Investigatory Powers (Amendment) Bill [Lords]

Jeremy Wright Excerpts

2nd reading
Monday 19th February 2024 Commons Chamber

[Sir Jeremy Wright (Kenilworth and Southam) (Con)]

Let me say first of all that I am in favour of the Bill, which I think constitutes a sensible updating of the intelligence community’s powers in the ways that the Home Secretary and, indeed, the shadow Home Secretary have described. I am also in favour of the principle, mentioned by the shadow Home Secretary, that greater powers for the intelligence agencies should come with greater oversight of those powers.

I know that my colleagues in the Intelligence and Security Committee will want to focus on certain areas covered by the Bill. I want to focus my remarks on internet connection records, which are, of course, important pieces of intelligence. We are talking here about which internet sites were accessed and when, not about precisely what was viewed or what activity was carried out, but none the less this data can be of significant intelligence value. The Investigatory Powers Act 2016 allows for the obtaining of internet connection records data in certain circumstances. The circumstances on which I want to concentrate are those in which an intelligence agency is focused on the use of a particular internet service at a particular time and is keen to know the identity of the person or persons who have been using it at that time. This is covered by section 62 of the Act, which gives authority for an intelligence agency to obtain that information. The Bill seeks to broaden an agency’s power to act in those circumstances.

The law currently requires the agency to know specifically which service has been used, and specifically at which time it was used. Clause 15 seeks to extend that to allow the collection of ICR data to identify individuals using “one or more” specified internet services “in a specified period”. What that means, at least as the Bill is currently drafted, is that there is no apparent limit on the number of internet services that can be specified or on the length of the specified period, so the clause could allow an intelligence agency to collect ICR data on a large number of different internet services, and over a long period. That would inevitably involve data on the activities of a potentially large number of people, whereas the current law permits only examination of a specific service at a specific time, which carries much less risk of other wholly innocent and uninvolved individuals being caught in the net.

I do not suggest—and neither, I think, does the Intelligence and Security Committee—that the intelligence agencies do not need these wider powers. We do say, however, that this is a significant widening of their powers, and that it should therefore come with additional scrutiny from a judicial commissioner. I think we can deduce, not just from the debate in the other place, but from what the Home Secretary has said in this House and what other Ministers have said at other times, that the Government essentially have two arguments in response to that. The first is that this new power is not intrusive enough to merit extra oversight, as ICR data relating to those not subject to agency interest is not retained, and the second is that the power being proposed is no more intrusive than current powers to collect internet connection data.

On the first of those arguments, the fact that data is not retained does not mean that it is not intrusive to collect it. Many of our constituents would be concerned about their internet activity being scrutinised, even if no action were taken thereafter—and we should bear in mind that the Bill’s language does not limit that scrutiny to sites visited which are inherently suspicious. Even everyday online activity may be of interest in the case of individuals of concern, but this provision would mean that the everyday online activity of many who are not of concern will also be examined. That, we say, makes the provision worthy of additional oversight.

The second argument the Government might advance is that this is no more intrusive than current powers. That, I think, is true in terms of the depth of the intrusion—it is still the “when” and “where” of internet activity rather than the “what” that we are talking about—but it is not true in terms of its breadth. Many more people will be caught by it, and that is a significant and material increase in intrusion for the population at large. We therefore believe that the Government should think again, not about whether intelligence agencies should have these wider powers, but about whether there should be the involvement of external scrutiny to ensure that they are used properly.

There is only one other matter that I want to touch on briefly, and it has been mentioned already: the grounds on which powers such as these can be used. There are, essentially, three. First, they can be used in the interests of national security, and I have no argument with that. Secondly, they can be used in urgent cases to combat some forms of criminality. Thirdly, they can be used in the interests of the economic wellbeing of the UK, in so far as those interests are also relevant to national security. As the House knows, the last of those has long been controversial as an appropriate ground for action—and, of course, the more intrusive the powers that can be used with that justification, the more controversial it is. I think it fair to say that the ISC is concerned about its use in that regard, and I am sure the House will want to consider, as the Bill proceeds, whether its application to these powers and more generally is still appropriate.

--- Later in debate ---

[Tom Tugendhat]

I think we may be conflating different aspects of the Bill. I do believe that this already has oversight.

Let me answer the point raised by my hon. Friend the Member for Broxbourne, which touches on a similar area. Where people have the right to and expectation of privacy and freedom, this provision does not remove that right. What it does is allow the intelligence agencies to use bulk data to target an individual at a particular point, and the excess collected information will not be able to be used for targeting an individual without the warrant process that would be expected for any initial search. In that sense, this is not undermining anybody’s privacy; it is allowing for the fact that information is now largely in bulk format. The hon. Member for Barnsley Central was talking about steaming open envelopes. It is impossible to steam open a single envelope today; one has to steam open thousands because that is how data comes. Without an amendment such as that set out in the Bill, we would simply be interrupting the work of the intelligence services to the degree that it would hold them back and make the process harder, but I would be happy to take this up with my hon. Friend the Member for Broxbourne later if he wishes.

I thank the hon. Member for Halifax (Holly Lynch), who was here earlier and made an interesting point about the various ways in which the memorandum of understanding should be looked at through the National Security Act 2023. Friends of mine will know my thoughts on that and know that I gave the Conservative party the chance to allow me to change that 10-year absence, but the Conservative party chose somebody else to make that decision so I have sadly lost the ability to have that influence.

My right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) made a typically insightful speech and typically sensible comments on the ways in which we must consider how the authorisation must not be used to mount general surveillance. Condition D will be used only when an applicant makes a clear and compelling case, based on tangible, reliable intelligence leads, information and analysis, that the resulting data will identify parties involved in a relevant serious crime or national security-related specified operation or investigation. The applicant must explain any anticipated collateral intrusion, and how this will be managed to ensure that the application is necessary and proportionate to the outcomes of the investigation.

[Sir Jeremy Wright]

I accept what my right hon. Friend says but, in the context I described, the case is being made to someone else within the intelligence agency. There are, of course, two types of authorisation—D1 and D2—and we are worried about D2, under which the application is made from inside the intelligence agency to inside the intelligence agency. That does not present the sort of external scrutiny that we suggest is necessary.