Telecommunications (Security) Bill (Seventh sitting)

Chi Onwurah Excerpts

Committee stage & Committee Debate: 7th sitting: House of Commons
Tuesday 26th January 2021 Public Bill Committees

[The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Matt Warman)]

It is a pleasure to be back under your chairmanship, Mr Hollobone. As we discussed during the debate on amendments to this clause in our previous sitting, clause 6 inserts proposed new sections 105N to R, providing Ofcom with strengthened powers to assess whether providers of public electronic communications networks and services are complying with their security duty. These powers are vital to enable Ofcom to fulfil its expanded and more active role, giving it the tools to monitor and assess providers’ compliance with the new telecoms security framework and providing the basis for commencing any enforcement action.

Proposed new section 105O provides the power to give assessment notices to a provider. Assessment notices may impose a duty on a provider to do a number of different things, which I will briefly summarise. First, providers can be required to carry out, or arrange for another person to carry out, technical testing in relation to their network or service. Secondly, they can be required to make staff available to be interviewed, enabling Ofcom to gain insights into how a provider’s security practices and policies are implemented.

Thirdly, providers can be required to allow an Ofcom employee or an assessor authorised by Ofcom to enter their premises to view documents or equipment. I recognise that that is a significant power, but it is necessary. It is subject to certain restrictions to protect legally privileged information and to limit entry to non-domestic premises only. To provide clarity for telecoms providers, Ofcom will also publish guidance setting out how and when it will use the power. Importantly, providers have a right of appeal.

The powers of assessment set out in the clause are key to enabling Ofcom to carry out the effective and extensive monitoring and assessment of providers’ security practices that is necessary.

[Chi Onwurah (Newcastle upon Tyne Central) (Lab)]

It is a pleasure to serve under your chairmanship, Mr Hollobone, and to come back to this important Bill. I thank the Minister for writing to me and reassuring me on certain matters relevant to the clause. We accept the need for Ofcom to have powers to require information from vendors, but we would like a specific requirement whereby Ofcom can ask vendors for information on the diversity of their supply chains. I will leave further discussion on that for our new clauses. I will support this clause.

Question put and agreed to.

Clause 6 accordingly ordered to stand part of the Bill.

Clause 7

Powers of OFCOM to enforce compliance with security duties

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss the following:

Clause 8 stand part.

Clause 9 stand part.

Clause 10 stand part.

[Matt Warman]

I will seek to move relatively rapidly through these four clauses.

Clause 7 provides Ofcom with enforcement powers in relation to providers’ security duties. The Bill gives Ofcom new powers to impose tough financial penalties on providers who breach their security duties. The penalties range to a maximum fine of 10% of a provider’s annual turnover, which is in line with the maximum fines available for breaching other regulatory requirements. For continuing contraventions, Ofcom can levy a daily penalty of up to £100,000. Penalties that are generally lower than that but still significant will also apply for contravening information requirements, which are subject to a maximum penalty of £10 million or, for a continuing contravention, a penalty of up to £50,000 per day. These penalties ensure that there will be a real financial deterrent to poor security practices. I should also say that, in the most serious cases, or in cases where a provider repeatedly contravenes its security duties, Ofcom would be able to use existing powers to suspend or restrict the provider’s entitlements to provide a network or service. Clearly, that is a step that we hope the regulator will never need to take.

The clause also gives Ofcom an important new power to take action where security is being compromised or is at imminent risk of being compromised. Proposed new sections 105U and 105V of the Communications Act 2003 would enable Ofcom to direct a provider to take interim steps to secure its network or service while Ofcom investigates or pursues further action. This power recognises that contravention of a security duty could result in a security compromise that causes real damage to users of that network or service. Where Ofcom uses that power, it will be required to commence and complete the enforcement process as soon as is reasonably practicable. The clause gives Ofcom the tools it needs to effectively enforce compliance with the new security framework.

Clause 8 sets out the position for bringing civil claims against providers who breach their security duties, which is a matter we touched on in earlier debates. It enables providers to be held accountable not just by Ofcom but by service users, such as members of the public, in cases where loss or damage is sustained by those users as the result of a breach of a duty. Providers owe a duty to any person who may be affected by a contravention of their security duties to take security measures, to comply with specific security duties in any regulations and to inform users of security compromises.

