Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2022

Lord German Excerpts

Tuesday 20th December 2022 Lords Chamber

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

My Lords, keeping the public safe and protecting our national security is a key priority for this Government. It is vital that our intelligence agencies, law enforcement bodies and public authorities are able to exercise the important powers contained in the Investigatory Powers Act 2016, which I will refer to as the IPA. We rightly have in place world-leading standards on transparency, privacy, redress and oversight to accompany the exercise of these powers.

The regulations to be debated today will make two necessary amendments to Schedule 4 to the IPA. The first will implement changes to the communications data authorisation process for the UK intelligence community in order to implement the findings of a High Court judgment. This judgment was handed down in June this year in the case of Liberty v Secretary of State for the Home Department and Secretary of State for Foreign and Commonwealth Affairs. I will refer to communications data as CD and the UK intelligence community as UKIC.

This amendment will remove the power for UKIC to internally authorise the acquisition of CD for purposes which relate solely to serious crime, other than in urgent circumstances. In line with the court’s judgment, from 1 January 2023, it will be necessary for UKIC to seek authorisation for acquisitions of this type through the Office for Communications Data Authorisations, which I will refer to as the OCDA. The OCDA is part of the Investigatory Powers Commissioner’s Office, and its involvement in the authorisation process will ensure that an independent body has considered all non-urgent applications for CD.

For urgent applications, UKIC needs the ability to continue to self-authorise the acquisition of CD in such circumstances, because the OCDA is open only during normal office hours and our intelligence services need to be able to acquire CD at any time of day or night in urgent situations. This statutory instrument makes the necessary change to Schedule 4 to permit such urgent acquisition. Law enforcement bodies such as police forces are able to self-authorise urgent CD requests in the same way.

If this power is not in place, there is a risk of causing delays to UKIC’s operations, potentially putting the public at increased risk of serious crime. Additionally, these regulations will amend the Schedule 4 entry for the UK National Authority for Counter-Eavesdropping, which I will refer to as UK NACE. UK NACE was added to Schedule 4 in 2020, and these regulations do not change the powers afforded to it but make its designation more consistent with the approach taken for other similar bodies which form part of relevant public authorities for the purposes of Schedule 4 to the IPA.

It is opportune to make this small change alongside the other amendments to Schedule 4 to implement the High Court judgment. Per the obligations set out in Section 72 of the IPA, appropriate consultation has taken place with UK NACE, the Foreign, Commonwealth and Development Office and the Investigatory Powers Commissioner’s Office in advance of making this change. UK NACE plays a critical role in protecting our national security from state threats and other malign actors, and it is vital that it is equipped with the appropriate powers to carry out this activity effectively.

In summary, these regulations will enable UKIC and UK NACE to continue carrying out their statutory duties effectively, while ensuring that there is appropriate oversight in place to protect privacy. I hope noble Lords will support these measures and their objectives. I commend the draft regulations to the House and beg to move.

[Lord German (LD)]

My Lords, we support these regulations, but I have a number of questions to ask the Minister and would like the whole House to reflect on the way regulations of this sort are dealt with by the House.

Early in January, there will be a debate on two reports from this House on the way in which secondary legislation is dealt with by Parliament, particularly the House of Lords. This particular set of regulations—what I am about to say has no effect on them—come under the enhanced affirmative procedure, which provides for regulations being placed in a draft form so that Parliament can assess them and then request the Government to make changes in summary. They would then bring forward amendments to it. In this set of regulations such a requirement was not in place, because the committee that looked at them, of which I am a member, did not make any recommendations about changes that might be required.

However, there are two points in respect of the way that Parliament deals with these matters. The first is that when the enhanced affirmative procedure is required, there is no specification as to which committee of this House will look at them. I will raise that matter in January, but we perhaps need to consider it. At the moment, the Secondary Legislation Scrutiny Committee looks at them, but not necessarily so: it is simply because there was nobody else. In the other place, it is “other committees” that look at this procedure, which is quite strange.

There is no question that, because there is no recommendation from the Secondary Legislation Scrutiny Committee, this procedure would have to form the amendment. It is very important that we have that opportunity to make changes to the secondary legislation; it is otherwise a take-it-or-leave-it procedure. A detailed discussion has been going on in this House about this, as we find it very strange for a Parliament to give such power to the Executive without having the opportunity to properly scrutinise and make appropriate changes.

I would like to ask the Minister some questions. First, which bit of the EU law, which resulted in the High Court’s decision, was problematic? This was a compendium case taken to the High Court, in which the Government defended themselves. This was one of several elements, and the Government were defeated on this element on the basis that they were breaching that EU law. Is the Minister satisfied that the EU law itself is appropriate and will therefore not necessarily need to be changed? It provides some fundamental rights, particularly against what people call the snoopers’ charter.

My second question concerns the operation of the OCDA. It is rather strange that the Minister and his counterpart in the other place talked about the OCDA being able to deal with these matters only during opening hours. It strikes me as being rather like a pub: you have opening hours, you have to place your order, and you cannot put anything in if the doors are closed. The question therefore arises: if you are applying to the OCDA during opening hours, how long would it take to give an answer? Clearly, the issue of understanding and defining what is urgent is very important. Having a definition that says that it is urgent only if it is closing time or they are gone would not be wholly appropriate. I understand the urgent nature of the legislation, but perhaps the Minister could describe how long the OCDA would take to provide an answer in ordinary circumstances where there is not such urgency. With those two questions, I am pleased to support these regulations. I hope that we can delve more into the process in January.

[Lord Beith (LD)]

My Lords, perhaps I might ask the Minister a couple of questions arising out of this. First, am I right in thinking that, to satisfy the court judgment, we must pass these regulations before the beginning of January? Perhaps he could clarify that. Secondly, looking in more detail at the position of the Security Service in particular in dealing with organised crime, I think I am right to say that the only change made by these regulations to satisfy the court judgment is that the urgency procedure would be able to address serious crime communications bids only if there is a matter of urgency, otherwise they would need to go through the normal process.

What slightly puzzles me about that is that I would expect the Security Service, which makes an enormous contribution in dealing with serious crime, to work in close conjunction with the police and, presumably, the National Crime Agency. Would it not be the police leading many such investigations? Would they not themselves be in a position to make the urgent request for communications data? I ask that simply for clarification, not out of any criticism of the fact that the Government have implemented the court’s decision.

Clearly, this restriction will not apply to other areas in which the intelligence agencies work. They will be able to make their own applications on their own initiative, even if it is not an urgent case, because it is within their core areas of activity. But when it comes to serious crime their responsibilities are shared with other bodies, which might be expected to take a lead on the requirement to use communications data.