Product Regulation and Metrology Bill [HL]

Lord Fox Excerpts

Committee stage
Wednesday 11th December 2024 Grand Committee

Finally, I shall briefly comment on Amendment 53. I commend the noble Lord in using the words “large language models”; they are not artificial intelligence. The amendment stresses that these are being rushed in with great environmental impact, as the noble Lord said. They are potentially reshaping our entire physical world as well as our virtual world. It is really important that we have regulation on how that reshaping happens.

[Lord Fox (LD)]

My Lords, I shall be brief and start with Amendment 79. We could join in the chorus of approval and my noble friend Lady Brinton could come up with dozens of examples that justify the noble Lord’s amendment but, in the interests of time, we will not. If noble Lords would like more examples, I am sure my noble friend could provide them. We very much support Amendment 79.

I commend the noble Lord for persuading the Public Bill Office to allow him to table Amendment 53. The spirit is very much met. Given the nature of all the digital Bills, with which he is completely familiar, I suspect this is an argument we will have again and again in those Bills. The spirit is correct.

I want to say a few words on Amendment 52 which are different from the words noble Lords have heard. I sit on the International Agreements Committee and we look at the CPTPP trade deal. Rules of origin are central to all this. The nature of CPTPP is that, for example, a product built in Malaysia can start to move freely within the countries that are signatories to that trade deal. Whether we have the details of the components of that product before it starts moving around our alliance depends on His Majesty’s Government asserting their right to know what is in those products. Whether the Government like it or not, in this Bill, with their signing of the CPTPP, they are going to have to start to interest themselves in a detailed way on what is in the stuff travelling around the CPTPP.

Why is that? One of the biggest exporters of components into Malaysia is China. That brings us back to the whole China question, which I will not repeat here. If, for example, we find that that country is the subject of either embargo or tariff, we will really have to know what is going on in all those products. So it makes a lot of sense, from the very start, for the department to flex its muscles and develop its skills to understand the supply chains of the things coming through people’s doors every day, courtesy of the large online retailers.

When a piece of electrical stuff comes through our door, we have absolutely no idea what is in it, where it was made and its safety for our families. We cannot know that without knowing the supply chain and the rules of origin of what is moving around our country. It is difficult, of course, but it is something in which we will have to increasingly interest ourselves.

--- Later in debate ---

[Lord Leong (Lab)]

My Lords, I thank all noble Lords who have spoken in this debate, and I specifically thank the noble Lord, Lord Holmes, for his amendments. During the second day in Committee, the noble Lord illustrated his knowledge of and passion for the subject of AI.

I turn first to Amendment 53 on the review of large language models. We have already discussed the intersection or interaction between this Bill and AI in a previous group, and I will briefly restate some of the key points I made in that debate which are relevant here. Evidently, the use of AI in products is still in its infancy. How exactly this technology will develop remains to be seen, but we have drafted the Bill in such a way that it keeps pace with technological change; Clause 2(2)(a) allows regulations to take account of intangible components of a physical product.

However, the Bill does not and will not regulate digital products or artificial intelligence in and of themselves. Instead—I hope this reassures the noble Lord, Lord Holmes—the Government are developing a wider policy around AI, which I am sure will take into consideration proposals for AI safety legislation as announced in the King’s Speech. I recognise that noble Lords keenly anticipate the detail of these proposals, so I assure your Lordships that my noble friend Lady Jones will update the House in due course.

The Office for Product Safety & Standards is considering the use of AI in products and the regulatory challenges for product safety associated with that. We are just at the start of that process but know that it will become more important as technologies develop. I will ensure that the House is kept up to date with progress on this work.

Amendment 52 addresses product traceability and responsibilities within supply chains, including digital supply chains. I agree with noble Lords that it is essential that those responsible for producing or importing products are identifiable. Existing regulations already require relevant supply chain parties to maintain necessary documentation for tracing product origins and, as we consider updates to product requirements, we will also review these traceability provisions to ensure that they are fit for purpose. The noble Lord, Lord Fox, mentioned CPTPP, which in fact comes into force this Sunday when the UK becomes a full member. I suppose we will just have to review the application of this whole supply chain and traceability, and monitor how it goes.

[Lord Fox (LD)]

I thank the Minister, but perhaps there is another of his letters here—for which I also thank him. The CPTPP is not like the European Union—there is not a secretariat overseeing what is going on. If you think something wrong is going on, it is up to the Government to raise it. It would be useful to know how the department is now going to police or at least find out what it needs to deal with. Otherwise, it is essentially transparent.

[Lord Leong (Lab)]

I totally agree with the noble Lord. I will ensure that officials in the department look into this and either write to him or have a meeting on this.

Over the coming year, our priority will be continuing to address the sale of unsafe goods on online marketplaces—an area that noble Lords are right to highlight and on which they have demonstrated extensive knowledge and passion in the best traditions of this House. As outlined in the Government’s response to the product safety review consultation, we will also explore digital solutions, including the use of voluntary digital labelling, to streamline business processes and support authorities in monitoring product safety.

However, it should be noted that issues of traceability are much broader than ensuring the safety or proper functioning of products. This would bring in myriad other policy issues, such as the nature of global supply chains and cross-border jurisdictional arrangements. I believe that noble Lords would agree that these issues warrant careful discussion and debate, but they are distinct from the Bill’s purpose of ensuring the safety and functionality of products.

Amendment 79 relates to the creation of a mandatory inclusive-by-design standard. I am pleased to inform the noble Lord that the British Standards Institution has already developed and published a British Standard that provides guidelines for the adoption of an inclusive approach to the design of products. The standard sets out a strategic framework and processes to enable business executives and design practitioners to understand that inclusive design should be a core organisational driver.

I refer back to the example the noble Lord, Lord Holmes, gave of credit card payments. We have come a long way, but I still remember those zapping machines that zapped your credit card and you had to sign the receipt. That obviously creates a lot of situations where fraud can happen. Then we had the PIN, and nowadays contactless. I have been reading some articles before today’s debate, and some of the financial institutions are looking at mobile wallets, whereby an encrypted account number is embedded within the wallet itself. But these are early days, so we have to keep watching this area and see how it develops.

Furthermore, an updated version of the ground-breaking, government-sponsored, fast-track standard on inclusive data use in standards was published by the BSI in August this year and is free to download. This helps standards makers to work with data with inclusion in mind so that the standards produced are representative and include communities that are traditionally excluded, helping to minimise harm and deliver more robust products. Standards are voluntary in nature and the Bill, as with our current product safety regulations, continues to allow the use of standards to remain voluntary, avoiding potential barriers to trade.

I hope that the noble Lord is satisfied with the explanations given today and that the amendment will be withdrawn.

Product Regulation and Metrology Bill [HL]

Lord Fox Excerpts

Committee stage
Wednesday 27th November 2024 Grand Committee

[Lord Foster of Bath (LD)]

I rise briefly to support the amendments in the name of the noble Baroness. I also draw the Minister’s attention to the fact that when I moved Amendments 2 and 27 in an earlier group, on the issue of installation, I pointed out that in respect of the potentially very dangerous lithium-ion batteries used in EV charging-point systems, for example, and solar panel array storage batteries, there is currently no requirement on the competent person scheme individual who is installing those systems to notify relevant authorities of the installing of those batteries.

I pointed out at the time that lithium-ion batteries, about which we will no doubt speak a great deal when we come to group 5, can create huge fires at high temperatures and very toxic gases; I also pointed out that, crucially, they cannot be put out by the use of water. That is why it is so important that the relevant authorities, particularly the emergency services, are aware of the current location of such devices. The current arrangements require the individual house owner to make such a notification. My amendment argued that it should be the responsibility of the installer not only to check on the safety of the entire system but to make that notification. For that reason, I am particularly supportive of the noble Baroness’s amendment.

[Lord Fox (LD)]

My Lords, had I been a little shrewder on the grouping, I would have included in this group Amendment 106, which we will debate in the antepenultimate group of the Bill, as it also addresses Clause 7 and goes after the same objective of information sharing. Whether it is lithium-ion batteries or some other danger, it is important that we learn from the problems that are established and that the right people can get that information, so that learning process can start.

I suggest that, whether it is the process set down by the noble Baroness, Lady Finlay, which we support, or something like my Amendment 106, or something that the drafters sitting behind the Minister can do much better than we can, there needs to be a point in this Bill about a process of information sharing, whether it is set out in detail, as in my amendment, which talks about who or what those bodies are, or whether it is a more general duty, as the noble Baroness, Lady Finlay, has set out. We support these proposals, and I hope that we can have a debate next time. I hope that the Minister will acknowledge the need to understand dangers, learn from them and move to be able to prevent them.

[Lord Sharpe of Epsom (Con)]

I thank the noble Baroness, Lady Finlay, for her important amendments. I, too, am looking forward to exploring the meaning of “relevant authorities” in the next group. If this is really about product safety, of course we have to have regard to unsafe products, and of course that information ought to be shared with the emergency services, so I have absolutely no problem in supporting all those amendments.

--- Later in debate ---

I urge the Government to take the amendments on enforcement very seriously. We realise that the Government’s intentions are good, but unless the clauses are heavily rewritten, we will return to them on Report.

[Lord Fox (LD)]

My Lords, very briefly, and complying with time constraints, I warned your Lordships and the Government when speaking to another group that the skeletal nature of the Bill allows everybody to superimpose all their worst suppositions on it. We have just heard a thorough example of that from the noble Lord, Lord Sharpe.

I am of course here to help. In considering previous Bills, it helped when the Government published their draft code of practice between Committee and Report, so that we could get an inkling of their thinking. Doing so will not change our need to address the skeletal nature of the Bill, but it might allay some of our worst fears about the intention, and guide us in wording the amendments we could table on Report to help tie things down a little more, along the lines of the fears outlined by the noble Lord, Lord Sharpe. Can the Minister say whether a code of practice is planned, and undertake to show us a draft of it between now and Report?

[Lord Leong (Lab)]

My Lords, I thank all noble Lords for their detailed consideration of the Bill, and especially the noble Lord, Lord Sharpe, for his thorough exposition of his amendments, based on his experience at the Home Office and previously as an enforcement officer. He obviously knows a lot about the various amendments he has tabled.

I hope to clarify the Government’s position and explain the reasons behind the approach we have taken. First, I will address the use of delegated powers in the Bill, noting the concerns of the Committee.

