Nationality and Borders Bill

Debate between Lord Murphy of Torfaen and Lord Paddick

Consideration of Commons amendments
Monday 4th April 2022 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, I shall speak to my Motion T1, which refers to the electronic travel authorisations to which the Minister referred. The amendment would make anyone who was legally resident in the Republic of Ireland able to travel to Northern Ireland without such an ETA. This issue was discussed both in Committee and on Report. The House agreed with those of us who argued that this was wrong, but of course the House of Commons has not. The arguments remain the same. I was hopeful that the Minister, who I am sure will have spoken to her colleagues at the Northern Ireland Office, would make some concessions on this matter. However, the dead hand of the Home Office is there again.

This troubles me for a number of reasons. First, it jeopardises strand 2 of the Good Friday agreement, which refers to north/south co-operation between the two parts of the island, which was vital when the agreement was negotiated. It affects tourism, as the Minister referred to. She said that tourism was a good thing. We all agree with that, as do all the stakeholders, but the Government have to do something to ensure that it remains a good thing. If we charge €14 for an ETA—with the bulk of American tourists, for example, coming from Dublin to go to the north of Ireland to enjoy the great pleasures of tourism there—that is going to be a question of jeopardy as well.

In addition to that, and perhaps more significantly for those who live in both the north and the south of the island, there is the issue of health. Many people in Northern Ireland and in the Republic travel the border to go to the best place for the particular ailment or disease from which they are suffering. Particularly up in the north-west of Ireland, the co-operation between the two Governments is immense. I would be troubled if someone who was not necessarily an Irish or British citizen but was legally resident in the Republic was not able to take advantage of those co-operation decisions by both Governments.

The other issue here is work. It is quite possible that someone could work in the Republic and live in the north, or vice versa, who was not an Irish or British citizen but was legally in the Republic because of their membership of the European Union .

Secondly, there is an issue with regard to the spirit of the Good Friday agreement, which in my view has been jeopardised by this government decision. The border is different in Ireland; it is not like any other border in the European Union. Although I do not normally read tweets, I read one the other day from the noble Lord, Lord Frost, who had got worked up about this issue and was talking about the fact that the Irish Government did not seem to think this was an international border between two countries. What does he think we were doing for year after year when we negotiated the Good Friday agreement and the St Andrews agreement? We were dealing with the border as part of the peace process. There are 300 crossings along that border with no apparatus to check people, yet now we get a completely different way in which people must apply to the bureaucrats in order to cross it.

The border is a great symbol on both sides of the community in Northern Ireland, which is why the border being put down east/west has caused such a fuss. But the reason why this proposal by the Government is simply daft is that it is unenforceable. The Minister has told us what the Marshalled List states and says the reason why these ETAs are essential is to stop people of interest or people who are risky, whether they be spies, terrorists, criminals or other ne’er-do-wells, from crossing the border. Does she really think that those people are likely to pay €14, fill in an ETA form and then cross the border? Of course not. It is nonsense because it cannot be enforced. If the border had apparatus at all 300 crossings then that might be possible, but it does not.

Some of your Lordships who are as old as me will remember Gilbert Harding. He once had to fill in a form to apply for a visa to go to America, and on the visa form was the question: “Is it your intention to undermine the Government of the United States?” His answer was “Sole purpose of my journey”. That is in a way similar to this. At the end of the day, it is unenforceable, impractical and unnecessary, and it jeopardises the relationship between two countries. Ireland and the United Kingdom are the joint guarantors in international law with regard to the Good Friday agreement. The noble Baroness knows that the Irish Government are very upset about this for all sorts of reasons; there have been discussions between Ministers even at the British-Irish Intergovernmental Conference, set up by the Good Friday agreement. Is it really worth jeopardising our relationship—which has been bad enough as it is over the last number of years—with this petty and silly proposal by the Government? I would like the Government to change their mind, but I am not hopeful.

[Lord Paddick (LD)]

My Lords, I have Motion M1, Amendment 20B, in this group but I will speak to the other Motions in order so that I speak only once.

