Investigatory Powers (Amendment) Bill [HL]

Debate between Lord Hope of Craighead and Lord West of Spithead

Committee stage
Monday 11th December 2023 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, if I suddenly fall over, it is not excitement over my amendments but that I have a brand new starboard knee, which is still slightly wobbly, so I might look a little wobbly at times.

Noble Lords will recall that the Investigatory Powers Act was introduced as a result of the Intelligence and Security Committee of Parliament’s 2015 report, Privacy and Security, which recommended that a new Act of Parliament be created to

“clearly set out the intrusive powers available to the Agencies, the purposes for which they may use them, and the authorisation required”.

However, as the noble Lord, Lord Anderson, recognised in his recent report, which he referred to, there have been a number of changes since the Act was introduced. We now face a very different threat picture from that which we did in 2016, with an increased threat from state actors such as China, Russia and Iran, and a significant rise in internet-enabled crime, including ransomware and child exploitation. The pace of technological change has been incredible. Developments in the fields of data generation, cloud services, end-to-end encryption, artificial intelligence and machine learning have all created challenges, as well as opportunities, for law enforcement and the intelligence community.

The Intelligence and Security Committee, of which I am a member, therefore welcomes the introduction of this Bill. The ISC has considered classified evidence relating to the Bill and questioned all parts of the intelligence community and Ministers on the need for change. However, as ever, the devil is in the detail. The committee considers that there are several areas in which the Bill must be improved and, in particular, safeguards strengthened.

Parliament must ensure that the balance between privacy and security is appropriate, and that there is sufficient independent oversight of the work of the intelligence community, given the potential intrusiveness of its powers. The Bill seeks an expansion in the investigatory powers available to the intelligence services. While this expansion is warranted, any increase in investigatory powers must be accompanied by a concomitant increase in oversight. I have previously spoken about the refusal of the Government to update the remit of the ISC, or to provide the necessary resources for its functioning, such that it has

“oversight of substantively all of central Government’s intelligence and security activities to be realised now and in the future”,—[Official Report, Commons, Justice and Security Bill Committee, 31/1/13; col. 98.]

as was the commitment given by the then Security Minister in the other place during the passage of the Justice and Security Act.

The House has made known its views on this long-standing failure during debates on several recent national security Bills, including the National Security and Investment Act, the Telecommunications (Security) Act and the National Security Act. However, despite repeated attempts by this House to ensure effective oversight, this has been ignored by the Government. The Government cannot continually expand and reinforce the powers and responsibilities of national security teams across departments and not expand and reinforce parliamentary oversight of those teams as well. The committee expects the Government to take this opportunity to bolster the effective oversight they say they value. If they do not, then they should expect that Parliament will. I therefore call upon the Government once more to update the ISC’s memorandum of understanding to ensure sufficient oversight of all intelligence and security activities across government. Indeed, this was the quid pro quo that Parliament expected during the passage of the Justice and Security Act 2013, and I trust that Parliament will take the same view now.

I turn to Amendment 10, which is designed to close a gap in oversight. Proposed new Section 226DA requires that each intelligence service provide an annual report to the Secretary of State detailing the individual bulk personal datasets that they retained and examined under either a “category authorisation” or an “individual authorisation” during the period in question. My amendment would ensure that there is independent oversight of this information, rather than just political oversight. The amendment would provide that the annual report be sent also to the Intelligence and Security Committee of Parliament and the Investigatory Powers Commissioner. IPCO has a degree of oversight included in the Bill already, since judicial commissioners approve both individual and category authorisations at the point of issue and approve the renewal of any authorisations after 12 months. This is not full oversight. Further, there is currently no democratic oversight at all of category authorisation, which is not appropriate. My amendment would ensure that IPCO and the ISC have oversight of the overall operation of this new regime.

Noble Lords will note that I have also tabled an amendment to notify IPCO of any new individual datasets that are added to category authorisations by the intelligence services. That amendment would work alongside this, and the ISC considers that the combination would provide an appropriate balance of real-time and retrospective oversight for these new powers. It is vital that the robust safeguards and oversight mechanisms so carefully considered by Parliament in respect of the original legislation are not watered down by the changes under this new Bill. Instead, they must be enhanced in line with the increasing investigatory powers. This is what the ISC seeks to achieve by the amendments I have tabled today.

