Investigatory Powers Bill

Baroness Hayter of Kentish Town Excerpts

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

[Baroness Hayter of Kentish Town (Lab)]

Like other noble Lords, I thank the Minister and the Bill team for the detailed discussions—perhaps negotiations is a better word—that they have had not only with us but with other interested parties. We have sought to balance our strong desire to protect clients’ confidentiality—their ability to speak openly and honestly with their lawyer, safe in the knowledge that information will go no further —with the need to safeguard the security of citizens and free them from the threat of terrorism or other risks to life. It would be wonderful if there were a nice, absolute and clear division between those two objectives but, sadly, in the real world there seldom is.

The Bill as drafted had not got the balance right. It was tipping towards the state’s ability to access or use legally privileged information. Since then, as the Minister outlined, the amendments to Clause 2, an overriding clause which should circumvent all the powers in the Bill, will significantly safeguard privileged material. It is not an absolute, but we acknowledge movement here and in other amendments, such as the public interest test needed before approving a warrant. It would require both the Secretary of State and a judicial commissioner to be satisfied that the public interest in obtaining the information outweighed that long-standing public interest in maintaining the confidentiality of legally privileged communications, but also, importantly, that there were no other reasonable means of obtaining the required information.

Similarly, we welcome Amendment 25, by which, when a warrant is requested to prevent or detect serious crime, the exceptional compelling circumstances have to relate to national security or preventing death or significant injury, and do not, as with some of the other powers, include being in the interests of the UK’s economic well-being. We are also pleased that the commissioner would have to be informed when any privileged material is retained by an agency and note that, as has just been mentioned, it can be ordered to be destroyed or for conditions to be imposed on its disclosure.

We are, however, sympathetic to the desire of the noble and learned Lord, Lord Mackay of Clashfern—I cannot believe he really called himself less luminous—to allow the commissioner to differentiate between advice and, for example, the time when a phone call was made, which could be incredibly important but irrelevant to the content of the phone call. If there is a way to enable the commissioner to differentiate in that way, we hope that the Government will respond to that positively.

Finally, with regard to the so-called inequity exception, we note that any application for a warrant under this provision would have to set out the grounds for believing that communications are being made with the intention of furthering a crime, and we welcome that.

We are mindful that representatives of lawyers—speaking on behalf of their clients, because it is their interests that we are discussing—feel that the Government have not gone far enough to meet their concern. We acknowledge that, on paper, an enormous amount of progress has been made. Our concern is whether the resources, culture and mindset of the IPC will allow for the scrutiny and challenge that the words now on paper will require. I am reassured by the fact that the judicial commissioners are not just lawyers but very experienced and senior ones, so they will have a background of understanding the legal profession’s fears and long-standing views about this matter. Perhaps, when replying, the Minister, in addition to responding to the wider points made, can give an assurance that the commissioner and judicial commissioners will be appointed with a view to guaranteeing their complete independence and with sufficient resources to be able to look at these significant and demanding issues with due care and attention.

[Lord Keen of Elie]

My Lords, I am obliged to noble Lords. I begin by looking at Amendments 27 and 88, which seek to insert the word “clearly” in the public interest test. On this point I concur with the observations of the noble Lord, Lord Carlile of Berriew, that there is a danger that this would simply muddy the waters and not clarify.

The test as set out in the government amendment is straightforward. The public interest in obtaining the information sought either outweighs the public interest in maintaining the confidentiality of privilege or it does not. If the word “clearly” were inserted, that certainty would be lost. We would have to try to define what we mean by “clearly”. Logic suggests that it means that one public interest test should outweigh the other by a certain amount, as indicated by the noble Baroness, Lady Hamwee, but it is not apparent what that amount would be. This would undoubtedly lead to confusion and uncertainty. Given that such a warrant can be sought only in exceptional and compelling circumstances, where national security or life and limb are at risk, confusion and uncertainty are one thing that we cannot afford.

The government amendments set out in detail what is intended by “exceptional and compelling”. The test is explicit on the face of the Bill and it is one that works. We are also introducing a requirement for the codes to include additional information about when circumstances are to be considered exceptional and compelling, and requiring the Investigatory Powers Commissioner to keep that language under review. It is in these circumstances that I invite the noble Baroness not to press her amendments.