As we have heard, this group deals with Chagos Islanders, stripping a person of their citizenship without notice, criminalising anyone arriving in the UK who claims asylum other than through a safe and legal route, criminalising those who rescue migrants from the sea, electronic travel authorisations in relation to the border on the island of Ireland and pushbacks in the Channel. We support Motion A in relation to the Chagos Islanders, but we are disappointed that, as the noble Baroness, Lady Jones of Moulsecoomb, has said, a fee will still be charged before their right to British Overseas Territories citizenship or British Dependent Territories citizenship is officially recognised. Is that wrong?

Investigatory Powers (Codes of Practice) Regulations 2018

Debate between Lord Murphy of Torfaen and Lord Paddick

Thursday 1st February 2018 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, I am happy to support the Minister in everything she has said about these regulations. A few years ago I had the privilege of chairing the Joint Select Committee on the draft of the Investigatory Powers Bill. The committee made around 80 recommendations which were all accepted by the Government, and I think that few Bills in the past couple of Sessions have been subject to as much scrutiny as this one. It was considered for many days in this House and in the other place, as well as in the Joint Committee. It was right that that was the case because the powers given by the Bill to the intelligence agencies are very wide and deep—rightly so, but safeguards have been built into the Act and now, of course, they are built into the regulations as well. That is necessary because we have to strike a balance between the liberty of the individual on the one hand and the safety of our citizens on the other.

I welcome in particular the regulations on the codes of practice, which were central to the thinking of the Joint Committee. The Minister in the other place, Mr Ben Wallace, indicated that they are “user friendly” in terms of their language, and certainly they are more user friendly than the regulations themselves, which are phrased in gobbledegook, to say the least. The Technical Advisory Board, something that the committee recommended, has now been set up. It is an important development along with, as the Minister has said, the appointment of the new Investigatory Powers Commissioner, Lord Justice Fulford. On behalf of the Opposition, my successor as the Member of Parliament for Torfaen, Nick Thomas-Symonds, supported these recommendations and I do not doubt that my noble friend Lord Kennedy is likely to do the same. As a former chair of the Intelligence and Security Committee, I support them too because these regulations are vital to implementing the Act. I also congratulate the services on their work in ensuring that our children are safe from paedophiles and our citizens are safe from terrorists.

[Lord Paddick (LD)]

My Lords, if the House will allow me, I should like to make a few comments about what happened during Oral Questions yesterday. Perhaps I may say that the decision of the Prime Minister, the right honourable Theresa May, to refuse the resignation of the noble Lord, Lord Bates, was one of her better decisions. I also commend the noble Lord, Lord Taylor of Holbeach, on how he picked up the loose ball and ran with it. It just shows what the Government can do if they work together rather than against each other. The noble Baroness, Lady Smith of Basildon, reflected the views of the overwhelming majority in the House in indicating genuine respect and affection for the noble Lord, Lord Bates. We are very pleased that he is having a couple of days of well-earned rest before he resumes the fray. However, I fear that is the end of me being nice.

I thank the Minister for introducing these regulations, which, if the House will allow me, I will take in the order set out on the Order Paper rather than in the order in which the Minister spoke to them. The regulations have been introduced against a background of two linked and significant matters. First, the 16th report of the Secondary Legislation Scrutiny Committee states:

“Because bulk interceptions in particular have the potential to include communications of people who are not suspects as well as those who the security services are targeting, this legislation is likely to be of interest to the House”.


In other words, this important committee of the House has given these regulations a red flag, not least because the codes of practice run to several hundred pages. Again I quote:

“We were therefore disappointed with the obscurity of the original Explanatory Memorandum which gave the reader no indication of the potential effects of these Codes.”


