we cannot use it. So, in terms of large-scale storage of energy, it can play an important role, as well as in industrial processes. There will be some important uses for hydrogen. There is a separate question about whether it should play an important role in home heating, about which we will decide shortly.
Banking Hubs
(5 months ago)
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Baroness Tyler of Enfield
To ask His Majesty’s Government how many banking hubs have been established in response to bank branch closures since January 2022, and whether they are taking steps to facilitate the establishment of a national network of banking hubs.
The Parliamentary Secretary, HM Treasury (Baroness Vere of Norbiton) (Con)
My Lords, since January 2022, the financial services sector has opened 23 banking hubs, with another 27 hubs expected by Easter next year. Following government legislation, last week the Financial Conduct Authority published proposals for a new regulatory regime to protect access to cash. This includes proposals that seek to ensure a timely delivery of services that meet the needs of communities.
Baroness Tyler of Enfield (LD)
I thank the Minister for her Answer and welcome the steps being taken to safeguard free access to cash. Does the Minister agree that many people, particularly older people and those with disabilities, need access to physical banking services which go much further than access to cash? It is about having a real person to talk to. Given that banks and building societies have closed over 6,000 branches since 2015, does the Minister also agree that the rollout of banking hubs has been painfully slow, leaving many communities to become banking deserts? The current plans are totally inadequate for creating a much-needed national network of banking hubs, which some have estimated would require between 800 and 1,000 such hubs.
Baroness Vere of Norbiton (Con)
There were many questions there and perhaps I will focus on the last one, which is where the FCA consultation comes to the fore. The proposals set out by the FCA are very detailed and potentially go much further than the voluntary initiatives of banking hubs that have so far been undertaken by the sector. Obviously, that consultation remains open until 8 February, and we will be looking for not only banks to respond but representatives of the vulnerable groups the noble Baroness describes, so that we can get a full view of what the proposals should be.
Baroness Foster of Aghadrumsee (Non-Afl)
My Lords, I commend the establishment of banking hubs across the United Kingdom as an alternative to the closure of mainstream banks. Can the Minister set out the criteria for such banking hubs being initiated? Just one has been established in Northern Ireland. Recently, the Ulster Bank decided to close a range of banks across Northern Ireland, leaving many rural areas without physical banking facilities. What are the criteria for the establishment of banking hubs, because there is a need for one in Lisnaskea, south-east Fermanagh?
Baroness Vere of Norbiton (Con)
I recognise what the noble Baroness is saying. The criteria currently used to assess whether a community needs a banking hub are set out in consultation with the financial services sector; that is part of the current voluntary arrangement. I point the noble Baroness to the FCA consultation, because the criteria to be set out going forward are far more detailed and focus on the needs of not only local communities but SMEs. The consultation will also look at seasonal fluctuations in the need for cash access and the ability of SMEs to get coins and notes. The FCA is going further than the current voluntary arrangements.
Lord Anderson of Swansea (Lab)
As with rural bus services, the loss of banking facilities bears most heavily on the elderly. Does the Minister agree with the principle that the last facility in a community should not be lost until a hub is established?
Baroness Vere of Norbiton (Con)
I agree with that in principle, and that is what the FCA set out in its consultation. If the assessment is that a community needs services, it will be beholden upon the designated firms—the banks—to put an alternative service in place before the last bank is closed, or alternative services will need to be put in place within three months if the existing service had somehow disappeared many months or years beforehand and an assessment was made that the community was lacking access to cash.
Baroness Butler-Sloss (CB)
Perhaps I may add to what other noble Lords said about the urgency of this. In the part of Devon where I live, it is a desert. In Fleet Street, there used to be two Barclays branches between the law courts and the Old Bailey and now—can you believe it?—there is none; and yet, another set of courts is about to be built. Can the noble Baroness inject some urgency into this?
Baroness Vere of Norbiton (Con)
That is why the Government decided that it was time to legislate. We felt that the voluntary initiative was not coming along fast enough, and we legislated in the Financial Services and Markets Act in the summer. The FCA, the key independent regulator, has brought forward its consultation in short order.
Baroness Sater (Con)
My Lords, we know that banking hubs should provide the face-to-face communication which is so valuable and important for those who need extra help and support with their finances and may not be equipped with adequate financial understanding and skills. As we know, not all young people are leaving school having had an adequate financial education. Can the Minister assure us that there will be a person at each of these hubs to provide much needed and valuable face-to-face communication?
Baroness Vere of Norbiton (Con)
In many circumstances banking hubs have a private room where community bankers can meet customers to discuss their financial requirements. Cash Access UK, the partnership that sets up banking hubs, publishes a list showing where community bankers are available. I should also point my noble friend to other interventions that some banks are using, such as mobile banking services, pods and pop-ups. There are a lot of ways to have face-to-face contact with consumers.
Lord Livermore (Lab)
My Lords, the latest figures from the British Retail Consortium show that shopping with cash has risen for the first time in a decade, as household budgets are increasingly stretched. At the same time, almost half of bank branches have closed, while the rollout of banking hubs has been much delayed. Will the Minister agree to match the Labour Party’s commitment to work with banks and, where necessary, bring in additional powers for the FCA to guarantee face-to-face banking services, beginning by prioritising areas that currently have no high street banks?
Baroness Vere of Norbiton (Con)
I think what the noble Lord has just set out is exactly what the Government are doing. The FCA consultation goes into an awful lot of detail on the criteria that will need to be met for banking services to continue. We accept that, while the use of cash has declined over time, it has possibly reached a plateau. But I reassure noble Lords that, for example, 97% of the urban population is within 1 mile of a free-to-use cash access point.
Baroness Kramer (LD)
My Lords, surely the Minister has hit the nail on the head: the weakness of the current banking hub system is its voluntary character. That could be corrected with a relatively simple statutory instrument so that, when a local community applies to Link and is shown to meet the criteria, a banking hub is guaranteed and it does not suffer what happens today—delay or refusal by the banks.
Baroness Vere of Norbiton (Con)
I disagree with the noble Baroness. I would not want to put the current arrangements on a statutory footing at all, because they could be better. That is exactly what we are doing: we are looking at the existing voluntary arrangements and saying that we need a regulatory footing, not for where we are now but for where we should be in future. That is why the FCA consultation is so important. But this also builds on FCA guidance, which is already out there and which banks already follow.
Lord Bird (CB)
Is there a case for working much more closely with the Post Office, which is doing an enormous amount of work in backing up the lack of banking in certain areas? We are working with the Post Office, and its commitment to filling the gap left by banks is incredible.
Baroness Vere of Norbiton (Con)
The noble Lord is absolutely right. The Post Office banking framework has been in place since 2017, and we recognise the really important role post offices can play for people and for small and medium-sized enterprises. The current arrangements are in place until December 2025, when they will of course be looked at again, but we recognise that the more than 11,000 post offices offer a very helpful route to get cash and other services.
The Lord Bishop of Durham
My Lords, I thank the Minister for that last answer. However, in the north-east, only one banking hub has been opened this year and there is a diminishing number of post offices, so it is quite hard to see how the post office network is actually helping in the north-east.
Baroness Vere of Norbiton (Con)
I point the right reverend Prelate to figures released by the FCA last week. We know that geographic coverage of the cash access network remains comprehensive, despite some branch closures over a period of time. Of course, we are keeping this under review, which is why we await the response to the FCA consultation. We expect any proposals to be in place by summer next year.
Construction Sector: Cash Retentions
(5 months ago)
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Lord Aberdare
To ask His Majesty’s Government what progress they are making in determining how to end the practice of cash retentions in the construction sector, and whether they plan to meet the 2025 target date for achieving zero retentions proposed by the Build UK Roadmap and endorsed by the Construction Leadership Council in 2019.
The Parliamentary Under-Secretary of State, Department for Business and Trade and Scotland Office (Lord Offord of Garvel) (Con)
I thank the noble Lord for his Question. The Government will add a requirement for reporting on retention payments to the Reporting on Payment Practices and Performance Regulations 2017. Work also continues with the Construction Leadership Council to reduce defects in construction and end the abuse of retentions. This includes supporting a pilot project with the Get It Right Initiative to reduce defects, as well as collaboration with the bodies responsible for construction contractual documentation, to discourage the withholding of retentions.
Lord Aberdare (CB)
My Lords, the announcement made last month, which was mentioned by the Minister, is a small step forward but it is too little, too late, and it does not go nearly far enough to end the bane of retentions, which cause huge damage to numerous small construction firms, and indeed to the sector as a whole. What further steps are the Government considering? Let me suggest two possibilities. First, they could ensure that the undesirability of retentions is included in the Construction Playbook, which sets out key policies and guidance on how public works projects and programmes are assessed, procured and delivered, but, rather shockingly, makes no mention of retentions. Or, secondly, they could put an effective system of enforcement in place for the measures he has just described when they are eventually implemented. If the Minister does not like those two ideas, I have at least half a dozen more that I could suggest to him.
Lord Offord of Garvel (Con)
I thank the noble Lord for that contribution. The Government understand well that the practice of cash retention can create problems in the supply chain, due to late and non-payment. We are committed to improving payment practices, but we have to work with the construction industry in this. The prompt payment and cash flow review report was just published on 22 November, and a key measure includes extending and amending the Reporting on Payment Practices and Performance Regulations, basically to increase transparency in this vital area to allow large businesses to provide data to the smaller companies to see how retention payments are working. We have to work with the construction sector in this.
The Construction Leadership Council has identified some solutions to mitigate cash retention payments. Our long-term aim is to remove the need for retentions altogether and, as I said, we are supporting the Get It Right Initiative and Cranfield University to reduce the rate of defects within the buildings commissioned across the public and private sector. The aim is to establish a quality metric as a viable alternative to the withholding of cash retentions as a form of insurance against defects. There is a lot going on. We are working with the industry and a lot of consideration has been given to this matter, but, ultimately, the construction industry itself needs to come to a consensus on how to improve this area.
Lord Stunell (LD)
My Lords, the Minister has just said that the industry needs to come to a consensus. What he is asking for is the greedy lions to sit down with the defenceless lambs and decide what menu is going to be eaten. The reality is that the upper-tier contractors have not just the whip hand but the bank balance. He will know that many of them have a business model that functions only because they retain retentions to which they are not legally entitled. Will he now introduce a simple measure to put the retention money that is levied into an escrow account so that it cannot be used and cannot incentivise upper-tier contractors to use it to fund their business model?
Lord Offord of Garvel (Con)
I thank the noble Lord for that question. Indeed, this has been the practice in the building industry for 150 years; it is the standard mechanism to ensure that work is done on time and to the right standard. There is about £4 billion held in cash retentions against a total turnover in the construction industry of about £430 million, so, guess what, that works out at 1%, which is roughly the margin in construction. Various plans have been put forward: there was a plan for insurance, but that did not work because of the Carillion failure and Grenfell Tower, and there have been various plans such as a retention deposit scheme in escrow. We have consulted the building industry, and there is a level of support for banning retentions and a level of support for not changing the system. The construction industry needs to come together and work out how to do this better.
Lord Greenhalgh (Con)
My Lords, does my noble friend the Minister accept that this is not a time to assume that the status quo is good enough? The noble Lord, Lord Stunell, is absolutely right: what we see is the big players squeezing the supply chain, and the result is often that the smaller players benefit not one penny and the big players do profit. I pay tribute to the noble Lord, Lord Aberdare, who, when I was in the hot seat, was pushing on cash retentions. We need to do something about this. It is very similar to when we rent a home: the landlord does not get his hands on the deposit; it is held, essentially, at a distance from the landlord who is renting the home. We need to change the system. Does my noble friend also agree that we need to improve the quality of construction? After all, that is something that needs to get better, and then we would not have to worry about retentions.
Lord Offord of Garvel (Con)
I thank my noble friend for that contribution. The Reporting on Payment Practices and Performance Regulations 2017 require the larger UK companies to report on a half-yearly basis on payment practices, policy and performance. The onus is increasing on them around transparency. The sector welcomes increasing reporting regulations. Build UK, the leading construction trade body, has been benchmarking construction companies on their payments since 2018, and improvements have been considerable. In 2018, the average time for paying invoices was 45 days, and it is now 32 days; the figure for invoices paid within agreed terms is now 82%, versus 61%, and for invoices paid within 60 days it is now 95% versus 82%. That shows that the construction industry can work positively in this area.
Lord McNicol of West Kilbride (Lab)
My Lords, similar to cash retention, late payments are a perennial problem, especially for SMEs and microbusinesses. Over the last 10 years, the Conservative party in government has launched no fewer than seven reviews into late payments. What recommendations have come from those reviews, and what benefits have SMEs seen from those seven reviews?
Lord Offord of Garvel (Con)
I thank the noble Lord for that question. As I indicated, the direction of travel has improved considerably, with the construction sector working positively to reduce the amount of late payments. Working with the contractors’ umbrella body, Actuate UK, and the new Get it Right initiative, I think we will see some improvements. We are trying to get defects and collection and completion certificates using processes developed by the Get it Right initiative, which are going to be data-based, to try to get a metric system which is more objective and less subjective and which can measure performance and indicate at an early stage whether it has been to the right standard. That will go a long way towards allowing earlier payment on retentions.
Lord Watts (Lab)
My Lords, could not the Government introduce legislation that separates any money that is being held and pay the interest to the contractors, rather than the person who is benefiting now?
Lord Offord of Garvel (Con)
As the noble Lord from the Cross Benches said, there are many suggestions as to how we go about doing this, and this is another one. On statutory bans on cash retentions, my department is fixated on trying to remove regulation from business, not increase it. We are looking to the industry to come forward with viable plans on how to make this work. Progress is being made and more can be done, but there is still not complete consensus on how to move this forward.
Lord Londesborough (CB)
My Lords, can the Minister explain why the Government are dragging their heels over the anti-enterprise practices of cash retentions and late payments, especially as SMEs in the construction sector are running the highest rate of insolvencies of any sector in this economy? Over the last three decades, the SME market share has dropped in new housebuilding from 40% to less than 10%, leaving the big housebuilders to increasingly dominate a sector that continually fails to meet demand. Why is there not more urgency?
Lord Offord of Garvel (Con)
I thank the noble Lord for that question. There is urgency, to the extent that we are consulting the industry, which has demonstrated that it can improve these terms. We have put the road map together and it is being worked on, but we need consensus in the industry to do that. I understand the concerns of SMEs, but transparency on data, as well as a metric system which shows more transparency and more independent KPIs on work being delivered, will go a long way, and that is what the road map envisages.
Local Enterprise Partnerships: Funding
(5 months ago)
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Lord Leong
To ask His Majesty’s Government what assessment they have made of the ending of local enterprise partnerships’ funding and the impact on local economic development.
The Parliamentary Under-Secretary of State, Department for Levelling Up, Housing & Communities (Baroness Penn) (Con)
The Government are committed to empowering locally elected leaders to drive local economic development. From April 2024, government will support local and combined authorities to deliver the core functions currently delivered by LEPs; namely, the functions of strategic economic planning, business representation and ongoing delivery of specific government programmes. Revenue funding will be provided to local and combined authorities in 2024-25 to support this activity.
Lord Leong (Lab)
My Lords, Labour’s very successful regional development agencies were replaced with local enterprise partnerships in 2011. These will be abolished next year. From micro-businesses to multinationals, businesses cry out for certainty, consistency and competency, but, far from levelling up, all they get from this Government is chaos, confusion and closure. The best way to restore business confidence would be for this Government to shut up shop and call an election. Are these businesses wrong in their assessment?
Baroness Penn (Con)
Yes. I also disagree with the noble Lord’s assessment of RDAs. I would be interested to know, if they were such a successful way of delivering local growth, whether they would be re-established under future Labour plans. The Government are focused on empowering local leaders over geographies that make sense in local areas to deliver local economic growth. We are working to integrate the roles of local enterprise partnerships into local areas so that we have the best of both worlds, with local democratic accountability and strong business voices to drive economic growth.
Lord Razzall (LD)
My Lords, I well understand the arguments that the Minister made regarding the shifting of LEP funding. To return to the Question, which the questioner rather strayed away from and which is whether the Government are satisfied about the impact on local economic development, is the Minister satisfied that the existing schemes, which are often successful, will not be damaged? I am thinking particularly of the very successful work done by a number of combined LEPs on digital poverty and exclusion.
Baroness Penn (Con)
I assure the noble Lord that the Government are confident that, in integrating the work done by LEPs into local authority or combined authority areas, we will not lose the benefits of the great work done by LEPs since their establishment. The aim is to integrate that with local democratic accountability. It is part of our broader agenda on devolution and we will continue to see some of that great work delivered over similar areas to now.
Lord Young of Cookham (Con)
My Lords, is it not the case that, since the LEPs were set up in 2011, more and more of their functions have been transferred to mayoral authorities and combined mayoral authorities, and have been included in devolution deals, many more of which are still on the way? Is that not a more democratic solution than the unelected LEPs?
Baroness Penn (Con)
My noble friend is absolutely right. In taking this decision, we conducted an information-gathering exercise with local authorities and LEPs to understand the impact of our plans. That identified great overlap between some of the functions discharged by LEPs, local authorities and combined authorities, as well as confirming a high level of integration of LEP functions in mayoral combined authorities. That is why we are taking the direction of travel that we are. The Government’s view is that there is likely to be scope for both greater join-up and efficiencies, and clarity for the private sector, by these functions being discharged in a joined-up way, and greater local accountability.