This clause allows any affected person to take legal action should providers breach those security duties. However, any affected person can bring legal proceedings against a provider only with the consent of Ofcom, which may be subject to conditions relating to the conduct of the legal action. This reflects the existing position in the Communications Act 2003 and ensures that providers face legal action only in appropriate circumstances. The clause also makes providers responsible to their users, providing another source of accountability. It allows users to bring legal claims for any losses they have suffered, which is only fair and reasonable.

Clause 9 addresses the interaction between provisions in the Bill and other legislation, specifically national security, law enforcement and prisons legislation. The security duties created by the Bill do not conflict with duties imposed on communications providers by other legislation via these clauses. Equally, we do not want the Bill to affect adversely the important work carried out by our law enforcement agencies, criminal justice authorities and intelligence agencies. The clause gives that clarity to providers about their responsibilities.

Finally, clause 10 requires that Ofcom publish a statement of policy about how it will fulfil its general duty and use specific powers to ensure that providers comply with their security duties. This will provide welcome clarity to industry about the expected use of important new powers. I beg to move that these clauses stand part of the Bill.

[Chi Onwurah]

I will not detain the Committee long, as we are cracking on through the clauses. I will only emphasise that these clauses give Ofcom broad powers—very broad powers—and measures of enforcement, as well as placing duties on the network operators to all users of their network services. We support these broad powers, but it is incumbent on the Minister and indeed on the Committee to consider whether those powers will receive sufficient scrutiny, and sufficient oversight and input from our security services. We anticipate debating those particular questions in more detail later today. In the meantime, we will not stand in the way of these clauses standing part of the Bill.

Question put and agreed to.

Clause 7 accordingly ordered to stand part of the Bill.

Clauses 8 to 10 ordered to stand part of the Bill.

Clause 11

Reporting on matters related to security

[Chi Onwurah]

I beg to move amendment 14, in clause 11, page18, line 26, at end insert—

“(aa) an assessment of the impact on security of changes to the diversity of the supply chain for network equipment;”

This amendment requires that network supply chain diversification is included in Ofcom reports on security.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

Clause 12 stand part.

Clause 13 stand part.

[Chi Onwurah]

We start this debate where we ended our sitting on Thursday, on the diversity of the supply chain. But this is not groundhog day; this is a very different aspect of the diversity of the supply chain. I hope the Minister has noticed that there are three themes to our amendment: national security, diversity of the supply chain and appropriate scrutiny. Those are our key concerns about the Bill as it stands.

We wish to see the Bill debated as speedily as possible. For the record, I reiterate my concern that, in the midst of a pandemic lockdown, where the advice is to stay at home, the Leader of the House requires that Members of Parliament should congregate in one room for several hours. With that in mind, we are cracking on as quickly as possible, and we have made significant progress only this morning. However, we feel strongly that, given the speed at which we are providing the appropriate scrutiny, more time should be devoted to debating the Bill on the Floor of the House. We are cracking on in order to protect, as far as we can, the public health of Members of Parliament, staff, House officials and Clerks, who are doing an amazing job in the midst of a pandemic.

Clause 11 makes provision for reporting by Ofcom on security matters. That includes a duty to provide an annual security report to the Secretary of State. Amendment 14, in my name and those of my right hon. and hon. Friends, requires that network supply chain diversification is included in Ofcom’s report on security. As I said, we anticipate having a broader debate this afternoon on the importance of the diversification of the supply chain to security, as part of the debates on our new clauses, so I will only summarise our key points and concerns now.

This amendment follows amendment 13, which sought to give Ofcom the power to request reports from operators on their supply and the progress of their supply chain diversification. We support steps to remove high-risk vendors from the UK networks, but they must go hand in hand with credible measures to diversify the supply chain. I am afraid it remains the fact that we have no reference to the diversification of the supply chain in the Bill, despite the fact that, as I will briefly outline, both the Secretary of State and experts during our evidence sessions emphasised that we could not have network security without effective diversification.

We cannot have a robust and secure network with only two service providers. Supply chain diversification is absolutely vital to protecting our national security. If a vulnerability exists in one vendor or service provider, that intrusion may be limited to that one vendor or service provider alone. A diversity of suppliers in the supply chain limits the exposure of vital information. This amendment ensures that network supply chain diversification is addressed in Ofcom’s report on security. My key question to the Minister is, how can Ofcom report on security if it is not reporting on supply chain diversification?

The Minister may well say that Ofcom has the power to report on supply chain diversification and to request information on supply chain diversification. As I have said on a number of occasions, the powers in the Bill are broad. That is why effective scrutiny requires some specification of what will be reported upon.