Product regulation must legislate for innumerable kinds of products, ranging from heavy machinery to children’s toys. This is best done through regulation, due to the amount of very technical and scientific detail required. In some cases, sectors can be covered by general requirements. However, often they require specific tailored regulations that recognise their individual requirements. For example, a penalty for failure to properly mark a product “harm suffered” is likely be different when comparing a highly sensitive product in a nuclear energy installation versus a lower-risk product.

To proportionately reflect the dangers of a sector, requirements, enforcement powers, offences and penalties must be tailored. This is how the regulators operate at the moment, with over 2,500 pages of technical product safety regulation on the statute book. Alongside reviewing this existing legislation, we will need to consider on an ongoing basis whether there are emerging products or hazards that would benefit from specific rules.

Product regulation is a regulatory area that we have seen go through significant disruptive change with the growth of e-commerce, and this looks set to continue with AI and 3D printing. The activities conducted by different kinds of businesses have changed as well. The spine of the existing system was codified in primary legislation based on bricks-and-mortar businesses, and that led to uncertainties and gaps in duties, penalties and enforcement powers.

--- Later in debate ---

[Lord Leong (Lab)]

Personally, I do not see why there is anything wrong with it—but in this Bill itself, I am trying to say that we need the flexibility. I just have to continue.

Further clarification of powers and functions would restrict the ability for enforcement regulations to provide powers needed to enforce new product and metrology regulations. We must enable flexibility so that we do not create gaps in enforcement powers now or in the future. We intend to plug the gap in enforcement by making regulation applicable at the border, so that enforcement can take place before unsafe or non-compliant products are sold.

I understand the good intentions behind these amendments but, equally, I hope that I have resolved the concerns that led to them. The Bill provides simple, flexible powers that will help enforcement authorities to fulfil their roles. I submit that we have balanced parliamentary scrutiny with the necessary flexibility in a way that best serves the rule of law. It is for these reasons that I ask the noble Lord to withdraw his amendment.

[Lord Fox (LD)]

I asked a specific question about publishing the code of practice in advance. Can I have an answer, please?

--- Later in debate ---

Moved by

[Lord Fox]

34: Clause 2, page 3, line 26, at end insert—
“(d) the licensing of voluntarily committed standard essential patents which protect technology essential for implementing technical standards;(e) limiting the remedies available when a patent mentioned in paragraph (d) is enforced.”Member's explanatory statement
This amendment seeks to ensure that essential software for regulated products which relies on standard-essential patents (SEPs) is shielded from unfair legal abuse.

[Lord Fox (LD)]

My Lords, I also support Amendment 35 in the name of the noble Lord, Lord Lansley. As opposed to the last group, which focused on a large number of slightly different issues, these two amendments focus on one area and, given that they are only in the names of the noble Lord and myself, you can be sure that they will be technical in content.

I am sure the Minister has often wondered why his mobile phone can operate on Bluetooth in any country of the world, and why the automated vacuum cleaner that my noble friend Lord Foster so ably described in the last session can pick up wireless instructions no matter where it is working. The answer is that sitting underneath all of those are things called standard essential patents, or SEPs. They are patents that are necessary to the implementation of a collectively-agreed technical standard—5G, wifi, Bluetooth and so on. Standardisation across communications technologies makes it possible for devices to work with one another wherever they are.

Connectivity is increasingly a part of the products that the Bill seeks to regulate, as we have heard. UK industry is at the forefront of developing connected products that aim to address some of the biggest issues that we face, including healthcare and climate change. The Bill is about ensuring product compliance with technical standards. Compliance or conformance with the technical standard can often be premised on the implementation of a particular technology; as I have said, wifi is an example. For a product to use the wifi logo and technology, its technical performance with the chip set has to be tested and certified. Bluetooth and other wireless technologies used for power management in the context of electric vehicle chargers and smart metering are all examples of where the technical standards of operation are underpinned by these SEPs.

I realise that the Bill is not about intellectual property, but it is about regulating the properties of things. Unless the situation of SEPs is fixed, those properties can be in a state of flux. SEPs should be treated differently from other patents, which is why we are introducing them into this debate.

Of necessity, as a result of a dominant market position, the SEP holders have to voluntarily commit to license their technologies on fair, reasonable and non-discriminatory terms. The licensing of SEPs is important in ensuring that UK businesses are able to use the most modern and effective versions of these technical standards. In practice, SEP holders often evade their voluntary commitments to license their patents fairly because of a lack of clarity over what constitutes fair, reasonable and non-discriminatory, caused by weaknesses in the UK’s legal framework. SEP holders can abuse their position as gatekeepers of these technical standards by using the threat of costly court action and injunctions to force potential licensees to accept excessive royalty demands or quit the market. That can effectively prevent smaller companies from entering into, and being able to operate in, a market. In the previous group, the noble Lord, Lord Sharpe, asked whether the Bill was pro-innovation or anti-innovation. Unless we round up this issue on SEPs, I have to say that it is absolutely stifling innovation.

In most cases, SEP holders are well resourced and aggressive, while many licensees, especially SMEs, lack the knowledge and resources to defend their rightful position in court or push back against the mere threat of litigation. Increasingly, there is a third sector of people who buy up the rights to these patents and treat them as a revenue stream, whereby they go after and literally squeeze the people who have to use these SEPs. In essence, it becomes a secondary market for these things, without the necessary protections.

There are two issues. First, the availability of injunctions to the UK’s current SEP framework means that both small and large technical innovators who operate downstream of the primarily foreign SEP holders can be forced to accept excessive SEP licensing fees because they want to use this technology. The second problem is the lack of transparency: they quite simply do not know who holds these patents until they get an injunction through the mail. That is the problem. With the threat of injunctions and lack of transparency, UK manufacturers are frequently faced with a no-win situation. They have to either pay these fees or get out of the market, because they cannot afford to defend them at an injunction. This is in spite of the SEP holders making a voluntary commitment to license the SEPs on fair terms as part of the standard-setting process. So there is a problem.

The situation creates significant cost and uncertainty for some of the most innovative UK firms, it stifles innovation and, importantly, in the context of this Bill, it challenges the efficiency and effectiveness of products that rely on SEPs and are regulated by this legislation. That is why it is appropriate to have this discussion here today. The UK IPO is aware of issues concerning the licensing of such technology but to date has done nothing, or has insufficiently acted, to protect UK businesses that must use these technologies. This amendment is an opportunity for the Minister to commit to legislative action on SEPs to address the critical issues of products being threatened with exclusion from the people who need them, the imposition of unfair royalties and SEP licences being refused to companies that need them. I beg to move.

[Lord Lansley (Con)]

I am most grateful to the noble Lord, Lord Fox, for explaining so expertly what standard essential patents—SEPs—are and how important they are to the use of legislation in specifying product requirements, which of course are directly linked to the standards that we will go on to talk about. We have previously talked about the importance of standard-setting, but there is no point in setting standards if they cannot be fulfilled, turned into product requirements and brought to the market—that is what we are talking about. In particular, the noble Lord was absolutely right to stress that we should be thinking in this legislation about how we can promote innovation. Addressing this issue is one of the central ways in which we can do that.

Our two amendments serve the same purpose. The only distinction is that I was trying to suggest, in this particular instance, the importance of taking a power and not attempting in the primary legislation at this point to specify precisely how that power should be structured, because it is necessary for there to be a full consultation about the changes that would need to be made—not least, probably, to the Patents Act itself. When we come back on Report, if we go down this path there may be a need to have a power to amend the Patents Act as well.

The point here is that, as the Intellectual Property Office itself said, SEPs will be

“of growing importance to the UK economy”.

This is not a small matter, and it is becoming more important because of connectivity, the internet of things and the multiple range of SEPs associated with many of these standards. The noble Lord, Lord Fox, is absolutely right about the problems that can emerge for companies, particularly SMEs, in understanding the visibility of SEPs and who holds them—and, for that matter, in being absolutely clear about which ones are essential and which are asserted to be so, but which are not in fact essential to the standard.

I shall not delay the Committee now, but I want to focus on the question of why we need a power. First, the Intellectual Property Office is trying to do its best within the powers available to it. In July, Ministers announced the establishment of the resource hub, which gives guidance in relation to SEPs and enables companies to understand the SEP ecosystem. However, that does not change some of the fundamental issues to which the noble Lord, Lord Fox, referred. There are licence holders who are delaying access to their patents, and who are using that as a mechanism to get terms that are not fair, reasonable and non-discriminatory. SMEs are finding it very difficult to know what FRAND terms look like in relation to many of these products.

There is another issue: not only the individual royalties that must be paid in relation to these licences, but the global royalties that need to be available. Although there is case law that can be looked at, it is very difficult for SMEs in particular to understand how that may be applied to them. Of course, there are global royalties being established through large cases, which delay access to this intellectual property for some of those who need to use it; they are therefore unable to know how viable their product may be.

These issues have been addressed in the European Union. At present, there is a regulation agreed between the European Commission’s proposal and the European Parliament, and it is awaiting the conclusions of the Council of Ministers. Let us just focus on that for two seconds. What does it do? It sets out that there needs to be transparency, a mandatory register, and the ability for an official body to undertake a reality check asking, in essence, whether something is actually essential to a standard. It facilitates fair, reasonable and non-discriminatory terms. It also delays for nine months the point at which any licence holder could go to court to secure an injunction for these purposes while there is a requirement for a negotiated process; indeed, it entertains the possibility that, under the regulation, this may relate not only to individual royalties for licences but to the aggregate of those royalties for licences. So there is a legal structure in the European Union for these purposes, in order to overcome what is otherwise, for SMEs in particular, an extremely difficult set of circumstances arising from case law for them to understand and interpret.

This is not a small problem for some SMEs. For example, I have been talking to Tunstall Healthcare, which I know well from its role in providing connectivity, particularly for people who require care at home; it looks after more than 100,000 of them. In order to access licences for 4G and wifi connectivity, it needs to negotiate many licences and to identify where they exist. A company called Bullet was trying to develop and market highly resilient smartphones, but it ceased trading, owing millions of pounds to SEP holders, which contributed to its inability to continue trading. So I think we need to act.

The IPO has said that it will respond to the consultation at the end of 2024—so any minute now. I am told, however, that that will not now happen in 2024. What I really want to hear from the Minister is, first, that this is a suitable Bill and a suitable opportunity to take a power—without specifying all the details of that power—to make provision in relation to SEPs. Secondly, I want to hear that the IPO and Ministers will undertake to respond to the consultation in the early part of next year, putting forward proposals for how the new power is to be used and inviting responses.