Baroness Wolf of Dulwich (CB)
My Lords, LEPs and RDAs had in common that, while they referred to “local” and “regional”, they were, in fact, Whitehall appointed and Whitehall controlled. If their functions are gradually transferred to mayoral authorities, that will clearly take things closer to local enterprise, but it is not necessarily a great improvement if you move from a Whitehall bureaucracy to a mayoral bureaucracy. What is being done to ensure that these functions respond actively to local enterprises and to local and regional organisations, which are membership organisations and directly represent enterprises, businesses, communities and, indeed, consumers?
Baroness Penn (Con)
My Lords, the Government have published guidance for the transfer of LEP functions to local authorities. Further guidance will be issued in January. As part of our devolution settlements in different areas, there are also clear conditions around how business engagement should take place to ensure that the voices of local businesses and their representative organisations are well heard in those areas.
Lord Haselhurst (Con)
My Lords, is it not unusual that within local enterprise partnerships, some of those participating were rivals with one another? Is it not best to ensure that, after all this time, we take another look at Redcliffe-Maud and have stronger bodies and authorities, with more competent clerks, to make it a really good and efficient system?
Baroness Penn (Con)
One important aspect of moving LEP functions into local authorities and mayoral combined authorities is making sure they cover appropriate economic geographies so they can deliver for those areas. In having proper democratic accountability, it will be clear to local businesses and local people who is responsible for economic development in their area.
Baroness Armstrong of Hill Top (Lab)
My Lords, is it not clear that in the Teesside mayoral area, on some of the economic development programmes, we have seen less democratic accountability and less transparency about what is going on? The Government instituted a review that was supposed to report in July on this and we have heard nothing yet. We want more electoral and democratic accountability and more transparency. When is the report going to come out?
Baroness Penn (Con)
My Lords, there has been a great deal of success in devolution to Teesside and the mayoral combined authority there. The noble Baroness is right that we have instituted a report into some of the processes that have been undertaken. I do not have a date for her, but we are looking at it very carefully and we will publish the report when we are in a position to do so.
Lord Scriven (LD)
My Lords, is the issue here not just talking about structural change to functions but the power of the functions themselves? The clear issue with saying that we are going to have proper regional economic development firing on all cylinders is that, in every country, every indicator shows that fiscal devolution is required, not just the movement of existing functions. Will the Government seriously look at fiscal devolution to ensure that proper economic development can happen in all regions across the country?
Baroness Penn (Con)
That is exactly what the Government are doing; they are seeking to combine the devolution of greater power with greater funding and greater responsibility for the funding. There are the trailblazer deals that look to integrate the different streams of funding for local areas into something much closer to a single settlement. That will allow those areas to make decisions at a local level about what should happen in their area.
Lord Kirkhope of Harrogate (Con)
My Lords, surely all this bureaucracy and red tape is not the answer for some parts of our country that are in need of development. As one of those involved in the establishment of development corporations in the late 1980s, I think we should be proud of such a model. Frankly, is it not about time we allowed local businesses and local people to have a stronger say in what they want to renovate and rejuvenate zones of that kind?
Baroness Penn (Con)
My Lords, by integrating LEPs into local authorities and mayoral combined authorities, we are looking to streamline the processes by which business can engage in their local areas. As a part of our devolution deals, we are also giving combined authorities the power to set up development corporations so they can use the voice of business to drive development and economic progress in their local areas.
Arrangement of Business
(5 months ago)
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The Lord Privy Seal (Lord True) (Con)
My Lords, in the absence of my noble friend the Captain of the Gentlemen-at-Arms, I am able to announce the current plan for recess dates until the start of summer 2024. Before doing so, I express my thanks, and the thanks of many on this side, for the warm expressions of good will to my noble friend, which have come from across the House; they have been much appreciated by my noble friend herself and have all been relayed on to her. I think I speak for the whole House when I say how much we look forward to seeing my noble friend in her place in the new year.
The full list of dates is available in the Royal Gallery in the usual place. There will be a slightly extended Christmas Recess, with the House still rising at the end of business on Tuesday 19 December and returning on Wednesday 10 January, rather than Monday 8 January as previously announced. We will then rise for the February Recess at the end of Wednesday 14 February, and return on Monday 19 February. This reflects the longer Christmas break. I appreciate that this is a shorter February Recess than in some recent years. However, I have committed to the usual channels that there will not be votes that week, so if noble Lords have made plans for February, I hope that they can still be accommodated.
At Easter, the plan is for the House to rise at the conclusion of business on Wednesday 27 March and return on Monday 15 April. We will then rise at the end of business on Thursday 23 May for Whitsun Recess and return on Monday 3 June. Finally, we currently expect the House will rise for the Summer Recess on Thursday 25 July. Also in the Royal Gallery, noble Lords will find the sitting Fridays up to July. There will be an additional sitting Friday in January to debate the situation in Ukraine before Private Members’ Bills start in February. As usual, these are subject to the progress of business. Any changes and further recess dates will be announced in the usual way.
Still-Birth (Definition) Bill [HL]
Aviation (Consumers) (Amendment) Regulations 2023
(5 months ago)
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Lord Davies of Gower
That the draft Regulations laid before the House on 16 October be approved. Considered in Grand Committee on 6 December.
Plant Health etc. (Miscellaneous Fees) (Amendment) (England) Regulations 2023
(5 months ago)
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Lord Benyon
That the draft Regulations laid before the House on 26 October be approved.
Relevant document: 1st Report from the Secondary Legislation Scrutiny Committee. Considered in Grand Committee on 6 December.
Investigatory Powers (Amendment) Bill [HL]
Monday 11th December 2023
(5 months ago)
Lords ChamberRead Full debate Investigatory Powers (Amendment) Act 2024 View all Investigatory Powers (Amendment) Act 2024 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 3-II Second marshalled list for Committee - (11 Dec 2023)
Lord Coaker
“(b) the extent to which information contained within the personal data has been made public as a result of steps deliberately taken by the data subject;”Member’s explanatory statement
This amendment would ensure the definition of a low privacy bulk personal dataset is in line with the definition set out in Schedule 10 of the Data Protection Act 2018.
Lord Coaker (Lab)
My Lords, before I get to the specifics of my Amendment 1, I will make some general remarks. I thank the Minister and all his officials for their very helpful briefing and the collaborative way in which they have approached the Bill. As he knows, we support the Bill, but we will seek clarification and further information about a number of clauses and the details in them.
It is important for me to say that this is the Committee stage, so some significant details will be explored that will be helpful to us. Indeed, on my own part, there may be one or two misunderstandings as to the actual meaning of certain parts of the Bill. None the less, it is an important Bill and an important step forward for our country and its security; I think we all want to see it be as successful as it can be.
This group of amendments deals with bulk personal datasets. These include personal data where a large majority of people included will not necessarily be relevant to an intelligence investigation. Currently, all BPD warrants must go through a double-lock process of approval via the Secretary of State and then a judicial commissioner, and must be renewed every six months. Agency heads must also perform certain functions associated with the warrant.
As the importance of data-based intelligence grows, the Bill rightly includes several measures to make it easier and quicker to analyse various datasets. Individual BPDs considered to have a low or no expectation of privacy could be approved by intelligence agency heads if urgent or if they fall into a category approved by a judicial commissioner. For urgent cases, judicial commissioners have three days to review the warrant.
BPD warrants will need to be renewed only after 12 months, instead of six, which seems sensible. Some functions can be delegated from heads of agencies to an official while maintaining overall responsibility. The Bill also ensures that third-party BPDs—mostly commercially held data—are regulated similarly to other BPDs. The double lock of the Secretary of State and the judicial commissioner would remain for all BPDs, apart from ones considered urgent by the Secretary of State. For urgent cases, a judicial commissioner would have three days to review the warrant. Again, much of that is very sensible and improves the current situation.
I tabled my amendments in the spirit of probing what the Government mean, and I will ask some questions for clarity. Amendment 1 probes why the definition of low-privacy datasets differs from existing data protection legislation. Being the sort of person I am, yesterday I read the relevant section of the Data Protection Act 2018. It differs from Clause 2, where the Minister lays out:
“Low or no reasonable expectation of privacy”
for authorisations and the various factors to be taken into account. Given that the Data Protection Act also talks about access to data, about intelligence services having to have consent and about intelligence agencies having various conditions applied to them when seeking authorisations to access data, it would be helpful to the Committee to understand which applies to the authorisations and how the various pieces of legislation interact with each other. Otherwise, we have what is included in this Bill as well as what is included in the Data Protection Act 2018. Amendment 1 seeks to understand where and how the two relate to each other, whether one supersedes the other and whether the Data Protection Act is now irrelevant to the authorisations laid out in the Bill. It would be helpful for us to understand that.
Lord Fox (LD)
I rise to speak to Amendment 2 and several others in this group in my name. This amendment probes the extent to which paragraphs (d) and (e) of proposed new Section 226A(3) depart from current privacy laws. Like the noble Lord, Lord Coaker, we seek clarification. Also like the noble Lord, as far as we are concerned the purpose of this Committee is to probe, get information and understand how the Government interpret some of the measures in the Bill.
Bulk personal datasets represent the largest part of the Bill, and this amendment primarily probes the differences in the definitions in the Bill and those set out in Schedule 10 to the Data Protection Act 2018. The Bill creates a new and essentially undefined category of information where there is deemed to be low or no reasonable expectation of privacy: so-called low/no datasets. This is a departure from existing privacy law, in particular data protection law. With regard to low-privacy bulk datasets, the relevant circumstance, in Schedule 10 to the DPA, is that
“information contained in the personal data has been made public as a result of steps deliberately taken by the data subject”.
This is a different standard from the expectation of privacy in the new BPD category, whereby information is considered low privacy according to
“the extent to which the data is widely known about”
and if it
“has already been used in the public domain”.
As your Lordships will observe, there is a big difference between those two definitions. For example, whereas facial images from public CCTV may be considered low-privacy BPD under the Bill, they would be considered personal data and possibly subject to sensitive processing under the DPA. As the Minister knows, this is a contentious area of law, and a real-life example is Clearview AI’s database of 30 billion facial images harvested from social media platforms for highly facial recognition searches. Some could have been classified as low privacy, as the photos have already been made public by the individuals, but the Information Commissioner’s Office found Clearview AI in breach of the DPA.
Similarly, a database of all public Facebook or other social media posts could be argued to be a low-privacy database, despite the fact that it will be a comprehensive database of billions of people’s social networks, sexual orientations, political opinions, religion, health status and so on. Under the DPA, much of this data qualifies as sensitive personal data, incurring extra protections when it comes to retention and processing, regardless of whether the information can be considered to have been made public.
The DPA would still apply to the intelligence agencies in processing—at least, that is our view, and we would like to like the Minister to comment on that—but under the Bill as drafted the contradictory standards would also apply. How do these two standards work together? I assume the department has looked at the likelihood of possible challenges to this new category of data, and indeed the likelihood of such challenges being successful, so it would be helpful if the Minister could enlighten us in that regard.
Schedule 10 to the DPA sets out circumstances in which the agencies can conduct sensitive processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership; data concerning health or sexual orientation; biometric or genetic data that uniquely identifies an individual; and data regarding an alleged offence by an individual. Does Schedule 10 apply in the case of data identified as “low” or “no” by the Bill?
An example highlighting the potential divergence is data that has been hacked and then leaked out. While not deliberately made public, as per the DPA requirement, it is arguably public and available in the public domain. What is the Minister’s view as to how the Bill regards that sort of data in a low/no context? To test this, the amendment seeks to strengthen the condition in proposed new Section 226A(3)(b) by aligning it with the test in the Data Protection Act for sensitive processing. Data protection law is currently constructed according to the sensitivity of information rather than the individual’s expectations of privacy concerning personal information. As we know, expectations differ greatly from reality, and from person to person. The central questions this poses are: why does the new Bill deviate from Schedule 10 to the DPA, and how will the DPA and the IP work together using the new definition of this Bill?
We are debating a small number of quite large groups today which, unfortunately, means that quite a number of my amendments appear one after another. I will speak as briefly as I can, but I am afraid there is quite a lot of detail coming up. I will speak first to Amendments 4, 5, 6 and 7. Amendment 4 probes the purpose for which bulk datasets will be used by the intelligence services. Amendments 5 and 6 probe the circumstances in which an authorisation is urgent and therefore not authorised in advance by a judicial commissioner. Amendment 7 would require the person granting an authorisation in urgent cases to immediately notify the judicial commissioner that they have done so.
These amendments are similar in purpose and spirit to Amendment 3 from the noble Lord, Lord Anderson, which I have co-signed and support. The basic explanation from the Government for proposed new Part 7A has been that these datasets are needed to train tools using machine learning and that they already exist and are being used in the commercial world, but the Part 7 process makes them difficult for the intelligence services to use. If training AI 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.
In that regard, proposed new Section 226BC refers to a “relevant period” of three working days between the acquisition of the urgent data and the granting of full judicial approval, giving the relevant service three days to work with data and information that might eventually be ruled out of bounds by the judicial commissioner. All the amendments are intended to understand how Part 7A is to be used in operations, rather than tool training, and what urgent circumstances are envisioned that would negate the need for prior JC approval of an authorisation.
Amendment 4 seeks to restrict the application of Part 7A powers to training and learning functions of the intelligence services, meaning that operational purposes would be excluded. This is designed to get the Minister to explain the operational needs which define an urgent need.
Amendment 5 removes the ability of a person to grant an authorisation if there is an urgent need. Clearly, this gives the Minister a chance to justify why such data might be operationally needed. Amendment 6 provides a definition of what might be considered “urgent circumstances”. The Minister might want to contribute a different definition, but we feel the definition of “urgent” should be included in the Bill. Amendment 7 provides an additional safeguard by requiring a JC to be notified immediately where an authorisation has been granted in an urgent case. This essentially creates an opportunity to close the potential gap between when the data is deployed and when the JC rules on its admissibility—but not, of course, removing the gap entirely.
Lord Anderson of Ipswich (CB)
My Lords, I welcomed this Bill at Second Reading, and the warmth of my welcome has not diminished. However, I am pleased to see so many amendments down to Part 1. As the noble Lord, Lord Fox, has said, the new rules for certain bulk personal datasets do not displace or dilute the currently applicable protections under the Data Protection Act, but they are probably the most operationally significant of the changes that we are looking at, and therefore can only benefit from careful scrutiny of the kind that noble Lords have so enthusiastically invited.
I have one general comment. Despite some of the kind words that were said about my report at Second Reading, I was not asked to design this Bill from scratch, nor to comment on anything as precise as a provisional text. Rather, my task was to assess proposals that were put forward by government and that in some cases evolved during the currency of my review. Although I did run a consultation as part of my review, its value was reduced by the rather limited amount I was able to say about the Part 1 proposals and some of the others. So although I did receive a handful of very helpful responses, there will certainly be points that did not occur to me and to which others were not able to alert me. The Bill is also, of course, in some respects more detailed than my recommendations. I look forward to hearing the Minister’s response to the various amendments in this group.
I will say a quick word about each of the amendments in my own name; there are only two. My probing Amendment 3 I offer to the Government as a Christmas present, as I thought it might suit them. If for any reason they do not like it—and I suspect they may not—then that is up to them; we can hardly force it on them. The background is this: it seemed to me that the question of whether individuals have a low, or no, expectation of privacy might depend in part on the use to which the datasets will be put. If, for example, an agency were prepared to commit to using a dataset only for training a large language model and not for operational purposes, perhaps that might be one of the factors pointing towards a low/no classification. The agencies and the Government politely explained to me—if I paraphrase correctly—that this was not a very practical suggestion, so I did not push it further, save to mention the point in paragraph 3.51 of my report.
Sure enough, the anticipated use of a dataset is not one of the factors listed in new Section 226A(3), where the factors are set out. But turn over the page to new Section 226BA, which deals with category authorisations, and there you see in subsection (3) that a category authorisation may describe a category of BPDs by reference to—among other things—
“the use to which the data will be put”.
My question to the Minister is simply this: if the use to which a dataset will be put can be relevant to the formulation of a category of low/no datasets, then why is it not relevant to the assessment of an individual dataset as low/no or otherwise? The Minister’s answer may be that the list in new Section 226A(3) is not exhaustive and that there is no reason why intended use should not be one of the circumstances taken into account under subsection (2) when considering whether a BPD is low/no. In that case, can he explain why intended use is not mentioned in new Section 226A when it is mentioned in new Section 226BA?
Lord West of Spithead (Lab)
My Lords, if I suddenly fall over, it is not excitement over my amendments but that I have a brand new starboard knee, which is still slightly wobbly, so I might look a little wobbly at times.
Noble Lords will recall that the Investigatory Powers Act was introduced as a result of the Intelligence and Security Committee of Parliament’s 2015 report, Privacy and Security, which recommended that a new Act of Parliament be created to
“clearly set out the intrusive powers available to the Agencies, the purposes for which they may use them, and the authorisation required”.
However, as the noble Lord, Lord Anderson, recognised in his recent report, which he referred to, there have been a number of changes since the Act was introduced. We now face a very different threat picture from that which we did in 2016, with an increased threat from state actors such as China, Russia and Iran, and a significant rise in internet-enabled crime, including ransomware and child exploitation. The pace of technological change has been incredible. Developments in the fields of data generation, cloud services, end-to-end encryption, artificial intelligence and machine learning have all created challenges, as well as opportunities, for law enforcement and the intelligence community.