Secondly, the Home Office is having to make late changes to the Investigatory Powers Act in an attempt to comply with the European Court of Justice ruling on the UK’s mass surveillance powers following the decision of the Appeal Court this week. We had long debates, as the noble Lord has just said, during the passage of the Investigatory Powers Bill. We on these Benches argued that the bulk acquisition of communications data treated everyone in the UK as a suspect. We drew a distinction between mobile phone data that is routinely kept by communications services for billing purposes—such as where was the call made and where was the person calling, so that the person can be charged the right amount on their bill—and new communications data that CSPs do not routinely collect; for example, so-called internet connection records, where CSPs will be required to keep a record of the first page of every website that every user of the internet in the UK visits on a rolling 12-month basis. The Investigatory Powers Act allows police and other organisations to self-authorise access to such data. The Appeal Court ruled on Tuesday that the Data Retention and Investigatory Powers Act 2014, many of the powers in which are incorporated in the Investigatory Powers Act, is inconsistent with EU law because of a lack of safeguards and the absence of a prior review or an independent administrative authority.

Noble Lords may wonder what this has to do with the regulations before the House today. The Investigatory Powers (Codes of Practice) Regulations 2018 include a draft code of practice on bulk acquisition of communications data. My understanding is that the Government claim that the judgment does not affect bulk acquisition of communications data because this is limited to the intelligence services—the Security Service, the Secret Intelligence Service and GCHQ—and that these organisations are concerned with national security, which is outside EU data protection law. The first problem with this is that GCHQ, in particular, is involved in accessing data in relation to serious crime; for example, working jointly with the National Crime Agency on child sexual exploitation, which is not within the normal definition of a national security issue.

The second problem is that, after Brexit, the UK will be treated as a third-party country by the EU 27. National security issues will no longer be exempt from scrutiny and compliance with EU law if the UK wants to continue to exchange data with the EU 27. Will the Minister explain what impact the UK’s need to secure an adequacy certificate from the EU in relation to compliance with EU data protection standards once we exit the EU will have on the bulk acquisition draft code of practice? Will she also explain what advice Ministers are receiving about the likelihood of success of Liberty’s other challenge to the Investigatory Powers Act, due to be heard in the High Court later this year, and what effect that will have on these codes of practice? The bulk acquisition draft code of practice also talks about communications operators receiving public funding and support to ensure that they can provide an effective and efficient response to the security services’ requests for data. Can the noble Baroness tell the House how much public funding will need to be provided, particularly in relation to ICRs that are not collected and stored at the moment?

On the second code of practice, in relation to equipment interference, we pointed out in debate on the Investigatory Powers Bill the anomaly that while requests from the security services for equipment interference—downloading the contents of a mobile phone or exploiting weaknesses in software to enable remote accessing of a computer, for example—had to be authorised by a Secretary of State, requests by law enforcement agencies for equipment interference could be self-authorised by a law enforcement chief. The interception of communications warrants, covered by the third code of practice, has to be authorised by a Secretary of State whether the request comes from the security services or law enforcement agencies, but a Secretary of State’s authority is not required in the case of equipment interference warrants for law enforcement agencies. Surely, in the light of the decision of the Court of Appeal, such self-authorisation should no longer be permitted.

Targeted equipment interference warrants can be issued against equipment belonging to or in the possession of an organisation or equipment in a particular location. Can the Minister explain, if warrants allow interference with the equipment of innocent people within that organisation or at that location—collateral damage, if you will, in pursuit of the real criminals and terrorists—how that is compliant with the ruling of the High Court and the ECJ?

The Investigatory Powers (Interception by Businesses etc. for Monitoring and Record-keeping Purposes) Regulations are straightforward and we support them. The Investigatory Powers (Review of Notices and Technical Advisory Board) Regulations deal with appeals against technical capability notices, national security notices and data retention notices, which include consultation with the Technical Advisory Board. These regulations set out the composition of the TAB and the process and timing of appeals. We support these regulations as well.

Finally, we come to the Investigatory Powers (Technical Capability) Regulations, setting out what may be contained in technical capability notices, which impose obligations on a relevant operator in order that the operator can deliver what is required if served with an interception warrant, equipment interference warrant, or warrant or authorisation for obtaining communications data. In the tech sector, techUK represents 900 companies, employing about half of all those employed in that sector in the UK, and it has raised concerns about technical capability notices arising from these regulations.