The security report to the Secretary of State should be made as

“soon as practicable after the end of each reporting period”

and

“must contain… information and advice… to assist the Secretary of State in the formulation of policy”.

It must also include the extent to which providers have complied with security duties. That is as an example of some of what may be included in the security report. Given that the Secretary of State has said on a number of occasions that supply chain diversification goes hand in hand with the security of the network, it is essential that supply chain diversification is specifically mentioned in the Bill, so that we can have accurate and detailed reports from Ofcom on key aspects of network security.

The amendment will help provide the Secretary of State with the information to update Parliament on the progress of the Government’s diversification strategy, depending on Ofcom’s findings. The Secretary of State has promised to give Parliament such updates, so this is an enabling amendment to ensure that the Secretary of State has the information he needs to provide the reporting that he has committed to.

In support of the amendment, I would like to cite one of the witnesses in our evidence sessions. Dr Alexi Drew, from Kings College, London, was asked whether it was possible to have a secure network without a diverse supply chain, and answered:

“That is a great question that comes with a very simple answer: no. The worst-case scenario for creating a risk in this sense is when monopoly meets supply chain—insecure supply chain in this case. Arguably, the reason why SolarWinds was so successful is that it provided the same service to so many different organisations and departments in the United States. Therefore, if you access one—SolarWinds—you access almost all. That is the risk.”—[Official Report, Telecommunications (Security) Public Bill Committee, 19 January 2021; c. 87, Q110.]

That is a risk that, I am sorry to say, the Bill currently does not sufficiently address. I hope that, by accepting this amendment, the Minister will recognise that we are, as always, seeking to improve the Bill and to ensure that it provides a credible and effective means to secure our networks.

With regard to clauses 11, 12 and 13 stand part, we recognise the importance of providing Ofcom with the appropriate powers to request information, but also to share information related to security. In that respect, these provisions are ones that we can support.

[Matt Warman]

I welcome the spirit of the amendment. I think that the hon. Lady and I share the same ambition. I know that she wants to have the proper debate later, so we look forward to that.

Clause 11 inserts into the Communications Act 2003 proposed new section 105Z, which deals with Ofcom’s reports on security. It requires Ofcom to produce such reports within two years of the Bill receiving Royal Assent and every 12 months thereafter. As the hon. Lady said, amendment 14 is similar to the amendment to clause 6 that we discussed previously. Ultimately, when considering Ofcom’s role and specifically its reporting function, we should note that proposed new section 105Z(2) requires Ofcom security reports to include such information and advice as Ofcom considers may best assist the Secretary of State in the formulation of policy on telecoms security. That could go beyond the list in proposed new subsection (4) to include other relevant information, such as that related to diversification. The Secretary of State can also direct Ofcom to include information that goes beyond that list.

As the Committee and, indeed, Ofcom will be well aware, the Government have recently published a targeted diversification strategy, which will deliver lasting and meaningful change in the 5G supply chain and pave the way for a vibrant, innovative and dynamic supply market. We heard widespread support for the strategy from witnesses during the oral evidence sessions. The strategy demonstrates our commitment to building a healthy supply market and is backed by a £250 million initial investment.

We have publicly announced that the Government will be funding the creation of a UK telecoms lab to research and test new ways of increasing security and interoperability, and we are already partnering with Ofcom and Digital Catapult to fund the industry-facing test facility SONIC—the SmartRAN Open Network Interoperability Centre. Both of those will play a key part in our investment in diversification and demonstrate Ofcom’s existing part in it.

As already mentioned, amendment 14 would require Ofcom to include in its security reports

“an assessment of the impact on security of”

any

“changes to the diversity of the supply chain for network equipment”.

As that requirement is already essentially covered by Ofcom’s existing powers, the amendment is not necessary. The inclusion of any such information is already within Ofcom’s discretion, but I am sure that we will discuss it more later on, as the hon. Lady said.

Clause 12 expands Ofcom’s information-gathering powers for the purposes of its security functions and enhances its ability to share the information with the Government. It enables Ofcom to require a provider to produce, generate, collect or retain security information, and then to analyse that information. Any information sought using this power must always be proportionate to how Ofcom will use it.