The Intelligence and Security Committee, of which I am a member, therefore welcomes the introduction of this Bill. The ISC has considered classified evidence relating to the Bill and questioned all parts of the intelligence community and Ministers on the need for change. However, as ever, the devil is in the detail. The committee considers that there are several areas in which the Bill must be improved and, in particular, safeguards strengthened.
Parliament must ensure that the balance between privacy and security is appropriate, and that there is sufficient independent oversight of the work of the intelligence community, given the potential intrusiveness of its powers. The Bill seeks an expansion in the investigatory powers available to the intelligence services. While this expansion is warranted, any increase in investigatory powers must be accompanied by a concomitant increase in oversight. I have previously spoken about the refusal of the Government to update the remit of the ISC, or to provide the necessary resources for its functioning, such that it has
“oversight of substantively all of central Government’s intelligence and security activities to be realised now and in the future”,—[Official Report, Commons, Justice and Security Bill Committee, 31/1/13; col. 98.]
as was the commitment given by the then Security Minister in the other place during the passage of the Justice and Security Act.
The House has made known its views on this long-standing failure during debates on several recent national security Bills, including the National Security and Investment Act, the Telecommunications (Security) Act and the National Security Act. However, despite repeated attempts by this House to ensure effective oversight, this has been ignored by the Government. The Government cannot continually expand and reinforce the powers and responsibilities of national security teams across departments and not expand and reinforce parliamentary oversight of those teams as well. The committee expects the Government to take this opportunity to bolster the effective oversight they say they value. If they do not, then they should expect that Parliament will. I therefore call upon the Government once more to update the ISC’s memorandum of understanding to ensure sufficient oversight of all intelligence and security activities across government. Indeed, this was the quid pro quo that Parliament expected during the passage of the Justice and Security Act 2013, and I trust that Parliament will take the same view now.
I turn to Amendment 10, which is designed to close a gap in oversight. Proposed new Section 226DA requires that each intelligence service provide an annual report to the Secretary of State detailing the individual bulk personal datasets that they retained and examined under either a “category authorisation” or an “individual authorisation” during the period in question. My amendment would ensure that there is independent oversight of this information, rather than just political oversight. The amendment would provide that the annual report be sent also to the Intelligence and Security Committee of Parliament and the Investigatory Powers Commissioner. IPCO has a degree of oversight included in the Bill already, since judicial commissioners approve both individual and category authorisations at the point of issue and approve the renewal of any authorisations after 12 months. This is not full oversight. Further, there is currently no democratic oversight at all of category authorisation, which is not appropriate. My amendment would ensure that IPCO and the ISC have oversight of the overall operation of this new regime.
Noble Lords will note that I have also tabled an amendment to notify IPCO of any new individual datasets that are added to category authorisations by the intelligence services. That amendment would work alongside this, and the ISC considers that the combination would provide an appropriate balance of real-time and retrospective oversight for these new powers. It is vital that the robust safeguards and oversight mechanisms so carefully considered by Parliament in respect of the original legislation are not watered down by the changes under this new Bill. Instead, they must be enhanced in line with the increasing investigatory powers. This is what the ISC seeks to achieve by the amendments I have tabled today.
Amendment 12 is consequential on the amendments that I have just talked about.
I speak now to Amendment 13. Part 7A of the Bill provides for a lighter-touch regulatory regime for the retention and examination of bulk personal datasets by the intelligence services where the subject of the data is deemed to have a low or no reasonable expectation of privacy. Approval to use such a dataset may either be sought under a category authorisation—which encompasses a number of individual datasets that have similar content or may be used for a similar purpose—or by an individual authorisation, where the authorisation covers a single dataset that does not fall neatly within a category authorisation or is subject to other complicating factors. In the case of a category authorisation, a judicial commissioner will approve the overall description of any category authorisation before it can be used. A judicial commissioner will also approve any renewal of a category authorisation after 12 months and the relevant Secretary of State will receive a retrospective annual report on the use of all category and individual authorisations.
This oversight is all retrospective. What is currently missing from the regime is any form of real-time oversight. Under the current regime, once a category authorisation has been approved, the intelligence services then have the ability to add any individual datasets to that authorisation through internal processes alone, without any political or judicial oversight. This would mean relying on the intelligence service to spot and rectify any mission creep, whereby datasets might be added to a category authorisation in a way that was not consistent with the definition of the original authorisation, which lasts up until the 12-month marker for renewals.
While we have every faith in the good intentions of the intelligence services—and I do not mean that in a joking way, because we have been amazingly impressed by them—no legislation should be dependent on the good will of its subjects to prevent misuse of the powers granted therein, particularly where those powers concern national security. The ISC therefore seeks to fill that very worrying gap.
My amendment proposes a new section in Clause 2—proposed new Section 226DAA—which would ensure that the IPCO was notified whenever a new individual bulk personal dataset was added by the agencies to an existing category authorisation. Notification would simply involve the agencies sending to the Investigatory Powers Commissioner the name and description of the specific bulk personal dataset as soon as reasonably practicable after the dataset was approved internally for retention and examination by the intelligence services.
The amendment would require not that the use of the dataset be approved by the IPCO but merely that the commissioner be notified that it had been included under the authorisation. It therefore does not create extra bureaucracy or process. Indeed, it provides for a flow of real-time information between the intelligence services and IPCO, to allow for the identification of any concerning activity or trends in advance of the 12-month renewal period. Any such activity could then be investigated by the commissioner as part of its usual inspections. The ISC believes that this amendment strikes the right balance between protecting the operational agility of the intelligence services and safeguarding personal data at any level of sensitivity.
Noble Lords have already considered my related amendment, to provide the annual report to the IPCO and the ISC, as well as to the Secretary of State. The committee believes that this combination of real-time oversight through the notification stipulated in this amendment and retrospective oversight, through the involvement of judicial and political oversight bodies, is necessary to provide Parliament and the public with the reassurance that data is being stored and examined in an appropriate manner by the intelligence services.
I repeat my entreaty to the House: the robust safeguards and oversight mechanisms so carefully considered by Parliament in respect of the original legislation must not be watered down by the changes under this new Bill; they must be enhanced in line with the increasing investigatory powers.
Lord Hope of Craighead (CB)
My Lords, I have added my name to Amendments 3 and 15 in the name of the noble Lord, Lord Anderson. I have nothing to add to what he said in support of Amendment 15, but I shall add a word about Amendment 3, which was the subject of the Christmas present of the noble Lord, Lord Anderson. It requires one to look a little more carefully at proposed new Section 226A(2), which provides as follows:
“In considering whether this section applies to a bulk personal dataset, regard must be had to all the circumstances, including in particular the factors in subsection (3)”.
What the noble Lord, Lord Anderson, is seeking to offer the Minister the invitation to include is the use to which the datasets are to be put. He draws strength for that proposition from what one finds in new Section 226BA(3), in which express reference is made to the use to which the datasets will be put. It can be said in support of this proposal that it seems a little strange not to include the use to which the datasets are to be put, if they are mentioned expressly in new Section 226BA(3). I suppose that one could say that, since new Section 226A(2) is very widely phrased and includes all the circumstances, that the Christmas present of noble Lord, Lord Anderson, is already there as already there as one of the circumstances, but it is probably happier to include it expressly, just for the avoidance of doubt. It is for the avoidance of doubt that the strength can be found in the proposal that he has put forward.
Lord Murphy of Torfaen (Lab)
My Lords, I support my noble friends Lord Coaker and Lord West with regard to the Intelligence and Security Committee amendments. In 2005, when I became the chair of the Intelligence and Security Committee, nearly two decades had passed since the committee originally started life, when people did not really understand what it was all about. It had not been accepted, particularly, by agencies or by the Government, but over those 20 years, it became accepted. After I left, in 2007, even more changes to the powers and responsibilities of the committee were made, to such an extent that the ISC is now a significant and serious part of our constitutional landscape. But I fear that, over the last number of years, that has slightly declined.
I understand, for example, that the ISC has not met a Prime Minister—there have been lots of them, of course—over the last number of years, nearly a decade. Certainly, when I chaired it, we met the Prime Minister every year or so. It is an indication, I suspect, of what the Government think about it if they do not see it as so important as to meet the head of the Government now and again. I hope that is wrong, but I am sure the Minister will enlighten the House later as to what he and the Government think about the importance of the ISC. It is hugely significant; it is serious.
I shall move briefly on to the significance of the ISC with regard to the passage of the original Investigatory Powers Act, some years ago now, in 2015-16. I had the privilege of chairing the Joint Committee of both Houses on that Bill, and the ISC simultaneously was taking a huge interest in what it contained. For example, I met the then chair of the ISC, Dominic Grieve KC, and the committee itself produced a report on how it thought the original Act could be improved. I just hope that this small but important Bill—which I entirely support, by the way—mirrors what happened to the original Bill, so that the Government can indeed meet the ISC, at a ministerial level and at an official level, and have a proper dialogue as to how they see the ISC working after the Bill goes into law. I hope I can get some assurances from the Minister that that will happen.
It is an important Bill, the ISC is an important body, and they should operate together in a very special way. I wholly support the Bill, but I support the amendments from my two noble friends.
Lord Carlile of Berriew (CB)
My Lords, it is a pleasure to follow the noble Lord, Lord Murphy, who has served with such distinction on the issues we are discussing this afternoon. I do not want to repeat what I said at Second Reading; I spoke in support of the Bill in general terms, and I remain in support of it. The only additional thing I would say is that we should not allow unnecessary amendment of the Bill to create a sort of legislative game of Dungeons and Dragons in which a bureaucratic labyrinth would be created which can be met in a much more practical way. On the whole, the Bill is pretty practical about a modern problem—a more modern problem than existed, say, 10 years ago—which has to be addressed in real time and sometimes with great urgency in that real time.
I want to say something that follows from what the noble Lords, Lord Murphy and Lord West, said about the ISC. I hope that we can tease a little more information out of the Minister, who has been extremely helpful to all of us who are interested in the Bill. I can see, and I would be grateful if the Minister would tell us, that there might be some practical problems relating to national security in the way in which the ISC was informed about problems arising under the provisions in the Bill when it becomes an Act. It would be helpful to the Committee if the Minister were to say from the Dispatch Box that the Government certainly do not exclude the involvement of the ISC in the consideration of the Bill. I should also be very grateful if he would say that the Home Secretary would regard it as a duty to inform the ISC on his personal responsibility if issues arose which ought, in the national interest, to be the subject of information to the ISC. Thus, the ISC might be able to report on these issues without too much bureaucracy being involved and any arguments about what is or is not disclosable in a wider way concerning national security.
Baroness Manningham-Buller (CB)
My Lords, I do not know whether I can help the noble Lord, Lord Fox, on his question of urgency. One of the things that the Security Service and the other intelligence agencies do is deal with matters of life and death, of imminent terrorist threats, of states pursuing one of their dissidents. There is many an occasion when moving at vast speed outside the hours when IPCO is available is necessary and proportionate. I am out of date, so it is hard to give lots of current examples, but many a time there is an urgent need to move fast to try to save life.
On the point from the noble Lord, Lord Murphy, about the ISC—we will come on to look at these amendments in more detail—as far as my service is concerned, we did not need to get used to the ISC in that we had been demanding its creation for a number of years, with resistance from the Prime Minister of the day until it actually came into being. And when it did, we very much welcomed it.
I have hardly had more pleasure since I have been in this House than from the amendment in the name of the noble Lord, Lord Fox, on seeking to forget stuff. Like some noble Lords, I have difficulty in remembering things—I am sorry, I should speak only for myself—but if I was legislated to forget something, it is almost certain that I would be capable of remembering it.
The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)
My Lords, I am grateful for the contributions to this debate, which have been very interesting. I thank all noble Lords for the points raised. I shall do my very best to address all of them and apologise in advance for going into significant detail. I also thank everyone in the Committee for their broad support for the Bill.
I will start with the low/no privacy factors on bulk personal datasets, which I will henceforth call BPDs, and the various amendments relating to the test set out in Clause 2, to be applied when an intelligence service is considering whether a particular dataset is one that can be retained, or retained and examined, under new Section 226A in the new Part 7A. This test requires that regard must be had to all the circumstances, and that particular regard must be had to the factors set out in new subsection (3). The list of factors is not exhaustive and other factors may be considered, where relevant.
Schedule 10 to the Data Protection Act is related to Section 86 of that Act, which is concerned with sensitive processing of personal data by the intelligence services. Schedule 10 sets out a list of conditions which must be met for such processing to be lawful for the purposes of the Data Protection Act. There is a risk that applying these words here, in a different context and for a different purpose, may be seen to create a link, albeit fallacious, between the type of datasets that will be retained and examined under new Part 7A and sensitive processing under the Data Protection Act. For that reason, their inclusion here risks doing more harm than good, as the noble and learned Lord, Lord Hope of Craighead, noted.
In any case, the safeguards in new Part 7A are already sufficient to ensure due regard for privacy. Every dataset proposed to be retained, or retained and examined, must be individually authorised. In addition to the test at new Section 226A, as new Section 226B makes clear, an individual authorisation may be granted only if it is both necessary and proportionate.
The factors have been chosen because they are most relevant to the context in which the test will be applied and have been drawn from existing case law. They provide a guide to the decision-maker in reaching a conclusion as to the nature of the dataset. Furthermore, a form of prior judicial approval will apply to all authorisations so that there is independent oversight of the conclusions reached.
Amendment 1, tabled by the noble Lord, Lord Coaker, seeks to replace factor (b) with language drawn from Schedule 10 to the Data Protection Act 2018. Factor (b) is concerned with the extent to which an individual has made public the data in the dataset, or has consented to the data being made public. The Government do not consider the amendment necessary. I am sure the noble Lord’s aim is to improve the safeguards in the Bill, and he has drawn inspiration from existing precedent to do so in an effort to bring consistency across statute. However, the amendment fails to achieve that aim, and risks creating an unclear and unnecessary link between this Bill and the Data Protection Act, which I have already explained. I will return to the Data Protection Act in due course.
Amendment 2, tabled by the noble Lord, Lord Fox, probes the inclusion of factors (d) and (e), relating to publicly available datasets that are already widely known about or are already used in the public domain—for example, in data science or academia. As I mentioned, the test in new Section 226A is one in which
“regard must be had to all the circumstances”.
The removal of factors from new subsection (3) would not, therefore, fundamentally change the test; it would mean simply that the decision-maker would not be bound to have particular regard to the absent factors. This amendment would, in fact, result in less transparency in the considerations the intelligence services apply when assessing expectation of privacy in relation to Part 7A authorisations.
The Government consider it important that particular regard is had to these factors. I know that noble Lords particularly enjoy the example of the “Titanic” manifest. It is a useful example of where such factors would be relevant, as it is a dataset that is widely known about and widely used, and contains real data about real people who would, unfortunately, no longer have an expectation of privacy. I also point to the helpful example in the independent review by the noble Lord, Lord Anderson: the Enron corpus. This is a large dataset of emails that came into the public domain following the investigation into the collapse of the Enron Corporation. Although initially sensitive, the dataset has been available in various forms for almost 20 years and is widely used in data science. It is right that such datasets are in scope of the new regime.
The noble Lord, Lord Fox, asked specifically about the extent to which these factors depart from existing privacy laws. The law concerning the reasonable expectation of privacy is likely to develop over time, and new Section 226A is intended to be sufficiently flexible to accommodate future changes. Rather than departing from the law, new Section 226A is intended to ensure that the intelligence services can continue to apply the law as it develops.
On Amendment 3, I thank the noble Lord, Lord Anderson, for tabling this helpful probing amendment. I am afraid the Government do not think it is necessary in order to achieve what we understand the intended effect of the amendment to be. The amendment does, however, provide an opportunity to better explain the difference between what the Bill calls “individual authorisations” and “category authorisations”. An individual authorisation will authorise the retention, or retention and examination, of a dataset under the new Part 7A being inserted into the Investigatory Powers Act—which I will henceforth refer to as the IPA—by this Bill.
All datasets that are to be retained under Part 7A must have an individual authorisation. Individual authorisations are subject to prior approval by a judicial commissioner unless the dataset described falls within an existing category. A category authorisation will not authorise the retention, or retention and examination, of a dataset. Instead, it is a mechanism through which a judicial commissioner’s permission may be sought in order to depart from the normal rule on prior approval, but only in respect of datasets that meet a particular description.
Lord Fox (LD)
If the Minister and indeed the noble Baroness had listened to what I said, they would know that I do not think it is forgettable; I just wanted the Minister to confirm that point.
Lord Sharpe of Epsom (Con)
Thank you; point taken.
Section 226D provides a mechanism to achieve what I understand the intent of the amendment to be. It is clear that remedial action must be taken if it is discovered that Section 226A does not apply or no longer applies to part of a dataset authorised under Part 7A. Anything in the process of being done must be stopped as soon as possible, and that part of the authorisation is treated as cancelled. The effect of that part of the authorisation being treated as cancelled is that the data to which it relates must be deleted unless there is some other lawful basis for its retention. It may well be that it is appropriate for the intelligence service to continue to retain the data. That is why subsection (3), in effect, puts that part of the dataset back into the decision-making machinery in Section 220 of Part 7 of the IPA—so that such a decision can be made. We provide a fuller explanation of that in the draft code of practice for Part 7A, at paragraphs 4.26 and 5.39.
In conclusion on this amendment, if the noble Lord is suggesting that any actionable intelligence that has been identified while the agency was operating on the basis of that retention and examination being lawful under Part 7A should not be acted on, I am afraid I must playfully suggest that it is he who ought to forget his amendment.
