Investigatory Powers (Amendment) Bill [Lords]

John Hayes Excerpts

2nd reading
Monday 19th February 2024 Commons Chamber

[James Cleverly]

I listened carefully to the right hon. Gentleman’s point. I am not sure it is directly relevant to this matter, but I take on board the points that he makes. He will forgive me if I do not address them directly at this point; I want to consider them properly.

The IPA is sound legislation, but the nature of these threats has evolved since 2016, and we are confronted by greater global instability and technological advances, and they demand that we act. Terrorists, child abusers, organised criminals and malign actors from hostile states have exploited technological advances. Our job is to ensure that the UK’s investigatory powers framework remains fit for purpose. The changes that this Bill proposes were informed by the independent review of the IPA published by Lord Anderson of Ipswich in June 2023. The Bill received cross-party and Cross-Bench support as it passed through the other place. Every Government amendment was accepted, and I thank the members of the Intelligence and Security Committee of Parliament for the productive way they engaged with and helped to shape the Bill.

In particular, we have agreed to tighten the drafting of clauses 22 and 23 in line with amendments proposed by the Intelligence and Security Committee. Those changes put beyond doubt that the Prime Minister may delegate warrants for the purposes of obtaining communications of parliamentarians in two, and only two, exceptional circumstances: the personal incapacity of the Prime Minister and a lack of access to secure communications. There is also a limit of five Secretaries of State to whom this responsibility could be delegated in those circumstances. Further to that, in respect of new part 7A, parliamentary scrutiny will be enhanced through a statutory requirement for the Secretary of State annually to inform the Intelligence and Security Committee about the new regime for bulk personal datasets.

[Sir John Hayes (South Holland and The Deepings) (Con)]

My right hon. Friend mentioned the ISC’s scrutiny of these matters. He will understand the concern about widening the number of people who can play the role previously played exclusively by the Prime Minister. I understand the reasons for that, but has he considered limiting that to those Secretaries of State who have warranting powers?

[James Cleverly]

We looked at that. There is a balance to be struck, and actually the bulk of those Secretaries of State to whom the function could be delegated in those two exceptional circumstances do have warranting powers—I think the Secretary of State for Defence is the only one who does not. My right hon. Friend’s point is a fair one, but the scope of the Bill is not much greater than that.

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[Sir John Hayes (South Holland and The Deepings) (Con)]

Hegel said, “What is reasonable is real, and what is real is reasonable.” In facing the very real threats that pervade, it is certainly reasonable that we equip those missioned to keep us safe with the powers they need to do so. That is partly about putting in place a legislative framework that allows them to counter those threats, for we know what will happen otherwise. We sit in this Chamber graced by the coats of arms of our former colleagues Jo Cox and David Amess. We in this place know what it means when those missioned to keep us safe are unable to do so.

On that basis, I was proud and pleased to take the original Investigatory Powers Bill through this House—some veterans of its passage are in the Chamber tonight—and, in doing so, we were conscious of the need to strike a balance between, on the one hand, providing the powers and equipping the police and the security services with the necessary mechanisms to do their job and, on the other hand, retaining both the privacy of individuals and putting in place the necessary safeguards mentioned by the shadow Home Secretary, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper).

That balance was at the heart of our considerations then. I am conscious that I said in that debate:

“It is important to understand that privacy is at the very core of the Bill… The protection of private interests and the protection of the public are at the heart of all we seek to do”.––[Official Report, Investigatory Powers Public Bill Committee, 12 April 2016; c. 90.]

That remains so, but it is also important to recognise that we always anticipated that the legislative arena was bound to require a dynamic approach, of the kind we are discussing this evening, and that we would need to update the legislation to deal with the changing character of the threats I described. It comes as no surprise that the Government have introduced legislation to do just that, to add to what is already on the statute book and to make it more appropriate.