Amendment 12 is consequential on the amendments that I have just talked about.

I speak now to Amendment 13. Part 7A of the Bill provides for a lighter-touch regulatory regime for the retention and examination of bulk personal datasets by the intelligence services where the subject of the data is deemed to have a low or no reasonable expectation of privacy. Approval to use such a dataset may either be sought under a category authorisation—which encompasses a number of individual datasets that have similar content or may be used for a similar purpose—or by an individual authorisation, where the authorisation covers a single dataset that does not fall neatly within a category authorisation or is subject to other complicating factors. In the case of a category authorisation, a judicial commissioner will approve the overall description of any category authorisation before it can be used. A judicial commissioner will also approve any renewal of a category authorisation after 12 months and the relevant Secretary of State will receive a retrospective annual report on the use of all category and individual authorisations.

This oversight is all retrospective. What is currently missing from the regime is any form of real-time oversight. Under the current regime, once a category authorisation has been approved, the intelligence services then have the ability to add any individual datasets to that authorisation through internal processes alone, without any political or judicial oversight. This would mean relying on the intelligence service to spot and rectify any mission creep, whereby datasets might be added to a category authorisation in a way that was not consistent with the definition of the original authorisation, which lasts up until the 12-month marker for renewals.

While we have every faith in the good intentions of the intelligence services—and I do not mean that in a joking way, because we have been amazingly impressed by them—no legislation should be dependent on the good will of its subjects to prevent misuse of the powers granted therein, particularly where those powers concern national security. The ISC therefore seeks to fill that very worrying gap.

My amendment proposes a new section in Clause 2—proposed new Section 226DAA—which would ensure that the IPCO was notified whenever a new individual bulk personal dataset was added by the agencies to an existing category authorisation. Notification would simply involve the agencies sending to the Investigatory Powers Commissioner the name and description of the specific bulk personal dataset as soon as reasonably practicable after the dataset was approved internally for retention and examination by the intelligence services.

The amendment would require not that the use of the dataset be approved by the IPCO but merely that the commissioner be notified that it had been included under the authorisation. It therefore does not create extra bureaucracy or process. Indeed, it provides for a flow of real-time information between the intelligence services and IPCO, to allow for the identification of any concerning activity or trends in advance of the 12-month renewal period. Any such activity could then be investigated by the commissioner as part of its usual inspections. The ISC believes that this amendment strikes the right balance between protecting the operational agility of the intelligence services and safeguarding personal data at any level of sensitivity.

Noble Lords have already considered my related amendment, to provide the annual report to the IPCO and the ISC, as well as to the Secretary of State. The committee believes that this combination of real-time oversight through the notification stipulated in this amendment and retrospective oversight, through the involvement of judicial and political oversight bodies, is necessary to provide Parliament and the public with the reassurance that data is being stored and examined in an appropriate manner by the intelligence services.

I repeat my entreaty to the House: the robust safeguards and oversight mechanisms so carefully considered by Parliament in respect of the original legislation must not be watered down by the changes under this new Bill; they must be enhanced in line with the increasing investigatory powers.

[Lord Hope of Craighead (CB)]

My Lords, I have added my name to Amendments 3 and 15 in the name of the noble Lord, Lord Anderson. I have nothing to add to what he said in support of Amendment 15, but I shall add a word about Amendment 3, which was the subject of the Christmas present of the noble Lord, Lord Anderson. It requires one to look a little more carefully at proposed new Section 226A(2), which provides as follows:

“In considering whether this section applies to a bulk personal dataset, regard must be had to all the circumstances, including in particular the factors in subsection (3)”.


What the noble Lord, Lord Anderson, is seeking to offer the Minister the invitation to include is the use to which the datasets are to be put. He draws strength for that proposition from what one finds in new Section 226BA(3), in which express reference is made to the use to which the datasets will be put. It can be said in support of this proposal that it seems a little strange not to include the use to which the datasets are to be put, if they are mentioned expressly in new Section 226BA(3). I suppose that one could say that, since new Section 226A(2) is very widely phrased and includes all the circumstances, that the Christmas present of noble Lord, Lord Anderson, is already there as already there as one of the circumstances, but it is probably happier to include it expressly, just for the avoidance of doubt. It is for the avoidance of doubt that the strength can be found in the proposal that he has put forward.