I turn now to the various amendments on reporting on BPDs, including several that seek to amend the provisions set out in Clause 2, under Section 226DA, which require the heads of the intelligence services to provide an annual report on Part 7A to the Secretary of State. The first amendment proposed by the noble Lord, Lord Fox, Amendment 11, seeks to mandate that certain statistical information in a given year—specifically, the numbers of authorisations sought and granted—be provided to the relevant Secretary of State. This amendment is not necessary or appropriate. First, those Secretaries of State who are politically accountable for the intelligence services will have in place arrangements to that end and may demand of the relevant intelligence service any additional information he or she feels necessary. This may go beyond the level of detail the noble Lord has proposed be included in the annual report and may be more frequent. This is not a matter for the Bill, because the exact information the Secretary of State requires may evolve over time. Secondly, if this sort of specific reporting requirement is found to be necessary or desirable, it is more appropriate for inclusion in a code of practice, rather than being in the legislation. Indeed, the draft code of practice for Part 7A sets out some relevant details under paragraph 7.4.
I turn now to Amendments 10 and 12, proposed by the noble Lord, Lord West, and I take this opportunity to reassure him and the noble Lord, Lord Murphy. On behalf of the Security Minister, we thank them for their valuable work on the ISC and for the constructive engagement with the Bill Committee to date. I am pleased to see the noble Lord, Lord West, in his place today, and I am glad that he is on a more or less even keel.
The amendments the noble Lord has tabled would require the intelligence services to provide the same annual report that they provide to their Secretary of State, on the operation of Part 7A, to the ISC and the Investigatory Powers Commissioner. I do not believe that this additional requirement would provide the enhanced oversight of the regime that the amendments purport to provide. The annual reporting requirement is a formal statutory mechanism by means of which the Secretaries of State will receive information from the intelligence services about their use of Part 7A on an annual basis. This is a mechanism intended to ensure effective political oversight by the Secretary of State.
The ISC is a committee of Parliament. Oversight by the ISC is neither of the same nature as, nor a replacement for, the oversight of the Secretary of State. The ISC, as a committee of Parliament, already has a long-standing and well-established role in the oversight of the intelligence services to which these provisions will apply, and that role will continue here.
Sending the annual report to the Investigatory Powers Commissioner will not increase the level of independent oversight provided, for the following reasons. First, the Investigatory Powers Commissioner will be required to keep this new regime under review, as he does with the current Part 7 regime, and he will continue to report annually on his findings. Secondly, the information these amendments seek to include in the annual report is already information that the draft code of practice will require the intelligence services to keep, as is clear from paragraphs 7.1. and 7.2. The commissioner, and anyone acting on his behalf, has access to all locations, documentation and information systems as necessary to carry out a full and thorough inspection regime. The intelligence services are legally obliged to provide all necessary assistance to the commissioner, or anyone acting on his behalf, including by providing documents and information.
The noble Lords, Lord Fox, Lord Murphy and Lord West, asked about the continued engagement with the ISC. On both the policy proposals informing the Bill and the Bill itself, through a combination of ministerial, operational and official engagement, we have maintained continual engagement, which includes recent sessions with the Security Minister and the agency heads. As I said earlier, we are grateful to the committee for its engagement and scrutiny of the Bill. We will continue to involve it throughout the Bill’s passage, and I am more than happy to take the noble Lords’ comments back to the Home Office and make sure they are widely understood.
Amendment 13 would see the intelligence agencies notify the Investigatory Powers Commissioner every time an individual authorisation is granted in reliance on a category authorisation. I have already set out the distinct processes for individual and category authorisations under new Part 7A. As I set out earlier, categories will be authorised only with the prior approval of a judicial commissioner. IPCO inspectors will then be able to review the individual authorisation granted in reliance on a category authorisation during their regular inspections of the intelligence services throughout that time. Category authorisations will expire at 12 months and will then need to be renewed and that decision reapproved by a judicial commissioner.
Lord Coaker (Lab)
My Lords, that was an extremely helpful response from the Minister and shows the importance of tabling probing amendment sometimes: to get things read into Hansard that can be referred to.
With respect to the point around children, I would be grateful for the letter to be made available to other Members of the Committee. Again, that was a helpful point and helpful clarification, should it be needed. I also very much agree with him—to show my point about the importance of things being read into Hansard—about my Amendment 17, but it was helpful for the Minister to read into the record the definition of serious crime to be used throughout the Bill, so that there is no ambiguity with respect to that.
I totally agree with what the noble and learned Lord, Lord Hope, said about my Amendment 1. I think the wording in the Bill is better than that contained in Schedule 10 to the Data Protection Act 2018, but I wanted that to be read into the record so that we had it there. I agree with his criticism of my Amendment 1, but the reason I tabled it was exactly to get the point that he made in criticising my amendment, which the Minister reinforced—if the noble and learned Lord understands my logic.
The points made by the noble Lord, Lord Anderson, with respect to Amendment 3 raise an issue. The Minister’s response to that was, “Well, it’s a non-exhaustive list so it’s not necessary, but I’m happy to talk to the noble Lord about it”. One wonders where that will get to. It will be interesting for the Committee to see the outcome of that. I thought that Amendment 3, of all the various amendments, was particularly useful and again drew out whether the factors listed in Clause 2 are the right ones, or whether they need adding to. It was important that the Minister clarified that it is not an exhaustive list.
There is one area that I think may need to be looked at further, as mentioned by my noble friends Lord Murphy and Lord West, and the noble Lord, Lord Carlile, if I understood his remarks properly. We need to clarify the role of the Intelligence and Security Committee. I note the Minister’s reassurances, but what is its role? The clear point of difference between what I would say and what my noble friends Lord Murphy and Lord West and others would say is that we are talking here about parliamentary oversight. The Government have an annual report which goes to the Secretary of State. That is political oversight of a sort but it is not parliamentary oversight. The whole point of the ISC being set up was to give parliamentary oversight to all these sorts of matters. We have a Bill before us called the Investigatory Powers (Amendment) Bill, which deals with all sorts of issues of national security and the powers that the intelligence agencies and others should have on our behalf. It is only right and proper that the Intelligence and Security Committee should have a role that is properly defined within the legislation before us. That is one aspect that I need to reflect on and discuss with other Members of your Lordships’ House and with my noble friend Lord West, as our member of that committee.
That is the one area where, to be honest, I was not satisfied with what the Minister had to say. Notwithstanding Amendment 3, and all the other points made to the noble Lord, Lord Fox, and many others, the definitions the Minister has helped clarify and the various ways he has sought to ensure that people understand the Government’s intent have been extremely helpful to the Committee. With that, I seek leave to withdraw the amendment.
Lord Fox
Member's explanatory statement
This amendment is intended to probe the legal basis for surveillance of the type of data described in new subsection (3A)(e).
Lord Fox (LD)
My Lords, Amendment 20 is intended to probe the legal basis for surveillance of the type of data described in new Section 11(3A)(e). This amendment would prevent public authorities—councils, police forces, intelligence agencies, government departments including the DWP and HMRC, the Gambling Commission, the Food Standards Agency, and many more—having “lawful authority” to obtain and use communications data from a telecommunications or postal operator solely because the information is available to the public or a section of the public even if only on a commercial basis.
Communications data is defined in the IPA as data that may be used to identify, or assist in identifying, the sender, recipient, time, duration, type, method, pattern, or fact of a communication, along with the system used to make a communication, its location and the IP address or other identifier of any apparatus used. The broad list of public authorities able to obtain communications data is set out in Schedule 4 to the IPA.
Clause 11 of the Bill before us now amends the Section 11 IPA offence of unlawfully obtaining communications data from a telecommunications or postal operator. Whereas the IPA currently defines an offender as,
“A relevant person who, without lawful authority, knowingly or recklessly obtains communications data from a telecommunications operator”,
this Bill would add a list of examples to the Act of what constitutes lawful authority.
Lord West of Spithead (Lab)
My Lords, I stand to address the clause stand part notice for Clause 13 and also Amendments 21, 22, 24 and 26. The aim of looking at the clause relates to the communication data disclosure powers. The current IPA wisely restricted the number of public authorities that are able to compel the disclosure of communications data from telecommunications operators, given the potentially intrusive nature of this power. Consequently, authorities such as the Environment Agency or Health and Safety Executive are currently required to take further procedural steps in order to compel disclosure of communications data. They must obtain either an authorisation under the current IPA, a court order or other judicial authorisation, or regulatory powers in relation to telecommunications or postal operators, or they must obtain the communications data as secondary data as part of a valid interception or equipment interference warrant.
However, the Bill before us seeks to remove these restrictions for a wide range of public regulatory authorities and restore their ability to compel the disclosure of communications data from telecommunications operators in service of their statutory regulatory or supervisory functions. The Government’s argument for removing these restrictions is that a broader array of communications now fall into the category of communications data, and that a wider number of organisations now constitute telecommunications operators. As a result, the current restrictions prevent some regulatory authorities from acquiring the information necessary to exercise their statutory functions, in a way that was not anticipated at the time of the original legislation.
It is argued that this is particularly relevant to bodies with a recognised regulatory or supervisory function, which would collect communications data as part of their lawful functions but would be restricted under the current Act if their collection was not in service of a criminal investigation. In particular, the change is focused on improving the position of certain public authorities responsible for tax and financial regulation, whose powers were removed in 2018 as a result of the rulings of the European Court of Justice.
Clearly, such bodies must be able to perform their statutory functions effectively, but we have been told that this Bill delivers only “urgent, targeted changes needed”. That is not the case here. These sections represent a sweeping restoration of powers across a wide number of public bodies, most of which have no national security or serious crime function.
The original Act was very particular about the purposes for which communications data could be gathered under the legislation and by which bodies. It ensured that this power was tied to national security and serious crime purposes only, to avoid impinging on the right to privacy without very good reason. Clause 13 and its related schedule fly in the face of this very deliberate policy in the original Act, and overturn Parliament’s careful deliberation of the point.
Will the Minister confirm which bodies will have their powers restored under this legislation? Which of those bodies have reported a significant reduction in their ability to perform statutory functions as a result of the IPA? Have some bodies been more effective than others? Might it be possible and appropriate to significantly pare back this list of organisations?
At present, the case has not been made. We need to be satisfied that these powers are given to those bodies which cannot adequately function without them. It cannot be the case that some are simply given these powers back by default. I am prepared not to take this amendment to a vote if the Minister can assure the House the Government will bring forward their own amendment, which restores these powers in a more limited and targeted way.
The next stand part notice is consequential on that one being taken.
I move on to Amendments 21, 22, 24 and 26. These seek to remove the ability of the agencies to internally authorise the use of a new broader power to obtain internet connection records for target discovery. The agencies would instead be required to seek approval from IPCO, thereby creating an element of independent judicial oversight.
As I noted previously, Clause 14 creates a new broader power for the agencies and the NCA to obtain ICRs for the purpose of target discovery. It represents a significant change from the current position, removing the current demand that the exact service used and the precise time of use be known. Instead, the agencies will be able to obtain ICRs to identify which persons or apparatus are using one or more specified internet services in a specified period—a far broader formulation.
After consideration of the relevant classified evidence, the ISC agrees with the intent. However, the newly expanded power is potentially very intrusive. It allows the agencies to obtain ICRs from a range of internet services over a potentially long period of time and could, therefore, potentially intrude on a large number of innocent people. Parliament must therefore ensure that there are appropriate safeguards in place.
The ISC acknowledges that there are safeguards in place relating to the obtaining of ICRs. However, in all cases relating to national security and economic well-being, the agencies are able to authorise use of this newly expanded power internally. They make the assessment as to whether it is necessary and whether it is proportionate. There is no independent oversight of the agencies’ assessment.
The Government may argue that the ability of the agencies to authorise use of this power internally replicates the existing provisions when authorising the obtaining of ICRs for target discovery or target development. They will also no doubt refer to how the noble Lord, Lord Anderson, said in his report that “arguably” the potential intrusiveness of this newly expanded target detection power is no greater than the existing provisions for obtaining ICRs.
In the ISC’s view, the new provision—which is considerably broader than the existing target discovery power, removing the need to know the exact service used and the precise time of use—is significantly more intrusive than existing provisions. Consequently, greater oversight is required to ensure that the power is always used appropriately. This is not because we expect the agencies to act in bad faith but because independent oversight is essential, acting as a counterbalance to the intelligence community’s intrusive powers and providing vital assurance to Parliament and the public.
This amendment and the two linked Amendments 24 and 26 therefore remove the ability of the agencies to authorise use of this power internally. The agencies would instead be required to seek the approval of an independent judicial commissioner from IPCO in order to authorise the obtaining of ICRs under this new broader power.
Incorporating this independent judicial oversight would ensure that use of this power is always necessary and proportionate and strikes the right balance between security and privacy. It also aims to minimise any burden on the agencies. It does not, for example, incorporate the “double lock” mechanism, which is used for the most intrusive powers under the Investigatory Powers Act.
We recognise that the Government may wish to bring forward their own amendment to include provision for urgent cases; therefore, I do not propose to move this amendment to a vote at this stage. It should, however, indicate to the Government the ISC’s firm view that independent judicial oversight in this area is essential.
I will say a little more about Amendment 22. This amendment seeks to limit the purposes for which the new, broader target discovery power, which has been introduced under Clause 14, could be used. Clause 14 creates a new, broader power for the agencies, and the NCA, to obtain internet connection records for the purposes of target discovery. Target discovery is a great deal more intrusive than target development, potentially intruding on the privacy of a great number of innocent individuals. This is why we must tread very cautiously in this area and be quite satisfied of the need for the power, and that it is tightly drawn and properly overseen.
Currently, in order to obtain ICRs for target discovery, the agencies must unequivocally know the precise service used and the precise time of use by the unidentified individual. It is, therefore, very tightly drawn. The new target discovery power removes these requirements, allowing the agencies to obtain ICRs to identify which persons or apparatuses are using one or more specified internet services in a specified period. Noble Lords will recognise how potentially broad this is by comparison.
Lord Anderson of Ipswich (CB)
My Lords, I will make a brief comment on two aspects of Clause 14 which have been developed today and which were considered in my report. Amendments 23 and 25 in the name of the noble Lord, Lord Fox, would restrict the changes relating to internet connection records in Clause 14 to the intelligence services only. The noble Lord correctly noticed that, while I support the use of ICRs for the new target detection purpose in condition D1, I mentioned at paragraph 4.18 of my report that it would be
“open to Parliament to require further safeguards”
and suggested that those safeguards include
“making the extra condition available only to UKIC”—
in other words, the intelligence services—
“at least in the first instance”.
I pointed out a range of safeguards that already apply to ICRs. These are fully set out in the draft addition to section 9 of the code of practice that was helpfully provided in advance of these debates. I also pointed out, by way of mitigation to my proposal that only UKIC should have access, that
“working arrangements … could facilitate the use of UKIC powers in the service of NCA or CTP in particular”.
That is as much as I am told I can say on working arrangements, though noble Lords may be able to use their imaginations.
Clause 14, instead of going for this workaround, opted to give the NCA, though not counterterrorism policing, its own direct access to the new power. It is certainly true that the NCA has primary responsibility for many of the crimes where the new power may prove most useful—in particular, child sexual abuse, where it has strong potential. I will listen to what the Minister says about that, but I think there is no great division of opinion between us on this issue. We are really debating different mechanisms by which the NCA might get access to this material, and although it is not precisely what I suggested, I have no objection to the more direct route taken in the Bill.
I turn to Amendments 21, 24 and 26 in the name of the noble Lord, Lord West of Spithead, which would introduce a requirement for requests by the intelligence services and the NCA to be independently authorised by the Office for Communications Data Authorisations. This would be an exceptional state of affairs for communications data requests by the intelligence agencies. Existing ICR requests are internally authorised and some of those, in particular under condition B and C, will be arguably, as I said in my report, as intrusive as requests under the new condition.
However, the noble Lord has emphasised the undoubted intrusiveness of the new condition and I know from my own correspondence with the ISC that, very much to its credit, it has looked at this issue in considerable detail. Furthermore, I raised the possibility of independent authorisation for such requests in my report. While I said that the full double-lock procedure would be disproportionately burdensome, independent authorisation by OCDA, which is not a possibility on which I commented expressly, sounds as though it could be a more manageable proposition. I have some sympathy with Amendments, 21, 24 and 26. They raise an important issue on any view, and I look forward to hearing what the Minister has to say about them.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I thank the three previous speakers in the short debate on this group. There are no opposition amendments in it, so I shall set out some more general questions that arise out of the amendments spoken to.
Why have the Government brought forward the widening powers to obtain communications data when the original Bill did the opposite? Can the Government provide an exhaustive list of the bodies that will be able to use these communications data collection powers? Why are they not in the Bill or the Explanatory Notes? Giving bodies such powers during any criminal investigation appears out of step with the rest of the Bill, which covers investigatory powers for national security or serious crime reasons. Why is this power so broad as to cover any criminal investigation? Given that the double lock exists for most of the powers in the Bill, why have the Government given wide-ranging powers for intelligence authorities and the NCA to self-authorise accessing internet connection records while undertaking subject discovery work? How does this compare to the powers for conditions A, B and C, which cover access to ICRs, for more restrictive purposes? Finally, what will the role of the IPC and the ISC be in monitoring how the new powers are used?
