Investigatory Powers (Amendment) Bill [Lords]

Julian Lewis Excerpts

2nd reading
Monday 19th February 2024 Commons Chamber

[James Cleverly]

I cannot make a commitment on the Prime Minister’s behalf. Members of the Committee will know that I appeared before the Committee in my previous role, and I think it is important that Government do make themselves available for this scrutiny. As I say, it would be inappropriate for me to demand of the Prime Minister attendance anywhere, but I will pass on the right hon. Lady’s point.

[Sir Julian Lewis (New Forest East) (Con)]

I will assist the Home Secretary with a little context. When I was a ranking member of the Intelligence and Security Committee between 2010 and 2015, it was a matter of routine that the Committee went to see the Prime Minister once a year, usually in the Cabinet Room. That stopped in 2014. Successive Prime Ministers have failed to reinstate it, although it must be said that the shortest-lived of them did offer to meet with the Committee, but sadly ceased to be Prime Minister before that became possible.

[James Cleverly]

The lengths that some people will go to to avoid Committee scrutiny. I am trying to remember where I was; it has been such a long time since I looked down the page of this speech. All such applications must be necessary and proportionate and subject to independent authorisation or inspection.

The Bill will also strengthen safeguards for journalistic material within the Investigatory Powers Act’s bulk equipment interference regime, aligning it with changes to the bulk interception regime that are under way to ensure compliance with obligations under the Human Rights Act 1998. Prior judicial authorisation will be needed before material obtained through bulk equipment interference can be selected for examination using criteria where the purpose is to identify, or is highly likely to identify, confidential journalistic material or confirm a source of journalistic material. Prior judicial approval is also necessary before such material may be retained for purposes other than its destruction. The other measures in part 5 of the Bill will ensure that the resilience and protections of the regime are maintained and enhanced.

The Bill will also make improvements to support the Investigatory Powers Commissioner in effectively carrying out their role, ensuring that the world-leading oversight regime remains resilient, including powers to enable the IPC to appoint deputies, delegate some of their functions to judicial commissioners and the newly created deputies, and put certain functions on a statutory basis. The Bill will ensure there is a clearer statutory basis for reporting errors to the IPC.

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[Sir Julian Lewis (New Forest East) (Con)]

It is a pleasure to follow the hon. Member for Wallasey (Dame Angela Eagle). As she mentioned, she is the newest member of the Intelligence and Security Committee, but that has not prevented her, as we have seen this evening, from already making a valuable contribution to our work. As Chairman of the ISC, I will set out the Committee’s view of the Bill as a whole, based on the engagement that we have had with the intelligence community, and with the Government more broadly, on the legislation. In doing so, I pay particular tribute to our member in the other place, the noble Lord West of Spithead, who has already clearly set out our Committee’s position there, and had success, in at least one respect, in obtaining an improvement to the Bill. In looking at the Bill as a whole, I will also touch on one other specific matter in addition to those that my colleagues have tackled individually.

As right hon. and hon. Members on both sides of the House will be aware, the original Investigatory Powers Act was introduced as a result of the Intelligence and Security Committee’s 2015 report on privacy and security. The report recommended the creation of a new Act to set out clearly: the intrusive powers that are available to intelligence agencies; the purposes for which they may be used; and the authorisations and, crucially, the oversight that should be required. There have, however, been a number of developments since the Act was introduced. As the Home Secretary said in opening the debate, we now face a different threat picture, with greater danger from state actors, a significant rise in internet-enabled crime, and an ever-accelerating pace of technological change.

The ISC has therefore made time to consider and scrutinise the case for change put forward by the intelligence agencies and the Government, and to take classified evidence on the Bill. I can tell the House that, broadly, the Committee welcomes the Bill as a means of addressing those developments that have the potential to undermine the ability of the intelligence agencies to detect threats and protect our country. However, as we have heard, there are several areas in which the Committee considers that the Bill goes too far. In particular, it does not yet provide the safeguards and oversight that are so essential when it comes to secretive actions that have the potential to intrude on a great many people.

The Bill seeks an expansion of the investigatory powers available to various public bodies. The Committee is in agreement that, at least in the case of the intelligence services, that is justified, but we are still sceptical—this was eloquently presented in more detail by my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes), who took the original legislation through when he was Security Minister—of the broad way in which some powers have been restored to an unknown number of as yet unidentified public bodies through clause 14. Any increase in investigatory powers ought to—indeed, must—be accompanied by a concomitant increase in oversight. That is a very basic principle that Parliament has always expected to be followed. By oversight, I do not just mean parliamentary oversight as exercised by my Committee, but robust ministerial, judicial and regulatory oversight too. During the passage of the Bill, Members of the Intelligence and Security Committee will seek to ensure the inclusion of necessary safeguards and sufficient detail on those safeguards.