Armed Forces Bill

Debate between Lord Hope of Craighead and Lord West of Spithead

Tuesday 1st March 2016 Grand Committee

[Lord Hope of Craighead]

Of course we had extraterritorial jurisdiction, but the fact that the crime was committed in Germany was an important factor in deciding the proper course for bringing the case before a tribunal to try the boy for the offence. One has to be careful about the local jurisdiction; I seek to emphasise that point.

[Lord West of Spithead]

My Lords, I have considerable sympathy for Amendment 4, which stems from my view that I see the composition of the board of courts martial as much more to do with discipline and military things. Clearly with some of these very serious crimes, jurisdiction is very important. I am not clear how that could be clarified to make sure that things do not slip through the net because of it. However, the other aspect is perception. The noble Lord, Lord Thomas of Gresford, talked about public perceptions of courts martial. I think that there is also the perception of the military about the way in which they are put on trial. If we went down this route mitigation would have to be very clearly put, particularly when in what one might loosely call a war zone where there has been fighting and nation building, because the circumstances in which something like the Baha Mousa case happens are different from the normal civilian understanding. We would have to be absolutely certain that we were able to get that sort of proper mitigation into the civil court. However, I have great sympathy with Amendment 4, because some of these things should not generally be tried by court martial nowadays.

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[Lord West of Spithead]

My Lords, I thank the noble and learned Lord, Lord Mackay of Clashfern, for laying out so clearly exactly where this stands, although I have to say that the result does not leave things particularly clear for a number of reasons which he has explained. I will not reiterate what I said in my speech at Second Reading, where I went into the detail of this complex issue, but suffice it to say that the decision by the Supreme Court in the case of Smith and others v Ministry of Defence has, without doubt, raised the spectre of military personnel who take a decision in the heat of action being taken to court to face a claim under the Human Rights Act. As I say, it has raised that spectre. That is clearly wrong and I do not believe that it is what was intended. Indeed, mention has been made of how the case is not against those involved, but the result is that the spectre has arisen. I feel very strongly about this. I have been in action and have taken decisions that resulted in men dying. I believe that I took the right decisions, but it would be wrong for one then to have to go through the courts to explain all of that.

Of course these issues are highly complex, and that is part of the problem. The cases that were being considered looked at a number of different scenarios concerning things like the definition of combat operations, peacekeeping operations within Iraq, the issue of procurement, issues around the tanks and Snatch Land Rovers operating in a different context and being hit by IEDs. The sheer complexity has caused part of the problem. It has been said that some of these matters need to be investigated by the civil courts. That has dragged in the possibility of people fully in action being taken to the courts later for decisions they took, which I do not believe should be looked at in civilian courts. They should be covered by combat immunity.

I shall reiterate what I said before. It is a nonsense that one can use human rights legislation to drag military leaders through the courts for decisions made in war because, in combat, men and women kill and are killed on a regular basis fighting for their country. One has to wonder what exactly the right to life is when you are fighting. You have to make people stand up and do things where you know they are likely to be killed. I have done that. What is the right to life in those circumstances? It is very difficult, and I do not believe that the judgment was making that point, but that could be the result of what has been done.

As has been said, this is a probing amendment. I love it because it is nice and simple. Being a simple sailor, I love a simple amendment, but the complexity is far too great and I know that the noble and learned Lord, Lord Mackay, appreciates that. He has tabled it to probe the Government and find out. We need to know how the Government are going to take this forward. How will we clarify and resolve this position, because it really does need to be resolved? There is certainly concern in the military about this, and it spreads far and wide. There is also, I have to say, concern at times about fighting to win if you feel that some sort of legislative action is going to be taken against you. It would be a dreadful thing if our Armed Forces were to feel constrained.

What I would say to the noble Earl is this: we need an answer as to how this is going to be taken forward. Will it be done in the context of this Bill, as was mentioned by the noble and gallant Lord, Lord Craig of Radley, or will we do it in other legislation that is going through? How can we take it forward, because I do not believe that it can be left as it is? There is too much uncertainty. I know that it was not what the judgment aimed to do, but the uncertainty is there, and that is wrong. We have to clarify this.