I was particularly interested in what the noble Lord, Lord Anderson, said when he was commenting on the two other speakers in this short group. I, too, will listen with great interest to what the Minister has to say on this, but this is all done in the spirit of exploration, as my noble friend Lord Coaker said. I look forward to the Minister's comments.
Lord Sharpe of Epsom (Con)
I thank all noble Lords who have spoken in this group. I will first speak to Amendment 20, tabled by the noble Lord, Lord Fox, which would amend Clause 11. I want first to make it clear that Clause 11 does not enable any new activity under the Investigatory Powers Act but places into primary legislation the existing position set out at paragraph 15.11 of the Communications Data Code of Practice.
Paragraph 15.11 clearly sets out that it is not an offence to obtain communications data where it is made publicly or commercially available by the telecommunications operator or postal operator or otherwise, where that body freely consents to its disclosure. In such circumstances, the consent of the operator provides the lawful authority for the obtaining of the data on which public authorities can rely. Making this position explicit within primary legislation will provide clarity that acquiring communications data in this way will amount to lawful authority for the purposes of the offence in Section 11. As such, there will be no doubt that acquiring communications data in this way means that an offence will not be committed in such circumstances.
The purpose of new subsection (3A)(e) is not permitting so-called surveillance, as the noble Lord’s amendment asserts. Rather, it is about clarifying the basis for lawful access to material which has already been published and should not require additional authority for its disclosure by a telecommunications operator, with the consent of that operator, to a public authority. I can assure noble Lords that telecommunications and postal operators will still need to satisfy themselves that any communications data disclosure is in accordance with the Data Protection Act, and any subsequent processing by public authorities must also be compliant.
The inclusion of this paragraph in the definition of “lawful authority” in the IPA will provide reassurance to public authorities on the basis for which they have lawful authority to acquire communications data where this authority falls outside the IPA itself. Inserting a definition of lawful authority does not remove the offence of knowing or recklessly obtaining communications data without lawful authority; it is still possible to commit this offence if the disclosure by the telecommunications operator is not lawful or if the public authority knowingly or recklessly acquires the communications data without lawful authority. The inclusion of this definition of lawful authority will encourage public authorities to ensure that they have lawful authority before they acquire communications data. I therefore respectfully ask the noble Lord to withdraw his amendment.
I turn to Clause 13 and the proposal from the noble Lord, Lord West, to remove this provision and the associated schedule from the Bill. The purpose of Clause 13 is to ensure that bodies with regulatory or supervisory functions are not inhibited in performing the roles expected of them by Parliament. It restores their important pre-existing statutory powers to acquire communications data in support of those functions. When the IPA was passed in 2016, it made specific provision, at Section 61(7)(f) and (j), for acquisition of communications data for the purposes of taxation and oversight of financial services, markets and financial stability.
As a result of the Tele2 and Watson judgment from the Court of Justice of the European Union in 2016, a number of changes were then made to the IPA. Crucially, not all the changes made at that time were a direct response to the judgment itself, but instead the opportunity was taken to streamline the statute book. This included the removal of the regulatory provisions contained in the IPA because, at that time, those public authorities with regulatory or supervisory functions were able to acquire the data they needed using their own information-gathering powers. At that point, much of the relevant data fell outside the definition of communications data and therefore outside the provisions of the IPA. However, as businesses increasingly move their services online, so many have become, in part at least, telecommunications operators under the definition in the IPA. Therefore, more of the data they collect, and which regulatory and supervisory bodies would have previously been able to access using their own information-gathering powers, now falls within the IPA’s definition of communications data, and regulatory and supervisory bodies are, inadvertently, unable to acquire it.
The Financial Conduct Authority, His Majesty’s Revenue and Customs and Border Force are all examples of public authorities in Schedule 4 to the IPA and already have the power to acquire communications data using a Part 3 request. However, many of the matters that these bodies regulate or supervise fall short of serious crime, as defined in the Investigatory Powers Act at both Section 263(1) and Section 86(2A), which means that they are unable to acquire a Part 3 authorisation to get the data they need to perform the statutory functions expected of them.
The UK is not alone on this issue; European colleagues have identified similar issues for their equivalent bodies with regulatory and supervisory functions. The functions these bodies perform on behalf of the UK are simply too important to let this situation continue. They go to the heart of our safety in preventing terrorist funding, seeking to ensure financial stability, and the oversight of banking and financial markets, among other matters. For example, the Financial Conduct Authority has responsibility for supervising some 50,000 regulated firms to ensure they have systems and controls in place concerning the Money Laundering, Terrorist Financing and Transfer of Funds (Information on the Payer) Regulations 2017. Border Force has the responsibility of quickly identifying from the huge volumes of packages crossing our borders each day, those that may contain illegal items such as drugs, firearms and other illicit goods that present a risk to the UK. It is vitally important that these bodies are not inhibited in carrying out their core functions because of the way the world has changed since 2016.
The changes to the IPA brought about by Clause 13 strike an appropriate balance between necessity and proportionality, making clear as it does that the acquisition by these regulatory bodies should only be in support of their civil functions and not used in support of criminal prosecutions. Additional safeguards are provided for within codes of practice governing how this should work in practice. To be clear, this applies to a relatively small cadre of public authorities in support of specific regulatory and supervisory functions; it is not creating a way to circumvent the safeguards of the IPA. It instead ensures that the acquisition routes and associated strong oversight by the Investigatory Powers Commissioner are reserved for those areas where it is most essential.
Lord Fox (LD)
My Lords, this has been a really worthwhile part of our debate, and I thank those who have tabled amendments and the Minister for his response. I was particularly interested to hear both the substance of and response to the amendments of the noble Lord, Lord West of Spithead. I think it best that we spend some time reviewing this in Hansard in deciding what, if anything, needs to come back. With that said, I beg leave to withdraw Amendment 20.
Lord Fox (LD)
My Lords, in opposing that Clause 16 stand part of the Bill, I shall also speak to the clause stand part notices on Clauses 17 and 20.
This is one part of the Bill that has attracted a huge amount of external interest and deserves some positioning to understand why external parties might be suspicious of what they see. We should recognise that one of the most important security features available to protect personal information, both on a device and in the cloud, is end-to-end encryption. That encryption technology ensures that only users, and not the companies which provide the cloud services, can access their personal data and communications. Computer scientists and cryptographers have argued for many years that there is no safe way to decrypt one person’s messages without compromising the whole system’s security infrastructure. As soon as a backdoor, as it is called, is created to scan private messages, a security vulnerability is created that can be exploited by bad actors as well as good actors. I assume that that was why the Online Safety Bill left things hanging, waiting for a technological breakthrough, though I was not party to the processes of that Bill.
I remind your Lordships that once the company has created a backdoor key for encrypted systems, even for a single user in a single case, and certainly for any mass scanning, it has created a vulnerability that can eventually be abused by bad actors as well as law enforcement. I also remind your Lordships that the Home Office already can and presumably, on occasion, does require companies to weaken their security apparatus in the interests of law enforcement and national security.
To a great extent, the proximity of this Bill to the debate in the Online Safety Bill, has not helped matters: sensitivities were raised during that debate, and this is a chance for the Minister to try to calm them. As I mentioned earlier, the impending arrival of the Data Protection and Digital Information Bill is also putting people’s nerves on edge. There is a deal of management required here.
End-to-end encrypted messaging service providers were vociferous in their concerns during the passage of the Online Safety Bill, yet Section 121 of the Online Safety Act remains. However, Ministers clarified that Ofcom could only require scanning once it becomes technically feasible to do so—that is, when the technology is invented and allows scanning without violating encryption. But Ofcom retains the power to order service providers to use their “best endeavours” to develop that technology.
It is not surprising that some of those same encrypted message service providers were raising flags when it came to some of the clauses in the Bill. The IPA, as it stands, already enables the Home Office to instruct service providers to remove electronic protection for communications of interest to the police or security services by issuing them with a technical capability notice—a TCN. This effectively empowers the Home Secretary to require the removal of end-to-end encryption on those services across any number of suspects and criminal offences. Currently, for the Home Secretary to issue a TCN to a service provider under the IPA, they have to satisfy a number of considerations, which your Lordships will be pleased to hear I am not going to list. Even if the answers to all those conditions is positive and leads to a TCN, a process of checks and balances sits alongside the request, including informal and formal consultation between the Home Office and a service provider before the TCN is issued, oversight by the independent judicial commissioner assessing the request’s proportionality and, of course, recourse for the service provider to request a review of the TCN, allowing it and the Home Secretary to make representations to the judicial commissioner and the technical advisory board for assessment. Crucially, the service provider is not required to start acting on the notice until the review process is concluded.
Lord Ponsonby of Shulbrede (Lab)
My Lords, I will briefly speak to the five amendments in this group in the name of my noble friend Lord Coaker. Amendments 35 and 37 would introduce a double-lock process to notices given under the notification of proposed changes to telecommunications services, bringing it in line with the procedure for the three existing types of notices that can be issued to telecommunications operators. Amendment 36 would add a further factor that the Secretary of State must consider when deciding to give a notice under this section, bringing this type of notice into line with the three existing types of notices that can be issued to telecommunications operators. Amendments 38 and 39, along with the others in my noble friend’s name, would introduce a potential double-lock process to the variation of notices given under the notification of proposed changes to telecommunications services, bringing it in line with the procedure for variation of the three existing types of notices that can be issued to telecommunications operators.
In introducing this group, the noble Lord, Lord Fox, set out very comprehensively the concerns of the various tech companies. I have read the same briefings that he has. He was right to see this as an opportunity for the Minister to address those concerns.
I have a few questions arising out of these amendments. First, why have the Government not included a double-lock structure of approval to this new type of notice, given that the three other types of notices that telecom companies can be issued have the same structure, along with many of the provisions in this Bill and the IPA? Further, why does it not have the same review structure as the other notices? What will companies be able to do to challenge this decision? New Section 258A states that companies must respond within “a reasonable time”. What would the Government consider a reasonable time to be in this regard? What assessment has been made of what other companies are doing to ensure they are aware of changes that would potentially impact national security? Finally, can the Government be more specific about the types of changes that would be considered relevant for this new notification of the proposed changes?
Lord Sharpe of Epsom (Con)
My Lords, once again, I thank noble Lords for their amendments and the points they have raised in this debate. I will do my very best to answer the questions that have been asked. Again, I am afraid I am going to do so in some detail.
The noble Lord, Lord Fox, has proposed removing Clause 16 from the Bill in its entirety. Clause 16 concerns the extraterritorial enforcement of retention notices. Under subsections (9) to (11) of Section 255 of the IPA, any technical capability notice—TCN—is already enforceable by civil proceedings against a person in the UK. Only TCNs that provide for interception and targeted communications data acquisition capabilities are enforceable against a person overseas. Section 95 of the IPA also provides that a data retention notice—DRN—is enforceable by civil proceedings against a person in the UK. DRNs already have extraterritorial applicability within the IPA, meaning that they can already be given to a person outside the UK. However, unlike TCNs, the current legislation does not permit the enforcement of a DRN against a person outside the UK.
Clause 16 therefore seeks to amend Sections 95 and 97 of the IPA to allow extraterritorial enforcement of DRNs to strengthen policy options and the legal levers available when addressing emerging technology, bringing them in line with TCNs. As technology advances, data is increasingly held overseas. The clause will ensure that, if required, there is a further legal lever to protect and maintain investigatory powers capabilities overseas. This will ensure that law enforcement and the intelligence agencies have access to the communications-related data that they need to tackle serious crime and protect national security. It will also ensure consistency across the regime.
Lord Fox (LD)
My Lords, I thank the Minister for an admirably comprehensive response. That was what we were looking for—perhaps not everyone, but certainly our Front Benches. There is a lot to get our heads around, so we will take this away and look into it.
There are a number of observations I would make. First, the Minister emphasised co-operation, collaboration and discussion. Of course, the legislation does not look like that, so it would help if the Government could find some confidence-boosting measures, be they from the code or the draft annexe, or something that enables the Government to signal their continued intention to co-operate and collaborate.
The Minister talked about an interconnected data world—that is exactly the point the operators are making. Because of that interconnection, a hiatus in delivering a service in the UK could also be a hiatus in delivering that service to the rest of the world, given that everyone is using the same service. That is one of the points that was not picked up by the Minister at the time. That interconnectedness is the very issue that some operators have: if they are prevented from doing it in one place, how do they do it elsewhere?
The issue of corporate entities is interesting. What the Minister described was something I used to call “corporate veil”, and I am interested to know how robust that is in corporate law. With corporate veil, it became very difficult, even at court level in the United States, to break down the corporate entities and their interconnections. For no other reason than making an observation, I am interested to see how that works. I certainly see why the Government are putting it forward in their legislation.
There is a lot for us to digest, which we certainly will, between now and the next stage; it gives us something to get our teeth into over Christmas. That said, I beg to withdraw my proposal that Clause 16 stands part of the Bill.
The Deputy Chairman of Committees (Baroness Fookes) (Con)
I am afraid that the noble Lord is not in a position to do that. This is a clause; one votes for it or against it.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 41, line 14.
Lord Sharpe of Epsom
Member's explanatory statement
This amendment and the amendment in the name of Lord Sharpe of Epsom at page 41, line 4 correct an inconsistency in clause 20 by omitting references to a notice under section 258A of the Investigatory Powers Act 2016 being given or revoked in relation to a description of persons.
Member's explanatory statement
See the amendment in the name of Lord Sharpe of Epsom at page 41, line 2.
“(4) The Regulation of Investigatory Powers Act 2000 is amended as follows.(5) In section 65 (the Tribunal)—(a) in subsection (5)(czi)—(i) for “or 253” substitute “, 253 or 258A”;(ii) for “or technical capability” substitute “, technical capability or proposed changes to telecommunications services etc”;(b) in subsection (5)(czl)(iii), for “or 253” substitute “, 253 or 258A”;(c) in subsection (8)(bc), for “or 253” substitute “, 253 or 258A”.(6) In section 67 (exercise of the Tribunal’s jurisdiction), in subsection (7)(azc), for “or 253” substitute “, 253 or 258A”.(7) In section 68 (Tribunal procedure)—(a) in subsection (5)(b), for “or 253” substitute “, 253 or 258A”;(b) in subsection (7)(f), for “or 253” substitute “, 253 or 258A”;(c) in subsection (7)(ha), for “or 253” substitute “, 253 or 258A”.”Member's explanatory statement
This amendment provides for the Investigatory Powers Tribunal to consider complaints about notices given under new section 258A of the Investigatory Powers Act 2016 (proposed changes to telecommunications services etc) in the same way as it considers complaints about other notices given under Part 9 of that Act.
Cyber Democratic Influence
(5 months ago)
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Lord Collins of Highbury (Lab)
My Lords, the Russian intelligence service effort to target Members of the Commons and this House, civil servants, journalists and NGOs is an attack not just on individuals but on British democracy, and I am sure Members across the House will join me in condemning it in the strongest possible terms. My right honourable friend David Lammy reminded the other place that next year will see elections not only in Britain but in the United States, India and the European Union, with more than 70 elections scheduled in 40 countries across the world.
Trust and confidence in our system of democracy will be undermined if we are unable to ensure it is free from such interference. Leo Doherty, the Minister, said that the Statement was made now
“to ensure that its full deterrent effect is properly timed”,
and he reminded the House that
“our duty is to remain ever vigilant”.
Can the Minister tell us how the Government are working with other countries that share our democratic values to monitor interference and co-ordinate a response to any attempts to influence our democratic processes?
In response to Labour’s call for a joint cell between the Home Office and the Foreign Office to speed up decision-making, the Minister in the other place said that he was confident that the Defending Democracy Taskforce, led by the Security Minister, represented a robust and cross-departmental response. However, he did acknowledge that on the wider picture of disinformation, we needed to
“up our game to counter disinformation, call Russia out and better resource and energise our own security posture in the cyber domain”.
The use of artificial intelligence and deepfakes to seed false narratives, spread lies and foment divisions through mainstream and social media is an increasing threat, as identified in the other place. Leo Doherty talked of
“an enhanced degree of resource, organisation and political will”.—[Official Report, Commons, 7/12/23; cols. 491-2.]
Can the Minster give us a little more detail on how this will be done?
Parliament has been united against Putin’s imperial aggression in Ukraine. The Opposition and the Government have been as one, and unity is a source of strength and pride. In the face of these threats, this House must remain united. Let me assure the House tonight that the Labour Party will work in partnership and full co-operation with the Government and all relevant authorities to take the necessary steps to address this threat and protect the integrity of our political process from hostile interference.
Lord Wallace of Saltaire (LD)
My Lords, I share the sentiment that we all need to work together in defending democracy. I thank the Government for the Statement, but this is not a surprise, as we have known for some years that people in Russia—in previous years in Ukraine—and Belarus have been doing their best to hack into British politics to spread disinformation and to influence what is going on. We also know about the Chinese attempts to do the same.
This is all part of the transformation of election campaigning since the digital revolution and social media have become so important. I look back to the first election in which I took part, in 1966, when achieving an article by my party leader in the News of the World was by far the most important thing I did in four weeks. We are now in an utterly different world. Perhaps I should add that this was partly because the article appeared against a half-page picture of the President of Indonesia’s fourth wife, who was extremely attractive. At least people will have read “Jo Grimond” in the headline.
I emphasise here wider issues about shared interests and how the Government and other parties should be encouraged to work together. At present, there is, if you look at all the opinion polls, a very low level of public trust in Westminster politics and the lowest level of trust in government as such. That suggests that the Government and other parties should be as transparent as possible about what is being done and as cross-party and non-partisan as possible.