The second set of amendments in this group—Amendments 56, 57, 192 and 193—seek to change the power of the Investigatory Powers Commissioner to determine what happens to legally privileged material when it has been obtained by an agency and the agency wishes to retain it. First, they would provide that the commissioner has the power to impose conditions on the use of the item as well as its disclosure. Secondly, they would also require the commissioner to direct that any privileged material that has been obtained must be destroyed unless there are exceptional and compelling circumstances that justify its retention. These amendments raise important issues in respect of legally privileged material that is inadvertently obtained and where the agency wishes to retain it. I would like to reflect further on our consideration of these points today and to return to this issue at Third Reading.

Amendment 107 deals with communications data and seeks to provide for judicial approval of authorisations for the communications data of a person who is or is likely to be a practising legal professional. It seeks to reflect the protections provided in Part 3 of the Bill for the identity of a journalistic source, but in practice this amendment goes much further by attaching the protections to the profession rather than to the sensitive information they manage. The debates in the House of Commons and at previous stages in this House have been clear that Parliament’s view is that protection should attach to the sensitive communication or to the function being carried out and should not simply apply to the person because they are a member of some profession. For example, there was consensus that protection should apply to the journalist’s communications with a source or the client’s communications with a lawyer. This amendment would go against that consensus by providing protection to a lawyer simply because he is a lawyer.

The Bill takes a reasoned and balanced approach. It applies additional protections where appropriate; provides for judicial authorisation of the most intrusive powers and for the use of less intrusive powers in the most sensitive circumstances; and provides a powerful and robust oversight regime to ensure that powers cannot be misused. The protections provided are specific to each power under the Bill, applying protection which is appropriate to the level of intrusion represented by each power. The draft Communications Data Code of Practice sets out the additional considerations that must be taken into account when any data relate to a member of a profession which routinely holds items subject to legal provision. Indeed, Schedule 7 to the Bill requires that the code shall include such detail. In addition, the current amendment to Clause 2 puts beyond doubt the importance of taking particular care in relation to sensitive information, such as items subject to legal privilege.

Our debate has already shown the importance that the Government place on the protection of legally privileged material, but I would suggest that it is not appropriate to introduce these additional protections within the context of authorisations for communications data. I invite the noble Baroness not to press Amendment 107.

Amendment 55A, tabled by the noble and learned Lord, Lord Mackay of Clashfern, seeks to amend government Amendment 55. This amendment would require the Investigatory Powers Commissioner to direct that any material obtained that is subject to legal privilege must be destroyed and allow the agency to retain only material that is incidental to that which is privileged.

I have already indicated in response to Amendment 57, proposed by the noble Baroness, Lady Hamwee, that I am minded to look again at whether there is more we might provide on the face of the Bill regarding the test that the commissioner should apply when making a decision about whether material can be retained. However, I would respectfully suggest that what the noble and learned Lord proposes with this amendment is not appropriate in the circumstances. It is the case that the vital intelligence that an agency may require could intrude not only on incidental material in a legally privileged communication but on the legally privileged communication in general.

I take up the example which the noble and learned Lord gave of the individual communicating with a lawyer and asking, “Can I be extradited from Greece?”. One might say, in a very straightforward fashion, that the relevant intelligence there is Greece, not that he may or may not be extradited. But what if the communication goes like this: “Can I be extradited from Greece or Albania?”, and the answer is, “You can be extradited from Greece but you cannot be extradited from Albania”. Just giving them Greece and Albania will not assist the intelligence services very much. On the other hand, the legally privileged information that he can be extradited from Greece but cannot be extradited from Albania might lead the reasonable intelligence officer to infer that the individual was more likely to be found in Albania than in Greece. It is in those circumstances that I suggest that one cannot easily divide between the two. As I have indicated, we are conscious that in these areas we can look again to see whether we can strengthen these matters. At this stage I would invite the noble and learned Lord not to press his amendment.

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[Lord Paddick]

I also thank the Minister for this impressive package of amendments. It clearly has to be necessary and proportionate in some circumstances to investigate a journalist. However, I am a little concerned about a law enforcement chief being able to authorise such acquisition through equipment interference, although there is now the reassurance of a judicial commissioner, which did not exist before. I accept what the noble Viscount, Lord Colville of Culross, and the noble Lord, Lord Black of Brentwood, said about the concern of the National Union of Journalists that there should be prior notification and the ability to make representations. However, I think it is reasonably clear how difficult it would be to differentiate between the cases to which the measure would and would not apply. In all the circumstances, I think that this is more than the best that we could have hoped for. We are very grateful.

