Draft Investigatory Powers Act 2016 (Remedial) Order 2023
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The Minister for Security (Tom Tugendhat)
I beg to move,
That the Committee has considered the draft Investigatory Powers Act 2016 (Remedial) Order 2023.
It is a pleasure to serve under your chairmanship, Mr Hosie. The order was laid before the House on 18 October 2023. Maintaining our national security and keeping the public safe is a priority for the Government. The Investigatory Powers Act 2016, or the IPA, provides extensive and robust privacy safeguards in relation to investigatory powers. We rightly have world-leading standards in place on transparency, privacy, redress and oversight to accompany the exercise of these important powers.
The order will make necessary amendments to the IPA following the judgment of the Grand Chamber of the European Court of Human Rights in May 2021 in the case of Big Brother Watch and Others v. the United Kingdom, which I will refer to as BBW. The Grand Chamber ruling related to the bulk interception regime under the Regulation of Investigatory Powers Act 2000, known as RIPA, which was was the predecessor to the IPA. The Grand Chamber found that there were violations of articles 8 and 10 of the European convention on human rights, which I will refer to as “the convention”.
Although most of the incompatibilities were addressed through the introduction of the IPA, one further change required primary legislation to implement. To be compliant with article 10 of the convention, the IPA’s bulk interception regime needed to include a requirement for prior independent authorisation for the use of criteria to select intercepted material for examination. Such a requirement applied where a purpose of the search was to find confidential journalistic material or information that could identify a source of journalistic material. The requirement also applied to searches carrying a high likelihood of confidential journalistic material or sources of journalistic material being selected for examination.
Finally, prior independent authorisation is also required for the retention of items containing confidential journalistic material or sources of journalistic material. Bulk interception warrants authorised the interception in bulk of communications. That material is then retained for the minimum amount of time necessary for the authorised purposes. Criteria are used to search through that material to find material useful for operational purposes. Useful material is then retained for the minimum amount of time necessary for the authorised purposes. It is the use of these criteria that will require judicial authorisation if a purpose of using them is to identify confidential journalistic material, or to identify or confirm a source of journalistic material, or if the use of them is highly likely to lead to such outcomes. Currently, section 154 of the IPA, which covers the journalistic safeguards for bulk interception, requires only that the Investigatory Powers Commissioner be informed if material thought to contain confidential journalistic material or sources of journalistic material is retained following examination for a purpose other than its own destruction.
There are additional safeguards in the interception code of practice that require the relevant intelligence agency to seek the agreement of a senior official within a warrant-granting department before the agency may select material for examination in order to identify or confirm a source of journalistic information. This remedial order therefore strengthens the existing safeguards. It does this by requiring that approval from the Investigatory Powers Commissioner be obtained before any criteria are used, with the purpose of that being to select material for examination that is confidential journalistic material or a source of journalistic material or where it will be highly likely to do so. The retention of confidential journalistic material or sources of journalistic material must also be authorised by the Investigatory Powers Commissioner. There is also an urgency provision, which I will come to later. [Interruption.] It is an honour to see my hon. Friend the Member for Gloucester.
It is necessary that the Government make this change to the IPA, so that our intelligence agencies can maintain their ability to carry out bulk interception. It is an important operational tool, used to identify threats to national security—it was recognised by the Grand Chamber as such—tackle serious crimes and maintain the United Kingdom’s economic wellbeing.
The Investigatory Powers Commissioner already provides oversight of confidential journalistic material and sources of journalistic material obtained under bulk interception, but legislative change is needed to mandate those safeguards within the IPA. Failure to amend the IPA could result in applications for bulk interception warrants being refused.
The draft remedial order will reform three different areas of the IPA, by amending section 154, inserting proposed new section 154A, and making a minor amendment to section 229(8). The amendment to section 154 will introduce enhanced safeguards relating to the criteria used to select material for examination that will identify confidential journalistic material, or identify or confirm sources of journalistic material derived from material acquired through bulk interception. The permission of the Investigatory Powers Commissioner will be required before such material can be purposefully selected for examination, or knowingly retained for a purpose other than destruction.
Proposed new section 154A introduces an urgency process for dealing with requests that need to be approved out of hours for authorisations to use criteria to select material for examination. Such authorisations will be subject to subsequent judicial authorisation if the relevant condition is met. Activity must cease if that is not the case, so urgent applications will still be subject to rigorous judicial scrutiny.
The amendment to section 229(8) is a consequential amendment that includes references to the new functions of the Investigatory Powers Commissioner in section 154 and proposed new section 154A, so that they are treated consistently within the IPA. Section 229(6) and (7) require judicial commissioners not to act in a way that is contrary to the public interest, national security, the prevention or detection of serious crime, or the economic wellbeing of the United Kingdom. Subsection (8) then disapplies that requirement when the judicial commissioner is exercising various functions, such as considering whether to approve the authorisation of a bulk interception warrant.
Section 229(8) is amended by this draft statutory instrument to include decisions by the judicial commissioner under section 154, as amended, and proposed new section 154A. That is consistent with similar judicial commissioner functions in other parts of the IPA, and ensures that judicial commissioners can exercise their functions properly.
In summary, the changes will ensure that the United Kingdom is meeting its obligations under the convention and that the bulk interception regime is compliant with article 10 of the convention. The changes will also further strengthen the privacy safeguards contained in the IPA, in line with the BBW judgment, while continuing to give our intelligence agencies the powers and flexibility to keep our country safe. I commend the draft order to the Committee.
Tom Tugendhat
I am grateful to the Labour and SNP spokesmen for their comments, especially my friend the hon. Member for Barnsley Central, who correctly set out the reason why oversight is so important. It is right to place on the record my extreme gratitude to journalists in this country who, correctly, see their role as one of the guardians of our unwritten constitution. It is essential that we maintain the integrity of our political process, and journalism—good journalism—is part of doing that.
The hon. Gentleman tempts me to take various other lines, and of course it would be wrong of me not to praise the Scottish Conservatives, who have made such a fantastic impact on our national life, and who I look forward to seeing returned in much greater number after the coming election.
The Chair
Tom Tugendhat
I pay huge tribute in particular to Viscount and later Earl of Kilmuir, David Maxwell Fyfe, who was not only the first Home Secretary to have MI5 reporting to him rather than the Prime Minister, but one of the principal drafters of the European convention on human rights and a key individual in building the post-war order, in which British justice was used as the template for a new European convention.
Richard Graham (Gloucester) (Con)
Does this remedial order and its compliance with the ECHR worry or reassure allies with whom we share intelligence?
Tom Tugendhat
When we make it clear that the work we do, necessarily in secret, is supervised and checked against a legal basis, it hugely reassures our friends and partners. It assures them as well that we are not just a partner to be trusted, but a partner with which intelligence can be shared very freely, because of the clear legal oversight. This is a strong element in building the security and building up the trust that we need to keep our people safe. I commend the order to the Committee.
Question put and agreed to.