Draft Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2020 Draft Functions of the Investigatory Powers Commisioner (Oversight of the Data Access Agreement between the United Kingdom and the United States of America and of Functions Exercisable Under the Crime (Overseas Production Orders) Act 2019) Regulations 2020

Conor McGinn Excerpts

Thursday 10th September 2020 General Committees

[Conor McGinn (St Helens North) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Christopher, and to see the Minister who, along with the hon. Member for Corby, is certainly earning his keep, given the amount of Home Office business that we have had this week. As always, I thank the Minister for his courtesy and that of his officials in providing us with information prior to this sitting so that the Opposition, as I have said before, can work in partnership with Government, UK law enforcement, key operational partners and—this is pertinent to this morning’s business—public bodies to improve our country’s resilience to threats, prevent criminality and ultimately uphold international security.

Although largely technical in scope, the draft regulations have implications for that vital task, and we thus approach them in a collaborative and constructive spirit. Having carefully considered them, we will not oppose them; however, I am sure that the Minister will understand that we wish to seek some clarity, assurances, safeguards and oversights of the changes, particularly when they relate to such sensitive matters and powers.

The first instrument to be considered amends part 1 of schedule 4 to the Investigatory Powers Act 2016. As the Minister said, it adds five new public authorities to the list of bodies with power to obtain communications data from UK telecoms operators. As hon. Members know, the 2016 Act contained important and welcome safeguards to ensure that widening access to investigatory powers and sensitive data would be used only where necessary, proportionate, authorised and accountable. That is backed up by statutory codes of practice.

That was done for good reason. It is important to make sure that any broadening of access to data powers is always for essential reasons, is well scrutinised by parliamentary and other sources of independent oversight and is applied only to public authorities that show a clear and demonstrable need for them. As such, we acknowledge the reasonable operational case for adding the five public authorities listed, as shown in the instrument’s purpose and effect memorandum, but can the Minister clarify why that is taking place now and why it was not introduced sooner? Has a particular development made widening such access imperative?

Furthermore, we welcome that all the additions and amendments were subject to a 12-week consultation period with the relevant public authorities and the Investigatory Powers Commissioner. It is right that the consultation considered factors such as the gravity of offences dealt with by the public authority, their statutory remit and the frequency of requests for data the body is estimated to make.

The commissioner’s independent oversight was also welcome. Can the Minister clarify the exact role and oversight function of the commissioner during the consultation process and perhaps commit to publishing information on that point? For example, were they fully in accord with widening access to those bodies, or did they have any specific reservations or contentions? Were those acted on and adequately addressed before the public authorities were listed?

Given the widened access, can the Minister also outline whether the full list of public authorities with such powers will be regularly reviewed? As with all investigatory powers, it is important that the operational case for bodies having powers to access information is kept under close and strict review. Those are important issues.

On the second instrument to be considered, article 12(1) of the 2019 agreement between the United Kingdom and United States of America on access to electronic data for the purpose of countering serious crime requires a review to be fulfilled to ensure each side’s general compliance. As with the previous instrument, we welcome the independent oversight and role of the Investigatory Powers Commissioner. They often undertake tasks in relation to similar investigatory powers, therefore the move seems sensible and practical. In the same vein, the instrument provides the Investigatory Powers Commissioner’s Office with a welcome sense of clarity and purpose as it undertakes the new role. It is welcome that, following consultation with the IPCO and its operational partners, it is content that it is adequately equipped to carry out the new function.

I want to press the Minister on a couple of issues relating to the wider UK-US agreement, notably whether the Government will continue, as I believe they have stated elsewhere, including in the agreement, to keep seeking key assurances from the United States that the death penalty will not be sought or implemented in cases where data and information are acquired from UK telecommunication sources. Similarly, it is worth restating that similar safeguards around data and the protection of journalists and their vital work in that context are critical. The Opposition vehemently oppose the death penalty and we respect the protection of journalistic sources and material. I hope that the Minister can reassure us and renew that commitment to promoting safeguards on those important matters.

In conclusion, we will not oppose the two instruments. Although they are technical in carrying out specific functions and scope, they have important ramifications for preventing criminality and upholding our national security, which are key priorities for hon. Members on both sides of the House. In the aforementioned constructive spirit, we look forward to working with the Government, law enforcement and relevant public agencies to get the approach right. We will continue, where appropriate, to seek reassurances that the full and proper safeguards are being upheld in spirit and practice for all matters relating to these investigatory powers.