[Baroness Hayter of Kentish Town]

My Lords, I hope that my noble friend Lord Rooker has not ended the Minister’s political career. However, I think we all can say that when we come here our political careers are behind us. I join the noble Viscount, Lord Colville, the noble Lord, Lord Black, and others in thanking the Ministers and their team for the significant changes that have been made. I will not go through all of them, but the Government’s adding in Amendment 11 a reference to,

“information identifying or confirming a source of journalistic information”,

needing extra protection is very welcome, in addition to the other overriding requirement of there being no other way of getting the information.

As has been mentioned, government Amendments 30 and 31 insert special procedures for journalistic material and, perhaps of even more concern to journalists, journalists’ sources. As has just been said, the NUJ in particular wants other changes to be introduced but the idea of prior notice for covert investigation is in itself a contradiction too far. We are, however, sympathetic to the essence of the journalists’ approach—that is, their desire to protect not simply their members but whistleblowing members of the public through whom misdeeds often come to light. However, there will be occasions when terrorists or others who wish us harm will have been in touch with a journalist and the sole indication of that person’s whereabouts might exist on a journalist’s phone. Unless we are absolutely sure that we would never in any circumstances want those who protect us to be able to access that information, we need the warrants and the powers in the Bill. We hope very much that the safeguards provided will keep those exceptions to a minimum—I think that the word used was “rare”—and we hope that the IPC, in reviewing what happens, will always bear in mind the cost to all of us if fears of retribution deter good whistleblowers from getting misdeeds into the public domain. However, those are in a way fairly small instances. I commend to the House the changes that have been made.

[Earl Howe]

My Lords, I very much appreciate the noble Lord, Lord West, alerting the House to the achievement of my distinguished ancestor, Admiral Earl Howe, in relieving the siege of Gibraltar, to which he referred for the rest of his life as one of his greatest accomplishments. Glad as I am that this package of amendments has received the approval of so many of your Lordships, I cannot claim that it falls into quite the same bracket as the relief of Gibraltar. I am obviously gratified that it has met with the House’s approval.

For the sake of completeness, I should add that we have also undertaken an extensive update of the section relating to journalists and their sources in the existing draft communications data code of practice, providing additional statutory guidance to police forces about handling requests for communications data relating to journalists. This revised version of the code has been published in time for Report, so I refer noble Lords to it.

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[Lord Paddick]

My Lords, I support the amendments for the very reasons that the noble Lord, Lord Butler of Brockwell, has just set out. Bulk powers are exceptional powers and they raise concerns among the public. There are specific offences in other parts of the Bill and in other legislation, and now we are focusing on deliberate abuse. I echo what the noble Lord, Lord Butler, said about the integrity of the security services, but we believe that these specific offences are necessary for public reassurance, if nothing else.

[Baroness Hayter of Kentish Town]

My Lords, I was about to congratulate the noble Lord, Lord Butler, on his excellent drafting of the amendments but he has slightly given away that it was not all done by his own fair hand. However, if the look on the Minister’s face is indicating that the Government might accept the amendments, we are delighted that the noble Lord’s influence from this House seems to be keeping pace with the influence that he had in his previous occupation. We are very content to support the amendments.

[Lord Keen of Elie]

My Lords, we welcome the chance to revisit this important issue, which was debated in Committee.

In putting beyond doubt that deliberate wrongdoing in relation to the bulk powers will be subject to clear, criminal sanction, we accept that these amendments will provide clarity on a crucial issue. We also believe that they have been drafted in such a way that, rightly, they would not criminalise honest, well-intentioned mistakes by the staff of our security and intelligence agencies, who do so much to keep us all safe. As such, we believe they strike the right balance and are to be welcomed. Therefore, we are happy to accept the amendments.

Investigatory Powers Bill

Baroness Hayter of Kentish Town Excerpts

Report: 2nd sitting (Hansard - part one): House of Lords
Monday 17th October 2016 Lords Chamber

[Earl Howe]

My Lords in moving this amendment I will speak to the other amendment in this group. They provide for the introduction of judicial approval for data retention notices given under Part 4 of the Bill. This is an important new safeguard. It means that such notices given, authorised or varied by the Secretary of State, including those requiring the retention of internet connection records, will in future also require the approval of a judicial commissioner.