--- Later in debate ---

[Lord Leong (Lab)]

My Lords, I thank the noble Lords, Lord Fox and Lord Lansley, for their Amendments 34 and 35. When I saw the first amendment, I had to go and check what SEPs means. Now, after speaking to officials, I think I know a little bit and I welcome the opportunity to address the issues raised regarding software products that rely on standard essential patents, or SEPs.

These amendments go far beyond the intended focus of this legislation by expanding the scope of regulatory powers. Due to their complexity, the regulation of SEPs should not be reduced to a short provision in a Bill that was not drafted with the intention of regulating in this sphere. Any policy measures need to achieve a balance between rights holders being able to appropriately protect and enforce their rights, and users’ ability to access such technologies and innovations through fair and appropriate licensing forms.

However, I agree with the noble Lords that this is an important issue. The Intellectual Property Office has already engaged extensively with industry and business to determine whether any change to the framework for SEPs is necessary in order to ensure that businesses can license SEPs effectively and fairly. This engagement has included a call for evidence and views, and a questionnaire has been sent out to small and medium-sized enterprises. In response, the IPO has already launched a SEPs resource hub—an information resource that helps to address the very problem the noble Lords have identified. The IPO is also considering whether to consult formally next year on measures, as indicated by the noble Lord, Lord Lansley, and further to improve transparency in the SEPs ecosystem and enable more efficient dispute resolution. Any such consultation would be subject to ministerial decision, and we are currently working on that. In the meantime, I assure noble Lords that the IPO is continuing informal engagement with industry on both this matter and the SEPs ecosystem more generally. I hope that is reassuring to the Committee.

While I agree that this is an important issue, this Bill is not the right avenue to address the problems that the noble Lords raise. I therefore ask that they withdraw or do not press their amendments.

[Lord Fox (LD)]

I sort of thank the Minister for his response, but not much, because I think he could have acknowledged that this is a problem, rather than that SEPs exist, because it is a problem. Whether or not the Bill is the solution to it, the Department for Business and Trade should have an interest in solving that problem, but it did not seem that there was much appetite for that. Perhaps the Minister could disabuse me of that by acceding to the suggestion of the noble Lord, Lord Lansley, to have a meaningful round table with the right people for us to further this discussion. If this is not the avenue to deal with it, we need something else, because it is a real and present problem that needs a meaningful solution.

While the efforts of the IPO are clear, the point of the noble Lord, Lord Lansley—I should call him my noble friend in this case—is that the IPO needs more power and something needs to be done. If it is not this, it needs to be something else.

[Lord Leong (Lab)]

I want to be very clear that the Department for Business and Trade wants to support businesses of all types and sizes, but we have to be fair as well, so as not to burden too many SMEs with regulations and financial costs. This area is being led by the IPO but, at the same time, there is a way that the Department for Business and Trade can engage with the IPO. I am than happy to arrange a meeting between the noble Lords, Lord Fox and Lord Lansley, and officials from the IPO and the Department for Business and Trade.

[Lord Fox (LD)]

I thank the Minister for that offer, which I am sure we will take him up on. If the Government wish to unburden small and medium-sized businesses, solving this problem would be a slam dunk. With that, I beg leave to withdraw Amendment 34.

Amendment 34 withdrawn.

--- Later in debate ---

[Lord Fox (LD)]

Briefly, I of course support these four amendments from my noble friends, but I will say a few words on Amendment 56. In a previous group, amendments tabled by me and the noble Baroness, Lady Bennett, on the circular economy and disposal, also touched on these issues and it would be worth while looking at those in conjunction with the amendments from my noble friend Lord Redesdale.

To give a bit of advice to my noble friend, the noble Baroness, Lady Finlay, made some interesting points about it being fulfilment centres rather than the actual online marketplace. In some cases, the supplier is foreign but the fulfilment centre is local. Perhaps there is some advice to take from the thoughts of the noble Baroness, Lady Finlay, on that, as they seemed a way of bridging the issue of the supplier being a long way away in a different country, whereas the people dispatching the item are most definitely here. With those provisos, I reiterate my support for all four amendments.

[Lord Sharpe of Epsom (Con)]

My Lords, I will be very brief. I found that a most interesting explanation of lithium-ion batteries and their various aspects. I confess to not being an expert at all, so it is very clear that I—and, I imagine, the general public—need to be better informed on this. I imagine that regulations will form an essential component of becoming better informed.

It was interesting how the noble Lord, Lord Redesdale, said that he was worried about the scope of the Bill. This Bill will take pretty much anything you like—it is enormous—so I would not have too many concerns about that. I ended up, funnily enough, with a couple of questions, which we can perhaps discuss later. I am curious to know how much of the safety of these batteries is contingent on the way that they are stored, used and maintained. That would be an interesting subject to explore further.

--- Later in debate ---

[The Earl of Lytton (CB)]

My Lords, members of the Committee will be aware that there are concerns relating to the suitability and safety of construction products, especially in the light of the Grenfell phase 2 report, and will know my professional interest in this area.

First, I pay tribute to the clerks in the Public Bill Office for their help in drafting this amendment, although its objectives and the rationale behind it are entirely my responsibility. I consider that the amendment speaks for itself in probing the Government’s intentions and resolve in bringing construction products specifically within the Bill’s scope, although they are not excluded, either by the Long Title or by the matters listed in the Schedule. My underlying purpose is to clarify this Bill’s specific focus in the objective regulation of a construction-related product’s inherent characteristics rather the nature of its use, particularly in combination with other products. To put it another way, it is concerned with the regulation, testing, certification and marketing of products for their specific stated use and application—namely, the aims of the Bill.

The British Board of Agrément—the BBA—is one of the main industry certifying bodies for construction products. In virtually all the BBA certificates I have looked at, it is made clear that the approval is for the specific use and application as presented. This is logical because behind every approval is an assessment or test of some kind that will be specific as to the proposed use. However, we know from the Grenfell phase 2 report how things can be misrepresented. Of course, none of this prevents misuse of some sort, or abuse, but it starts to clarify responsibility as applying to those who have true agency in the specification and use of products, especially where fire safety is concerned. I hope this gives the Minister an opportunity to confirm that, so far, I have got this right.

At the meeting with the noble Lord, Lord Leong, and officials, for which I thank him, it was suggested that while the provisions of the Bill cover construction products, in all probability any regulations would be made under a different legislative provision, such as the Building Safety Act 2022—so I looked in that Act for the word “regulation”. I got 650 hits, which sounds a bit like Henry VIII on steroids, I am bound to observe. I alighted on paragraph 10(1) of Schedule 11 to that Act which states:

“For the purposes of this Schedule, “safety-critical products” means construction products which are included in a list contained in construction products regulations”.


It is getting a bit circular, I suspect. Sub-paragraph (2) states:

“A construction product may only be included in a list under sub-paragraph (1) if … in the view of the Secretary of State any failure of the product would risk causing death or serious injury to any person”.


I would be grateful if the Minister could confirm that I am right in believing that this is the relevant regulation-making measure that might be used in the Building Safety Act to implement some of the provisions of this Bill, if they are not implemented directly. If so, it has to be noted that the Building Safety Act relates to critical life-safety risks to persons, first and foremost. The Bill does not use that metric, so I consider that the relationship between this Bill and the BSA, for example, needs further clarification.

It has long been my professional assessment that if a building is robust, occupant safety is likely to be assured as well, but focusing on critical fire risk which interests itself only with occupants’ risks consigning them to significant risks of an emotional and financial nature if the building lacks durability and is effectively considered expendable. In terms of human life, that is absolutely the right approach, and I get that, but in terms of mercantile practice and peace of mind, it is a philosophy with gaps, especially if the general Building Safety Act approach is one of proportionality or tolerable risk—although I question by whose objective standards those might be measured, but that is another question.

So if I am correct, even allowing for the point that a building is not “product” as a term of art, why regulate such an important matter as construction products to be used in a residential block via different standards as compared with, say, those for a fridge-freezer or a washing machine? As set out in Clause 1(4)(c), we are concerned with a product that could “reasonably be foreseen” to cause damage to property. How is that, in the case of buildings under the BSA, a proportionate or tolerable risk to life? In the Government’s view, does the latter include the former? If so, I would be delighted to get confirmation of that; it is something that I tried to get hold of right the way through the then Building Safety Bill’s time before us. If not, how does the BSA afford the implementation of product safety in construction products?

Note if you will that the assemblage of products and processes used as someone’s home represents their place of safety. It is often their largest investment; it is also often incomparably more valuable an entity than most consumer products, both to them and in market terms. So standards and regulation matter very much. I invite the Minister to enlighten the Committee on this apparent legislative inconsistency.

Had this amendment been debated earlier in the evening, I might have been tempted at this point to have a little rant about British Standards being set behind a paywall—as well as the invidious nature of that when they are also embedded in regulation; the regulation is open source but the BS is not—but I will leave that matter in part to one side for the moment. I appreciate that some of the points I have mentioned go beyond what I discussed in the meeting with the Minister so, if he is unable to answer them right now, perhaps he could write to me before the next stage of the Bill. I beg to move.

[Lord Fox (LD)]

I will briefly respond to the noble Earl. He is right to raise this issue, which is clearly important; we look forward to seeing how the Government respond to it. There are serious issues that need to be addressed somewhere. As has been observed by the noble Lord, Lord Sharpe, and others, the open nature of this Bill offers an opportunity for things like this to be properly discussed and to be, if not solved in this way, perhaps solved in another way.

[Lord Hunt of Kings Heath (Lab)]

My Lords, it is very good to respond to this debate. I am delighted that the noble Lord, Lord Fox, sees that there is some advantage in the way that we have drafted the Bill.

I thank the noble Earl, Lord Lytton, for raising what is a really important matter. We all recognise that there are failings in the system by which construction products are tested, assured and made available for sale. The noble Earl described his amendment as probing whether the Government are prepared to use the powers in Clauses 1 and 2 to regulate products used in construction. The noble Earl has huge professional expertise. He referred to the BBA and the specific approval given but warned of the risk of misuse; I very much take that point.

The straightforward answer is that we think this issue is very important. We intend to bring forward robust regulatory reforms in order to provide confidence in the construction products regime and to ensure that only safe products are used in buildings and infrastructure. To that end, we also intend to ensure that the testing and assessment of products’ conformity must be undertaken by those who are competent, impartial and effectively held to account. We have committed to working with the sector on system-wide reform, including examining the institutions that play a key role in the construction products regime, so that businesses and, in particular, consumers can have confidence in the products and services they purchase. The proposed new clause to be inserted after Clause 2, through the noble Earl’s Amendment 46, would place a duty on the Secretary of State to use the powers and to make provision for construction products regulations within a year of Royal Assent of the Bill.