Clause 13 makes provision in connection with the standard of review applied by the Competition Appeal Tribunal in appeals against certain of Ofcom’s security-related decisions. Ofcom’s regulatory decisions are subject to a right of appeal to the tribunal, and that will also be the case for most of Ofcom’s decisions relating to the exercise of its regulatory powers conferred by the Bill. This clause makes provision to ensure that the tribunal is not required to modify its approach in appeals against relevant security decisions, and should instead apply ordinary judicial review principles.

I hope that I have sufficiently explained to the Committee why amendment 14 is unnecessary and why clauses 11 to 13 as drafted should stand part of the Bill.

[Chi Onwurah]

I thank the Minister for his comments. Although we agree on many things in many areas, I think that in this case he is trying to have his cake and eat it, inasmuch as he is saying that amendment 14 is not necessary because Ofcom already has the powers, but he is reluctant or is refusing to specify that those powers will be used for the objective of reporting on the progress of diversification of the supply chain. It was good to hear the Minister reiterate the importance of diversification of the supply chain, but I remain confused about whether he agrees with the evidence and, indeed, with his own Secretary of State that diversification of the supply chain is a prerequisite of the security of our networks and, indeed, our national security—that is what we are discussing with regard to our telecoms networks. If diversification is a prerequisite, why is the Minister so reluctant to refer to it? If he is so confident in the plan to diversify our supply chains, why is he so reluctant to insert any requirements to report on the progress of that diversification?

I listened intently: the Minister said that Ofcom has the powers to report on whatever it considers to be relevant to security. During the evidence session, we heard from Ofcom itself, very clearly and repeatedly, that it is not for Ofcom to make decisions on national security. It will not make national security decisions. That is not within its remit and responsibilities; the witnesses from Ofcom stated that repeatedly and clearly. I would be happy to read from Hansard if that point is in question. Given that Ofcom will not make security decisions and that the diversification of the supply chain is essential for security, I am at a loss to understand why the Minister will not accept a reference to reporting on the progress of diversification. Although, unfortunately, the pandemic means that we are not at full strength on the Opposition side of the Committee, I wish to test the will of the Committee on the amendment.

Question put, That the amendment be made.

--- Later in debate ---

Reviews of sections 1 to 13

[Chi Onwurah]

I beg to move amendment 15, in clause 14, page 21, line 28, leave out from beginning to end of line 30 and insert—

“(3) The reports must be published not more than 12 months apart for the first 5 years, then not more than 5 years apart.

(4) The first report must be published within the period of 12 months beginning with the day on which this Act is passed.”.

This amendment requires the Secretary of State to report on the impact and effectiveness of clauses 1 to 13 every year for the first five years after the Act is passed, and then every five years following.

The amendment reflects another of our key concerns about the Bill, which is the level and extent of appropriate scrutiny for such broad and sweeping powers. It seeks to ensure appropriate scrutiny. Clause 14 requires the Secretary of State to review the impact and effectiveness of clauses 1 to 13 at least every five years. Our amendment would require the report to be published every year for the first five years after the legislation is passed, and then up to every five years after that.

As we have said, the Bill gives the Secretary of State and Ofcom sweeping powers. We want to ensure both that they are proportionate and that there is accountability. As we have previously emphasised, we are sure that the Minister and the Secretary of State are inclined to exercise the powers in a proportionate and accountable way, but they will not be in their posts forever, and perhaps not for the entire first five years of the legislation’s operation, so it is important that the Bill requires that Parliament be able to scrutinise its effectiveness, as that is so important to our national security. In that sense, this amendment follows amendments 5, 9 and 10 with respect to the requirement for appropriate oversight and accountability.

I emphasise—I am sure that you will understand, Mr Hollobone—that in some ways we are here because of a lack of effective parliamentary scrutiny of the presence and growth of high-risk vendors in our networks. It was only when Parliament became aware of and was able to give its full-throated input on concerns about the dominance of high-risk vendors in our telecommunications market that the Government took action. We do not want to be in the position of finding again that there has been a dramatic change in the security of our networks without appropriate scrutiny.

Clause 14 states that the Secretary of State must

“carry out reviews of…impact and effectiveness”

and that the report must be laid before Parliament for parliamentary scrutiny. However, we are to wait up to five years before it will be made possible to give parliamentary scrutiny to a Bill that is so important to national security, as both the Minister and the Secretary of State, and indeed the security services, have emphasised. We are not to review its effectiveness for five years.

[Sara Britcliffe (Hyndburn) (Con)]

Does not the clause state that the period is up to five years? The review could be done during that period; it would not have to be at the five-year mark every time.