The Secretary of State must already consider whether it is necessary and proportionate to issue a data retention notice to a telecommunications operator. This amendment would mean in future that the decision to give a notice would be reviewed by a Judicial Commissioner, in line with the authorisation procedures for other powers in the Bill. I hope that the House will welcome this additional safeguard and, accordingly, I beg to move.

[Baroness Hayter of Kentish Town]

My Lords, we take this opportunity to thank the Government for listening to us, to the service providers and, in this case, also to the human rights monitors—everyone is in agreement. We are happy to support the amendments.

Amendment 115 agreed.

Investigatory Powers Bill

Baroness Hayter of Kentish Town Excerpts

Report: 2nd sitting (Hansard - part two): House of Lords
Monday 17th October 2016 Lords Chamber

[Lord Paddick (LD)]

My Lords, this amendment stands in my name and that of my noble friend Lady Hamwee. It introduces to the Bill a body corporate known as the investigatory powers commission that comprises the Investigatory Powers Commissioner, judicial commissioners and staff to support the commissioners. I am relying heavily on, and am very grateful to, the Interception of Communications Commissioner’s Office in this matter.

At present the Bill creates only a chief judicial commissioner and a small number of judicial commissioners. The commissioners will be responsible for approving approximately only 2% of the applications falling within the remit of the oversight body. Most of the applications made under the Bill are likely to be for communications data, for example, individual applications for which are not subject to prior approval by a judicial commissioner. The remaining 98% will be subject only to post-facto oversight.

The post-facto oversight will be carried out predominantly by specialist inspectors, investigators, analysts and technical staff working to the Investigatory Powers Commissioner, and it is important for those individuals to have a delegated power to require information or access to technical systems. According to the Interception of Communications Commissioner’s Office:

“The creation of a Commission is crucial to achieve a modern, inquisitive oversight body that has the expertise to carry out investigations and inquiries to the breadth and depth required and the intellectual curiosity to probe and challenge the conduct of the public authorities”.

I shall expand on what IOCCO means by that.

First, it means that the specialists do not have to wait to be tasked by the commissioner but can use their initiative and expertise to follow the evidence and conduct post-facto scrutiny where they believe it is most needed. Secondly, other commissions, such as the Independent Police Complaints Commission, are bodies corporate whose investigators have all the powers of their commission. This prevents police officers saying, “I’m not talking to you, Mr Investigator. I am only going to talk to a commissioner”. The Government may say that there is no direct parallel here but they would be wrong.

The Intelligence Services Commissioner was asked by the then Home Secretary, Theresa May, to carry out an investigation into what the security services knew about those involved in the murder of Fusilier Lee Rigby. In his supplemental report to his 2015 annual report, Sir Mark Waller, at paragraph 5.3(4), talks about his attempts to have counsel, Mr Sanders, who was carrying out the investigation on the commissioner’s behalf, present during the interviews of some of those involved:

“Prior to these interviews taking place, SIS told me that Desk Officer 1 and Intelligence Officers 1 and 3 objected to Mr Sanders being present and so he did not attend. I have since been told by SIS that this objection in fact came from its senior management. I very much regret that this was not made clear to me at the time as I would have challenged it” "

The fact is that, unless those carrying out post-facto scrutiny are part of a body corporate, as in the case of the IPCC, those whom they are supposed to be scrutinising can refuse to co-operate with them and demand that they deal with the Investigatory Powers Commissioner alone.

The IOCCO says:

“Putting the oversight Commission on a statutory footing will be a huge step towards guaranteeing independence, capability and diversity within the organisation which will inspire public trust and confidence”.

It goes on to say:

“Creating an oversight Commission would also help make a distinction between the approval and post-facto audit elements of the oversight body, addressing a concern raised by a number of witnesses to the Joint Committee that the Judicial Commissioners should not be perceived to be ‘marking their own homework’”.

This of course refers to the fact that in the 2% of cases where a warrant was approved by a judicial commissioner, without the establishment of a commission it could understandably be perceived by the public that the judicial commissioners were post-facto auditing the decisions of other judicial commissioners. Although this may be an accepted practice in the legal profession—in the courts and so forth—it is likely to be lost on the general public. The Interception of Communications Commissioner’s Office concludes:

“We urge the Government to implement this recommendation which was also made by the RUSI Independent Surveillance Review, David Anderson QC and the IP Bill Joint Committee”.