I turn now to the Building Safety Act 2022, about which the noble Earl made some interesting points. That Act already includes powers to introduce construction product requirements and regulations. We are exploring how best to use those available powers, including their sufficiency—I take his point on that—as part of considering system-wide reform. He will know that since the Grenfell tragedy in 2017 some action has been taken on construction products, but we know that more needs to be done.

In December 2018, regulations came into force that banned the use of combustible materials in and on the external walls of buildings over 18 metres. The national regulator for construction products was established in 2021 and leads on market surveillance and enforcement of construction product regulation across the UK.

The Government extended the period of recognition of CE marking for construction products in September this year to give the industry sufficient certainty to support supply chains and to allow time to address the inadequacies across the wider construction products regime, but we recognise that this action is piecemeal and does not go far enough. We have confirmed that we will respond to the Grenfell inquiry within six months. We are also committed to bringing forward proposals for system-wide reform of the construction products regulatory regime.

I have listened very carefully to the noble Earl’s analysis of the Building Safety Act and his suggestion that it is not sufficient for our purposes. We are considering this and I will write to him in some detail about the points he has raised. But to be fair to him, I have to say that this Bill does not specifically exclude construction products and that there could be an opportunity to use the Bill powers in the future should we discover that the Building Safety Act 2022 may be insufficient.

I hope that he will accept this as a positive response to the issues he has raised.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB)]

My Lords, it is an enormous privilege to have been in a position to add my name to these two amendments and to have listened to the elegant description of the way in which they are meant to work, as explained by my noble and learned friend Lord Hope of Craighead.

I come to them from a slightly different perspective. The new Government have brought into being a desire to make the union work as a union by co-operation between the Governments in London, Edinburgh, Cardiff and Belfast. Looking particularly to Cardiff, one would have hoped that this is an ambition capable of easy realisation. These clauses give one an opportunity to mark that stated aim in very clear terms. It seems to me that if one looks at what the two clauses have brought about, which my noble and learned friend has so elegantly explained, one sees that they touch on areas of devolved competence, without any doubt at all, and there are legislative consent Motions before the respective devolved legislatures.

There are two areas, as my noble and learned friend has explained. One is consultation. I have never understood why across the board in areas such as this consultation is not mandatory. The previous Government were not very good at that; they did not uphold it properly, I regret to say. I hope they will now see a changed way through, and I very much hope this Government will accept the first amendment on consultation. I can see no argument whatever for not accepting that change.

The second area, as my noble and learned friend Lord Hope, explained, is common frameworks. He has explained how it is necessary to make the amendment, but I hope there is also something to the amendment that will breathe life back to common frameworks. It is fairly useful to go back to what was said in the communique issued after the heads of Government meeting in 2017:

“As the UK leaves the European Union, the Government of the United Kingdom and the devolved administrations agree to work together to establish common approaches in some areas that are currently governed by EU law, but that are otherwise within areas of competence of the devolved administrations or legislatures. A framework will set out a common UK, or GB, approach and how it will be operated and governed. This may consist of common goals, minimum or maximum standards, harmonisation, limits on action, or mutual recognition, depending on the policy area and the objectives being pursued. Frameworks may be implemented by legislation, by executive action, by memorandums of understanding, or by other means depending on the context in which the framework is intended to operate”.


Those were lofty ambitions. Regrettably, and it is not the occasion to go into it now, those ambitions were not properly realised. I pay especial tribute to what my noble and learned friend Lord Hope did when the United Kingdom Internal Market Act was promulgated in obtaining the clauses to which he has referred. It was only by his skill, diligence and considerable persistence—I say with respect—that we got these amendments through. Unfortunately, if there is not the spirit of co-operation—I regret that such spirit was not there for a lot of the past two or three years, although it came back towards the end, particularly under Mr Sunak’s Government—we cannot begin to hope for the lofty ambitions of a union where the Governments work together being realised again.

I hope that, because we have referred to common frameworks in this legislation, we will see them coming back. Much has been said about the need for co-operation and working together, but I think these two amendments are important because it is often said that men are judged not merely by words but by deeds—one could put it in a more colloquial phrase. It seems that these two amendments, drafted in the Government’s words, are and ought to be the deeds by which the Government show that they really mean to go ahead and operate on the basis of a union where, in these areas of devolved competence, there is co-operation but within a framework that permits divergence. Therefore, I very much hope that the principle of these amendments will be accepted, because it is so important to the future of the union.

[Lord Fox (LD)]

My Lords, my noble friend Lord Foster will speak to his Amendment 102 in a few minutes, but it makes sense to follow the noble and learned Lords with my comments on Amendment 47 and the two amendments in my name, Amendments 93 and 96.

It is an enormous pleasure and something of a responsibility to follow two absolutely fantastic speeches on this subject, and I am afraid that my mind did go back to the long nights of the internal market Bill and the tenacity—as the noble and learned Lord, Lord Thomas, set out—of the noble and learned Lord, Lord Hope, in bringing his amendments forward, because a really important thing was eventually done there.

The noble and learned Lord, Lord Hope, referred to the danger of impinging on the devolved authorities. I will give just one practical example and this is not theoretical, because it is already something that the Welsh Government have raised. In their response, the Welsh Government concluded that

“there are relevant provisions in the Bill which, for the purposes of Standing Order 29, are within the legislative competence of the Senedd and therefore a Legislative Consent Memorandum (LCM) is required”.

I do not think that is disputed by the Government.

For example, the power within Clause 1(1)(a) could be used to reduce or mitigate risks presented by products that endanger the health of a person, distinct and separate from any risks to a person’s safety. The use of “health” in Clause 1(4) broadens the scope of how power could be exercised beyond simple product safety, which is a reserved matter, and enables provision to be made for public health purposes, which is an area within the Senedd’s legislative competence. This is just one example.

In their response document, the Welsh Government raise issues covering product regulations, product requirements, emergencies, information sharing, cost recovery, consequential amendment of certain Acts, interpretation, and the Schedule. Happily, the Welsh Government seem okay with Clauses 5 and 6, but the rest of the Bill forms a grey area around competence and responsibility.

Investigatory Powers (Amendment) Bill [HL]

Lord Fox Excerpts

Consideration of Commons amendments
Tuesday 23rd April 2024 Lords Chamber

[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.

Computer Systems: Independent Testing

Lord Fox Excerpts

Monday 12th February 2024 Lords Chamber

[Lord Sharpe of Epsom (Con)]

My noble friend raises some good points and, as I said, the Government are considering the right way to do that. If I talk about some of the difficulties, it might illustrate this point to the House. Amending legislation to enable cybersecurity activities involves accessing computer systems, and the data is complex. This needs a lot of thought. We would need to establish what constitutes legitimate cybersecurity activity and the boundaries of such activity. We would need to consider who should be allowed to undertake such activity, where the professional standards would need to be complied with and what reporting or oversight would be needed. We cannot make changes that would prevent law enforcement agencies and prosecutors investigating and prosecuting those who commit cybercrimes. It is right to consider this carefully and that is what we are doing.

[Lord Fox (LD)]

My Lords, the Minister set out a long list of things that need considering. I understand his point, so could he perhaps tell us the timetable for this process, when we might hear the verdict on all these considerations and perhaps see some legislation before your Lordships’ House?

[Lord Sharpe of Epsom (Con)]

My Lords, the public consultation on this process concluded only in November 2023, so we have not had a huge amount of time to consider all the responses. As I have explained, we will be reviewing how to take forward the recommendations and will update Parliament in due course.

Investigatory Powers (Amendment) Bill [HL]

Lord Fox Excerpts

3rd reading
Tuesday 30th January 2024 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I echo all the thanks that came from the Minister. I do not think I can add to his list, but I certainly endorse everything he said.

Bills of this nature can be controversial. We are seeing this in some other parts of the world at the moment. That was not the case in your Lordships’ House. That is testimony to the care with which the Bill was prepared, the civilised way in which it was debated and the openness of the Government to some of the important points made during our debates. I single out in particular the work of the Intelligence and Security Committee for the great scrutiny that it applied to it.

If I may, I will depart briefly from the studied impartiality associated with the Cross Benches. With the Government and Opposition so closely aligned on a Bill, it was particularly useful that we heard from the Liberal Democrats—with their sometimes annoying but rather necessary process of probing amendments. They caused everyone to think carefully about what we were doing. All in all, it was a happy experience for me. I hope that this is a good model for future Home Office Bills.

[Lord Fox (LD)]

My Lords, having been cleared to annoy your Lordships’ House, I will do my best to do so.

This Bill started in your Lordships’ House and now heads to the Commons. Its primary purpose of enabling the intelligence services to better build their data models and teach their AI systems has been left completely unmolested by your Lordships. However, other parts of the Bill have attracted a fanfare of concern from certain external parties—particularly the large platforms. Whether the Government and Apple are at cross purposes or the Minister really is out to get it, we in your Lordships’ House were unable to muster sufficient traction to find out or clarify. It is now up to the MPs if they choose to pick up that particular baton.

There was also an unresolved issue around the triple lock and the Prime Minister’s role when they might be in conflict. Again, this has moved from our orbit. I hope the tenacity of the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, might still be involved somehow between here and the other place. The Minister raised the important issue of legislative consent. I hope he is successful in these negotiations.

I echo what other noble Lords have said. This has been a well-mannered and constructive process of discussion, with everybody moving in the same direction, albeit at different speeds.

I thank the Minister and the team he named for their time, availability and openness in our discussions. I also thank all the many external organisations and individuals who took time either to meet and brief or to send information which helped inform our debate. The discussion was greatly enhanced by the noble Lords, Lord Coaker and Lord Ponsonby, from the Front Bench, and by colleagues on their Benches, as well as the Cross Benchers. They played a pivotal role in our discussions.

Finally, I thank the home team: my colleague, my noble friend Lord Strasburger, and, most of all, Elizabeth Plummer in the Lib Dem Whips’ Office, without whom nothing is possible.

Investigatory Powers (Amendment) Bill [HL]

Lord Fox Excerpts

Report stage
Tuesday 23rd January 2024 Lords Chamber

Moved by

[Lord Fox]

1: Clause 2, page 6, line 7, after “must” insert “, as soon as possible and in any event within 24 hours,”
Member’s explanatory statement
This amendment requires a person granting an authorisation in urgent cases to notify a Judicial Commissioner within, at most, 24 hours that they have done so.