The Bill deals with a number of technical areas, where it is right that the necessary guidance is provided in codes of practice. However, matters that deal with procedural safeguards or external oversight must be on the face of the Bill to ensure that they are adhered to and cannot be changed or watered down without Parliament being consulted.

I am sorry to say that in recent years the Government have been reluctant to ensure that democratic oversight keeps pace with intelligence powers, particularly where it is related to the remit and resources of the ISC, which have been increasingly undermined in a way that I believe Parliament never intended. It is therefore imperative that Parliament ensures that the safeguards and scrutiny provided by the ISC and other external oversight bodies, such as the Investigatory Powers Commissioner, are clearly set out and cannot be discarded on a political whim. That means putting them in the legislation itself. Fine words in a code of practice are, I am afraid, not worth the paper they are written on; the statute must include everything that is needed to provide Parliament and the public with the necessary assurance that investigatory powers are tightly drawn and robustly scrutinised.

The Committee therefore expects the Government to take this opportunity to bolster the effective oversight that they keep saying they value. Actions speak louder than words, as is often said, so I look forward to hearing the Minister’s assurances in his response to our interventions. I hope that he will be able to find a solution both to the individual aspects of the Bill that continue to be raised, and to our overarching concern about the diminution of parliamentary powers in respect of national security.

I would like to highlight one particular issue, which concerns my colleagues on the ISC and myself, relating to the oversight requirements for the retention and examination of bulk personal datasets. The Bill will insert new section 226DA into the Investigatory Powers Act 2016 to require each intelligence service to provide the Secretary of State with an annual report detailing the individual bulk personal datasets that they retained and examined under either a “category authorisation” or an “individual authorisation” during the period in question.

In the upper House, Lord West, on behalf of the Committee, tabled an amendment that was designed to ensure that there is independent parliamentary and judicial scrutiny, too—I emphasise that—of this information, rather than just political oversight. The amendment would have achieved that by providing that the annual report that the Government propose be sent to the Secretary of State should also be sent both to the ISC and the Investigatory Powers Commissioner. One would think that that was a pretty reasonable request. Such a measure would rectify the current gap in parliamentary oversight of these authorisations and complement the commissioner’s existing powers of inspection to provide oversight at all levels.

Unfortunately, the Government did not accept the amendment. However, they did at least acknowledge that the gap existed and that some level of parliamentary oversight of the new regime was needed. The Government therefore introduced their own amendment, which, rather than providing the ISC with the same report that they are providing to the Secretary of State, places an additional duty on the Secretary of State to provide a separate report to the ISC. Notably, even this secondary report would not be provided to IPCO. That Government amendment is now proposed new section 226DB.

Although we are reassured that the Committee’s strength of feeling, which was matched by the feeling of noble Lords in the upper House, has been recognised by the Government, what concerns the Committee is why the Government have chosen to craft a separate amendment requiring a separate report to be drawn up.

There are three key differences of which the House will wish to be aware between the proposals of the Committee and those of the Government. The first is that the Government’s proposal will actually create more work for the intelligence community because, instead of simply sending the existing annual report to the ISC, it will have to produce an additional report. That seems entirely at odds with the Government’s general approach to the Bill. The Minister in the upper House was keen to emphasise the need to minimise the burden on the agencies when it came to other elements in the Bill, so it is most peculiar that the Government are deliberately choosing to increase the burden unnecessarily.

The second difference is that the Government proposal excludes the Investigatory Powers Commissioner completely, and it is not clear why. Oversight by the commissioner should be regarded as essential, because that is what it is.

The third and most important difference is that the Government amendment is less specific on the information to be provided to the Intelligence and Security Committee, and does not include individual authorisations within its scope, only category authorisations. It therefore does not provide the same level of assurance to Parliament and the public that the ISC will be fully sighted on the operation of this new regime. It is that final point that is causing us most concern. I therefore seek assurance from the Minister that the Government proposal will not limit the information received by the ISC to category authorisations, and that all the information contained in the report to the Minister will be contained in the report to the ISC, unless it is material that falls strictly within the definition of current operations at the time at which the report is provided, which we accept is the one thing that we do not generally see. That definition should be strictly as set out in the Justice and Security Act 2013. Any excisions beyond that would undermine what we presume is the intent to provide assurance to Parliament and the public that the regime has robust democratic oversight.

Finally, I simply reiterate the key point: the Bill seeks an expansion in the investigatory powers available to the intelligence services. Although that expansion may be justified, any increase in investigatory powers must be accompanied by a concomitant increase in oversight, and the Government have not yet fulfilled that requirement.