Clearly, communication service providers must have the technical capability to be able to comply with lawfully authorised warrants. But these regulations also require CSPs,

“to notify the Secretary of State, within a reasonable time, of—

(a) proposed changes to telecommunications services or telecommunication systems to which obligations imposed by a technical capability notice relate;


(b) proposed changes, to existing telecommunications services or telecommunication systems, of a description specified in the notice, and


(c) the development of new telecommunications services or telecommunication systems”.


In her opening remarks, the Minister said that these regulations do not create new powers. But techUK claims that these notifications of innovation were not listed on the face of primary legislation, albeit that the primary legislation states:

“The obligations that may be specified in regulations under this section include, among other things”.


I emphasise “among other things”. It goes on to express concern that these provisions could force tech companies half way through development to notify the Home Secretary about what they were doing and that the Home Secretary could then come back and demand changes, extending the tight deadlines under which they operate and risking information about commercially sensitive developments being made public to the benefit of competitors. These provisions could be a barrier to innovation and drive tech companies overseas beyond the reach of these regulations. Can the Minister provide some reassurance to the House that these additional provisions will not stifle innovation and drive tech companies overseas?

Investigatory Powers Bill

Debate between Lord Murphy of Torfaen and Lord Paddick

Tuesday 19th July 2016 Lords Chamber

[Lord Paddick]

I am grateful for the chance to clarify my position. That is my position: we disagree with the conclusions of the Joint Committee. We believe, on balance, that the retention of internet connection records is disproportionate and unnecessary.

Technology experts recommend that companies should plan on the basis of their security measures having been breached, not just plan for the security of their databases. This makes highly intrusive personal data potentially available to criminals and hostile foreign powers. If a criminal establishes that a married man is accessing gay websites, or a hostile foreign Government establish that an intelligence officer is accessing lonely hearts websites, that could increase the risk of blackmail or entrapment. Knowing from ICRs when someone is not at home can increase the risk of burglary.

Internet connection records are hugely expensive to analyse and store. Based on estimates from Denmark, where the storage of internet connection records has already been explored extensively, the set-up costs alone in the UK could be around £1 billion. As in the UK, the cost estimates provided by the Government and telecommunications providers in Denmark varied widely. The Government therefore asked independent management consultants to establish the true cost, which confirmed that the telecommunications service providers’ estimates were the correct ones. Extrapolating from the independently verified Danish costs using the relative populations of both countries would take the set-up costs alone for internet connection records in the UK to more than £1 billion.

For those who think that this cannot be right, I should say that 80% of all the data ever created since the beginning of time has been created in the last two years. That is the rate of increase, and, with more and more devices being connected to the internet, such as those controlling our central heating, and with even refrigerators and ovens being connected to the so-called internet of things, the number of internet connection records is set to increase exponentially. Apart from not being able to see communications in among all these other internet connections, the storage costs alone will be enormous.

Taking all these arguments together, the storage of the internet connection records of everyone in the UK for 12 months, whether they are suspected of wrongdoing or not, fails the proportionality test. I quote the RUSI report again, this time on proportionality. It states:

“Intrusion must be judged as proportionate to the advantages gained, not just in cost or resource terms but also through a judgement that the degree of intrusion is matched by the seriousness of the harm to be prevented”.

The advantages gained through the storage of internet connection records are limited, the costs are prohibitive, the degree of intrusion is huge and serious harm can be prevented through other means.

[Lord Murphy of Torfaen (Lab)]

My Lords, the noble Lord, Lord King, touched on the issue of the Joint Committee. It may be useful for your Lordships to hear what it said about ICRs. The noble Lord, Lord King, was quite right in that regard. The Joint Committee said:

“While we recognise that ICRs could prove a desirable tool for law enforcement agencies, the Government must address the significant concerns outlined by our witnesses if their inclusion within the Bill is to command the necessary support”.