[Joanna Cherry]

The right hon. Gentleman and I often crossed swords during the passage of the 2016 Act, but we have since reached a point of rapprochement on discovering our mutual passion for the importance of freedom of expression. From what he is saying this evening, I think we can also agree on the importance of privacy. Of course, that comes from the right to a private and family life under article 8 of the European convention on human rights. Does he agree that it is unfortunate, given this Bill’s huge implications for our constituents’ privacy, that the Government have decided not to conduct a privacy impact assessment? Surely such an assessment is vital, and it is perhaps something upon which he and I can again, rather unusually, agree.

[Sir John Hayes]

Our agreements are becoming rather less unusual. I do not know whether that gives the hon. and learned Lady any pleasure, or whether it causes her pain. None the less, she is right that, when we consider such legislation, it is important that it is scrutinised to an even greater degree than we would normally expect in this place.

The 2016 Act was considered by three Committees of this House. It was subject to pre-legislative scrutiny by a Joint Committee of both Houses of Parliament and, indeed, the bulk powers, which have been mentioned, were subject to an independent review by David Anderson, who has since been elevated to become Lord Anderson.

The hon. and learned Lady is right that the need for scrutiny is profound, particularly when we equip organisations with extensive authority to invade private space. Of course, we will not know much of what they do. Many of the individuals involved in the security services and the police, and the work they do, are rightly unknown to all but a few, so it is all the more important that, in giving them such authority, we behave in the way that the hon. and learned Lady describes—I am now adding to the small, two-person coalition formed between us.

It is right that the legislation is updated to make it fit for purpose. The ISC, of which I am also proud to be a member, has been told of the need for urgent, targeted and necessary changes. When we consider this Bill, we should test whether its provisions are indeed urgent, targeted and necessary. I am not absolutely convinced that all we see before us passes that test, and I will say a little more about that when I come to clause 14 and its associated schedule.

There is more expertise in the Chamber tonight than I could possibly imagine but, by way of background for the wider audience, I will say a word about what the 2016 Act does and why this Bill therefore matters. The Act provides the law-enforcement and security services with the vital powers they need to keep us safe, and it does so in a way that is clear and transparent.

When we passed the Act into law, we ensured that the safeguard mechanisms were radically overhauled. The innovative double lock that we put in place was, at the time, unprecedented. As the shadow Home Secretary said, it does two things: it provides the necessary protection that she describes, but it also gives the security services confidence that what they are doing is not only authorised but thoroughly checked. It is also good for Ministers to know that the process has judicial oversight as well as political oversight.

There have been a number of changes since the Act was passed, both in the job done by the security and intelligence services and the police and in the reason they have to do that job, for the people who seek to do us harm are dynamic, too; they change what they do, and technology has also changed. All of that explains why this Bill is, in broad terms, welcome and necessary.

But the powers I describe are not given solely to the people I mentioned. They are also given to a number of other public bodies. This was debated at great length when the 2016 Act was considered in this place. These public bodies—ranging from local authorities to the Environment Agency, the Health and Safety Executive and all kinds of others—have proper legal functions. I am not debating that, but they are not quite of a kind with the security services and the police. To grant these bodies such intrusive powers was always controversial and, to put it mildly, was bound to give rise to some scepticism.

When Parliament considered the Act, we deliberated on that provision in great detail and took a very considered and cautious decision to restrict the use of the power, which we considered to be intrusive. As a result, the public bodies that I have described, including the Environment Agency, the Health and Safety Executive and local authorities, are required to take further procedural steps in order to compel the disclosure of communications data from telecommunications operators. They must obtain either an authorisation under the current IPA, a court order or other judicial authorisation, or regulatory powers in relation to telecommunications or postal operators, or they must obtain the communications data as secondary data as part of a valid interception or equipment interference warrant. So their ability to take advantage of the powers within the existing Act is both limited, particular and subject to those safeguards. The Bill before us seeks to remove that requirement for those further procedural steps in relation to a wide range of public regulatory authorities.

Worse still—I hope the Minister will correct this in his summation—we have yet to learn which those bodies are, as we have not seen a list of the authorities. I hope we will get that list, if not tonight—as it is a big ask for the Minister to read them all out in his 10-minute summation, I hope he will write to the House, and put a copy of the letter in the Library, explaining which bodies will enjoy those powers.

