Investigatory Powers (Amendment) Bill [HL]

Consideration of Commons amendments
Tuesday 23rd April 2024 Lords Chamber

Commons Amendments

Relevant document: 18th Report from the Delegated Powers Committee

15:23

Motion on Amendment 1

Moved by

[Lord Sharpe of Epsom]

That the House do agree with the Commons in their Amendment 1.

1: Clause 11, page 31, line 36, leave out “a court or tribunal” and insert “the Investigatory Powers Tribunal”

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom)]

My Lords, with the leave of the House, I will also speak to Amendments 2 to 17.

The Investigatory Powers (Amendment) Bill has returned to us in good shape thanks, in great part, to the expert input of noble Lords when we first considered the Bill. The Government have therefore made only a small number of amendments to the Bill in the other place, which we will consider today.

Clause 11 ensures that there is clarity for tele- communications operators operating within the IPA framework, as to which regulatory body certain personal data breaches should be notified to. It also provides a statutory basis for the Investigatory Powers Commissioner to be notified of such breaches.

Amendments 1 and 2 update this clause to provide a clear route to redress for those impacted by personal data breaches committed by telecoms operators. They ensure that the Investigatory Powers Tribunal has the jurisdiction to consider and determine complaints about such breaches, within the context of the use of investigatory powers, and grant a remedy.

Turning to Amendments 15 and 16, noble Lords will recall that the Government accepted several amendments tabled by the noble Lord, Lord West of Spithead, on Report in relation to the alternative triple lock process for warrants which enable the intelligence agencies to acquire the communications of parliamentarians. As I set out at the time, while the Government agreed with the bulk of these amendments, our view was that we would need to clarify one relatively small aspect. The inclusion of “routine duties” was overly restrictive and would have undermined the resilience of the triple lock process that these clauses seek to safeguard. Amendments 15 and 16 therefore replace this with “relevant operational awareness” to ensure the necessary flexibility and resilience while maintaining a proportionate scope for delegation.

I turn now to Amendments 3 to 6, which make changes to Clause 14. This clause concerns the restoration of specified public authorities’ general information powers to secure the disclosure of communications data from a telecommunications operator by compulsion. These amendments do not create new powers for these bodies. These amendments limit the restoration of the powers to those public authorities already listed in Schedule 4 to the IPA and those in new Schedule 2A.

Bodies in Schedule 4 to the IPA may use powers within the IPA to acquire communications data for the statutory purposes within the Act. Therefore, it is right that they are also able to use their existing statutory regulatory and supervisory powers outside the IPA in support of their statutory functions, provided there is no intention to use the communications data for the purpose of investigating or prosecuting a criminal offence.

The creation of new Schedule 2A ensures that those bodies which are not in Schedule 4 but have a clear requirement to utilise their existing supervisory and regulatory powers can continue to do so, such as His Majesty’s Treasury in respect of the sanctions regime. This schedule can be amended in future via a new delegated power, ensuring continued parliamentary oversight of which bodies are included.

Once again, I would like to thank the noble Lord, Lord West of Spithead, and members of the Intelligence and Security Committee for their engagement on improving this clause. I hope that noble Lords will agree that the amendments provide greater clarity and ensure that Parliament has oversight of the bodies to which the relevant powers can be restored.

Finally, Amendments 7 to 14 make minor and technical changes to Clause 21 on notification notices, ensuring consistency in language across the Investigatory Powers Act. Amendment 17 removes the privilege amendment inserted by the Lords and is procedural. I beg to move.

[Lord Fox (LD)]

My Lords, when I heard that the Government were bringing forward amendments to this Bill in the Commons, I was somewhat suspicious, but I am pleased to say that it seems, after yesterday, the Minister has migrated to a slightly calmer situation today, as the amendments in front of us are all amendments that we can pass without too much ado. Amendments 3 to 6 are useful clarifications of where we should be; the Commons has done a good job in clarifying that area and that should be noted. I am sure that Amendments 15 and 16 will be an understandable change to the original amendment of the noble Lord, Lord West. I would like again to thank the Minister and the Bill team for their openness and their help in working through these amendments and, of course, the previous Bill. With that, we on these Benches are happy to accept these amendments.

[Lord Coaker (Lab)]

My Lords, once again, I thank those in the intelligence community who defend our country. I thank all MPs and Peers from both Houses for their dedicated scrutiny of the Bill, which we fully support. As the noble Lord outlined, it is a good Bill that has been improved by your Lordships’ scrutiny, and it benefited from starting in your Lordships’ House before it went to the other place. I thank—as did the noble Lord, Lord Fox—the Bill team for their work and for their genuine engagement with us as the Bill progressed. I thank the noble Lord, Lord Anderson, for the detailed report that he did, which led to much of what we see in the Bill, and it is good to see the noble Lord in his place.