The Joint Committee also said:

“We recommend that the definition of Internet Connection Records should be made consistent throughout the Bill and that the Government should give consideration to defining terms such as ‘internet service’ and ‘internet communications service’. We recommend that more effort should be made to reflect not only the policy aims but also the practical realities of how the internet works on a technical level”.

The Joint Committee also recommended that,

“the Government should publish in a Code of Practice alongside the Bill advice on how data controllers should seek to minimise the privacy risks of subject access requests for ICRs under the Data Protection Act 1998”.

The Government accepted the recommendation on a code of practice—and, indeed, on the definitions. However, in general, the majority of members of the committee believed that ICRs are absolutely necessary to protect our citizens and give the security agencies and the law enforcement agencies the tools they need.

Investigatory Powers Bill

Debate between Lord Murphy of Torfaen and Lord Paddick

Monday 11th July 2016 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, the Joint Committee on the Bill—four Members other than myself, who chaired the committee, are present this evening—met journalists in evidence sessions. The Society of Editors and the National Union of Journalists met with the committee on 14 December last year, and of course many strong representations were made in writing to the Joint Committee on this very subject. The committee eventually recommended that,

“the Home Office should reconsider the level of protection which the Bill affords to journalistic material and sources”.

We recommended that it should be at least equivalent to that afforded by the Terrorism Act 2000 and by PACE, and that the Home Office should take into account the various aspects of the European Convention on Human Rights which affect this aspect of the Bill. I know that the Joint Committee on Human Rights has also made representations to the Government on this matter.

I support the amendment in the name of the noble Viscount, Lord Colville. His proposed new clause deals with wider protection from state surveillance, not just sources—for example, a politically sensitive investigation—in that it covers areas other than simply communications data; for example, equipment interference, and that orders should be sought from a judge, as with PACE. I congratulate the Government, as in Committee in the other place, Clause 73 was introduced, which made welcome changes to the Bill as it then stood. However, I agree with noble Lords who have already spoken that that is not quite sufficient and more needs to be done.

The issue the Joint Committee had to deal with was how precisely you define a journalist these days. It is very different from when I was a young man. With the advanced technology, what or who is a journalist? PACE defines it in some senses in that it at least refers to “journalistic material”. A journalist is,

“any natural or legal person who is regularly or professionally engaged in the collection and dissemination of information to the public via any means of mass communication”.

Therefore we can overcome these issues.

All the speakers so far have indicated that we are grateful to the Government for what they have done, but more could be done. I do not say that the precise wording of the proposed new clause in the amendment is the precise answer to where we are going, but Ministers—both here and in the other place—have indicated to me over the last couple of months that the Government are willing to look very carefully at how to ensure that journalists are properly protected under this legislation. It is certain that there should be no lessening of protection from what already exists under PACE. I fear that it is possible that that might be the case, unless we go a little further in protecting both the sources of journalists and their investigations.

I therefore hope that, when the Minister winds up, he will give us some joy and will indicate that, by the time we reach Report, the Government will have reconsidered some of these aspects and we will be able to ensure that this particularly important part of the Bill is dealt with properly.

[Lord Paddick]

My Lords, my name is to this amendment and I very much support it. As a former police officer, I feel I have to speak on both aspects of this. The noble Lord, Lord Black, spoke clearly and in detail about the need for very specific safeguards because of the experience that we have had with the Regulation of Investigatory Powers Act. Police have clearly not used legislation in the way that Parliament intended it to be used—that is, to establish who confidential journalistic sources are. I also support what the noble Viscount, Lord Colville of Culross, said about the danger to journalists, particularly camera operators in serious, spontaneous public order situations. This is an area where I have some expertise. At the moment there is a balance as experience has shown that media footage has, in certain circumstances, been useful to demonstrators in terms of misuse or excess use of force by police officers. If this were to change, and the demonstrators felt that material gathered by media operators was under the control only of the police, because of inadequate provisions in the Bill, it could tip the balance and journalists would become a target for violence in such situations.