Investigatory Powers (Amendment) Bill [HL]

Lord Anderson of Ipswich Excerpts

2nd reading
Monday 20th November 2023 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I thank noble Lords who have referred kindly to my independent review of earlier this year, a short sequel to the much longer reviews, A Question of Trust and the Report of the Bulk Powers Review, that I was commissioned to conduct, with all-party agreement, in advance of the Investigatory Powers Act 2016.

Given the controversy surrounding electronic surveillance at that time, in the wake of Edward Snowden’s disclosures, the IPA had a remarkably smooth parliamentary passage—although I say that as someone who was outside Parliament at the time. I put that down to the detailed preparation that preceded that Bill, including reports from the ISC and from RUSI, and of course to the work of the draft Bill committee, chaired by the noble Lord, Lord Murphy of Torfaen, who I am delighted to see in his place. I remember being questioned by its members, including the noble Lord, Lord Strasburger, and Suella Fernandes MP, as she then was. That committee made 86 detailed recommendations, practically all of which found their way into the Act. How much time and testosterone can be saved—and was saved in that instance—by debating these important issues before a Bill is published in final form.

The IPA replicated and, indeed, enhanced the very considerable powers conferred by its predecessor, RIPA, on our intelligence agencies and police. However, its emphasis on transparency and effective oversight, in particular by the judge-led Investigatory Powers Commissioner’s Office—IPCO—with its excellent technical support, brought it into the modern age. I believe we have seen the tangible benefits of that in recent years; I will give three short examples.

The UN special rapporteur on the right to privacy, who had previously described our arrangements as “worse than scary”, reported in 2018 after an inspection visit to the UK that, thanks to the balance struck by the IPA, the UK

“can now justifiably reclaim its leadership role in Europe as well as globally”.

The English Court of Appeal overwhelmingly rejected an extensive series of challenges to the IPA in August this year, citing the authority of the European Court of Human Rights, which, rather more than the EU’s court in Luxembourg, has shown itself impressively ready to accept the use of bulk collection powers, properly safeguarded.

In addition, judicial approval of warrants, introduced here by the IPA but long familiar in North America, was instrumental in securing our data access agreement with the United States—a world first, which, given the American ownership of so many big internet platforms, is of particular significance to law enforcement on this side of the Atlantic.

Therefore, the IPA has been good for this country, including by helping to secure the international acceptance and co-operation that are ever more essential to the fight against organised crime and threats to national security.

However, the Minister is right to say that in limited areas, the IPA is in need of what I call running repairs. The Home Office invited me earlier this year to look at some of those areas which it had identified as in need of attention. Other parts of the Bill, including elements of Parts 1, 3 and 4, fell outside the scope of my review. In my report published in June, I largely accepted the Home Office diagnosis, although my prescriptions were in some respects different from its. In particular, in relation to the bulk dataset issues that occupy Part 1 of this Bill, I thought it important that the borderline between Part 7 and the proposed new Part 7A of the IPA, concerning datasets in which there is a low or no expectation of privacy, should be patrolled at the moment of decision not just by the intelligence agencies themselves but externally by independent judicial commissioners.

Since my report was submitted in April, there has been a convergence of views on this issue and on others, one of them in relation to the NCA and Clause 14, which was touched on by the noble Lord, Lord Coaker. I am grateful to the Security Minister and to the noble Lord, Lord Sharpe, for our discussions and the open spirit in which they took place.

The Minister knows that it has not always been my habit to give an unqualified welcome to Home Office Bills; judging from the Statement that was debated earlier this afternoon, I cannot guarantee that things will be any different in future.

I understand that Ministers like to come to this place with a few concessions in their back pocket, and there is no harm in that. But too often, elements of the Bills that arrive with us have a lopsided look; one suspects, rightly or wrongly, that they are the opening gambit in a concession strategy, whereby the energy of this House is occupied with the tabling and discussion of amendments, only for the Government eventually to concede what they had a good mind to do all along. This can be both frustrating and counterproductive; those who mistrust the Government see their worst fears confirmed by the initial version of the Bill, while those who trust them are reluctant to express that support, lest the ground be cut from under their feet.