The amendment seeks to implement that recommendation. I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, we are satisfied that the speedy and effective establishment of the office of Investigatory Powers Commissioner will provide the staff, expertise and structure to implement the Bill. As the noble Earl will know, we have queried whether the resources will be made available and we will continue to keep an eye on that. However, we see no rationale as to why a body corporate, with all the governance, other requirements and bureaucracy, would be better at achieving the balance that we seek, which is the timely, appropriate and thorough oversight of the powers in this Bill, taking full account of civil liberties and the need to prevent or apprehend crime, and dealing with threats from those who wish us harm.

It is possible that I have misunderstood what the noble Lord, Lord Paddick, said, but it seemed that he wanted the staff to have some of the commissioner’s authority. For ourselves, we have relied very much on the judicial commissioners, with the powers given to them under the Bill, and the IPC himself or herself to do this, and we would certainly not want to detract from their authority in any way.

Investigatory Powers Bill

Baroness Hayter of Kentish Town Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, Amendments 180, 181, 197, 198, 205, 206, 231 and 232 relate to judicial commissioner approval of major modifications to warrants issued under Parts 6 and 7 of the Bill. They seek to provide additional clarity regarding the matters the commissioner must review when deciding whether to approve such a modification.

The Bill already provides for major modifications to such warrants. In the context of bulk interception, bulk acquisition and bulk personal dataset warrants, a major modification may be used to add or vary one of the operational purposes for which data may be examined under the warrant. As regards bulk equipment interference warrants, a major modification can additionally add to or vary any description of conduct in the warrant.

The Bill requires full double-lock authorisation from a Secretary of State and a judicial commissioner for any major modification to a bulk warrant. These amendments will not change that. Instead, they provide greater clarity about the matters that a commissioner must consider when determining whether to approve a modification to a bulk warrant.

The amendments specify that, for major modifications to add or vary an “operational purpose”, a judicial commissioner must review the Secretary of State’s conclusions as to whether the modification is necessary, applying the same principles as would be applied by a court on an application for judicial review and ensuring that the commissioner complies with the duties in relation to privacy set out in Clause 2, the so-called privacy clause.

In the context of bulk equipment interference, if a major modification proposes to add or vary a description of conduct, the judicial commissioner must also review the Secretary of State’s conclusions as to whether the conduct authorised by the modification is proportionate to what is sought to be achieved by it. The amendments are intended to ensure clarity and consistency across the Bill, and as such are to be welcomed.

The sharing of data and intelligence with our overseas partners is critical to the work of our security and intelligence agencies. Without working together with our allies, those agencies could not do their vital work of keeping us safe. Amendments 184, 185, 201, 202, 209 and 210 simply clarify the consideration that must be given by the Secretary of State before authorising the disclosure to overseas authorities of data acquired under the bulk powers in the Bill.

The Bill already places a duty on the Secretary of State to consider whether corresponding safeguards will be applied to the data that are to be shared with the overseas authority in relation to their retention and disclosure. These amendments make explicit that the Secretary of State must be satisfied that the overseas authority has in place safeguards, to the extent appropriate, that correspond to those in the Bill not only in respect of the retention and disclosure of the data shared in bulk but in relation to their selection for examination. This group of amendments therefore makes absolutely clear that proper consideration will be given to the examination safeguards that are applied whenever bulk data are shared with another country. I beg to move.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, I thank the Minister for moving these amendments, all of which we are happy to support and some of which respond to concerns we raised in Committee.

It may assist the House if I outline at this stage the purpose of Amendment 185A, in the names of my noble friend Lord Rosser and myself, which is about safeguards for disclosing overseas-related material for our foreign allies and agencies. That is material, possibly including information sent overseas by UK residents, obtained by our security and intelligence services under bulk interception warrants. It is an amendment which we hope the Government will feel able to accept.

In Clause 142, before any information obtained under a bulk interception warrant is disclosed overseas, the Secretary of State must ensure that arrangements and safeguards are in place regarding the retention and disclosure of such material, as the Minister has outlined. These requirements correspond to Clause 141 safeguards for domestic arrangements: that is, requiring that the number of people to whom the bulk-intercepted material is disclosed, the extent of disclosure and the number of copies made is limited to the minimum necessary. These safeguards also require the destruction of such material where there are no longer grounds for retaining it.