I note that the Electoral Integrity Programme is part of DLUHC. That seems to me odd. It ought to be part of a stronger Electoral Commission. I regret that the Bill—now an Act—last year weakened the Electoral Commission, because this is central to our democracy. We need to have integrity which is guaranteed by a cross-party and non-party institution. Similarly, on a slightly different collection of issues, the Defending Democracy Taskforce was introduced very much as a government initiative without engaging much with the opposition parties. I suggest that, in reassuring the wider public and civil society and rebuilding the public trust which has been lost, some mechanism involving other parties and cross-party organisations with government activity in this field would be useful. It is not for the Executive to defend integrity and democracy—after all, sometimes it is the Executive who undermine democracy; it is for Parliament, the courts and other independent agencies.
I want to make a second wider point. We should not ignore attempts at foreign interference in our democratic processes by non-state actors, as well as state actors. The Minister in the other place, in replying to one of the questions, said:
“I am pleased that in our domestic legislation we have the ability to ensure that countries with malign intent do not use think-tanks or other fronts to influence domestic political discourse in a way that is contrary to the health of our democracy”.—[Official Report, Commons, 7/12/23; col. 492.]
I agree with that, and I am concerned that there are now a number of extremely well-funded, very right-wing American organisations, on the edge of being anti-democratic, which are doing their best to interfere in British politics and which are putting funds into party factions, into conferences that take place in London and into think tanks. This is non-transparent and, I suggest, ought to be included in the integrity issue of foreign money flowing into British politics.
We have all witnessed the deterioration of American political campaigning and debate in recent years. We have a shared interest in preventing the UK following down that road. That needs to be part of how we prevent that happening, with conspiracy theories creeping into this country and so on. Free and fair elections depend on free and open debate, in which respect for facts and evidence is shared on all sides—a quality that has now been almost entirely lost in American campaigning. We need to make sure it is not lost here.
The Minister of State, Department for Environment, Food and Rural Affairs, and Foreign, Commonwealth and Development Office (Lord Benyon) (Con)
My Lords, I thank both noble Lords for the unified front we are all showing against this appalling attack, recognising that this is just part of a world of increasing insecurity and increasing threats to us.
The noble Lord, Lord Collins, referred to the need to up our game. A few years ago, we all heard about these bot farms that were targeting people in a broad and uncomplicated kind of way. What we have identified with this attack is how highly targeted it is and how it is targeted towards the very heart of our democracy—the values that we all espouse in a free and open society. It is not just parliamentarians who have been attacked; it is the whole variety of different sections of our society, which are at the heart of what makes us a free and open society. They targeted political figures, civil servants, journalists and NGOs, all with the intent to meddle in British political and democratic processes.
We need to understand that Centre 18, a unit within Russia’s FSB, has been involved in a range of cyber-espionage operations targeting the UK and that the so-called Star Blizzard, a cyber group that is almost certainly subordinate to Centre 18, is responsible for a range of malign activities targeting British parliamentarians from multiple parties. It is worth noting that that group has selectively leaked and amplified the release of sensitive information in the service of Russia’s confrontative goals, and that these cyber actors used a combination of targeting, tailoring their operations in a far more sophisticated way than is usually the case. This targeting is not limited to politicians but includes public-facing figures from all parts of society.
The noble Lord, Lord Collins, talked about how we are working with our international partners. We engage international partners on issues of mutual concern. We are grateful for the support of very many international partners that have provided information, but we obviously will not go into detail on any specific contributions or types of engagement. Noble Lords will have seen the sheer breadth and depth in unity from our like-minded partners and allies who have joined us in calling out this malicious activity. The US is a long-standing ally, as are other Five Eyes members, and we will continue to engage with it on issues of mutual concern. We are grateful for the support the US has provided and will continue to work with it and all partners which seek to protect our democracy.
The noble Lord, Lord Collins, said that, in order to up our game, we have to make sure that we have the resources necessary for our institutions and organisations to protect us. This was a complex operation and we have been working hand in glove with our partners to identify those responsible and hold them to account. The activity announced last week is part of a broader pattern of malign cyberactivity conducted by the Russian intelligence services across the globe. The United Kingdom has been continuing to bolster its resilience since 2018 against both the Russian and wider cyber threats. We continue to invest to bolster our cyber defences in support of our national cyber strategy. His Majesty’s Government are investing £2.6 billion in cyber and legacy IT until 2024-25, including a £140 million increase in the national cybersecurity programme.
The noble Lord raised a very important point about the number of elections taking place in those 40 countries—that will be 4 billion people exercising their right to self-determination about who governs them. There is no more fundamental basis for a free society than that, and we want to assist all those countries in any way we can. The level of technical expertise in this country, and our strategy, have been widely acclaimed and have the support of all political parties in this country. We want to make sure that we are sharing that expertise with other countries.
The noble Lord, Lord Wallace, mentioned other countries, and of course we are acute to threats of this type of activity from other countries. He is right to point out how they are reaching the electorate. In elections past, it was a simple matter of the media as the most basic way in which people got information that informed their political views, but now, through social media and the malign intent of certain individuals, people can be led to a false conclusion. We want to make sure that we are transparent and open.
Elections in this country are run by local authorities, and we are doing everything we can to assist them to make sure that their defences are robust, recognising that next year there is an important election. We are supporting them. DLUHC, the department that interfaces with local government, is working with local authorities, but it is a cross-government activity.
The final point the noble Lord made was about non-state actors, and he is absolutely right. We need to have measures in place to fact-check when people are using malign and false content in order to influence people. In certain constituencies, there will be a very few people who can sway that constituency one way or another. If they are being approached in the kind of way that this kind of attack has proved, we want to make sure that we have defences that can be deployed and that we can inform people that they have been the subject of this kind of attack.
Baroness Stuart of Edgbaston (CB)
My Lords, I very much welcome the Minister mentioning local authorities and ensuring that they are robust in the most vulnerable period—when votes are being cast—but what discussions are being held with the political parties specifically? They hold sensitive data. If I wanted to cause major disruption on polling day, I would be worried about the security of data held by political parties. Can the Minister assure me that thought is being given to that?
Lord Benyon (Con)
The noble Baroness was a member of the Intelligence and Security Committee with me. She was very much part of this debate for many years and has great expertise. She is right. Political parties need to be assisted through the National Cyber Security Centre and the national cybersecurity strategy to protect their data. She is right that we have seen elections in other parts of the world—and there have been some suggestions that we had attacks closer to home—in which these kinds of data breaches have resulted in a key moment in an election being difficult to manage. We want to assist every political party. Everyone can have access to it. It is not just Members of both Houses and the staff who work in this place but the political offices and constituency operations run by political parties right across the country that need access to this to be aware, resilient and absolutely sure that their systems are properly protected. It is in all our interests to make sure that we have clean, fair, open elections and that people are protected from this kind of attack.
Lord Lancaster of Kimbolton (Con)
My Lords, the war in Ukraine has been significant for a change of approach in UK government policy with regard to intelligence. We have been proactively releasing military intelligence about what we expect Russia to do into the public domain ahead of events, and this has undoubtedly influenced what Russia then does. There are parallels to this area. It is one thing reactively trying to attribute actions to Russia after the event, but would we consider doing exactly the same when it comes to this, hopefully influencing Russia and preventing it acting in the first place?
Lord Benyon (Con)
Our response to this attack is quite clear. The Russian ambassador was called in to the Foreign Office, and we have sanctioned two individuals who worked for this organisation. The investigation is ongoing, and we will take all steps necessary to make Russia understand that it is not worth its while doing this kind of work. We know that actions of misinformation are as old as the Soviet Union, and go right back to many activities happening in the days of the old KGB. What the FSB and organisations within it are now doing is absolutely an extension of that. They are using their technology to target us in different ways.
The UK has worked with Ukraine to increase its resilience in cyberspace over several years. This has included measures to enhance its incident response, forensics and assessment processes. We are providing £6.35 million in cyber support to Ukraine as part of the UK’s Conflict, Stability and Security Fund. This includes technical assistance to the MFA to protect its websites from distributed denial-of-service attacks and provide daily cyber threat intelligence. Increasing resilience is an ongoing process, and we are committed to increasing our efforts. We cannot go into further details of the support we are providing, but we are working with all our allies to make sure that countries such as Ukraine can withstand a relentless attack, not just physical kinetic warfare but in cyberspace as well.
Universal Declaration of Human Rights
(5 months ago)
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Baroness Anelay of St Johns
To ask His Majesty’s Government what steps they are taking to promote the principles of the Universal Declaration of Human Rights which was adopted by the United Nations General Assembly in 1948.
Baroness Anelay of St Johns (Con)
My Lords, the final draft of the Universal Declaration of Human Rights was presented to the General Assembly of the United Nations by the Haitian delegate Emile Saint-Lot, a descendant of slaves. It was a late-night session on 10 December 1948. Monsieur Saint-Lot said it was
“the greatest effort yet made by mankind to give society new legal and moral foundations”.
It was a watershed moment reflecting the determination of members of the United Nations General Assembly, first, to prevent a repetition of the horrors inflicted during World War II, when millions were massacred and deliberately worked and starved to death, the Holocaust being the most abhorrent manifestation of such dehumanisation; secondly, to affirm the inherent dignity of every individual; and, thirdly, to establish a solid foundation for peace, justice and freedom in the world.
The UDHR is founded on the principle of universality, applying to everyone everywhere. Article 1 proclaims that:
“All human beings are born free and equal in dignity and rights”.
The declaration set out, for the first time, fundamental human rights to be protected universally. It was the precursor to more than 80 human rights conventions and treaties, including the European Convention on Human Rights, which was agreed just two years later. It provided the basis for our current international human rights framework.
The 30 articles listed in the declaration became the cornerstone of international, regional and national law. For example, they encompass: the right to life, liberty and a fair trial; freedom of religion, expression, assembly and association; the right to marriage and family; the right to work, including equal pay for work; and the right to education. They also encompass the prohibition of slavery, torture, arbitrary arrest, detention and exile.
Today, UDHR rights are at the heart of the United Nations sustainable development goals, which seek to create a better world by 2030 by, inter alia, ending poverty and hunger, but one has to question whether such a declaration would be achievable today. Multilateralism is under attack from those who want to redraw the international order to their own individual advantage. Russia and China often block human rights-related motions in the United Nations. Russia seeks imperial expansion of its territory. China seeks economic domination. Both countries seem to have scant regard for human rights.
The 75th anniversary of the UDHR gives us the opportunity to consider how far the world has come, while acknowledging that there is still a long way to go, with many continuing to suffer appalling human rights violations. We should call out flagrant violations and actively push back against those who seek to sow doubt about the universality or relevance of human rights. It is important to demonstrate solidarity with those being persecuted or punished for trying to exercise their rights, and to do all we can to recognise the work of human rights defenders, some of whom face considerable personal risk and death.
When I was the Minister for human rights at the FCDO, and the then Prime Ministers Cameron and May’s Special Representative on Preventing Sexual Violence in Conflict, I had the privilege of meeting many brave people who were victims of human rights abuses, and many who were valiant human rights defenders. When I listened to accounts of their lived experience, whether it was in south-east Asia, central or South America, Africa, the Middle East or the western Balkans, the theme was the same throughout. There was a lack of bitterness; there was dignity, and the impassioned request that the UK take action internationally to ensure that others might not suffer as they had and as their children so often had.
As parliamentarians, we have a key role in promoting the UDHR, its principles and the rights enshrined within it by ensuring, of course, our own Government’s compliance and holding them to account if standards slip, and by helping to generate the necessary political will to bring about positive change, both at home and overseas.
Can my noble friend the Minister update the House today on how the Government have recently challenged, both publicly and privately, serious violations committed by state and non-state actors? Can she tell the House what more the FCDO will do to ensure that the promotion and protection of rights is embedded in their decision-making processes for bilateral and multilateral trading agreements, so that the UK cannot be complicit in serious human rights abuses—for example, when engaging in security partnerships? For example, what action do they take on a cross-departmental basis to monitor the export of surveillance equipment to ensure that it cannot be diverted by authoritarian Governments to target dissidents and human rights defenders?
I note that the human rights guidance in the FCDO’s document Overseas Security and Justice Assistance has not been updated since 2017, when I left my ministerial role at the Foreign Office and went to DExEU instead. Will the Minister consider updating that guidance soon, and does she agree with me that a review of its provisions should involve meaningful consultation with stakeholders, including civil society organisations and non-governmental organisations?
I have a final request: will my noble friend ensure that the FCDO does more to support human rights defenders overseas, including environmental, land and indigenous rights defenders, who may so often face criminalisation, enforced disappearance and sexual violence?
Earlier this month, the UK made a joint statement with Denmark to the ministerial council of the Organization for Security and Co-operation in Europe. The statement recognised that although “great strides” had been made in recent decades to advance human rights and fundamental freedoms, it had
“become more evident than ever that the fight for freedom, gender equality, justice and democracy is far from over, and that their defence requires our ongoing vigilance and principled action”.
I agree.
Baroness Chakrabarti (Lab)
My Lords, I am so grateful to the powers that be for allowing me the enormous privilege of following the noble Baroness, Lady Anelay of St Johns. I congratulate her on bringing to the House such an important debate on the near anniversary of perhaps the greatest achievement in the history of international statecraft. I also congratulate her on a career rich with similar ambition for the
“inherent dignity and … the equal and inalienable rights of all members of the human family”
as
“the foundation of freedom, justice and peace in the world”.
She continues to do enormous credit to the tradition of Churchill and Maxwell Fyfe, to her party, to her country and to your Lordships’ House.
Sadly, I cannot continue my short remarks in quite such a positive vein while knowing how some of the most senior members of His Majesty’s current Government will have spent the actual 75th anniversary of the signing of the Universal Declaration of Human Rights. A frantic phone-around to shore up petty performative political legislation, designed not so much to stop the boats as to undermine the courts in their vital role of safeguarding rights at home and internationally, is hardly the best way to promote the values in the declaration, still less to show the United Kingdom as a continuing force for upholding rights, freedoms and the rule of law in our shrinking, interconnected and troubled world.
The Safety of Rwanda (Asylum and Immigration) Bill dishonours the great work of the generation that established the declaration and the subsequent treaties, to which the noble Baroness referred, that were always intended to protect its values with binding law. It is not so much the elephant in the room as the woolly mammoth in your Lordships’ Chamber. It is a post-fact instrument of post-truth politics, literally seeking to alter an evidential reality unanimously found by our highest court: that Rwanda is not currently safe for asylum seekers and refugees. It attempts domestically to disapply treaties designed to implement UDHR values to which we are bound internationally, demonstrating bad faith on the world stage. It breaches the European convention that was the legacy of those seeking to rebuild our continent after World War II. Accordingly, it imperils the Good Friday agreement and our new relationship with the European Union, and it abrogates even the rule of law on which human rights depend in seeking to attack judicial scrutiny by putting Ministers above the reach of the courts.
As I speak, Members in the other place will still be hunkered down in tortuous media spinning of a document that would have the principal drafters of the post-war settlement spinning in their graves.
Baroness Falkner of Margravine (CB)
My Lords, I declare an interest as chair of the Equality and Human Rights Commission, the UK’s national equality and human rights body. I will make some remarks in a personal capacity, but first I will speak for a moment or two about the work of the EHRC. Before I do, I join the noble Baroness, Lady Chakrabarti, in expressing gratitude that in this House today we have somebody of the stature of the noble Baroness, Lady Anelay, to lead and open this debate for us; we are fortunate indeed.
We are frequently reminded that the Universal Declaration of Human Rights is the most translated document in the world. We know that it attempts to set a common standard of achievements for all peoples and all nations, the most basic of which is life, liberty and security for all. However, too many countries do not observe the basic, fundamental aspirations of the universal declaration. The EHRC plays an active role in holding the Government’s feet to the fire. Having said that, I do not intend to go into the many different areas that parliamentarians who receive our legislative briefings will be well aware of. On the back of Covid and the difficulties of continuity of data across our national institutions and research bodies, we are very pleased to have produced the Equality and Human Rights Monitor, which is a comprehensive account looking at five to 10 years of data on the state of equality and human rights in Britain. We found both progress and challenges in compiling that. I urge noble Lords to review it. It is a reference tool. It is not something you will read or use only today; it covers the whole ground of protected characteristics as they have progressed or regressed over this period. I hope it will continue to inform debates over the next few years.
I want now to share some personal reflections, not so much about the universal declaration itself but about the composition and structure of the Human Rights Council. It is a relatively newly formed council—we have to remember that it was formed only in 2006, in response to the General Assembly’s acceptance that the previous body, the Office of the High Commissioner for Human Rights, was not working as effectively as it might. This was an attempt by the General Assembly to achieve some sort of coherence in having more regular elections, staggered elections and elections by region, to get 47 places on the council.
Over the intervening two decades, we have come to know that elections to the council are dogged by controversy every year, as a third of places come up. The world is divided by the council into regional blocs, replicating the UN system itself. While the EU and NATO no longer split Europe, for example, into eastern and western Europe, the UN still does, giving us the possibility, on a regular basis, of electing Russia into the eastern Europe category. This year was a near miss, as Albania managed to get on with Bulgaria, but Russia did garner a significant number of votes. Asia gives us such joys as Kyrgyzstan—again, not a standout respecter of human rights—following in Russia’s wake in most of its rulings. In Latin America and the Caribbean, the region is now represented by Cuba, where standards of freedom bear only a passing relationship with any conception of human rights. Then we have the “western Europe and others” grouping—such a bizarre way to express countries with differences as significant as those between Luxembourg and the US. But such differences are only differences of scale, whereas the election of China is truly perverse. China, as ever, is able to buy its way on to the council, mainly through the use of threats, coercion, soft loans, hard loans—through its so-called development strategy of belt and road—and so on.