15:30

We support the various amendments that the Minister outlined. I welcome the changes made to Clause 11 ensuring that the Investigatory Powers Tribunal is able to consider and determine complaints about personal data breaches. Clause 14 has also been improved after input from my noble friend Lord West in this Chamber and colleagues from across Parliament. While we all accept that updating the Investigatory Powers Act to reflect changes in threats and technology is necessary, any additional or broadened powers granted must be proportionate and have a clear structure of scrutiny and accountability. That is especially true when the Government are proposing that those powers be extended to those outside the intelligence community. It is therefore right that the powers of public authorities to obtain disclosures of communications data under Clause 14 have been limited to the Treasury and local authorities, while the Government retain the flexibility of being able to modify this list.

I have a couple of questions about that. What does “The Treasury” include? Does it include all the various agencies of the Treasury? Similarly, could the Minister detail what “local authority” includes? My understanding is that it does not include town councils, but I wonder whether the Minister could clarify whether it includes all other tiers of local authority. What about regional mayors and police and crime commissioners, or is that something the Government would consider looking at in future? Are they able to do so under the provisions of the Act? It is regrettable that the power to amend the list of public authorities is not subject to the affirmative procedure. I hope the Minister can give us some assurance that there will be the opportunity for Parliament to debate changes to any of this.

The Government have made changes to my noble friend Lord West’s amendments, which were accepted on Report in this House, regarding the interception and examination of communications of Members of Parliament and others. These changes retain the intention of my noble friend’s amendments and, as such, we are happy to accept them. Again, we welcome the way in which the Government have engaged with my noble friend to come to a compromise on this issue.

There is one point that it would be remiss of me not to mention, particularly with my noble friend Lord Murphy and others sitting here. I say to the Government once again that there is a need for the role of the Intelligence and Security Committee to be considered, along with whether the terms of reference for that committee need updating in light of the various changes we have seen and the various extensions of responsibilities to other government departments. I know that is outside the scope of the amendments before us, but it would be remiss of me not to mention an extremely important thing that needs to happen as soon as possible.

Lastly, I wonder whether the Prime Minister has found time to meet the Intelligence and Security Committee yet.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who were involved in the passage of the Bill. I restate my thanks to the intelligence agencies and law enforcement for their contributions to the Bill and of course for the work they do every day to keep this country safe.

I have to say to the noble Lord, Lord Coaker, that I genuinely thought that I had got away with being the Prime Minister’s diary secretary for once. I am afraid the answer is that I have not.

I thank both noble Lords for their appreciative comments about the Bill team and indeed about the Government. We have tried hard to engage to make the Bill as good as it can be, and by and large I think we have succeeded.

I shall address the specific points that were raised. The noble Lord asked about His Majesty’s Treasury and local authorities. New Schedule 2A has been created to provide Parliament with further clarity on which public authorities will have their regulatory and supervisory information-gathering powers restored by Clause 14. That follows concerns raised by the noble Lord, Lord West, and other members of the ISC.

We are aware that His Majesty’s Treasury and local authorities in particular require legal certainty on the exercise of their pre-existing statutory powers in respect of their supervisory and regulatory functions. Other bodies which have been affected by the revocation of powers by Section 12 of the IPA, such as His Majesty’s Revenue and Customs and the Financial Conduct Authority, are already listed in Schedule 4 as they are able to acquire communications data in support of their criminal investigations under Part 3 of the IPA. There will be other public authorities which have pre-existing information-gathering powers in respect of their supervisory and regulatory functions, but it has not been possible to establish a complete list at this time; instead, we have created a new delegated power to add further bodies to Schedule 2A as necessary.

On the specific questions asked by the noble Lord, Lord Coaker, the existing definition of “local authority” as found at Section 86 of the IPA applies in respect of the communications data acquisition powers under this Act, so it is not mayors. I have, helpfully, been sent what “local authority” means and I will read it into the record. It is a district or county council in England, a London borough council, the Common Council of the City of London in its capacity as a local authority, the Council of the Isles of Scilly, a county council or borough council in Wales, a council constituted under Section 2 of the Local Government etc. (Scotland) Act 1994 and a district council in Northern Ireland. In terms of the Treasury and what that involves, it is the Treasury and its arm’s-length bodies.

The noble Lord also asked why we are using the negative procedure, rather than an affirmative one, to add new bodies to Schedule 2A. These amendments limit the effect of Clause 14 and will afford Parliament greater scrutiny than under the original drafting. The House did not object to the original drafting, so I hope we will welcome the additional parliamentary oversight that the amendments provide. As the process will focus solely on ensuring that pre-existing statutory powers can be effectively exercised, an affirmative procedure would be disproportionate. This is because the appropriate in-depth parliamentary scrutiny will have already occurred when relevant bodies were given their statutory responsibilities in the first place. The negative procedure is more appropriate as it allows for additions to be made to the schedule swiftly to ensure that existing statutory powers are not unduly inhibited from being exercised. Since the information-gathering powers are necessary for these bodies to fulfil their regulatory and supervisory functions, any delay could hinder a body from operating effectively. These reinstated powers will be available only where there is no intention to use that data for the purposes of investigating or prosecuting a criminal offence.