[Lord Hope of Craighead]

My Lords—

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[Lord West of Spithead]

My fear is that this judgment has opened up the spectre of things to be investigated by the civil courts. That is why this comes into train, although I know that they were aiming at high-level procurement.

I have to say as an aside that to start with in a war you always have to fight with the equipment you have got. Almost inevitably, certainly in the two wars that I have been in, the equipment that we had at the time was not what I would have used in that situation, but we had to get on with it. I bloody well—sorry, I knew that the equipment was not up to that task. I knew, for example, that I had put my ship in a position where my anti-aircraft capability would not work, but I was destroying an airfield and supporting Special Forces operations so I had to be there. Still, I knew jolly well that if there were heavy air attacks I would suffer; indeed there were, and I was sunk. I am concerned that something could happen in a court where someone says, “Why did West do that when he knew jolly well that the equipment was not up to it?”, and that is wrong. That is the point that I am making: there could be an unintended consequence. That is what I am nervous about.

[Lord Hope of Craighead]

My Lords—

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[Lord Hope of Craighead]

My Lords, I wonder whether I could say a word. First, I apologise for the fact that due to other business I was not able to hear the speech and analysis of the noble and learned Lord, Lord Mackay of Clashfern, although he did show me in advance the paper from which much of his speech was drawn. I also expressed my regret to the Minister, the noble Earl, Lord Howe, that I have other business to attend to and might not be able to be here all the time.

I should like to say a few words because I feel a heavy weight of responsibility on my shoulders; I had the responsibility of writing the judgment. It covered an enormous amount of ground. I was not responsible for all the paragraphs because other people wrote as well. The starting point of the analysis was what to make of developments in the European court in Strasbourg, which has been expanding the jurisdiction in a way that I do not think judges in this country entirely welcome. It has always been understood that the European convention applies to our embassies abroad; that is accepted and has never been in doubt.

Gradually the thinking has developed so that, for example, when in Iraq the military set up a detention centre, bringing local people in to be detained and examined there, they had the protection of the human rights convention—the right not to be tortured, the right to life and so on—because we had control over what happens within the detention centres that we set up. What is different about the law which we were trying to analyse and explain is the extension of that jurisdiction, as I think the noble and learned Lord, Lord Mackay, explained, to members of the Armed Forces serving outside the territory—not just outside the territory of the signatories to the European convention itself but outside the territory over which they have control. We are now contemplating Article 2 applying to areas where the Army are not in control of events but nevertheless have some duty, apparently, or have the protection under Article 2. That applies both ways. The amendment by the noble and learned Lord, Lord Mackay, could in fact be read as applying to the need to be protected under Article 2 as well as the right to immunity from challenge under it for things done to other people.

What I was attempting to do, having secured the agreement of all my colleagues on my analysis, was that we had to recognise that Article 2 applied outside the territory, so we had to explain what that meant. It was not an easy task. One of the problems in trying to get across to people like the noble Lord, Lord West, and others was that we were not dealing with a case that put in front of us the kind of situation that he was faced with. They did not bring a case against the commander in the tank or anyone who was actually on the ground that they were in some way subject to criticism under Article 2 or subject to a claim for negligence at common law. I rather wish they had, because we would certainly have struck it out. We would have made it absolutely plain that people in that position, the heat of battle, are not to be exposed to criticism or to litigation because of things done in those circumstances. Decisions have to be taken for all sorts of reasons and it is quite impossible for a court to analyse them as to whether they were properly taken.

All I could do in my judgment—the noble Lord, Lord Tunnicliffe, has been very generous to me by setting out the various paragraphs in which I tried to do it—was to make it as plain as I could that there is an area that the courts will not go into. I did not secure the agreement of my colleagues on what to do about the cases in front of us. There was a four to three majority in favour of allowing the Challenger cases to go to trial to find out more about the facts before a decision was taken, and there was a five to two majority about the Snatch Land Rover cases that they should go to trial as well. There can be different views about this. The advantage of more facts was in fairness to the families that what was actually going on was absolutely clear before a final decision was taken. However, I made it as clear as I could that those who were taking the cases to trial should not think they were going to succeed. They had to get over the hurdles, which I explained in the various parts of my judgments. What the result of these cases will be, I simply do not know.