Surely now, 75 years later, we need to recognise that we will never achieve the aims of the universal declaration when we allow for the most egregious violators of human rights to hold sway over the decisions of our only international body meant to uphold standards. Has the United Kingdom or the FCDO given any thought to what comes next? Seventy-five years in, what are we looking for? If members are still violating the treaty of Westphalia several hundred years later, or the strictures of the Congress of Vienna, by invading other sovereign countries, surely we must pause to reflect on trying to deliver a better kind of system. It is not universal. It does not deliver human rights. Above all, it lets down the people in countries where the most egregious violations take place.
The Lord Bishop of Durham
My Lords, I add my thanks to the noble Baroness, Lady Anelay of St Johns, for securing this debate, and for the way in which she has stood for these issues for many years.
The United Nation’s adoption of the Universal Declaration of Human Rights was a milestone in the history of our world. It marked a global commitment to put human beings above conflict, above the politics of division and above economic gain, granting each individual dignity without discrimination. Though we are 75 years on, promoting the human rights laid out in the declaration remains as vital today as it was in 1948.
The principles and values of human rights lie in the conviction that each human being is unique, made in the image of God and loved by God. Each person is valuable for who they are, not what they are able to do. Thus it applies to every infant and child, and to every frail elderly person, as much as to those who are regarded as wholly fit and able.
In the first place, if we are to promote human rights globally, it is essential that we uphold them in our own nation. Article 16 of the UN declaration states:
“The family is the natural and fundamental group unit of society and is entitled to protection by society and the State”.
As raised in the debate last Friday in this Chamber, brought by my friend the most reverend Primate the Archbishop of Canterbury, family is crucial to our flourishing as humans. However, this is regrettably not reflected in all our Government’s policies. The two-child limit, for example, continues to push families into poverty, withholding support for children due simply to the number of siblings they have.
I now raise my concerns regarding the recent decision by the Government to override their commitments to global human rights agreements. Although the Universal Declaration of Human Rights is not totally legally binding, it is a declaration of the core values that underpin the human rights agreements that the UK has since committed to in a range of international agreements and in the foundations of many of our laws.
Rwanda is a country that is close to my heart. I have visited it 20 times since 1997. It has a deeply painful history of suffering, yet I have observed at first hand how, as a nation, it has rebuilt itself in the past 30 years, bringing those who violated the human rights of others in the past to justice. It demonstrated to the world a remarkable way of handling this, at all levels of society, through its Gacaca courts. However, given reports from Human Rights Watch, as well as the United States Government, on the violation of human rights within Rwanda in recent years, questions are now being raised that our Government can simply rule that the country is indeed safe for refugees and asylum seekers to be sent to.
On the face of the Safety of Rwanda (Asylum and Immigration) Bill lies a declaration from the Home Secretary that he is unable to state whether the Bill is compatible with the UK’s human rights obligations. In producing such a Bill, we are disregarding the humanity of asylum seekers as fellow human beings—fellow human beings who are equal in dignity and possess the same freedoms as ourselves.
I remind the House that this is not an issue of boats; it is an issue of people. As a nation, we have a proud history of upholding and promoting human rights across the globe. Rightly, these human rights apply no matter the nationality a person is born to, no matter their method of travel or entry to a country, and no matter how many siblings they have.
Human rights also always imply human responsibility for one another. If we each want these rights, then we also each must defend them for others. We cannot decide to remove rights from others without diminishing ourselves and accepting that we thus remove those rights from ourselves. We have been at the forefront since 1948 of promoting human rights. Will His Majesty’s Government commit to continuing to lead the way, rather than, as currently appears, stepping backwards from that leading role?
Baroness Helic (Con)
My Lords, I am grateful to my noble friend Lady Anelay for securing this debate. It is my honour to follow her and the other speakers, who know much more about human rights and who are experts in this area. In particular, I thank my noble friend for all the work she has done on the Preventing Sexual Violence in Conflict initiative and for speaking so generously about the survivors. They never express bitterness—just a desire for respect, dignity and some element of justice, which I hope we can help secure. I am also grateful to my noble friend for reminding us of the basic tenets of the Universal Declaration of Human Rights.
It is down to each generation not only to uphold but to improve and push the boundaries in securing our common humanity. Yet we often fall short in defending even the basics. We see the universal declaration’s principles receiving lip service from those who transgress them, but also from those who believe themselves to be their defenders—sometimes our closest allies. Human rights should be more than mere rhetoric in speeches and interviews; they ought to form the very essence of our policies, both domestically and internationally. When we neglect these principles, we not only neglect those who are suffering, by failing to speak and act in support of them, but we also compromise our own standing, security and moral authority. Human rights protect us all; there is no point protecting only here but not over there.
Consider just one example: our rightful support for Ukraine. It is there that the ideals of a free and stable Europe are defended: the supremacy of sovereignty; the protection of borders; and the fundamental idea of human rights. However, we are often challenged that we apply one rule in Ukraine and another elsewhere. We rightly support and show solidarity to our Ukrainian friends and allies, but we have not shown remotely similar support for the people of Tigray or Sudan, or for Palestinian civilians. When we abandon Afghanistan and those who fought shoulder to shoulder with us, disregard atrocities in Darfur, or offer uncritical support to our friend and ally Israel, our commitment to human rights is questioned. Let us be candid with ourselves: do we champion human rights consistently or only when it aligns with our short-term interests?
In some cases, the accusation is that we do not care. In the face of atrocities or human rights violations, inaction is unacceptable. Back in August, the Minister of State for International Development noted the
“growing body of evidence of serious atrocities against civilians being committed in Sudan”.
Despite recognising this, four months on, collectively we have little to show by way of concrete action or concerted diplomacy to try and prevent further atrocities. Similarly, the contrast between our warm welcome to Ukrainians and our hostility towards refugees from other parts of the world has been striking.
It is sometimes suggested that worrying about our standing and the appearance of consistency is self-indulgent or naive, or both, or that those who believe and stand up for human rights have been captured by the wokerati. It is true that foreign policy is often about trade-offs and finding the least bad solution. But when we ignore our commitments, it gives other countries cover to do the same. Persuasion and alliance building are crucial aspects of foreign policy. It is certainly the case that the appearance of double standards has weakened our ability to make the case for supporting Ukraine to many countries.
There is a wider relevance as well. Many global challenges rely on trust if they are to be solved. Negotiations at COP, for example, rely on trust between countries that we will keep our word and that we will act in the interests of our own but also the wider good. The appearance of double standards undermines that trust and our ability to find solutions to some of the most pressing challenges we face.
Values upheld domestically ought to extend beyond our shores. Human rights must be an inseparable part of our Government’s policy, woven through every strand of our diplomacy, including support for international institutions and treaties, which very often have been drafted by British legal experts. This is a moral duty. It is also a route to a safer and more stable world, and it is in our national interest too.
Lord Alton of Liverpool (CB)
My Lords, few people in your Lordships’ House have had such personal experience of the consequences of when human rights are violated as the noble Baroness, Lady Helic. It is always a privilege to participate in debates in which she is involved. It is also a privilege to speak in a debate initiated by the noble Baroness, Lady Anelay, which she introduced with her characteristic knowledge but also showing how long-standing her commitment has been to international affairs and human rights.
As the noble Baroness, Lady Anelay, said, this 75th anniversary of the Universal Declaration of Human Rights is a watershed moment. It was also this weekend 75 years ago that the new United Nations promulgated the convention on the crime of genocide. My fifth Private Member’s Bill on the genocide convention was given a First Reading last Monday. I hope that this time the Government will give it time to proceed. The genocide convention and universal declaration are inextricably linked, but it was the UDHR that provided the benchmarks—the tell-tale signs—that disrespect for human rights, especially of minorities, could morph so easily into atrocity crimes and genocide.
In framing the UDHR, Eleanor Roosevelt, René Cassin, Charles Malik and others, some notably from smaller and less powerful nations, were a determined group of enlightened people who drew on many cultures, beliefs and faiths. Peng-chun Chang, the vice-chair of the drafting commission was deeply influenced by traditional Confucian Chinese concepts of human dignity, saying the task was to “subdue people with goodness”. This led to “a spirit of brotherhood” being added to Article 1.
The Chinese Communist Party might reflect on Chang’s insistence that the UDHR has universal application, not least as China has ignored at least 11 of the 30 articles in the UDHR in relation to Hong Kong. The CCP is also accused of genocide in Xinjiang—I refer to my non-financial interests in the register—while, perversely, as the noble Baroness, Lady Falkner, touched on, taking a place on the United Nations Human Rights Council. China’s blocking of a UN debate on the High Commissioner for Human Rights’ report on the situation in Xinjiang is a disgrace. Now that the FCDO has accepted a decision by a German court that a genocide took place against the Yazidis in 2015, does this mean it will now accept determinations made by other competent courts in the case of Uighurs, for instance?
In 1948, the principle of universality was agreed with no dissenting voices, although the Soviet bloc joined Saudi Arabia and apartheid South Africa in abstaining. Although in today’s world, with its dangerous axis of authoritarians and dictators, that consensus has been smashed to smithereens, the dictators—Xi, Putin, Kim, Khamenei and the rest—will not necessarily have the last word. The universal declaration has been and can be a touchstone for the sorts of grass-roots movements that toppled totalitarianism in eastern Europe, saw off apartheid, emboldened the civil rights movement of Dr Martin Luther King and, in much of the world, replaced colonialism with independence.
The UDHR also spurred religious leaders to reassess their place in a plural society with, for instance, the historic Catholic promulgation of Dignitatis Humanae in 1965, the 2016 Islamic Marrakesh declaration of more than 250 Muslim religious leaders, Heads of State and scholars, and Indonesia’s Nahdlatul Ulama. Today’s Article 18 of the UDHR, about the right to believe, not to believe or to change your belief, was framed against the backdrop of the Holocaust, and religious persecution is systematically honoured in the breach to this day, notwithstanding that declaration. Think, for instance, of the Uighur Muslims, Rohingya Muslims, Nigerian Christians, Iranian Baha’is, Falun Gong, Hazaras, Yazidis and other minorities. Think of the denial of rights to Afghan girls and women, the rape and violation of women in Sudan and Tigray—touched on by the noble Baroness, Lady Helic—and the bleak denial of justice in so many places.
Let me put some specific questions that, following the debate, perhaps the Minister can ensure receive answers. In the case of the Uighurs, will we join the French in trying to have the Security Council veto removed when recommendations for referral of atrocity crimes are laid before it? In the first instance, perhaps the UK should secure support in the General Assembly. Ten years ago, a commission of inquiry into human rights violations in North Korea found crimes against humanity, but fear of a Chinese or Russian veto has prevented a referral to the ICC. Meanwhile, in breach of the 1951 refugee convention, China forcibly repatriates hundreds of North Korean escapees; incarcerates in jail Zhang Zhan, the young woman journalist who asked the right questions about the origins of Covid-19; and holds in prison the British citizen Jimmy Lai and 1,200 pro-democracy prisoners in Hong Kong. Why has the Foreign Secretary not called for their release?
Perhaps the FCDO could also tell us why in August it mysteriously removed from its website the listing of Darfur among the previous genocides. I have recently raised questions concerning Afghanistan, Tigray and Nigeria, and I would be grateful if the Minister could ensure that they receive replies. Cases such as these demonstrate why the UDHR matters so much and why we need to breathe new life into it on behalf of those whose rights are violated.
Baroness Fox of Buckley (Non-Afl)
My Lords, I too welcome the aspiration of the noble Baroness, Lady Anelay, to use the 75th anniversary of the Universal Declaration of Human Rights to rejuvenate and promote its principles. However, this task faces some contemporary challenges.
One of the main legacies of the declaration is that human rights discourse is now so ubiquitous that it is possibly losing any meaning. In one recent school debate I was involved in on whether mobile phones should be banned in classrooms, the outraged pupils claimed that it breached their human rights to be denied access to social media. More seriously, we have an expansive transnational human rights industry with an endless array of lawyers, NGOs, commissions, consultants et cetera who certainly talk the talk. But my first concern is the danger that this ever-growing body of experts is discrediting human rights ideals among many voters by their disdain for democratic decision-making.
Because human rights claim to embody universal human dignity per se, they are often treated as sacrosanct and unchallengeable. Their adherents assume a high-handed, self-righteous, imperious manner, disdainful of the views, wishes and demands of national populations. In the UK we have seen legitimate attempts at changing how the country manages its asylum system run into the unyielding moral high ground of human rights walls, used to constrain elected legislators and limit the scope of the country’s political policy. But when human rights are used to undermine voters and national sovereignty, does that not betray the UDHR’s original 48 aims, conceived at a time in which self-governance of all sovereign nation states was itself embodied in principles of non-intervention and universal equality?
My second concern is the pick-and-mix approach to which human rights principles matter. I will give a couple of examples. When I first read the Online Safety Bill and realised that so much of it threatened free speech, I assumed the Chamber would be full of the usual human rights experts queueing up to cite Article 19, which states:
“Everyone has the right to freedom of … expression; this right includes freedom to … seek, receive and impart information and ideas”
of all kinds, either orally, in writing or print, or “through any media” of his choice. In the event, there was a resounding silence and empty Benches, even though the legislation tears up Article 19 as a principle. Similarly, the year before, when a mere handful of noble Lords raised problems with the assault on civil liberties associated with many lockdown regulations, with citizens confined to their homes and the elderly, disabled, sick and dying denied access to families et cetera, I assumed that the human rights industry would be up in arms. No. Zilch. More silence.
Such silence speaks volumes, none more shocking than in response to the 7 October anti-Jewish pogrom in Israel. This was particularly tragic and ironic as the UN declaration was precisely conceived in the shadow of the Holocaust, in which 6 million Jews were annihilated because they were Jews—a fact worth stating as polling reveals that a fifth of the young think the Holocaust a myth. Now that “never again” is now, you would expect the human rights community to leap into leading denunciations of the worst display of anti-Jewish bloodlust since the Nazi regime. But despite filmed evidence of Jews raped, beheaded, burned alive and worse, the UN human rights organisations stayed silent for almost two whole months before condemning Hamas’s gruesome butchery, and they remain tight-lipped about the remaining 130 hostages.
A few weeks ago there was a cartoon in the Yedioth Ahronoth newspaper depicting an Israeli woman in bloody and torn clothes, saying “Me too”, while a panel of three UN women were shown—one covering her ears, one her eyes, another her mouth. Shameful. Conversely, we must ask why the UN human rights organisations have been anything but silent about Israel’s alleged human rights violations in relation to Gaza, labelling the undoubted brutality and suffering caused by war—arguably a just war—as genocide of Palestinians, which is a misnomer. In doing so, human rights advocates relativise the specific meaning of genocide, reducing it to a meme, a placard, a slogan—too often deployed by western activists as an anti-Semitic slur against our Jewish fellow citizens.
How can we defend the UN human rights leadership, which only this year appointed the UN ambassador for the Islamic Republic of Iran to chair a UN conference on human rights, representing a country whose morality police violently assault and lock up brave Iranian women who dare show their hair in public? It is a country where you can be hanged for insulting the Prophet Muhammad and belittling the Koran. It is a brutal regime that, in the immediate aftermath of 7 October, celebrated the Hamas terrorist atrocities.
I am afraid that such selective double standards in terms of whose human rights deserve attention and whose we ignore undermine the principles of the UDHR. Some of the problem lies at the heart of the human rights industry. I suggest to the Minister that for the principles of the declaration to be promoted genuinely we must stop looking the other way when human rights are reduced to partisan weapons for politicised ends, and human rights advocates are sometimes the problem.
Lord Harries of Pentregarth (CB)
The Universal Declaration of Human Rights signed by the UN Assembly was a remarkable achievement. It is right that we should mark its 75th anniversary and I am so glad that the noble Baroness, Lady Anelay, has given us a chance to do so. The original agreement was signed by 48 nations, and now all 192 member states of the UN have signed in agreement with it. Despite terrible failures in implementation, it shows that there are human aspirations in common across political and cultural boundaries.
It is fashionable in some quarters to espouse different types of moral relativism, to think that values simply reflect a particular group, and in particular the power of that group in a world of perpetual conflict. But the UN declaration disabuses that. At its heart is the value of the individual and therefore the need to protect the life and liberty of every person, whoever they are, not least from the state. Although there was hugely significant input into the declaration from Church leaders and Christian sources, there was also influence from Confucian and other sources. As the noble Baroness, Lady Anelay, emphasised, a feature of this is the declaration’s universality. There is something to be celebrated still today because of having this universal standard and benchmark.
Against that, of course, we have to point out that the failures of implementation of this universal standard are massive. In far too many countries, as sketched out by the noble Lord, Lord Alton, who has been indefatigable in pursuing these issues, there are ghastly human rights violations—as so many debates in this House reveal.
What steps, as the noble Baroness puts it, are His Majesty’s Government taking to address this? First, I suggest that the Government should continue to draw attention to violations whenever and wherever they occur. Whatever the pressures of realpolitik, and whatever the necessity to continue trading with countries that have repressive regimes, they should not be allowed to forget their heinous crimes. It may not always be possible to build this into a trade agreement, although we should certainly try to do so—but at least to the country with which we trade it should be made quite clear what our view is.