[Lord Fox (LD)]

My Lords, I will speak also to Amendment 7, which is in my name. These amendments require a person granting an authorisation in urgent cases to notify a judicial commissioner within, at most, 24 hours. This amendment would make it mandatory that, when the intelligence services use type 7A and 7B data for urgent operational purposes, they must report this to a judicial commissioner within 24 hours.

As your Lordships know, the current proposal in the Bill is three days. As it stands, the intelligence services can use those three days to interrogate a dataset that is ultimately ruled offside by the judicial council—three days to deploy AI models that work very quickly, in moments. The Minister responded, highlighting extra cost as a possible reason not to pursue this. Plainly, with all due respect, that is not true, because the data has to be reported anyway, and bringing it forward by a couple of days is not a relevant concern.

The spectre of weekends has also been raised. I assume that, given that this process is to facilitate urgent investigations, the intelligence services themselves will be working on Saturday and Sunday, and it is up to them to report their activity. Amendments 1 and 7 do not change the time duty for the judiciary to respond, so this would not affect the operation of the urgent inquiry. Should they not respond until Monday or otherwise, it is not the concern of the services. Clearly, it puts pressure on the judicial commission to some extent, but the intelligence services will have met their side of the obligation and can carry on with their important and urgent work until such time as the judicial commissioner makes a ruling. In any case, I am sure that there will be duty rosters and such things going on for this, so, again, I am not sure that the weekend is a concern.

Another argument that has been advanced and may yet return is that other legislation uses three days, so this should, too. The whole point of the Bill is to take advantage of new and innovative technology. It seeks to recognise the differences and change regulations accordingly. If the technology changes, as it does as a result of the Bill, so should reporting criteria. If there are other times that are different, perhaps we should be looking at those rather than at this amendment. In this case we are dealing with new technology, where artificial intelligence, once trained, can be deployed on data—which may or may not be allowed until such time as the judicial commissioner has ruled—and AI can produce its answers in minutes, perhaps hours.

In Committee I proposed that the use of this data for urgent operations should be reported immediately. I recognise that that was a very unreasonable suggestion, which is why these amendments specify within 24 hours, which is a fairer proposal.

In Committee, the Minister’s words on what happens to information retrospectively ruled unusable were helpful:

“The relevant information must be removed from the low/no dataset and either deleted or a Part 7 warrant sought”.—[Official Report, 11/12/23; col. 1743.]


However, additionally in Committee, various ex-services Peers confirmed what I knew, which is that once a fact is known by service personnel, it is not forgotten—it cannot be unknown. The noble Baroness, Lady Manningham- Buller, and other noble Lords were very clear on that.

This amendment is designed to limit the amount of unforgettable information that can be derived from inappropriate datasets. I will listen hard to the Minister’s words, but, unless he has found a different and more compelling argument than those already deployed, I will press Amendment 1.

I am pleased that the Government have agreed that, in the event of Amendment 1 being agreed, Amendment 7 will be treated as consequential. I beg to move.

--- Later in debate ---

[Lord Butler of Brockwell (CB)]

My Lords, as a former member of the Intelligence and Security Committee, perhaps I may say how much I endorse what has been said by the noble Lords, Lord West and Lord Murphy, and welcome many elements in the—

[Lord Fox (LD)]

We have had the speeches on this group and are moving to a vote. I am sorry to interrupt the noble Lord.

I thank the Minister for his comments and, indeed, the noble Baroness, Lady Manningham-Buller. My interpretation—perhaps I am wrong—of the nature of this Bill was that it was to introduce a new class of data and to deal with it. It was not to reach back into existing law and change it. The noble Baroness raised some important points about why I should have been concerned about the other data, which I did not reach back into. I am happy to advise my colleagues in the Commons and perhaps they can do that, too. However, taking on face value the nature of what we were seeking to achieve today, we looked at this data and came up with this conclusion. We have heard the arguments, but I am afraid that I am not persuaded by them and I would like to test the will of the House.

--- Later in debate ---

[Lord Fox (LD)]

I shall be brief. Not for the first time, your Lordships are in debt to the noble Lord, Lord Anderson, for intervening on an issue that I think all of us failed to note. His request of the Minister is helpful, and I hope the Minister will be able to respond. There is an alternative process which I could suggest to the Minister—I have not had a chance to talk to the noble Lord, Lord Coaker, about this. If the Minister wanted to withdraw this amendment and bring it back at Third Reading, which is applicable in certain circumstances. I am sure we would be very flexible in permitting that as well.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we support the introduction of the Government’s amendments. I echo what the noble Lord, Lord Fox, said about the amendment in the name of the noble Lord, Lord Anderson, and I look forward to the Government’s response on that point.

I would also be interested to hear what the Government have to say about my noble friend Lord West’s amendments. He has taken a keen interest in this part of the Bill, and I hope the Government will be able to answer the questions, in particular on data disclosure powers, as I think they can give a more detailed response to the expansion of disclosure powers to regulatory bodies than was given in the original legislation. It is also very likely to be further analysed and looked at as the Bill moves down to the other end of the Corridor. Nevertheless, we support the amendments as they are currently.

--- Later in debate ---

Moved by

[Lord Fox]

21: Clause 16, page 34, line 29, leave out from “insert” to end of line 30 and insert ““(where the requirement or restriction applies to a person within the United Kingdom)”.”
Member's explanatory statement
This amendment specifies that enforcement of retention notices applies only to UK recipients of such notices.

[Lord Fox (LD)]

My Lords, I will move Amendment 21 and speak to the other amendments in this group in my name.

Amendment 21 specifies that the enforcement of retention notices applies only to UK recipients of such notices. It is one of a suite of amendments in this group that return to the issue of extra-territoriality— I see the Minister blow out his cheeks at the prospect. Amendments 22, 25, 28 and 31 are similarly directed and each largely seeks to limit extra-territoriality by ensuring that operators can make changes to their services for users outside UK jurisdiction.

The reason for tabling the amendments, the others of which I will not move, is that there remains a huge gulf of understanding between the tech companies and the Government when it comes to the interpretation of the Bill with respect to its territorial reach. I am again presenting the Minister with a golden opportunity to set out in clear language the territorial ambitions that the Government have for this Bill. I believe there is some element of miscommunication going on here, though I am not sure in which direction. I hope that the Minister can dispel that.

Clearly, we have international tech companies that are incorporated in another country with subsidiaries all around the world and data residing in many different domains—companies that offer services to customers all over the world. In essence, we need to understand what would happen as a result of this Bill if such a business proposed to change a global service that is used by consumers all over the world, including in the UK. How do the Government use this Bill to deal with such situations? I am looking forward to the response.

Amendments 23, 24, 29 and 30 would raise the threshold for calling in a change from “negative effect” to “substantially limit”. Again, this increases the bar before the Government can start the process. Negative effect is a very low bar which will catch almost everything. It is not in the interests of the authorities to have everything coming through. There needs to be some sense of funnel. This is an opportunity for the Minister to define what negative effect is and what it is not, because it is a very low bar. He would be wise to take our advice and look at the language there, certainly when it comes to the code coming later.

Moving on, my Amendment 27 is a retread of an amendment I tabled in Committee, and it was there as a placeholder. I am pleased to see that it is unnecessary, as government Amendments 26 and 32 very much embrace the spirit of what I was seeking to achieve in that amendment. I thank the Minister for responding, and therefore will not be speaking to or indeed moving Amendment 27.

I now turn to Amendment 35. Currently, while there is a requirement for the Secretary of State to consult the operator before giving notice, there is no requirement on the Secretary of State to consult ahead of making regulations that will specify what “relevant change” includes, and therefore what needs to be notified. My Amendment 35 therefore introduces a requirement for pre-legislative consultation on the definition of “relevant change”. The amendment specifies that the Secretary of State must consult the Technical Advisory Board. There is a precedent for consultation with this board in Section 253(6) of the 2016 Act. As your Lordships know, the Technical Advisory Board is comprised of independent and industry representatives; the amendment also specifies a wider range of consultees.

The amendment then requires the Secretary of State to have regard to the impact on users, including on their privacy and on operators’ ability to innovate. Again, there is precedent for this in the 2016 Act. Such considerations must be taken into account when a public authority is deciding whether to issue a TCN or NSN, or where a judicial commissioner approves a DRN. As such, we feel it is worth while also to consider these factors when legislating for a “relevant change”, because delaying a critical security update could negatively impact users and operators. In a sense, all we are asking for is consultation. We are not asking to change the law, and this gives the Government a power to abide by that consultation or not. But we feel that this is an important definition, and it needs to be more widely consulted on.

I hope the Minister will agree, but in the event that he declines, I will be moving Amendment 35. I beg to move Amendment 21.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, we have had much welcome interaction from stakeholders on the issues summarised in this group, as well as some useful briefings from the Home Office and the noble Lord’s team, for which we are grateful.

As the noble Lord, Lord Fox, has just said, there appears to be a gulf in both position and understanding between the Government and the tech companies, both on the principle of the notice and its details, which is, in a sense, frustrating scrutiny of the Bill. I understand that there is a disagreement about the introduction of notification notices in general. It is right that we look at the details to ensure that the process takes place in a way that reflects the realities of international law, and the need of the intelligence services to maintain levels of data access and the necessary safeguards.

Concerns raised by stakeholders keep striking at the same places: how this notice would work with access agreements with other countries; why there is no double lock on the notification notice, despite the clear impact it would have on tech companies’ activities; and why the definition of telecoms operator is perhaps in reality wider than the Government intend.

We will not be supporting Amendment 35, in the name of the noble Lord, Lord Fox, although we understand the intent behind it. We encourage the Government to keep talking to stakeholders, and we believe that this part of the Bill will benefit from further discussion in the other place.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the noble Lords, Lord Ponsonby and Lord Fox, for their remarks in this debate. I reassure the noble Lord, Lord Fox, that any cheek-blowing he witnessed was more a reflection of the previous marathon speech than a reflection on his amendments.

Amendment 21, moved by the noble Lord, Lord Fox, would require that the enforcement of data retention notices—DRNs—would apply only to UK recipients of those notices. DRNs and technical capability notices—TCNs—can be given to a person overseas, but only TCNs are currently enforceable overseas. Clause 16 seeks to amend Sections 95 and 97 of the IPA to allow the extraterritorial enforcement of DRNs in order to strengthen operational agility when addressing emerging technology, bringing them in line with TCNs. It is vital to have this further legal lever, if needed, to maintain the capabilities that the intelligence agencies need to access the communications data they need to, in the interests of national security and to tackle serious crime.