[Chi Onwurah]

The hon. Lady is absolutely right. The clause enables the Minister or Secretary of State to choose to lay a report more frequently. Again, I do not want to impute anything against the Minister or the Secretary of State, but given the importance of the subject and of parliamentary review, why not ensure that it is more frequent?

I am sure that the hon. Lady will agree that Parliament has many things to consider, and so does the Secretary of State. There is competition for parliamentary time, particularly in a pandemic and in view of the challenges that we shall face in the next few years. How can I put this? We have concerns that the priority may slip in the face of, for example, economic challenges, investment challenges and recovery challenges. We want to be sure what is happening. We are the party of national security and we want to ensure that, in this context, national security is brought to Parliament to be debated, discussed and reviewed at least every year.

--- Later in debate ---

[Matt Warman]

I listen with interest to the points that the hon. Lady makes, and to the assertion that she is a member of the party of national security. I welcome her to this side of the House, if that is the case. [Interruption.] Thank you, but no.

As the hon. Lady says, clause 14 is a review clause requiring the impact and effectiveness of clauses 1 to 13 to be reviewed at least every five years by the Secretary of State. The review report must be published and laid before Parliament, but it is by no means the only source of parliament scrutiny, as she knows. Her amendment would increase the frequency of these reports to every year for the first five years after the Bill is passed and then every five years thereafter.

Increasing the frequency of the reports would bring its own challenges for a number of reasons. First, the framework is considerably different from the previous security regime in the Communications Act 2003. It seems to me that we will not be able fully to assess the impact and effectiveness of the new security regime instituted by clauses 1 to 13 until all parts of the framework, including secondary legislation, codes of practice and other things, have been in place for a reasonable period of time. The code of practice that will provide guidance on the detailed security measures that telecoms could take is intended to set clear implementation timelines. Some measures may require significant operational change, as we heard in the evidence sessions for telecoms providers, and we are aware that that may be costly. For that reason, we cannot reasonably expect all changes to be implemented instantly or, indeed, all necessarily at the same time.

There is a further practical difficulty with the amendment. If the first report is to be produced 12 months after Royal Assent, it will require the review to be undertaken well in advance of that deadline. That means that the report will represent an incomplete picture of the Bill’s impact, even at its very first production. Some measures will not even have been implemented by telecoms providers.

My hon. Friend the Member for Hyndburn was exactly right that the current requirement for publishing reports is at least—rather than at most—every five years. We have been deliberate in our choice of this timeframe because five years is the reasonable point by which we expect the majority of telecoms providers to have implemented most, if not all, changes. It is therefore considered appropriate to require a report on the impact and effectiveness of the framework by that time. I recognise that five years is a long time. That does not mean that the framework will be free from scrutiny in the intervening period. As clause 11(3) sets out, the Bill amends section 134B of the Communications Act so that Ofcom’s regular infrastructure reports will include information on public telecoms providers’ compliance with the new security framework. Ofcom publishes the reports annually, rendering the amendment unnecessary.

[Chi Onwurah]

On a point of clarification, I have the impression that the Minister anticipates that the first report under the Bill would only happen once all the requirements had been implemented. I think that that implies that it would only happen once a high-risk vendor, specifically Huawei, had been removed from the network.

[Matt Warman]

No is the short answer, because while this is a progress report, five years from 2021 is 2026—the deadline is 2027, even at the most extreme end, which is not where we anticipate it will end up—and it would be before the point that she identifies.

The infrastructure reports from Ofcom will help to provide Parliament and the public with a view on how telecoms providers are progressing with compliance with the new framework. As I alluded to earlier, they are not the only means of parliamentary scrutiny. We have the Intelligence and Security Committee and we have Select Committees. I suspect that there might be one or two debates on this matter over the next five years as well. To pretend that this is the only method of parliamentary scrutiny is not accurate.

[Chi Onwurah]

If the Minister will give way briefly, he may find it saves time. To clarify: for the first report we will not necessarily have to wait until all the provisions of delegated legislation associated with the Bill are in place. As for the infrastructure reports that Ofcom publishes, to which he refers as a form of alternative scrutiny, will they, might they or will they not reflect progress in the diversification of the supply chain?