It is to the credit of those concerned that I do not believe that such an approach has been taken with this Bill. No doubt it is capable of improvement; I welcome the challenges that have been made by NGOs and by the noble Lords, Lord Coaker and Lord Fox, not least because I was not able to consult in quite such specific terms as I would have liked on the proposals that were put to me by the Home Office. Indeed, there are a few points that I may seek to probe in Committee. But I consider that the Bill is an honest attempt to strike a fair balance in these difficult areas. We risk reversing the operational gains that it promises if we overload the Bill with unnecessary safeguards, or seek radically to reshape the judgments that it makes.

We need powerful weapons to combat the scourges of hostile state activity, terrorism, fraud, people trafficking and child sexual abuse, and we need to embed them in a strong framework that includes the gold standard of prior judicial authorisation for the most intrusive powers. This Bill gives us both those things, and we should not discard or devalue either.

History suggests that the lifespan of investigatory powers regimes is no more than 15 years or so, and technological developments mean that we are likely to be working towards a more fundamental revision of the IPA by the end of the decade, if not before. My report contains some ideas on what these technological developments are and how the process might be started, but for the time being I am glad that time has been found for this necessary Bill. I am happy to give it my support.

Investigatory Powers (Amendment) Bill [HL]

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 11th December 2023 Lords Chamber

This amendment is similar in intention to an amendment tabled to Clause 2, but this time regarding the powers in new Part 7B. Again, we are trying to understand what the urgent circumstances might be that would require examination of a third-party dataset without waiting for approval from a judicial commissioner, and therefore, as a safeguard, we would like the JC to be immediately notified that an authorisation has taken place. We have debated this to some extent under Part 7A, and I can imagine the crossover, but it would be useful to know if there are any differences between how Part 7A approval and Part 7B approval would be taken under these two circumstances.

[Lord Anderson of Ipswich (CB)]

My Lords, I welcomed this Bill at Second Reading, and the warmth of my welcome has not diminished. However, I am pleased to see so many amendments down to Part 1. As the noble Lord, Lord Fox, has said, the new rules for certain bulk personal datasets do not displace or dilute the currently applicable protections under the Data Protection Act, but they are probably the most operationally significant of the changes that we are looking at, and therefore can only benefit from careful scrutiny of the kind that noble Lords have so enthusiastically invited.

I have one general comment. Despite some of the kind words that were said about my report at Second Reading, I was not asked to design this Bill from scratch, nor to comment on anything as precise as a provisional text. Rather, my task was to assess proposals that were put forward by government and that in some cases evolved during the currency of my review. Although I did run a consultation as part of my review, its value was reduced by the rather limited amount I was able to say about the Part 1 proposals and some of the others. So although I did receive a handful of very helpful responses, there will certainly be points that did not occur to me and to which others were not able to alert me. The Bill is also, of course, in some respects more detailed than my recommendations. I look forward to hearing the Minister’s response to the various amendments in this group.

I will say a quick word about each of the amendments in my own name; there are only two. My probing Amendment 3 I offer to the Government as a Christmas present, as I thought it might suit them. If for any reason they do not like it—and I suspect they may not—then that is up to them; we can hardly force it on them. The background is this: it seemed to me that the question of whether individuals have a low, or no, expectation of privacy might depend in part on the use to which the datasets will be put. If, for example, an agency were prepared to commit to using a dataset only for training a large language model and not for operational purposes, perhaps that might be one of the factors pointing towards a low/no classification. The agencies and the Government politely explained to me—if I paraphrase correctly—that this was not a very practical suggestion, so I did not push it further, save to mention the point in paragraph 3.51 of my report.

Sure enough, the anticipated use of a dataset is not one of the factors listed in new Section 226A(3), where the factors are set out. But turn over the page to new Section 226BA, which deals with category authorisations, and there you see in subsection (3) that a category authorisation may describe a category of BPDs by reference to—among other things—

“the use to which the data will be put”.

My question to the Minister is simply this: if the use to which a dataset will be put can be relevant to the formulation of a category of low/no datasets, then why is it not relevant to the assessment of an individual dataset as low/no or otherwise? The Minister’s answer may be that the list in new Section 226A(3) is not exhaustive and that there is no reason why intended use should not be one of the circumstances taken into account under subsection (2) when considering whether a BPD is low/no. In that case, can he explain why intended use is not mentioned in new Section 226A when it is mentioned in new Section 226BA?