The Government therefore oppose Amendment 21 as it goes fundamentally against what the Government are seeking to achieve through Clause 16 and would not provide any additional clarity to telecommunications operators. As DRNs are already enforceable against UK recipients, there is no need to re-emphasise that in the Bill.

I turn to the amendments to Clause 17 concerning the notice review period. This clause is vital to ensure that operators do not make changes that would negatively impact existing lawful access while a notice is being comprehensively reviewed. Maintaining lawful access is critical to safeguard public safety, enabling law enforcement and the intelligence community to continue protecting citizens during the review period.

Let me be clear: operators will not be required to make changes during the review period to specifically comply with the notice. Rather, under Clause 17 they will be required to maintain the status quo so that law enforcement and intelligence agencies do not lose access to any data that they would have been able to access previously. The review process is an important safeguard, and that right of appeal will remain available to companies.

On Amendment 27, tabled by the noble Lord, Lord Fox, the Government have noted the strength of feeling from parliamentarians and industry regarding the current uncertainty over the timeframe for conducting a review of a notice. We have therefore tabled Amendments 26, 32 and 33 to Clause 17 to address that uncertainty and provide further clarity and assurances regarding the notice review process.

The existing powers within Sections 90 and 257 of the IPA do not give the Secretary of State the power to specify in regulations the time period within which a review of a notice must be completed. The Government are therefore introducing a new regulation-making power to enable the Secretary of State to specify in regulations the length of time the Secretary of State can take to reach a decision on the review of a notice upon receipt of the report by the judicial commissioner and the Technical Advisory Board, and the overall length of time that a review can take.

The amendments will also make provision for a judicial commissioner to issue directions to the Secretary of State and the person seeking the review, as they see fit, to ensure the effective management of the review process. That will give the judicial commissioner the power to issue directions to both parties, specifying the time period for providing their evidence or making representations, and the power to disregard any submissions outside those timelines. These amendments will provide operators the certainty they require regarding how long a review of a notice can last, and therefore how long the status quo must be maintained under Clause 17. They will also provide further clarity on the process and management of that review.

Specifying timelines will require an amendment to the existing regulations concerning the review of notices. The Government commit to holding a full public consultation before the amendment of those regulations and the laying of new regulations relating to Clause 20, which provides for the introduction of the notification notices. Representations received in response will be considered and used to inform both sets of regulations, which we have clarified in the Bill are subject to the affirmative procedure.

Amendment 35, tabled by the noble Lord, Lord Fox, seeks to specify in statute who the Secretary of State must consult before laying regulations relating to Clause 20 and the introduction of notification notices, and the factors that the Secretary of State must have regard to when making those regulations. I hope the commitment that I have just made to hold a full public consultation provides the necessary reassurance to the noble Lord that all relevant persons will be consulted before making the regulations, and that he will agree that is it unnecessarily prescriptive, and potentially restrictive, to put such details in the Bill.

Amendments 22, 25, 28 and 31, also tabled by the noble Lord, Lord Fox, seek to limit the extraterritoriality of Clause 17 and ensure that operators can make changes to their services and systems for users in other jurisdictions during a review. To be clear, the Bill as currently drafted means that companies can make changes to their services during a review. They could choose to roll out new technologies and services while the review is ongoing, including in other jurisdictions, so long as lawful access is built into them as required to maintain the status quo. Furthermore, the status quo will apply only to whichever of their systems and services are covered by the notice in question. Naturally, anything outside the scope of the notice is unaffected by the requirement. I also emphasise that the control of telecommunications systems used to provide telecommunications services in the UK does not stop at borders, and it is highly likely that any such arbitrary geographical limitations would in fact be unworkable in practice.

Amendments 23, 24 and 29 seek to raise the threshold with regard to relevant changes that an operator must not make during a review period to a change that would “substantially limit” their ability to maintain lawful access. This would not make the position any clearer as “substantially” is a subjective test. Moreover, it would constrain Clause 17 in a way that would fundamentally prevent it from achieving its objectives: to ensure that the same level of lawful access available before the notice was issued is maintained during a review period.

Lawful access provides critical data to law enforcement and intelligence agencies. Constraining access to data that was previously available, in a limited capacity or substantially, may seriously undermine investigations and the ability to protect our citizens. It is therefore vital that the status quo is maintained during the review period. It would also be difficult to define “substantially limit” without referring to a “negative effect on” a capability.

Amendments 36 to 38 to Clause 20, also spoken to by the noble Lord, Lord Fox, seek to raise the threshold and provide more proportionality. As I have emphasised on every occasion we have debated the Bill, necessity and proportionality constitute a critical safeguard that underpins the IPA. Authorisations are approved by an independent body and all warrants and notices must be approved by a judicial commissioner. There is considerable oversight of authorisations, meaning that the threshold is already high. Necessity and proportionality justifications are considered for every request for a notice, warrant or authorisation and, by extension, whether it is reasonable to issue that request to the operator. Once operators are in receipt of such a request, they are required to provide assistance. The proposed amendments are therefore not required.

Finally, government Amendment 34 is a consequential amendment necessitated by the introduction of Clause 19, which amends the functions of a judicial commissioner to include whether to approve the renewal of certain notices.

I am grateful to all noble Lords who have spoken in this debate—

[Lord Fox (LD)]

Before the Minister sits down, winding back to the point about territoriality, he spoke of national boundaries as being arbitrary. It would help me to understand what kind of activity the Government envisage reaching across those boundaries, which he refers to as arbitrary; in other words, what would the Government be seeking to do extraterritorially?

[Lord Sharpe of Epsom (Con)]

If it would help, I am happy to write to the noble Lord with some sensible and practical scenarios because I do not think it is appropriate to make them up at the Dispatch Box, if that is acceptable.

I was just about to thank the noble Lord for the time he has taken to talk me through his concerns ahead of Report and at various other stages of the Bill on various other issues. However, I hope that I have provided reassurances through my comments at the Dispatch Box and the government amendments that we have tabled. I therefore invite the House to support these amendments and invite the noble Lord to withdraw Amendment 21 and not move the others he has tabled.

[Lord Fox (LD)]

I beg leave to withdraw the amendment.

Amendment 21 withdrawn.

--- Later in debate ---

Tabled by

[Lord Fox]

35: Clause 20, page 39, line 23, at end insert—
“(3A) Before making regulations under this section the Secretary of State must consult the following persons—(a) the Technical Advisory Board;(b) persons appearing to the Secretary of State to be likely to be subject to any obligations specified in the regulations;(c) persons representing persons falling within paragraph (b); and(d) persons with statutory functions in relation to persons falling under that paragraph.(3B) When making regulations under this section the Secretary of State must have regard to—(a) the public interest in the integrity and security of telecommunications systems and postal services;(b) the impact on users arising from any delay to implementing relevant changes;(c) the desirability of encouraging innovation by relevant operators; and(d) any other aspects of the public interest in the protection of privacy.”Member's explanatory statement
This amendment, together with others in the name of Lord Fox, place a duty on the Secretary of State to consult with relevant persons before making regulations that will specify what a “relevant change” will include.

[Lord Fox (LD)]

I heard what the Minister said on Amendment 35, and it is reassuring that the consultation will be occurring, so I do not intend to move Amendment 35.

Amendment 35 not moved.

--- Later in debate ---

[Lord Fox (LD)]

My Lords, at Second Reading I raised the issue of the Prime Minister in a slightly different context, but it has taken the legal brains of the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, to put it into a frame. I am happy to have co-signed that, and happy to find myself back on the same side as them on this argument.

It is clear that we will not resolve this here today, but it is perhaps something that we will take to the gap between here and the Commons to try to resolve. I rely on the wisdom of noble Lords who have spoken to take this forward.

On the other point, I support the amendments of the noble Lord, Lord West, and I hope that the Government will find his persuasion conducive.

[Lord Hope of Craighead (CB)]

My Lords, I spoke in Committee about the difference between “unavailable” and “unable”. I am greatly encouraged by Amendments 39 and 43 proposed by the noble Lord, Lord West. The one point of difference between us is that he narrows the meaning of “inability”, for reasons he has explained. If it came to a vote, I think I would support his amendments—but, like the noble Lord, Lord Anderson, I think that further thought needs to be given to whether that narrowing of “inability” or “unable” is really appropriate, considering the effect that it has, particularly in situations of conflicts of interest.

Asylum: UK-Rwanda Agreement

Lord Fox Excerpts

Monday 22nd January 2024 Lords Chamber

[Lord Fox (LD)]

My Lords, it is a great pleasure to speak in this debate, where we have heard many excellent, informed and expert views on this issue. As a member of the International Agreements Committee—as the noble Baroness, Lady Kingsmill, pointed out—I will try to move our focus back on to the report and the two Motions.

As the noble and learned Lord, Lord Goldsmith, and his predecessor as chair, the noble Baroness, Lady Hayter, set out, if we needed a demonstration of the shortcomings of the CRaG process, this is indeed it—albeit the first time it has ever reached your Lordships’ House. As a member of the committee, I realise how little time CRaG gives us to scrutinise something as important as this treaty. Nevertheless, thanks to our colleagues, the committee and the tireless work of the clerks, advisers and administrative team, we produced this report, which I and all the other members of the committee wholeheartedly support.

I will address an element that came up from, I think, the noble Lord, Lord Sandhurst—although I may have inferred something that he did not mean. There seemed to be an inference that because we did not comment on something, we agreed with it—a sense of “silence is assent”. I undertake that, as a committee, we adopted a very specific focus: we did not seek to determine the morality of the Rwanda deportation concept; we did not analyse the applicability and cost-effectiveness of the scheme; we did not examine whether the central deterrence theory has any validity; and we did not probe how, in conjunction with the Bill—I look at the noble Lord, Lord Wolfson, in saying this—it affects the constitution and our international reputation.

As your Lordships will have gleaned from the excellent speeches from my noble friends, we on these Benches believe that the Rwandan scheme is a politically partisan, immoral proposal that is neither cost-effective nor achievable. We think the deterrence theory is unproven and, in any case, too high a price for breaking the constitution and dragging our international reputation through the mud. But no, this report did not look in those directions. The committee took a simple approach of examining the journey from the memorandum of understanding to the treaty, via the Supreme Court judgment. It tested the claims made by the Government for the treaty. As the only parliamentary committee doing such scrutiny, I am delighted that the noble and learned Lord, Lord Goldsmith, has laid this Section 20 Motion. This is our only power under CRaG, and I am pleased that we are seeking to apply it.