[Matt Warman]

The hon. Lady asks me to predict what is in a report that has not been written yet by an organisation that is not a Government Department. I agree with the principle of what she is saying. This is an important aspect and one would reasonably expect it to be reflected in the reports that we have talked about. It is, however, important overall to say that Ofcom’s own regular infrastructure reports will, as I have said, include information on public telecoms providers’ compliance with the new security framework, which is the broadest interpretation and gives a huge amount of latitude for the sorts of information that she seeks. I hope that those infrastructure reports will help to provide Parliament with the kind of scrutiny that she seeks, and the public with the kind of scrutiny that we all seek. [Interruption.] For those reasons I hope that she will withdraw the amendment.

[Chi Onwurah]

I thank my right hon. Friend the Member for North Durham for an exciting intervention from his phone, and I thank the Minister for his comments. As I think I have said, I spent six years working for Ofcom with the Communications Act 2003 on my desk. I know the importance that our independent regulator places on the words of the Minister during such debates as this. As he has indicated that the reports would do well to include reference to everything that appertains to security, including the diversification of supply chain, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 14 ordered to stand part of the Bill.

Clause 15

Designated vendor directions

[The Chair]

With suitable musical introduction, I call Kevan Jones to move amendment 16.

--- Later in debate ---

[Mr Jones]

I thank the Minister for his reply. I do not question his commitment to ensuring that we have security at the heart of the Bill, and I do not intend to press my amendments to a vote.

[Chi Onwurah]

I will speak to amendments 18 and 19, standing in my name and those of my hon. Friends, and to clauses 15 to 17. As the Minister set out, the clauses are about key powers in the Bill that seek to secure our networks and to regularise requirements already in place, albeit informally or not legally, to remove Huawei as a specific high-risk vendor from our networks. The clauses give Government the powers to do what they have said they will do.

On the clauses, I will not repeat what the Minister said, and I congratulate him on clearly setting out their powers, which the Opposition believe are necessary. I also join the Minister and my right hon. Friend the Member for North Durham in paying tribute to our security services, which do such great work to keep us secure across a wide range of threats and challenges—both present and evolving—and on whose continued work and effectiveness the Bill is highly dependent. As my right hon. Friend set out, we want to ensure that national security is absolutely at the heart of the Bill.

--- Later in debate ---

[The Chair]

Order. The hon. Lady has done really well, but we are not debating clause 17 stand part. She can refer to the other clause if she wishes.

[Chi Onwurah]

Thank you for the clarification, Mr Hollobone. I see that we are discussing whether clauses 15 and 16 stand part. I support those clauses and look forward to the Minister’s response to the amendment.

[Matt Warman]

I pre-emptively covered a lot of the hon. Lady’s questions, but I will say two brief things. She talked about consolidation in the cloud sector. While the Bill is very much a national security Bill, the National Security and Investment Bill would cover consolidation in that sort of sector, rather than this one. Obviously they do work together.

[Chi Onwurah]

The point I am making—clearly, I did not make it effectively—is that that sector is becoming this sector. The cloud sector is becoming the telecoms sector. The reason we need this Bill in addition to the National Security and Investment Bill is to address the security concerns of the telecoms sector specifically. The cloud sector is becoming part of the telecoms sector, yet the Bill does not address those concerns.

[Matt Warman]

The hon. Lady is not wrong, obviously, in the sense that there is a potential conversation to be had about when a cloud provider is a telecoms provider and vice versa, if I can put it like that, although it is not the most elegant way of doing so. However, the point is that the reason we have comprehensive coverage of the landscape is because we have both the National Security and Investment Bill, which she debated recently, and this Bill. The broad powers that she described are intended to provide precisely that sort of coverage.

Similarly, the hon. Lady referred to the length of the list in clause 16 of matters that can be taken into consideration. That relates to the point I made previously, namely that the sorts of issues that she is talking about, such as data flows, are already covered in the long list. The list is as long as it is because it is intended to look to the future. Therefore, being prescriptive in the way that she describes is fundamentally unnecessary. We are not excluding what she wants to be on the list. A matter is already very much there if it is pertinent to national security. For that reason, I do not think there is a compelling case to add that single topic to the list, both because it is already there and because if we start going down that route, we could make the case for adding a host of other things that are already covered but that people might want to be mentioned specifically.

As I said earlier on the convergence of the two sectors, the point is that we have comprehensive coverage through both Bills. It will be for the NCSC, Ofcom and the Government to make a judgment as to whether any consolidation in a sector poses a national security risk.

--- Later in debate ---

[Mr Jones]

My hon. Friend the Member for City of Chester said that we were going over old ground, and to a certain extent we are because some of the amendments reflect those that I moved last week.