More specifically, we should continue to support the International Criminal Court. Individuals, especially Heads of State and warlords, need to know that there is a body which will in the end hold them accountable. Connected with that, we should continue to pursue the regime of sanctions where it is justified, not least in relation to Russia, and where appropriate in response to the Magnitsky Act.
Furthermore, we should continue to support the universal periodic review, in which member states are given the opportunity to have their human rights record reviewed by their peers. Of course, this is taken up only by those states which take human rights seriously in the first place, but it is important for every country to show willingness. If you show such willingness, at least you are trying to indicate that you yourself might be blind to certain violations of human rights in your own culture. From the point of view of the authenticity and reality of our commitment, we need to do this, not least in relation to our own country.
Finally, there are many countries in the world where human beings are denied their basic rights, with ghastly things happening at the moment in Iran, and in China, which is a surveillance state, as well as in Russia and so on. But I end by mentioning one which sadly is not on the world’s agenda, but where there are massive violations: the occupation of West Papua by Indonesia. Why does not the world know about this? It is, quite simply, because Indonesia does not allow any NGOs or any press to go in—yet Indonesia has occupied that country for three or four decades, and massive human rights violations are going on in it about which the world does not yet know fully. Will His Majesty’s Government press the Indonesian Government to allow access to the UN commissioner for human rights to visit that country? The world needs to know what is happening there.
We celebrate this Universal Declaration of Human Rights, which needs to be reaffirmed in every generation, and lament the fact that there are still so many countries in the world that are in gross violation of it.
Lord Thomas of Gresford (LD)
My Lords, it is a great privilege to follow the passion of the noble and right reverend Lord, and to congratulate the noble Baroness, Lady Anelay, on securing this debate. It is a particular pleasure to recall that we were appointed to this place by Sir John Major some 27 years ago, and we are still fighting our corner.
On the day when the Universal Declaration of Human Rights was signed in Paris, the world was in turmoil. In China, the civil war was coming to an end as the United States began to waver in its support of Chiang Kai-shek. The communists won decisively the following year. The Cold War was in full swing, with the Berlin airlift on a clear day carrying 60,000 tonnes of material over the Iron Curtain. There was talk of a western union and of the creation of a European assembly. The North Atlantic pact was being negotiated. Palestine, following a war with Egypt, was in flames; a year earlier, following the end of the British mandate, the UK had abstained on the United Nations resolution for partition and a two-state solution. Only the Liberals were in favour.
It was the Liberal Member of Parliament, Frank Byers, on the return of Parliament after the Christmas Recess in 1949, who asked Mr Attlee what changes the Government proposed to make to bring British legislation into line with the declaration’s principles. Mr Attlee said that the declaration was an aspirational statement and not a legally binding covenant—but that
“at home and in the British Commonwealth we approach more nearly to reaching these ideals than does any other country in the world”.—[Official Report, Commons, 18/1/1949; col. 17.]
Lord Byers, as he became, was Leader of the Liberal Party in this House for many years. I remember him well, and his forthright Liberal principles can be heard today in the speeches of his grand-daughter, Lisa Nandy MP. In March 1949, subsequently, the Liberal Party assembly at Hastings passed a resolution endorsing and promoting the universal declaration, and it was the cornerstone of our manifesto in the 1950 general election.
While not creating international law in itself, the universal declaration became the basis of a number of legally binding conventions, including the European covenant of human rights. Perhaps the most apposite on this day, today, is the UN Convention relating to the Status of Refugees. The introductory note to the convention states in terms:
“Grounded in Article 14 of the Universal Declaration of human rights 1948, which recognizes the right of persons to seek asylum from persecution in other countries, the United Nations Convention relating to the Status of Refugees, adopted in 1951, is the centrepiece of international refugee protection today”.
Article 14 of the Universal Declaration of Human Rights simply states:
“Everyone has the right to seek and to enjoy in other countries asylum from persecution”.
The very first recital to the refugee convention reads as follows:
“Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination”.
There in that first recital is a full statement of the position. Article 16 of the convention proclaims:
“A refugee shall have free access to the courts of law on the territory of all Contracting States”
and
“the same treatment as a national in matters pertaining to access to the Courts, including legal assistance”.
Article 32 states:
“The expulsion of … a refugee shall be only in pursuance of a decision reached in accordance with due process of law … the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority”.
That is what the convention says. However, this Government would argue that the people coming over in boats are asylum seekers and not refugees—and they think that, if they act quickly enough, as this current Bill envisages, or if the hearing of asylum applications can be delayed for months or even years, asylum seekers can be parcelled off to another country before they get the protected status of refugees. Are these human beings enjoying fundamental rights and freedoms? I do not think so.
The legality of the Rwanda proposals is for a later date—and no doubt I shall enjoy sharing that debate with the noble Baroness, Lady Chakrabarti. But let us consider the morality of it. Is it compatible with the spirit of the universal declaration? Is it compatible with the long-held values of this country? I assert that the answer is a resounding no. On the 75th anniversary of the signing of the universal declaration, its fundamental principles are being violated in front of our eyes—and for what? Is it just an attempt to keep a failed Government in office? It is un-British—or, as they say in my part of the world, it is out of order—and this 75th anniversary reminds us why.
Lord Collins of Highbury (Lab)
My Lords, I too congratulate the noble Baroness, Lady Anelay, on marking Human Rights Day and the 75th anniversary of the Universal Declaration of Human Rights; it is really good that this Chamber has the opportunity to mark these important events. The declaration makes it clear that universal human rights are part of what it means to be human, not gifts granted by the state. As we have heard, the declaration is not formally binding on UN member states, but it did inspire the European Convention on Human Rights and, let us not forget, our own Human Rights Act. My noble friend Lady Chakrabarti and other noble Lords, including the right reverend Prelate the Bishop of Durham, are absolutely right to draw attention to the contradictions and tensions inherent in saying one thing and then doing something else.
It is important to understand that the UN, despite all its faults and all the problems, is an important part of our multilateral system. It deserves to be recognised as the place where we can raise our concerns about human rights violations and abuses. As we have heard, we are a member of the UN Human Rights Council, but there are other important forums where human rights can be raised, not least the General Assembly, ECOSOC and the Security Council, with all their imperfections, but also the UN Commission on the Status of Women. These are vital in terms of hearing voices in the international forums that are not necessarily heard. I pay tribute to the Government for leading debates at the HRC, and for raising issues and tabling resolutions concerning Syria, Sudan, South Sudan—the noble Baroness played a prominent part in those—and of course Sri Lanka. They have been incredibly important in tabling and voting on resolutions and in building a difficult consensus. It has not been easy, but we have been leading on that, including on Ukraine, Russia, Afghanistan and Iran.
I also pay tribute to the Government for ensuring that the mandate of the Independent Expert on Sexual Orientation and Gender Identity was renewed. That is very important. When the declaration was first signed, oppressing people because of their sexuality was very common. We made huge progress because we engaged in those forums, and we have led the way. The noble and right reverend Lord, Lord Harries, is absolutely right: one of the most important mechanisms of the HRC is the process of peer-led reviews. Universal periodic reviews help shine a light on those abuses. We live in an imperfect world and we cannot necessarily effect the change we want to effect; but shining a light and raising concerns, constantly reminding people of acting in bad faith, if you like, is very important.
Noble Lords have heard me say before that the ingredients of a healthy democracy are not limited to politicians and Parliaments: an active civil society is vital. When nations fail in their most important task of providing safety, security and freedom for their people, it is always civil society that leaps first to their defence. The Government’s integrated review committed to promote open societies and work with human rights defenders as a priority, but how is this priority being translated into action? July’s FCDO Human Rights and Democracy Report stressed the importance of civil society. I would like to know just how many Ministers have been involved in that recently; I hope the noble Baroness can tell us. How have Ministers engaged with civil society groups to support their role as guardians of human rights?
Another area I am always very disappointed about is the FCDO’s failure to even recognise the role of trade unions in defending human rights. They are vital not only in supporting changes in society, but also in protecting people. I certainly know that the previous Labour Government strongly supported trade unions’ international activities, and I hope the noble Baroness will respond on that.
Finally, I turn to the comments of the noble Lord, Lord Alton. Last Friday marked British citizen Jimmy Lai’s 76th birthday, but also his spending 1,073 consecutive days in prison. Of course, he is one of the most important defenders of human rights in Hong Kong and one of the most outspoken critics of the Chinese Communist Party. His trial may start next week, and I hope the noble Baroness can reassure this House that we will be closely monitoring it and making sure that a British citizen is not left alone.
Baroness Swinburne (Con)
My Lords, I have a large number of notes here, in the hope that I can do this debate justice by responding to as many noble Lords as possible. I thank my noble friend Lady Anelay of St Johns for getting this debate on the schedule in such a timely manner, celebrating this 75th anniversary, and for her extensive work on human rights over many years, as many in the Chamber have acknowledged. I also thank all noble Lords for their thoughtful contributions.
The Universal Declaration of Human Rights is the foundation stone upon which we have built an enduring framework of rights and freedoms—a framework for freedom, equality, opportunity and justice that provides agreed benchmarks to hold all states to account. As reinforced by my noble friend Lord Ahmad in his intervention at the UN in Geneva today, the Government put promoting and protecting human rights at the heart of what we do. That means working with allied countries, institutions and civil society to protect and bolster the international human rights architecture and advance our human rights priorities. My noble friend Lord Ahmad met with a large number of civil rights individuals—150, I believe—on Thursday of last week at a celebration event for this 75th anniversary. This means taking action in public and in private when states fail to live up to their obligations. It also means making sure that our development work and broader diplomacy strengthens human rights in our contested and fast-evolving world.
We publish an annual Human Rights and Democracy Report, which sets out actions we have taken to tackle key concerns and to advance human rights, with a particular focus on our 32 priority countries. These countries are where we judge we can make a real difference through long-term, determined and sustained engagement.
On the UN Human Rights Council, we remain one of the most active and influential states working within the international human rights architecture. The noble Baroness, Lady Falkner, made an important point about some of the issues of some council members. We use our influence: for example, we have isolated Russia in the system of late, particularly with regard to elections for the HRC. As my noble friend Lady Anelay said in her opening remarks, as leading members of the UN Human Rights Council, we have taken robust action to hold Russia to account for its actions in Ukraine and for repression at home. I say to the noble and right reverend Lord, Lord Harries of Pentregarth, and the noble Lord, Lord Alton of Liverpool, that we continue to call out wrongs. We have called out China for its treatment of Uighurs and democracy activists in Hong Kong, and we will continue to do so. Let me reassure my noble friend Lady Helic that we have led on resolutions establishing or removing UN accountability mechanisms for Syria, South Sudan and Sudan, among other states, as mentioned by the noble Lord, Lord Collins of Highbury.
We have broadened our human rights sanctions regime to punish those responsible for human rights violations in a range of priority countries. Indeed, if I consider some of the actions taken, in part through the ongoing and long-serving work done by my noble friend Lady Anelay, we have embedded human rights in all our gender equality and development work. Our international development White Paper sets out how we will continue to work with countries to protect human rights through peacebuilding and supporting justice and strong institutions.
Gender equality is one of our priority issues that sits at the nexus of our diplomacy and development work. We are pursuing the three Es outlined in our international women and girls strategy: educating girls, empowering women and girls by championing their health and rights, and ending gender violence. In response to the attempted rollback of the rights of women, girls and LGBT+ people in many parts of the world, we have sanctioned 15 individuals and entities during the last year alone for gender-based violence and acts of sexual violence in conflict. We are also working with countries such as the United Arab Emirates to secure a UN Human Rights Council resolution on girls’ education and climate change.
Trade was raised by a number of noble Lords. We are increasing the debt and poverty partnerships to enable the UK to achieve positive human rights impacts. For example, seeking to establish and secure growing trade relationships increases the UK’s influence and facilitates open conversations. We therefore raise human rights concerns during these conversations to ensure that our trading agreements continue to promote and protect rights.
In response to my noble friend Lady Anelay, the Government’s overseas security and justice assistance policy and guidance provide that rigorous assessment of whether UK engagement may contribute to a violation of human rights or international humanitarian law prior to any justice or security sector assistance being provided. I can reassure my noble friend that the guidance will be updated shortly and will reflect the views of a broad range of shareholders.
A number of noble Lords raised attacks on human rights in conflict zones. We have also prioritised support for accountability mechanisms. The UK-led referral of the situation in Ukraine to the International Criminal Court was the largest in the court’s history. We are also supporting Ukrainian war crimes investigators, and we are working with the International Court of Justice and the International Criminal Court to prevent atrocities and hold perpetrators to account in Ukraine and elsewhere.
I shall try to answer some of the very diverse questions that noble Lords have put. My apologies if I do not reach all of them; if I do not, I pledge that we will write so that noble Lords can have the detailed answers that all the questions deserve.
I say first to the noble Baroness, Lady Falkner, that the UK has a long-standing tradition of ensuring that rights and liberties are protected, and of abiding by the rule of law, both domestically and internationally. We do not believe it is necessary to leave the ECHR in order to deliver on our major priorities, including tackling illegal immigration.
Baroness Falkner of Margravine (CB)
I am sorry to interrupt the noble Baroness’s flow, but I want to make it very clear and put on the record that I never advocated leaving. I suggested that the UK Government might consider what else they could do to expand the universality of human rights.
Baroness Swinburne (Con)
I certainly did not mean to mislead the House in any way over those comments. There is clear agreement that we believe the ECHR is delivering at this point in time, although there are always improvements that can be made.
On what the noble Baroness, Lady Chakrabarti, said about Rwanda, I am sure that we will have a very long debate as soon as the Bill comes to this House and that those issues will be raised. In the interests of time, I do not have much I can go into tonight, but it is fair to say that it has always been important to both Rwanda and the UK that our rule of law partnership meets the highest standards of international law, and it places obligations on both the UK and Rwanda to act lawfully. It is really important that the Rwanda partnership and the Illegal Migration Act will deliver the changes necessary to take away the incentive for people to risk their lives through illegal crossings, while complying at all times with international obligations.
I defer to the right reverend Prelate the Bishop of Durham’s extensive knowledge of Rwanda, but the Box has prepared some remarks for me regarding the state that Rwanda is currently in. I can assure him that we are committed to upholding human rights everywhere, including in countries that we work closely with. Rwanda, of course, is deemed a safe and secure country with respect to the rule of law. It is a state party to the 1951 UN refugee convention and the seven core UN human rights conventions. The migration partnership fully complies with all national and international law, including the UN refugee convention and the European Convention on Human Rights. With all international partnerships we have thorough, ongoing dialogue in which we will raise concerns, including on topics such as human rights. Our close co-operation with Rwanda on a range of issues, including climate, development and the Commonwealth, enables us to raise these concerns at the highest levels.
I turn to the comments from the noble Lord, Lord Alton of Liverpool, regarding human rights in China in particular. It is really important to stress that we have led international efforts to hold China to account on its human rights violations in Xinjiang. We were the first country to lead a joint statement on China’s human rights record there at the UN, and our leadership has sustained pressure on China to change its behaviour. There were a number of other questions from the noble Lord that we will follow up in detail in writing.
I will write to the noble and right reverend Lord, Lord Harries, about Indonesia. There is nothing in my pack on it, and I am afraid we did not have a chance to respond in the time we had, but I appreciate him raising it in the House and we will certainly do what we can to follow up in writing.
The noble Baroness, Lady Fox, raised the current situation in Gaza and Israel. I understand her frustration. Hamas can have no future in Gaza after its appalling terrorist attacks. It must release all hostages without delay, stop endangering the lives of Palestinians, and surrender them. Together with the US, the UK has targeted Hamas with a new tranche of sanctions in an effort to disrupt the group’s acts of terror. As the Prime Minister has said, we must work with our allies to provide the serious, practical and enduring support needed to bolster the Palestinian Authority.
On the other side of that coin, Israel, of course, has a right to defend herself. The Foreign Secretary has been clear that Israel’s actions must comply with international humanitarian law and that it must take every step to minimise harm to civilians. The Prime Minister has pressed Israel to ensure that its campaign is targeted against Hamas fighters and military objectives. The Foreign Secretary discussed this with the Israeli President during his recent visit.
There are, no doubt, some other questions that I have not got to, but I have 10 seconds to conclude. The 75th anniversary of the UN’s universal declaration falls at a significant juncture in the protection and promotion of human rights. After decades of progress, increased authoritarianism is a growing threat to human rights, and at a time when we face the greatest challenges in a decade, from ever more complex forms of conflict to far-reaching technological developments, the principles enshrined in the universal declaration—freedom, equality, opportunity and justice—provide the right path to navigate these new challenges, which is why the Government work relentlessly in support of human rights and remain as committed to the universal declaration today as our predecessors were on the day they signed it.
Baroness Falkner of Margravine (CB)
My Lords, before the Minister sits down, I am afraid I must insist on clarifying the remarks she has attributed to me. I intentionally did not go anywhere near the European Convention on Human Rights. I spoke only in broad terms about the Universal Declaration of Human Rights—in other words, the UN’s founding document. I want to put it on the record that I said to the House—and I think Hansard will confirm it—that I was not going to get into current controversy. I want to make that very clear.
Baroness Swinburne (Con)
That is totally understood. I will make sure that the record reflects that.