In mid-November, the Supreme Court found that the Rwanda policy, as expressed through the MoU, was unlawful. As we have heard, the basis for the ruling was that Rwanda is not a safe country in this context. The Supreme Court was clear—so clear, in fact, that it revealed a range of institutional, legal and procedural measures that needed to be in place to render the country safe enough for the Rwanda policy to be lawful. As the Secretary of State, James Cleverly, says in the policy statement document, the Government produced a policy that

“carefully considers and responds to the Supreme Court’s judgment”,

adding that the policy statement

“should be read alongside the treaty”.

During his evidence to the committee, the Home Secretary repeatedly took the line that because the words in the treaty meet the requirements of the Supreme Court, Rwanda will be a safe location to achieve the Government’s ends. As he said,

“Once the treaty has gone through the legitimate democratic process, in Westminster and Kigali, we can legitimately say that their”—


the courts’—

“concerns have been addressed”.

As an aside, I would ask, as others have: if his confidence really was that strong, why is the Bill necessary? If, as he suggests, the Supreme Court’s demands have been satisfied by the treaty, why turn the constitution on its head to keep judges away from making a ruling? But that is a debate for another day.

The committee’s report does not question the integrity or the willingness of the Rwandans to deliver on this treaty. It does, however, review in detail what needs to be done in Rwanda—on the ground, not just on paper, but actually existing and operating. We can see from the evidence presented to the committee that much needs to be achieved to meet the terms of the treaty—much to be achieved, therefore, to meet the Supreme Court’s criteria for a legally safe process.

While giving evidence to the committee, Secretary of State Cleverly was unable to put a timeframe on the achievement of those activities. He did not furnish a copy of the law that must be passed in Kigali. He was generally very light on detail, but he asserted that it could all happen quite quickly. In paragraph 45 of the report, the committee set out 10 paramount legal, practical steps that have to be implemented to properly meet the terms of the treaty. As your Lordships will have seen, this involves passing laws, setting up new processes and appointing and recruiting a wide range of people, as well as training them. None of this is trivial, or indeed routine.

Given the importance to the legality of the scheme of these 10 measures, James Cleverly was asked to confirm that the Government would not ratify this treaty until they were satisfied that the agreement had been fully implemented. Given what he had said moments before, his answer was quite curious and a little surprising. I make no apology for quoting the Secretary of State’s words, because they perhaps demonstrate a little lucidity for a moment.

James Cleverly said:

“We have a process that we are running through. They”—


the Rwandans—

“have a process that they are running through. The point is that we will not operationalise this scheme until we are confident that the measures underpinning the treaty have been put in place; otherwise, the treaty is not credible”.

I repeat his words for emphasis. He said that

“we will not operationalise this scheme until we are confident that the measures underpinning the treaty have been put in place”.

Clearly, he has some doubts, but never mind. I suggest that there is very little difference between waiting for the conditions to be operationalised and meeting the conditions of this Motion. Both require evidence that the treaty’s requirements are in place and operational on the ground; the difference is that this Motion expects Parliament to be involved in that process. We, as noble Lords, should always protect Parliament’s role in making decisions such as this.

If the Secretary of State’s confidence is demonstrated, it will not in fact take very long; he said that it might not take very long. If that is the case, we will not have to wait long for this process to be operationalised. I must say, as many of your Lordships have set out, there is a strong belief that the Home Secretary may have understated the scale of the challenge and underestimated the time it might take for all these things to happen. None of the evidence we received suggested that the 10 criteria set out in the report can be realised with any degree of speed.

Leaving aside the moral, financial and constitutional issues surrounding this treaty and its accompanying Bill, focusing instead on the necessarily narrow grounds adopted by our committee, there is more than enough reason to delay the ratification of the treaty until the conditions for its lawful operation are in place. We support the Motions in the name of the noble and learned Lord, Lord Goldsmith, and will take that support through the Lobby if he chooses, as I hope he will, to move them.

Investigatory Powers (Amendment) Bill [HL]

Lord Fox Excerpts

Committee stage
Wednesday 13th December 2023 Lords Chamber

I repeat: we support the Bill. As the noble and learned Lord, Lord Hope, the noble Lord, Lord West, and I have said—I am sure that the noble Lord, Lord Fox, and others will say the same—we are seeking some clarification and certainty on some of its provisions so that it is fit for purpose and delivers what we all want it to.

[Lord Fox (LD)]

My Lords, I rise to speak to the amendments in my name in this group. First, I shall make some brief and broadly supportive comments regarding the amendments proposed by the noble and learned Lord, Lord Hope, and the noble Lords, Lord West and Lord Coaker.

As we have heard, all these amendments are designed to tighten up or clarify the triple lock and the changes introduced in the Bill. As your Lordships know, the triple lock relates to circumstances where UKIC and law enforcement may obtain and read the communications of MPs, et cetera; we will talk about the “et cetera” in a minute. Currently, the usual double lock is supplemented by an unqualified requirement that the Secretary of State may not issue the warrant without the Prime Minister’s approval.

As we heard from the noble and learned Lord, Lord Hope, the report from the noble Lord, Lord Anderson, explores the circumstances in 2020 when the Prime Minister was hospitalised and the triple lock was therefore rendered unavailable. The noble Lord recommends the use of a deputy for the purposes of the triple lock when the Prime Minister in unable to approve a warrant in the required timescale, particularly through incapacity, conflict of interest or an inability to communicate securely. As we heard from the noble and learned Lord, “unable” has been substituted with “unavailable” in the Bill. I really am not sure why—perhaps the Minister can explain why—but that is a different context. In his normal, forensic way, the noble and learned Lord explained the difference between those words; that is why I was happy to sign Amendment 51A, which reverts back to the originally recommended “unable”.

The amendments in the name of the noble Lord, Lord West, are more probing but interesting. We will be interested to hear how the Minister responds to them; I look forward to that.

Amendment 47 in the name of the noble Lord, Lord Coaker, seeks to limit the number of Secretaries of State who can be designated in that deputy role. This seems a reasonable suggestion. Others may want to change the list, but a senior group of Ministers should be listed; surely having three or four of them on that list should be sufficient to deal with the issue.

The noble Lord, Lord Coaker, spoke to Amendment 55A. There are elements of reporting there that are reflected in my Amendment 55, which I will come to shortly.

I will now speak to Amendments 50, 54 and 55 in my name. Amendments 50 and 54

“would require that members of a relevant legislation who are targets of interception are notified after the fact, as long as it does not compromise any ongoing investigation”.

Amendment 55 seeks to ensure that the Investigatory Powers Commissioner reports annually on the operation of surveillance warrants and safeguards in relation to parliamentarians. This should include records in the annual report of the number of warrants authorised each year to permit surveillance of the Members of relevant domestic legislatures. This would ensure transparency, at least over the rate at which the power is being used.

Before talking a little more about this, it is worth recapping the history of political wiretap legislation. I am sure there are others who know it better than I, but it was helpful for me to understand the context. As we have heard, the IPA permits the interception or hacking of parliamentarians or the Members of other domestic legislative bodies via this triple-lock system, whereby the Secretary of State can issue a warrant with the approval of the Prime Minister, as per Sections 26(2) and 111(3). Until October 2015, it was widely understood that the communications of MPs were protected from interception by the so-called Wilson doctrine. This protection extended to Members of the House of Lords in 1966, and was repeated in unequivocal terms by successive Prime Ministers. Tony Blair clarified in 1997 that the policy

“applies in relation to telephone interception and to the use of electronic surveillance by any of the three security and intelligence agencies”.—[Official Report, Commons, 4/12/1997; col. 321W.]

Despite this clear and unambiguous statement that MPs and Peers would not be placed under electronic surveillance, an October 2015 decision by the Investigatory Powers Tribunal held that the doctrine had been unilaterally rescinded by the Executive. We pick up from there, so it is an interesting evolving power and we are part of that evolution in this Bill.

This evolution has also coincided with the meteoric rise in electronic communication that now offers the possibility of vastly more information being unearthed than was the case with a simple wiretap back in the Wilson days. First, there are clearly times when this sort of interception is necessary, and that is why the triple lock is such an important safeguard. But I have a couple of modest suggestions contained in these amendments. I must say now that I am in a state of deep trepidation, as not only has the noble Baroness, Lady Manningham-Buller, given me notice that she is on my case but she has actually moved five Benches closer than she was on Monday, so my boots are shaking.

These amendments would introduce a post-notification procedure to inform parliamentarians where they have been affected by targeted surveillance powers, but only if it does not compromise any ongoing investigation. Clearly, they would have to be deemed innocent or beyond suspicion for that notification to happen. I agree that it would be unfortunate, to say the least, if, for example, the announcement of any investigation revealed confidential sources that led to the initial investigation. I had hoped that my wording implied that, but I will be very happy to work with the noble Baroness on improving the wording on Report if she deems it necessary.

We got to the fourth group of amendments to the Bill without my raising the European Convention on Human Rights. Now is the time. Happily, I am sure that the Minister has been reading up on this for other reasons, and he will no doubt be familiar with this important bastion of freedom. I refer in particular, in this case, to Article 8: the right to respect for private and family life, home and correspondence. I feel sure that most surveillance interventions would meet the terms of Article 8, which are summarised as:

“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.


As I say, it is unlikely that the activities we have been describing will break that.

In the unlikely event that they do and there is a misstep, in order to bring a case under the Article 8 right it is necessary for a person to know that their privacy was breached in the first place, hence Amendments 50 and 54. I refer the Minister to two Article 8 rights cases heard by the European Court of Human Rights: Klass v Germany in 1978, which was reiterated in Weber and Saravia v Germany in 2006.

Amendment 55 is a bit simpler. It would ensure that the Investigatory Powers Commissioner’s annual report provides information about the operation of safeguards in relation to surveillance of Members of Parliament et cetera, as is already required for journalists. It would mandate that

“information in particular about warrants … considered or approved”

that are targeted at MPs et cetera is included, further to the requirement to provide information on general targeted interception and hacking warrants. I believe that is not a controversial ask, and I hope the Minister agrees.

I would like to use these amendments to do some probing as well as changing words, by confirming the “et cetera” part of MPs et cetera. My understanding, which I am sure is correct, is that as things stand that includes Lords and elected Members of the devolved authorities. But our democratic system is changing and evolving as we go. We now have very powerful elected mayors with very large electorates—much larger than any MP’s. I wonder whether there is an argument that they too should be included within the triple-lock umbrella going forward. I have one additional question in this vein. Once out of office, do all these individuals no longer attract triple-lock protection? Are ex-First Ministers, ex-MPs and ex-Prime Ministers all no longer subject to the triple-lock safeguards?