The Government’s argument for removing the restrictions I have set out is that a broader array of communications now fall into the category of communications data—the definition of communications data has broadened—and that a wider number of organisations now constitute telecommunications operators. As a result, it is said that the current restrictions prevent some regulatory authorities from acquiring the information necessary to carry out their statutory responsibilities. The problem with that argument is that unless we know what those regulatory functions are and unless we understand which bodies are involved in the supervisory functions, it is hard to know whether the changes before the House can be legitimised. I have no doubt that will be explored in Committee— I would be amazed if it is not—but it would be helpful if the Minister could be ahead of that further consideration and clarify which specific bodies will fall into this category.

As I said, the issue was highly scrutinised when we last debated these matters. At that time, the powers were tied to national security and serious crime circumstances only, to avoid impinging on the very privacy mentioned by the hon. and learned Member for Edinburgh South West (Joanna Cherry). For that reason too, Parliament granted the powers to a limited range of organisations. We should not brush that aside lightly. Colleagues will be aware of various reports of the intrusive use of investigatory powers by local authorities and other public bodies. The House would not be content to introduce sweeping powers for an unknown and potentially unlimited number of public bodies, when a previous Parliament decided that was too intrusive. I would like the Minister to satisfy the House about the necessity of the change, to specify to whom the change will apply, and to reassure us that there is no weakening of the core connection between the privacy of the individual and the necessary powers available to do what is legally right.

As I said earlier, in broad terms the Bill is welcome. It is important to understand that we need to update the legal framework in which those missioned to keep us safe operate, but the Bill can be improved during its scrutiny. I simply point out that when we debated the Act in its original form, we recognised that through scrutiny that Bill could be improved. As we continue consideration of this important measure, I hope that this Minister—one of my successors as Security Minister—will recognise the same.

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[The Minister for Security (Tom Tugendhat)]

I thank hon. and right hon. Members from across the House for their contributions not just today, but throughout the many different stages of the Bill. I pay huge tribute to the Members of the other place who have contributed enormously, in particular Lord Anderson, who has been an exceptional asset to the passage of the Bill and the condition it is in, and Lord West who, as a member of the Intelligence and Security Committee, not only shepherded some extremely important amendments into the Bill, but was kind enough to say that it was the first time in 14 years that he had ever had an amendment accepted by the Government. I am delighted to say that it was to this Bill. It was because we are so committed to working with all parts of both Houses and with the ISC that we got so much through in the other place. [Interruption.] That said, many comments will no doubt be raised in this House. I can assure hon. Members, especially the right hon. Member for North Durham (Mr Jones), that I will approach all suggestions in the way that I have done to date. Where we may not agree—it may not be that he is right, or that I am right—it will be for good reason and I will set out my reasons in the appropriate way.

The Bill is about one fundamental thing: the security of the British people. We rightly heard from my hon. Friend the Member for Broxbourne (Sir Charles Walker) about the nature of freedom, but the truth is that freedom without security is impossible. It is a chimera. The Bill is about ensuring that the British people have the security to enable that freedom. That is an absolutely vital responsibility not just of this Government, but of this House and the other place. I am grateful for the work that the hon. Member for Barnsley Central (Dan Jarvis) and the shadow Home Secretary, the right hon. Member for Normanton, Pontefract and Castleford (Yvette Cooper) have put in to ensure the co-operative, bipartisan and open approach to the Bill, as is merited by the work of our fantastic intelligence services to provide security for our whole country.

As the British public would expect, we keep our approach to national security under constant review. Where we identify the need for change or improvement, we will not hesitate to act. That is why we have brought forward the Bill, which acts on the findings of the Home Secretary’s report and Lord Anderson’s independent review into the Investigatory Powers Act 2016. Hon. and right hon. Members will not need me to rehearse the arguments, but we have seen an extraordinary, rapid evolution in the nature of the threats since the 2016 Act: Russia’s threat to the whole of Europe and not just to Ukraine; the violence that Iran is trying to bring not just in the middle east but even on to our own shores; and the way technology has enabled hostile states not only to steal our technology but to introduce intelligence-gathering platforms into our country through the guise of car sales.