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[Tom Tugendhat]

My right hon. and learned Friend is right, but he also knows that IPCO has retrospective oversight of these areas. Where it comes under a category allocation through “low or no”, there is an automatic review period within a year. Although he is correct that the application is made within the service, it is within the service subject to a pre-agreed condition and with follow-up oversight, so as to enable that speedy response.

[Sir Julian Lewis]

On a different but not unrelated point, the Minister will recall that I referred to the annual report given to the Secretary of State detailing the individual bulk personal datasets that had been retained and examined. There is no extra work involved in letting the ISC and IPCO see that report. The only possible justifiable exclusion would be something that, at the time of the report, was still current. Is there any reason at all why IPCO and the ISC should not be sent that report, rather than a severely watered-down version?

[Tom Tugendhat]

My right hon. Friend answers his own question. The reason for the difference is the currency element.

[Sir Julian Lewis]

In that case, we can reach agreement if the Minister would like to give us an assurance that the only difference between the two reports will be the exclusion of matters that are current at the time of drawing up the report, but I suspect that there will be many other differences between the two reports.

[Tom Tugendhat]

I will be very happy to talk to my right hon. Friend about that to make sure that he is satisfied. It is important that we make sure that the reports that go to the House—through the ISC, because of the nature of the reports—are relevant and allow appropriate scrutiny. I think we can all agree with that.

I have covered the points raised by my hon. Friend the Member for Broxbourne, so I will turn to the hon. Member for Strangford (Jim Shannon), who made an extremely important point: that his constituents, like any other citizens of the United Kingdom, should expect the right to privacy. He also made a compelling point about the need for security, and I think the Bill strikes that balance extremely carefully. He is right to say that people will be concerned, and he is not alone. I am also concerned that we maintain the right to privacy within our legislative framework, which is why we checked very carefully that the Bill is fully compliant with the ECHR right to a private life. It is also why we looked at the various exceptions.

The hon. Member for Barnsley Central mentioned the notices regime, and he is right that we will keep it under review. We maintain a regular conversation with companies that have an interest in this area, and he is right to say that there is an overseas element. I merely point out that it is the role of this House to legislate for the security of the British people and, in particular, for the safety of our children and families. Such security is not something we can outsource to tech firms on the west coast. We sometimes have a responsibility to pass extraterritorial laws—as he knows very well, we have done that in the past—so although this measure adds to that ability, it is not detrimental because it asks people to maintain their current position before making any changes and to talk to us during that period. There is no requirement to break any policies, change products or introduce new products; it is merely to maintain the status quo, so that we have the same ability to keep the British people safe until we have had a conversation about how that status quo should change.

Finally, the hon. Member for Barnsley Central raised a question about trades unions. He is right that there are many different professions where protected characteristics could come into play, including lawyers, doctors and psychiatrists, and where any such intrusive power should be used with exceptional caution. I would just say that, due to the nature of this place and Parliaments around the United Kingdom, the position of parliamentarian is particular, which is why it is set out specifically and separately in the Bill. That does not mean that any attitude against any other individual should be used cavalierly. It is not a question of the role or the post the person holds, but their rights as a British citizen. Those rights should be absolutely guarded from intrusion or aggression by the state without exceptionally good reason. This amendment, which the hon. Gentleman is kindly supporting, sets out that balance between British citizens’ right to privacy and their right to security. With that, I commend the Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.

Investigatory Powers (Amendment) Bill [Lords] (Programme)

Motion made, and Question put forthwith (Standing Order No. 83A(7)),That the following provisions shall apply to the Investigatory Powers (Amendment) Bill [Lords]:

Committal

(1) The Bill shall be committed to a Public Bill Committee. Proceedings in Public Bill Committee

(2) Proceedings in the Public Bill Committee shall (so far as not previously concluded) be brought to a conclusion on Tuesday 12 March 2024.

(3) The Public Bill Committee shall have leave to sit twice on the first day on which it meets.

Consideration and Third Reading

(4) Proceedings on Consideration shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which those proceedings are commenced.

(5) Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

(6) Standing Order No. 83B (Programming committees) shall not apply to proceedings on Consideration and Third Reading.

Other proceedings

(7)Any other proceedings on the Bill may be programmed.—(Mark Fletcher.)

Question agreed to.

Investigatory Powers (Amendment) Bill [Lords] (Money)

King’s recommendation signified.

Motion made, and Question put forthwith (Standing Order No. 52(1)(a)),

That, for the purposes of any Act resulting from the Investigatory Powers (Amendment) Bill [Lords], it is expedient to authorise the payment out of money provided by Parliament of:

(a) any expenditure incurred under or by virtue of the Act by the Secretary of State or a government department, and

(b) any increase attributable to the Act in the sums payable under or by virtue of any other Act out of money so provided.—(Mark Fletcher.)

Question agreed to.