May I say at the outset, Mr Hollobone, that the Minister has been an exemplar in engaging with and briefing the ISC? He has set something of a precedent; usually we have only Cabinet Ministers or Prime Ministers before us to give evidence. He is one of the few junior Ministers to have appeared before us, so I congratulate him. He did it because he wanted to engage with the issues. He must therefore be commended on his commitment to ensure that there is scrutiny. However—this is not to wish his demise, but to argue for his promotion—he will not be there forever. I think he does not quite understand why the Government are not at least moving on this.

The ISC’s remit is defined in the Justice and Security Act 2013. It sets out which Departments we cover, and the Department for Digital, Culture, Media and Sport is not one of them. However, as I said last week, security is increasingly being covered by other Departments, and this Bill is a good example. The National Security and Investment Bill is another one, where security decisions will be taken by the Secretary of State for Business, Energy and Industrial Strategy. Parliament must be able to scrutinise that.

If a high-risk vendor is designated as banned from the network by the Secretary of State for Digital, Culture, Media and Sport, there are perfectly good reasons why the intelligence behind that cannot be put into the public domain. The methods by which such information is acquired are of a highly sensitive nature, so it would not only expose our security services’ techniques, but in some cases would make vulnerable the individuals who have been the source of that information. I think most people would accept that that is a very good reason.

This sort of thing is happening increasingly. We have the two Bills that I have referred to, but we also have the Covert Human Intelligence Sources (Criminal Conduct) Bill, which will come back to the House tomorrow. Covert human intelligence and the ability to collect intelligence on behalf of our security services is very important. Most of that is covered by the Home Office, and covert human intelligence sources are covered by the ISC’s remit and can be scrutinised. However, there is a long list of other organisations that will be covered by tomorrow’s Bill, including—we never quite got to the bottom of this—the Food Standards Agency, for example. Again, how do we ensure that there is scrutiny of the decisions?

We also have—this has come out of the pandemic—the new biosecurity unit in the Department of Health. Again, there is no parliamentary scrutiny, because the Health and Social Care Committee will not be able to look at the intelligence that supports so much of that. An easy way out of this is in the Justice and Security Act 2013: the memorandum of understanding, which just means that, were our remit extended to look at this and other matters, the ISC could oversee and ask for the intelligence.

Having spoken to the Business Secretary and the Minister, who sympathises with us, I am not sure where the logjam is in Government. The point is that an amendment will be tabled in the Lords. Whether the provision is in the Bill or just in the memorandum of understanding between the Prime Minister and the ISC, it is easily done and would give confidence that the process at least had parliamentary oversight.

On many of these decisions, frankly, the oversight would not be onerous; we are asking only that we are informed of them. On some occasions, we might not even want to look at the intelligence. It might be so straightforward that, frankly, it is not necessary, so I do not think that it is an administrative burden. I cannot understand what the problem is. To reiterate what I said last week in Committee, it is not about the ISC wanting to have a veto or block over such things. It is, rightly, for the Government and the Secretary of State to make and defend those decisions.

It is also not about the ISC embarrassing the Government, because we cannot talk in public about a lot of the information that we receive. It is not as though we would publish a publicly available report, because of the highly classified nature of the information. However, the ISC can scrutinise decisions and, if it has concerns, write to the Prime Minister or produce a report for the Prime Minister raising them. That gives parliamentary scrutiny of the Executive’s decisions.

As I say, the report might not be made public. People might ask, “Would that be a new thing?” No—it happens all the time. For example, on the well-publicised Russia report this year, there was a public report with redactions in it and quite an extensive annex, which raised some issues that we were concerned about. That annex was seen only by individuals in Government, including the Prime Minister.

There is already a mechanism, so I fail to understand why the Government want to oppose this. From talking to Ministers privately, I think that there is a lot of sympathy with the position and I think that we will get there eventually. How we get there and in what format, I am not sure—whether the method is to put it in the Bill or to do it through the mechanism in the 2013 Act. That might be a way forward.

[Chi Onwurah]

I rise to support the excellent comments made by my hon. Friend the Member for City of Chester and my right hon. Friend the Member for North Durham. I did well to delay my remarks till after my right hon. Friend had spoken, because he has set out very effectively, based on his considerable experience as a long-standing member of the Intelligence and Security Committee, both why it is important that that Committee should be consulted and receive the reports, and why it is hard to understand the Minister’s reluctance both in this Bill and in the National Security and Investment Bill to involve a source of such credible security expertise and, importantly, security clearance in key issues of national security.