I cannot add to my judgment; that is not a position that a judge can ever enjoy. My judgment has to speak for itself. All I can say is that I would not change any of the words that I see when I read it over and over again. It is a difficult problem because one has to balance the need for the military to conduct operations without impediment, whether in wartime or peacetime, with, at the same time, the interests of the servicemen and their families. The noble Lords, Lord Thomas of Gresford and Lord Tunnicliffe, both illustrated the other side of the balance. I am not suggesting that legislation should not be resorted to, if the Government think that they can improve on what I attempted to say in Smith. Lord Bingham of Cornhill, one of the greatest judges that we have had in recent times, used to say that the law is made not by scoring boundaries by sixes but that you develop the law in singles. In a way, Smith was an attempt to face up to a problem and explain under modern circumstances what could be made of it. I do not claim that we achieved perfection by any means. I am deeply sorry that it has caused such alarm among senior members of the military for reasons that I certainly did not intend. I cannot do anything about that, except to apologise to them and hope they understand what I was trying to say.

The task that the Minister faces is the very difficult one of trying to analyse exactly how to express in legislation the need for protection of the individuals serving in our interest and, at the same time, giving freedom to those who have to take the decisions not to be impeded in a way that would defeat our national interest.

There is only one other point I wish to make, which I think the noble and learned Lord, Lord Mackay, hinted at in his speech. Any legislation will have to stand up to scrutiny under the European convention itself. It has to be compatible with the convention rights. However, I think that the noble and learned Lord was pointing out the direction in which the Government could go by saying that there is a margin of appreciation, which gives quite a latitude to the Government in deciding how to frame legislation. In a way, I was trying to explain in paragraph 76 that and how the margin of appreciation might lie. Not everyone agreed with me, and perhaps the Minister can improve on what I was trying to say.

Before I sit down, I repeat my apology to the senior officers in the military who think that that are being in some way targeted by what I said. That was certainly not my intention and I did the very best I could to make it clear that they were not to be open to that kind of criticism.

[Lord West of Spithead]

I certainly do not have the view that that was the aim of the judgment by the noble and learned Lord. However, because he was not able to make a judgment on a case of someone involved in action, this spectre has appeared. It is unfortunate that a judgment was not able to be made. Therefore, there is the spectre of something being done. I generally do not like legislation, but there is merit in trying to achieve something in legislation. I have read the whole judgment and had a nice chat with the noble and learned Lord at lunchtime about the issue—that is one of the great joys of being in this lovely building. I quite understand it, but that is my worry.

[Lord Hope of Craighead]

I am very grateful to the noble Lord. One cannot invent cases. The trouble with the courts is that you simply have to take what you are given. That is the real problem, which I think the noble Lord correctly identified.

Counter-Terrorism and Security Bill

Debate between Lord Hope of Craighead and Lord West of Spithead

Monday 26th January 2015 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, I would like to strongly support the amendment by the noble and learned Lord, Lord Brown. These measures are things that you only do in very, very special circumstances and under very controlled conditions, but the removal of them from the old control orders regime—we realise now—was a mistake and an error. I absolutely think that we have to put these measures in place to ensure that people are protected in these circumstances.

[Lord Hope of Craighead (CB)]

My Lords, I wish to add just a small point in support of what my noble and learned friend Lord Brown of Eaton-under-Heywood has said, and that is to stress the word “legitimacy” which he used in the course of his address. It is crucial that this particular system should not be open to challenges in the court to any extent; one must try to the maximum to minimise the risk of challenges. This is a very difficult area, as shown by these cases to which the noble Lord, Lord Carlile, just referred. It is the interaction between Article 3 of the Convention on Human Rights, which deals with detention, and Article 8, which deals with respect for the family life of everyone. Where you get these human rights in play, it opens up the possibility of arguments being raised by way of challenge to orders of this kind.

The strength of the amendment which is being suggested is that it cuts back the open door—if I might put it this way—to challenges, and limits them in the most sensitive of all areas, which is the kind of relocation to which the noble and learned Lord has drawn attention. It is right that this is not a probing amendment. It is actually a very important point to try to secure these TPIMs in a way that makes them robust enough to stand up against possible challenges which, if the amendment was not made, would be very likely to come.