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Given the potential intrusiveness of the new power, it must be constrained appropriately. Therefore, in addition to requiring independent judicial oversight, which is the subject of a separate amendment, this amendment would prevent the agencies using the newly expanded power for the purposes of economic well-being. This would restrict use of the power to national security and, in urgent cases, serious crime, thereby preventing the broadly defined and vague concept of “economic well-being” being used as a catch-all justification for its exercise. This seems a more proportionate response and more in line with the recommendations of the noble Lord, Lord Anderson. Perhaps the Minister could explain to the Committee why this purpose is needed—surely national security is what we should be primarily talking about—and indicate whether he will now reconsider this clause.

[Lord Anderson of Ipswich (CB)]

My Lords, I will make a brief comment on two aspects of Clause 14 which have been developed today and which were considered in my report. Amendments 23 and 25 in the name of the noble Lord, Lord Fox, would restrict the changes relating to internet connection records in Clause 14 to the intelligence services only. The noble Lord correctly noticed that, while I support the use of ICRs for the new target detection purpose in condition D1, I mentioned at paragraph 4.18 of my report that it would be

“open to Parliament to require further safeguards”

and suggested that those safeguards include

“making the extra condition available only to UKIC”—

in other words, the intelligence services—

“at least in the first instance”.

I pointed out a range of safeguards that already apply to ICRs. These are fully set out in the draft addition to section 9 of the code of practice that was helpfully provided in advance of these debates. I also pointed out, by way of mitigation to my proposal that only UKIC should have access, that

“working arrangements … could facilitate the use of UKIC powers in the service of NCA or CTP in particular”.

That is as much as I am told I can say on working arrangements, though noble Lords may be able to use their imaginations.

Clause 14, instead of going for this workaround, opted to give the NCA, though not counterterrorism policing, its own direct access to the new power. It is certainly true that the NCA has primary responsibility for many of the crimes where the new power may prove most useful—in particular, child sexual abuse, where it has strong potential. I will listen to what the Minister says about that, but I think there is no great division of opinion between us on this issue. We are really debating different mechanisms by which the NCA might get access to this material, and although it is not precisely what I suggested, I have no objection to the more direct route taken in the Bill.

I turn to Amendments 21, 24 and 26 in the name of the noble Lord, Lord West of Spithead, which would introduce a requirement for requests by the intelligence services and the NCA to be independently authorised by the Office for Communications Data Authorisations. This would be an exceptional state of affairs for communications data requests by the intelligence agencies. Existing ICR requests are internally authorised and some of those, in particular under condition B and C, will be arguably, as I said in my report, as intrusive as requests under the new condition.

However, the noble Lord has emphasised the undoubted intrusiveness of the new condition and I know from my own correspondence with the ISC that, very much to its credit, it has looked at this issue in considerable detail. Furthermore, I raised the possibility of independent authorisation for such requests in my report. While I said that the full double-lock procedure would be disproportionately burdensome, independent authorisation by OCDA, which is not a possibility on which I commented expressly, sounds as though it could be a more manageable proposition. I have some sympathy with Amendments, 21, 24 and 26. They raise an important issue on any view, and I look forward to hearing what the Minister has to say about them.

[Lord Ponsonby of Shulbrede (Lab)]

My Lords, I thank the three previous speakers in the short debate on this group. There are no opposition amendments in it, so I shall set out some more general questions that arise out of the amendments spoken to.

Why have the Government brought forward the widening powers to obtain communications data when the original Bill did the opposite? Can the Government provide an exhaustive list of the bodies that will be able to use these communications data collection powers? Why are they not in the Bill or the Explanatory Notes? Giving bodies such powers during any criminal investigation appears out of step with the rest of the Bill, which covers investigatory powers for national security or serious crime reasons. Why is this power so broad as to cover any criminal investigation? Given that the double lock exists for most of the powers in the Bill, why have the Government given wide-ranging powers for intelligence authorities and the NCA to self-authorise accessing internet connection records while undertaking subject discovery work? How does this compare to the powers for conditions A, B and C, which cover access to ICRs, for more restrictive purposes? Finally, what will the role of the IPC and the ISC be in monitoring how the new powers are used?