We have seen a change in the way technology works and a change in the nature of the threats, and we must keep up to date with those changes. That is why this work is so important. It is essential that the United Kingdom’s investigatory powers framework remains fit for purpose to help our intelligence agencies detect and stop some of the most serious threats posed to the UK and its citizens, including threats from terrorism, state threats, and child sexual abuse and exploitation.

Because these are exceptional powers, Members have rightly pointed out that they require appropriate, robust and, in this case, world-leading safeguards, and that is what we have sought to set out. The changes in the Bill are relatively narrow in scope, but unless we make them now, the ability of our agencies to tackle evolving threats will be increasingly constrained in the face of global instability, technological advances and state hostility, so now is the time to act.

Let me now deal with some of the points that have been raised. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) raised a rather interesting point about the changes to “lawful authority” in clause 12 in respect of published data. The purpose of new subsection (3A) is for material that has already been published not to require additional authority for its disclosure by a telecommunications operator to a relevant public authority. The definition of “publish” and reference to “a section of the public” would not include private messages unless they had been made public in some other way—just as our sitting room could not be considered a public place unless we opened it up to the public. It would be our choice, and nothing to do with the nature of the building.

The hon. and learned Member for Edinburgh South West (Joanna Cherry), who has made important contributions through her chairmanship of the Joint Committee on Human Rights, raised questions about the transparency safeguards in the 2016 Act. Those extremely robust safeguards are centred on considerations relating to intrusion into privacy, and that will remain the case in the Bill. They include a requirement for investigatory powers to be used in a “necessary and proportionate” way, with independent oversight by the Investigatory Powers Commissioner and redress through the Investigatory Powers Tribunal.

My right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes) contributed in his usual robust fashion to the debate—and, I should add, to the session that I was fortunate enough to have with the Intelligence and Security Committee, in which he was enormously helpful in assisting me with some changes to the Bill. He spoke about the five individuals who could be designated by the Prime Minister, and asked why we had not referred specifically to “those with warranting powers”. It is possible that a Minister with warranting powers who had that experience would then be moved to another Department, or indeed that the machinery of government change would alter the nature of the oversight. While we felt that it was right to limit the number to as few as possible, we also felt that it was right to have a relevant selection, which is why we left the number at five—after some very good consultation with the ISC, for which I am extremely grateful to my right hon. Friend the Member for New Forest East (Sir Julian Lewis) .

[Sir John Hayes]

My right hon. Friend has been immensely generous both in giving way and in his earlier comments about my role. Will he briefly deal with the issue of the other bodies with the regulatory function who can compel the release of communications data? As he will remember, the point I made was that the existing law obliges them to take further procedural steps before they do so. Why is that no longer deemed appropriate?

[Tom Tugendhat]

As my right hon. Friend will know, several powers in the earlier Bill—the one that he took through the House—were indeed overseen in various different ways. The Bill does not seek to undermine any of that oversight; what it seeks to do is clarify, in certain areas, where it is necessary. My right hon. Friend has highlighted individual agencies or bodies, and I should be happy to write to him to ensure he is aware of exactly where that is being covered.

The right hon. Member for North Durham spoke about prior judicial authorisation for ICRs. The purpose of the Bill is to try to streamline operations for the intelligence services in areas where the risk is of, as we are calling it, low or no expectation of privacy. He will have seen in the Bill what the expectation means, including areas where information has already been readily made public. I accept his commentary and I would be happy to enter into further conversations with him, but the reason we are not currently going down that route is simply that the existing law, the IPA 2016, allows the collection of bulk data with prior authorisation. This is intended to speed the process up. If we put in the measures he is referring to, we would effectively remain in the same place that we are now. That would make it harder for the volume of data that is now coming to be considered by the intelligence agencies. That is why we have made the provision for a subsequent approval rather than a prior approval. He is right to say that it involves a maximum of a year, although I think it unlikely that it would go to that maximum. That will be in cases where this is low or no expectation of privacy—after it has already been agreed by a judge to be in the correct category. I think the right hon. Gentleman might be looking at this through the other end of the telescope.