However, unlike Clause 141 for domestic arrangements, Clause 142 for overseas disclosure provides a wide discretion for the Secretary of State, whereby she or he must ensure equivalent safeguards only,

“to such extent (if any) as the Secretary of State considers appropriate”.

It could, therefore, be possible for the Secretary of State to decide that no safeguards are required in a particular case.

We recognise absolutely that the UK will need to share intelligence with overseas agencies and our amendment does not undermine the ability of UK agencies to do that. We also accept that overseas disclosure may be of a different nature, with particular political, diplomatic or security implications, all of which the Secretary of State must consider. However, the present wording is surely too wide and, if I have understood it correctly, would not be subject to subsequent review. Amendment 185A removes this very broad discretion and requires that it must appear to the Secretary of State that safeguards corresponding to the requirements under Clause 141(2) and (5) will apply in relation to disclosure overseas.

The Minister will not be surprised if I make reference to the Szabó v Hungary finding that minimum standards should be set out in law to avoid abuses of power and that,

“it would be contrary to the rule of law … for a discretion granted to the executive in the sphere of national security to be expressed in terms of unfettered power”.

The judgment notes that,

“the law must indicate the scope of any such discretion … with sufficient clarity … to give … adequate protection against arbitrary interference”.

I hope that the Government will feel able to accept the amendment as, if anything, extra safeguards may, indeed, be required where sensitive information is being disclosed abroad. We look forward to the Minister’s response on this.

[Baroness Hamwee (LD)]

My Lords, we, too, are happy with the government amendments in this group and we support Amendment 185A. The issue is about the discretion in the application of Clauses 141(2) and 141(5)—and, shortly, Clause 143—not their relevance. The term “appropriate” suggests to me a degree of discretion which may not be related to relevance. The term “mutatis mutandis” is not one commonly used in legislation, I think, but it is that provision that one wants to see—only changing what is necessary to be changed. I do not know the proper way of dealing with that, but “appropriate” seems to be inappropriate in the context.

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[Lord Evans of Weardale (CB)]

My Lords, there have not been very many points in the course of this legislation on which I have agreed with the noble Lord, Lord Strasburger, but on this point I do. Amendment 252A raises a very interesting and important point.

Although I am absolutely in favour, as you would imagine, of the Government having the opportunity to access the communications of anybody who is a threat to us—due to terrorism, criminal activities or anything of that sort—there is a competing national security issue here of this country having effective cybersecurity. We have seen the way in which hostile Governments have been seeking to intervene in the American elections, and we have seen all sorts of attempts by hostile states, criminal groups and others to use cyber weaknesses to take forward hostile agendas. Therefore, there is a genuine national security interest in ensuring that, as far as we can, our citizens can communicate securely and privately when they are not going about mischievous business.

The idea that we should take into consideration the requirement not to place non-targeted customers or others at additional security risk is an entirely legitimate one, and I am very interested to hear how the Minister would want to interpret this. We have competing national security issues here and it is a point well made.

[Baroness Hayter of Kentish Town]

My Lords, we have had some rather good discussions with the tech companies. In Committee, we put in some of the amendments that they suggested to us, and some of the government amendments we have been dealing with over the past few days reflect that. I thank the tech companies for their very responsible attitude in continuing discussions with the Government over this period. Certainly with us they have been open, flexible and fairly straight as to what is possible and what the dangers are for them—for example, and as we have discussed, whether a weakness in end-to-end encryption could actually undermine the security that banks and others rely on in their systems—and for their clients, public confidence and national security. The companies recognise that they have a duty of care and loyalty to their customers, while fully respecting the law of the land in which they operate and the legal demands on their staff, wherever they are located.

In their discussions with us, companies have sought clarity that they will not be asked, effectively, to create a new system that would breach end-to-end encryption. They need this clarity for their shareholders and customers’ peace of mind because the reality is that they could never be forced to create a new computer program to hack their own security. I for one cannot imagine the noble Earl, Lord Howe, or anyone else standing over a hapless computer programmer shouting, “Break into it!”, if that company did not want to do it or the computer genius was on a go-slow that day. The idea that you could force somebody to create a program that the company and the employee did not want to is probably not possible.

Given that, the reality is that the things the Government want to ask will happen only when there is a good working understanding between the security services and the company. Therefore, if the tech companies want this clarity as set out in Amendment 251—as we know they do—our interest is to hear from the Minister just what the obstacles are to giving them the clarity that they seek.