I was particularly interested in what the noble Lord, Lord Anderson, said when he was commenting on the two other speakers in this short group. I, too, will listen with great interest to what the Minister has to say on this, but this is all done in the spirit of exploration, as my noble friend Lord Coaker said. I look forward to the Minister's comments.

Investigatory Powers (Amendment) Bill [HL]

Lord Anderson of Ipswich Excerpts

Report stage
Tuesday 23rd January 2024 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, I know that the noble Lord, Lord West, will want to speak to his own amendments, but, perhaps for the sake of good order, I could comment relatively briefly on government Amendment 14 before he does so.

I entirely accept what is said in the explanatory statement, that the amendment is intended to ensure that “unwanted cases” are not brought

“within the definition of ‘communications data’ in section 261 of the Investigatory Powers Act 2016”.

That is a good objective, and I applaud the sentiment behind it. I also accept that the amendment may well be an improvement on the original Clause 12. My concern is that the wording used at the end of the amendment may inadvertently leave that definition broader than it should be, putting within the definition of “communications data” material that should plainly be classed as content.

Proposed new subsection 5B(b) is intended to limit the categories of content defined in new paragraph (a) which are classed as “relevant subscriber data” and thus as communications data. Instead of defining subscriber data tightly, by reference to information identifying an entity or the location of an entity, which would be reasonable, the limiting words in new paragraph (b) provide, more loosely, that it should be

“about an entity to which that telecommunications service is … provided”.

That is a wide formulation indeed if you apply it to something such as Facebook or an online dating site. The information that customers may be required to provide to initiate or maintain their access to such services is likely to be very much broader than simply who and where they are. For example, I have it on the best authority that, in the case of a dating site, this information may, for example, include a full online dating profile, which sounds very like content to me. It would be most unfortunate if the wording of new paragraph (b) were to result in an interpretation of this clause—for example, by police reading it in good faith—than was far broader than was intended.

I offer more than the conventional gratitude to the Bill team, who have engaged with me intensively on this issue in an extremely short timescale. It is too late to seek an amendment to Amendment 14, but the Minister would help us and law enforcement out if he could confirm, perhaps in response to this intervention or in his own time, that the aim of Clause 12 in its amended form is to class as communications data only information which is truly needed to obtain or maintain access to a telecommunications service—traditional subscriber data such as name, location and bank details—and that there is no intention to cover information provided as part of using the service, such as the online dating profile that you might be asked to fill out to operate or fully activate an account.

[Lord West of Spithead (Lab)]

My Lords, I rise to speak to Amendments 15 to 20. In Committee, I moved amendments seeking to remove Clause 13 and its associated schedule. This was to retain the current arrangements, which wisely restrict a number of public authorities from being able to compel the disclosure of communications data from telecommunications operations. Parliament restricted this power in the original legislation because it considered it to be potentially very intrusive.

What this means is that, at present, authorities such as the Environment Agency or the Health and Safety Executive are required to take further procedural steps to compel disclosure of communications data. They must obtain an authorisation under the current IPA, a court order or other judicial authorisation, or under regulatory powers in relation to telecommunications or postal operators, or they must obtain the communications data as the secondary data as part of a valid interception or equipment interference warrant.

The Bill seeks to remove that requirement for further procedural steps in relation to a wide range of public regulatory authorities. The Government’s argument for removing these restrictions is that a broader array of communications now fall into the category of communications data and a wider number of organisations now constitute telecommunications operators. As a result, the current restrictions prevent some regulatory authorities from acquiring the information necessary to exercise their statutory functions in a way that was not anticipated at the time of the original legislation.

These organisations have argued that this is particularly relevant to bodies with a recognised regulatory or supervisory function which would collect communications data as part of their lawful function but are restricted under the current Act if their collection is not in service of a criminal investigation; in particular, the changes focused on improving the position of certain public authorities responsible for tax and financial regulation, the powers of which were removed in 2018 as a result of rulings by the European Court of Justice. The ISC recognises that such bodies much be able to perform their statutory function effectively; however, we have been told that the Bill delivers only the urgent, targeted changes needed, and we have not thus far been presented with the case for that.

This was a highly scrutinised issue during the passage of the original Act. Parliament rightly ensured that the power to gather communications data was tied to national security and serious crime purposes only, to avoid impinging on the right to privacy without very good reason. We should not lightly brush that aside.