I want to add two points to those made by my right hon. and hon. Friends. The first is to reiterate a point made previously: our security threats are changing, evolving and, unfortunately, diversifying. We see that in changes to our defence spending, in changes in the national review of our defence capabilities, and in changes in the evolution of the geopolitical landscape—the potential source of threats. However, the Minister does not seem able to support reflecting that by ensuring that, rather than keeping to our existing modes of parliamentary scrutiny, we enable parliamentary scrutiny of issues of national security by those who are best placed to carry out such scrutiny—undoubtedly members of the Intelligence and Security Committee.

I want to point briefly to a discussion in the evidence sessions. Ofcom made it clear that it does not consider itself in a position to make national security decisions, which is understandable, and that some of the decisions and considerations about national security with regards to telecommunications networks would require people who have STRAP clearance. Ofcom’s group director for networks and communications pointed to the fact that she had had STRAP clearance previously, and she said that if the NCSC

“feels that that is needed for the type of information that we may need to handle, we would make sure that happened.”––[Official Report, Telecommunications (Security) Public Bill Committee, 14 January 2021; c. 90, Q115.]

To my knowledge, Digital, Culture, Media and Sport Committee members do not have STRAP clearance. I would like the Minister to comment specifically on the level of security clearance required for members of the Committee that he has identified as being the location for scrutiny of important issues of national security. What level of security clearance do its members have? Would that enable the scrutiny that we all agree is in the best interests of the Bill?

I would like the Minister to respond to a specific example. Amendments 20, 22, 23, 24 and 25 are designed to require that the Intelligence and Security Committee has access to the appropriate information. There is a requirement for the Secretary of State to lay before Parliament a copy of a designated vendor direction, as set out in clause 15, which inserts new section 105Z11 into the Communications Act 2003. The new section states:

“The Secretary of State must lay before Parliament a copy of—

(a) a designated vendor direction;

(b) a designation notice;

(c) a notice of a variation or revocation of a designated vendor direction; and

(d) a notice of a variation or revocation of a designation notice.”

So far, so good—we have that scrutiny. However, the new section also says:

“The requirement in subsection (1) does not apply if the Secretary of State considers that laying a copy of the direction or notice (as the case may be) before Parliament would be contrary to the interests of national security.”

--- Later in debate ---

[The Chair]

We are.

[Chi Onwurah]

We support clause 17 and our amendments are intended to make it more accountable to Parliament and therefore more successful and effective in securing our national security.

[The Chair]

Order. I misled the hon. Lady. We are now discussing amendments 20 and 22 to 25. When we finish the debate on those amendments, we will debate clause 17 stand part. The hon. Lady may want to save this part of her remarks until the next debate.

[Chi Onwurah]

Thank you, Mr Hollobone. It is sometimes confusing to know exactly what is being discussed at what point. With that, I ask the Minister to respond to our concerns about the scrutiny of the powers in the clause.

[Matt Warman]

I welcome the second salvo in the campaign to address this matter by the right hon. Member for North Durham. He said it would be an ongoing campaign.

This group of amendments would require the Secretary of State to provide information relating to a designated vendor direction or designation notice to the ISC. The amendments would require the Secretary of State to do this only where directions and designation notices had not been laid before Parliament, whether in full or in part, as a result of the national security exemptions in clause 17. It will not surprise the right hon. Member for North Durham or other Opposition Members that some of these short remarks will overlap with the conversation that we had earlier on a similar matter.

Amendment 20 would require designated vendor directions or designation notices to be provided to the ISC. Amendments 22 to 25 would require the Secretary of State also to provide the ISC with copies of any notifications of contraventions, confirmation decisions and so on. Although I recognise some Members’ desire for the ISC to play a greater role in the oversight of national security decision making across government, including in relation to this Bill, the amendments would, as the right hon. Member for North Durham knows, extend the ISC’s role in an unprecedented way. None the less, I thank his welcome for my unprecedented appearance.

As I said in the debate on amendment 9, the ISC’s primary focus is to oversee the work of the security and intelligence agencies. Its remit is clearly defined in the Justice and Security Act 2013, and the accompanying statutory memorandum of understanding, to which the right hon. Gentleman referred. I do not think he thinks it is my place to take a view on that role, and I do not think this Bill is the place to have that debate.