The Bill will help our intelligence agencies and law enforcement agencies keep pace with developments in technology and changes in the threat landscape. They will help to make the UK a safer place. I remain hugely grateful for their work, and I hope that noble Lords will see fit to agree to the handful of Commons amendments before us today.

Motion on Amendment 1 agreed.

Motion on Amendments 2 to 17

Moved by

[Lord Sharpe of Epsom]

That the House do agree with the Commons in their Amendments 2 to 17.

2: Clause 11, page 32, line 19, at end insert—
“(1A) In section 65 of the Regulation of Investigatory Powers Act 2000 (the Tribunal)—
(a) in subsection (2), after paragraph (b) insert—
“(ba) to consider and determine any complaints made to them which, in accordance with subsection (4AA), are complaints for which the Tribunal is the appropriate forum;”;
(b) after subsection (4) insert—
“(4AA) The Tribunal is the appropriate forum for a complaint if it is a complaint by an individual about a relevant personal data breach.
(4AB) In subsection (4AA) “relevant personal data breach” means a personal data breach that the individual is informed of under section 235A(5) of the Investigatory Powers Act 2016 (serious personal data breaches).”
(1B) In section 67 of the Regulation of Investigatory Powers Act 2000 (exercise of the Tribunal’s jurisdiction)—
(a) in subsection (1)(b), after “65(2)(b)” insert “, (ba)”;
(b) in subsection (5)—
(i) the words from “section” to the end become paragraph (a), and
(ii) after that paragraph insert “, or
(b) section 65(2)(ba) if it is made more than one year after the personal data breach to which it relates.”;
(c) in subsection (6), for “reference” substitute “complaint or reference has been”.
(1C) In section 68 of the Regulation of Investigatory Powers Act 2000 (Tribunal procedure), for subsection (8) substitute—
“(8) In this section “relevant Commissioner” means—
(a) the Investigatory Powers Commissioner or any other Judicial Commissioner,
(b) the Investigatory Powers Commissioner for Northern Ireland, or
(c) the Information Commissioner.””

3: Clause 14, page 34, line 14, after “exercise” insert “by a specified public authority”

4: Clause 14, page 34, line 26, at end insert—
“(5A) After subsection (5) insert—
“(5A) In this section “specified public authority” means a public authority which is—
(a) listed in Schedule 2A, or
(b) listed in column 1 of the table in Schedule 4.
(5B) The Secretary of State or the Treasury may by regulations modify Schedule 2A by—
(a) adding a public authority to, or
(b) removing a public authority from, the list in that Schedule.””

5: Clause 14, page 35, line 6, at end insert—
“(6A) In section 267 of the Investigatory Powers Act 2016 (regulations), in subsection (5), after paragraph (a) insert—
“(aa) regulations under section 12(5B),”.”

6: Clause 14, page 35, line 6, at end insert—
“(6B) In the Investigatory Powers Act 2016, after Schedule 2 insert—
“SCHEDULE 2A
SPECIFIED PUBLIC AUTHORITIES FOR THE PURPOSES OF SECTION 12
1 The Treasury.
2 A local authority.
In this Schedule “local authority” has the same meaning as in Part 3 (see section 86).””

7: Clause 21, page 45, line 7, leave out first “person” and insert “relevant operator”

8: Clause 21, page 45, line 8, leave out “person’s” and insert “relevant operator’s”

9: Clause 21, page 45, line 29, at end insert—
““relevant operator” has the same meaning as in that section.”

10: Clause 21, page 45, line 35, leave out “notice, as varied,” and insert “variation”

11: Clause 21, page 46, line 2, leave out first “person” and insert “relevant operator”

12: Clause 21, page 46, line 2, leave out second “person” and insert “relevant operator”

13: Clause 21, page 46, line 5, leave out “person” and insert “relevant operator”

14: Clause 21, page 46, line 6, leave out “person” and insert “relevant operator”

15: Clause 22, page 47, line 17, leave out from “and” to end of line 19 and insert—
“(b) has the necessary operational awareness to decide whether to give approvals under subsection (2).”

16: Clause 23, page 48, line 15, leave out from “and” to end of line 17 and insert—
“(b) has the necessary operational awareness to decide whether to give approvals under subsection (3) or (6).”

17: Clause 33, page 56, line 1, leave out subsection (2)

Motion on Amendments 2 to 17 agreed.