There have been a number of reported incidents of the intrusive use of investigatory powers by local councils and other public authorities for purposes that are subsequently deemed neither necessary nor proportionate; for example, things such as dog mess. The Minister said in Committee that the clause

“applies to a relatively small cadre of public authorities in support of specific regulatory and supervisory functions”.

Yet in response to my question on which bodies would see their powers restored, he said that

“it is not possible to say with certainty how many public authorities have some form of regulatory responsibilities for which they may require data that would now meet the definition of ‘communications data’”.—[Official Report, 11/12/23; col. 1759.]

How can it be right to expect Parliament to reintroduce sweeping powers for a wide range of public bodies when a previous Parliament deemed that that was too intrusive—and when we cannot even be told which bodies they will be? Noble Lords will need to be sufficiently satisfied that these powers are to be given to bodies that cannot function without them; this cannot be a case of just giving powers back by default. I urge the Minister to consider this further. As it stands, we have not been given the information, or a convincing case, to persuade Parliament of the need for such a complete about-turn. The ISC will continue to pursue this amendment unless robust assurance can be provided that these powers will be restored in a sufficiently limited and targeted way.

Amendment 17 and its two consequential amendments seek to remove the ability of the agencies to internally authorise the use of this new, broader power to obtain internet connection records for target discovery. My amendment would require the agencies to seek approval from IPCO, thereby ensuring proper oversight. As I noted in Committee, Clause 14 creates a new, broader power for the agencies and the NCA to obtain ICRs for the purpose of target discovery. It represents a significant change from the current position because it removes the current requirement that the exact service used, and the precise time of use, be known. Under these new provisions, the agencies will be able to obtain ICRs to identify which person or apparatus used internet services in a period of time—a far broader formulation that will capture a far broader number of individuals.

As I also noted previously, the ISC agrees with broadening the power; what it does not agree with is that there is no oversight of it. The principle remains that increased powers must mean increased oversight. This new, expanded power is potentially very intrusive: it allows the agencies to obtain ICRs from a range of internet services over a potentially long period of time, and they could therefore potentially intrude on a large number of innocent people who would not have been captured previously.

It is essential in a democracy that there are appropriate safeguards on such powers, but in all cases relating to national security and economic well-being, the agencies are able to authorise use of this newly expanded, broader power internally. They make the assessment as to whether it is necessary and proportionate; there is no independent oversight of the agencies’ assessment. The Minister argued in Committee that the ISC amendment inserts a disproportionate limitation on the agencies’ ability to use condition D, as the Government

“do not assess that the new condition creates a significantly higher level of intrusion”.—[Official Report, 11/12/23; col. 1761.]

With respect, the ISC not only disagrees with this assessment but finds it incomprehensible. This is about depth and breadth. The new condition D may not represent a new depth of intrusion as ICR requests under the new regime will still return the same type of information, but it certainly represents a much wider breadth of intrusion as a far greater number of innocent internet users’ details will be scooped up by these ICR requests.

The Government may argue that, because those individuals’ details will not be retained once they have been checked and found not to be of intelligence interest, this is therefore not an intrusive power. Again, with respect, this is not an answer that Parliament or indeed the public can or should be satisfied with. I doubt any individual would feel that their privacy had not been intruded on if they had been scooped up just because they had not been retained, particularly when the retention of details is currently contingent entirely on the judgment of the agencies themselves, with no external input on whether the judgment is proportionate. The ISC very firmly believes that the new condition is more intrusive, and therefore greater oversight is required to ensure the power is always used appropriately.

Oversight will act as a counterbalance to the intelligence community’s intrusive powers and provide vital assurance to Parliament and the public. This amendment and my two linked amendments therefore remove the ability of the agencies to authorise use of this power internally. The agencies would instead be required to seek the approval of an independent judicial commissioner from IPCO to authorise the obtaining of ICRs under this new, broader power. This strikes the right balance between security and privacy and minimises any burden on the agencies.

I move on to Amendment 18 in relation to the new same broader target discovery power in Clause 14. This amendment is to limit the purposes for which this new power would be used. As I outlined previously, target discovery has the potential to be a great deal more intrusive than target development as it will inevitably scoop up information of many who are of no intelligence interest. This is why we must tread very cautiously in this area and be quite satisfied of the need for the power, that the power is tightly drawn and limited, and is properly overseen.