This sort of legislation breeds suspicion. The two measures I propose here are sincere attempts to help tackle some of these suspicions and create sufficient transparency to allay the fears that there is widespread and extensive activity of this type—assuming, of course, that this activity is indeed a rare occurrence.

[Baroness Manningham-Buller (CB)]

My Lords, the noble Lord, Lord Fox, is quite safe; I am not going to come and hit him, but I am going to try to demolish a few of his arguments.

I will start with the word “transparency”, which appears again in some of the amendments in the name of the noble Lord, Lord Coaker. The work of the security and intelligence agencies can never be transparent. It is in the interests of those agencies that as much as can safely be known of what is done in their name is known, which is why my organisation sought law in the 1980s. But there will always be things that cannot be made public because, if they are, we might as well pack up and go home.

Appealing as the amendments in the name of the noble Lord, Lord Fox, might be on the surface, for a start, telling people that they have been subject to interception would require us to alter earlier parts of the IPA because it would be illegal. To do so would also risk sources and methods. Of course, they would not be itemised, but let us consider a speculative case of a Member of the other House who has a relationship with a young Chinese lady. Let me emphasise strongly that this is not based on any knowledge of anything. Indeed, when I was director-general of MI5, we still operated the Wilson doctrine. Somebody in that MP’s office approaches my former colleagues and raises concerns with them. A warrant is obtained, signed by the Prime Minister, and subsequently it becomes clear that the concerns of the individual in the office—the source of the information—were absolutely justified. Now, we cannot tell that individual at any stage whether he or she is acquitted of any wrongdoing or ends up care of His Majesty’s jails. We cannot at any stage tell him because it risks sources and methods.

[Lord Fox (LD)]

I do not think I was saying that.

[Baroness Manningham-Buller (CB)]

No, this is what I want to establish. Just saying that he has been intercepted will lead that person to wonder how, so we cannot act covertly if there is any danger of sources being revealed or future operations being compromised.

Additionally, it raises the question of why Members of legislatures should have the privilege of being told that they have been subject to interception when members of the public never are. It is wrong, as it was, to treat parliamentarians as a particularly special case. Of course, such cases are highly sensitive, hence the triple lock; hence, I suggest, the rarity of this, but I think Amendments 50 and 54 are potentially damaging. I will shut up now.

--- Later in debate ---

Before I conclude, the noble Lord, Lord Coaker, asked me a specific question about a Mail on Sunday story about the Defence Intelligence situation. The Ministry of Defence did provide some analytical capability to augment capacity in government departments during the pandemic. This was done through established government processes: military aid to the civilian authorities—MACA—which allows for military support to government departments in exceptional circumstances, such as the pandemic. My noble friends in both DSIT and the MoD would be happy to follow up on any further questions on that.

[Lord Fox (LD)]

I am anticipating the Minister sitting down shortly. I remind the Minister that I asked a specific question on directly elected regional mayors, their rise, and the role that they play in democracy, which is so different to when the IPA was originally conceived. The Minister may not have an answer now, but a written answer would be very helpful.

[Lord Sharpe of Epsom (Con)]

I am happy to acknowledge that the noble Lord is right: their powers have expanded, as have their influence and celebrity over the years. I do not have an answer now, but I will come back to the noble Lord on that.

The objective of these clauses is to provide greater resilience in the process. It is critical that we do not undermine this from the off. I therefore hope noble Lords feel reassured by the explanations given, and the information set out in the draft code of practice, which is the appropriate place to set out the detail of this alternative process.

--- Later in debate ---

[Lord Murphy of Torfaen (Lab)]

My Lords, when I started life in politics a long time ago—50 years or so ago—when the general public, or people who had political ideas, thought about the security services they were generally criticised because they were spying on people who should not be spied on, such as political activists and all the rest of it. By the time the noble Baroness, Lady Manningham-Buller, and myself worked together with the intelligence and security agencies, the criticism that would come was whether the intelligence services had not done enough to protect us. That is the way in which things have changed over the last 40 or 50 years, so we have to be very careful how we balance this idea of accountability on the one hand and inevitable secrecy on the other. How do we do it?

There are reports by the Investigatory Powers Commissioner and the intercept commissioners. When I had to intercept, I was overseen by a commissioner every year. I had a meeting with him—a former judge—on whether I did this or that right, and on whether this or that was important. I come back to the point I have made in the last two days of Committee about the Intelligence and Security Committee itself. That is the vehicle by which Parliament holds the security services accountable. My noble friend Lord Coaker has been making that distinction all the time: the services being accountable to Government for what they do is very different from being available to Parliament.

Of course, details of who has been tapped and details of intelligence operations cannot come here, to this House or the other House—of course not. However, they can go through the committee which both Houses have set up, which meets in private, is non-partisan, and which has Members of both Houses who have great experience on it, to deal with these issues. That is why I appeal to the Minister—we had the debate on the issue on Tuesday—to think again about using the ISC to answer some of the issues that my noble friend Lord Coaker quite rightly raised.

[Lord Fox (LD)]

My Lords, I shall be brief. Just on the subject of suspicion, which I think I raised it, I was thinking—perhaps I did not articulate it well—that it was at the political-class level. It is not hard to construct a suspicious scenario where a Westminster-based Executive are hacking an Edinburgh-based politician—I am sure that suspicion would apply there. However, the noble Baroness is right about the public.

The amendment in the name of the noble Lord, Lord Coaker, is important, not because this sort of thing needs to go into primary legislation, but because his point around emphasising public understanding and support which has come out is really important. He picked out the fact that a number of officeholders have worked hard at generating a positive profile for the services, and for that they should be thanked and congratulated. I would add GCHQ, the public profile of which probably did not even exist a decade or so ago. I have several very sad friends who can hardly wait with excitement for the annual GCHQ quiz to arrive. Things like that essentially draw attention to the nature of the work that such organisations do. I laugh at those friends but then I cannot solve it and they can, so perhaps they are the winners there. Those sorts of things do not shed light and throw open the doors on the things the noble Baroness and others fear should not be public, but they create an ambience around those services which is important.

Nobody has mentioned the amendments in the name of the noble Lord, Lord Sharpe, which I guess is exactly what he wanted, and I have nothing to add to them either.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the Committee very much indeed for the points raised in this short debate, which eloquently explained the fine balance that needs to be struck in this area. As this is the last group, I take this opportunity to thank all the men and women in all the security services, who do so much to keep us safe.

Investigatory Powers (Amendment) Bill [HL]

Lord Fox Excerpts

Committee stage
Monday 11th December 2023 Lords Chamber

As I said to the Minister, we accept the changes the Bill is bringing forward; it will improve the situation. There are much-needed amendments in this group and the others we will discuss, but the clarifications I have asked for should help those who seek to interpret the Bill, and, indeed, those who will use the increased powers in it. With that, I beg to move.

[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.

--- Later in debate ---

[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.

[Lord Fox (LD)]

That is exactly the case.

[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.

--- Later in debate ---

Turning to Amendment 9, I am sure noble Lords were as surprised as I was to hear that the noble Lord thinks that the intelligence services ought to “forget” intelligence they have gathered, creating a clear risk that could jeopardise national security and be contrary to their statutory functions, as well as Article 2 of the Human Rights Act, on the right to life.

[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.

--- Later in debate ---

Moved by

[Lord Fox]

20: Clause 11, page 30, leave out lines 38 and 39
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.

--- Later in debate ---

I believe that I have set out clearly the Government’s position in respect of these important areas. Again, I thank noble Lords for prompting this debate, but I respectfully ask that they do not press their amendments, for the reasons I have set out.

[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.

Amendment 20 withdrawn.

--- Later in debate ---

Debate on whether Clause 16 should stand part of the Bill.

[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.

--- Later in debate ---

Finally, as noble Lords will have seen, the Government have tabled Amendments 33 and 42 to clarify that the route of judicial redress to the Investigatory Powers Tribunal applies to notification notices. Amendments 40 and 41 ensure consistency across the language used throughout the IPA. I trust that noble Lords will welcome and support those amendments and I ask them, respectfully, not to press their own amendments.

[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.

Strikes (Minimum Service Levels: Border Security) Regulations 2023

Lord Fox Excerpts

Wednesday 6th December 2023 Lords Chamber

[Baroness Bennett of Manor Castle (GP)]

My Lords, I rise to move my fatal amendment on the border security minimum service levels regulations. I will be very brief in doing so, in the interests of progressing the business of the House, particularly given the fine balance of our numbers. I am not going to repeat all my previous statements and arguments but, for the record, that does not mean that I am in any way withdrawing any of them.

I agree with virtually everything that the noble Lord, Lord Coaker, just said about these being, in some ways, the strictest of the regulations before us today. Some 70% to 75% of staff are losing the right to strike; in many smaller places, there is effectively no right to strike. We are taking that right away from people. However, that would really be a stronger argument for my fatal amendment. In that context, the regret amendment does not really achieve anything, as I have said before. I will, however, just reflect on one comment that the Minister made, repeating statements that the Government have often made before. If the Government are committed to conciliation for national disputes, this is a kind of rhetorical question, but it is worth asking. Can the Minister confirm how he can speak for future Governments, because these are the regulations we are laying now?

[Lord Fox (LD)]

My Lords, this is perhaps the most curious of the three statutory instruments aimed at particular sectors. I say that because it seems that the Government have chosen to pick a fight with one of the groups of public sector workers with which, to my knowledge, they do not currently have a full-blown dispute. Perhaps there is one coming; perhaps that is why Robert Jenrick has just resigned. He must know something that we do not. Given the choice of sectors, why did the Government choose to accelerate this one over other public services which are currently in trouble? It seems strange. Clearly, as other speakers have said, it is not a very long measure, and noble Lords will be happy to know that my speech will be shorter.

At the heart of this, as we heard from the noble Lord, Lord Coaker, the intent of the measure is that the strike-day service from Border Force should be no less effective than on a non-strike day, and services should cover all the areas normally running—port and airport services, passport services and so on—as the Minister has set out. I do not need to explain that when the minimum service level is no less effective than the everyday service level, that basically means almost everybody is required to go to work. In this case, the estimate from the TUC is that 70% to 75% of the employees of Border Force on a normal day will be required to attend on a strike day.