The ISC agrees with the noble Lord, Lord Anderson, who, in his excellent report reviewing the Government’s proposal for this Bill, supported the need for this change. The ISC has considered the classified evidence and recognises that due to technological changes the current power is less useful than envisaged due to the absolute precision it requires. However, as this House also recognised, Parliament deliberately imposed a high bar for authorising obtaining internet connection records, given their potential intrusiveness.

The noble Lord, Lord Anderson, also recommended, therefore, that the purposes for which this new broader target discovery power could be used be limited to national security and serious crime only, and that use of it should be limited to the intelligence community. However, the Bill as drafted departs from his recommendations in both respects. Not only does it include the National Crime Agency as well as the intelligence community, but it allows the intelligence community to use the new, broader target discovery power for a third, far less-defined purpose of:

“the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.

In Committee, the Government argued that this decision had been taken because it is consistent with the statutory functions of the agencies and Article 8 of the European Convention on Human Rights. That is, of course, true. It is consistent, but that is not an argument in favour of simply transporting it here. Not every intrusive power should be available for every purpose that the security services have. Given the potential intrusiveness of this new power, it must be constrained appropriately and the purposes for which it can be used must be crystal clear.

However, what is not yet at all clear is exactly what critical work must be enabled under the umbrella of “economic well-being” as it relates to “national security” which is not already captured under the straightforward national security category. It must be clear exactly what harm would occur if this purpose were not included in the Bill. At the moment, the addition of “economic well-being” serves only to blur the lines between what an ICR can or cannot be used for, something which Parliament should not accept. Therefore, in addition to requiring independent judicial oversight, which is the subject of a separate amendment, this amendment seeks to prevent the agencies from using this newly expanded power for the purposes of economic well-being relating to national security. This will ensure that the rather vague concept of economic well-being is not being used as a catch-all justification for the exercise of these powers.

The agencies will of course still be able to use this power in relation to national security more broadly, and in urgent cases of serious crime. This is proportionate and indeed more in line with the recommendations of the noble Lord, Lord Anderson. Unless the Minister can provide the House with information as to exactly why it is critical to retain economic well-being for the use of these specific powers, not the agency’s powers more broadly, I urge noble Lords to support my amendment and strike this from the Bill.

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This is a less onerous amendment than that which I put forward in Committee, which sought to ensure that the Prime Minister substantively review any delegated triple-lock warrants. While that may have been preferable, I have noted the Minister’s concern that the Bill provide for the Secretary of State to act as the Prime Minister, and that to insert a review power would therefore require wholesale changes. This amendment requires only notification, not reconsideration, but that will at least ensure that the Prime Minister is aware of every instance in which the communications of elected representatives are being intercepted. I suggest to noble Lords that this is an absolute red line.

[Lord Anderson of Ipswich (CB)]

My Lords, it is a pleasure to follow such a strong and powerful speech, and to agree with so much of it. I will speak to Amendment 40, which is based on my report of last year and repeats an amendment that I tabled in Committee and that was introduced there by the noble and learned Lord, Lord Hope of Craighead, my co-signatory then as now. The amendment has two objectives. The first is to ensure that the third part of the triple lock is not too easily wrested away from the Prime Minister.

We are often told that someone is unavailable when they are travelling, are in a meeting, have stepped out of the office or have simply asked not to be disturbed for the afternoon. Indeed, the noble Baroness, Lady Manningham-Buller, used the word in the first of today’s debates on the Bill, albeit in a different context, to describe the status of a Minister, as she put it, during the night or over the weekend. Nobody suggests that reasons such as these should be sufficient for the third lock of the triple lock to be handed to someone else. Unavailable is simply the wrong word. The public interest, in clear and accessible laws, requires us to use the right word. Using the wrong word and then glossing it by guidance or Statements from the Dispatch Box is not a good alternative. I suggest that the right word is “unable”, and I am delighted that the Intelligence and Security Committee and the noble Lord, Lord West, had the same thought in their Amendments 39 and 43.

The second objective of Amendment 40 is to allow provision to be made for the situation in which a Prime Minister is available to apply the third lock but might be considered, or consider himself, unable to do so by reason of conflict of interest. This could be the case if the communications in question were addressed to or from a Prime Minister’s sibling in Parliament. I see that the noble Lord, Lord Johnson of Marylebone, has just left his place. It could be the case if those communications were addressed to or from the Prime Minister himself or herself. Nobody doubts that the agencies currently have the power, and will continue to have the power after the Bill is passed, to request a Prime Minister’s communications to be intercepted. Nor is there any mystery about what will happen if such a request is ever made. It will be put to a Secretary of State for authorisation—presumably the Home Secretary or the Foreign Secretary, depending on the context. If that authorisation is granted, a judicial commissioner—presumably the most senior of them, the Investigatory Powers Commissioner—will be asked to approve it. So far, so uncontroversial.

The issue that arises is what should happen next. Under Clause 21, the request must be put before the Prime Minister unless it happens that he is ill or away from secure communications, in which case the third lock can be passed on to another Secretary of State and the Prime Minister’s communications can be intercepted without his knowledge. A precedent for the delegation of this most sensitive of powers already exists; indeed, it exists in the text of this Bill. But what if the Prime Minister is available? In such a case, the third lock must, under Clause 21, be left in the hands of the Prime Minister himself. He is statutorily barred from passing it on to anyone else, even if he—or, let us say, the Cabinet Secretary on his behalf—took the view that he is unable to take the decision for reasons of conflict of interest. That is notwithstanding the fact that conflict of interest, as the noble and learned Lord, Lord Hope, said in Committee,

“surely is a reason why a Prime Minister, although available, should not exercise the power”.—[Official Report, 13/12/23; col. 1902.]

That principle is so important that perhaps the undoubted practical difficulties to which the noble Lord, Lord West, referred need to take second place to it.

The triple lock was designed to ensure that the communications of parliamentarians could be intercepted only with the consent of the Prime Minister. It was not designed to give the Prime Minister himself an effective veto over the interception of his own communications. Immunities or quasi-immunities of that kind might have their place in some presidential systems, but they seem out of place in a parliamentary system in which the Prime Minister is primus inter pares. However, just such an immunity is perpetuated by Clause 21, and the amendments on this theme from the noble Lord, Lord West, which I otherwise support, do not remedy the situation.

Amendment 40 does not prescribe a detailed solution to this sensitive problem, but it leaves the door open to one. My concern in tabling it was to ensure that we do not legislate in such a way as to prevent a solution being found to the situation in which a conflict of interest arises in circumstances that would be vanishingly rare but that, if they ever did arise, could be of the highest importance to our national security.

I have reflected on what could be done without Amendment 40 if there were serious grounds to intercept a Prime Minister’s personal communications because one of his correspondents or the Prime Minister himself were under suspicion. Perhaps a possible answer would be to wait until the Prime Minister was out of reach of secure communications and then proceed with the interception if the approval of a judicial commissioner and two Secretaries of State could be secured. That is not a very principled or satisfactory answer to the issue of conflict of interest, but it is permitted by Clause 21 and might still be better than a prime ministerial veto. I should say that everything I have said about Clause 21 and interception applies also to equipment interference under Clause 22.

I hoped to generate a debate on this topic by tabling this amendment and, thanks to your Lordships’ indulgence, I have had a chance to do so. I would like to have invited the House of Commons to debate it too, but without the numbers to press this amendment to a vote there will be no such invitation, at least by this route. None the less, I am grateful to the ministerial team and to their shadows in your Lordships’ House and the Commons for discussing this issue with me in a degree of detail. Neither team suggested to me that the prospect of intelligence interest in the communications of a Prime Minister was too fanciful a prospect to be worth considering, although it may be that the two teams have different examples in mind of why it is not. However, I detected a developing sense on both Front Benches that the conflict issue might be one for the “too difficult” box.

I will not divide the House, but I close with these questions to the Minister: is it the Government’s position that the Prime Minister, uniquely among members of the Government, should have a veto over the interception of his own communications in circumstances in which the normal authorisation and approval criteria have been met? If so, why? If not, what answer do they have to the issue of conflict of interest?

[Lord Carlile of Berriew (CB)]

My Lords, it is a pleasure to follow that brilliant exposition by my noble friend of the problem that he tries to deal with in Amendment 40. After yesterday’s slightly more tense proceedings in this House, I have had a pleasant afternoon supporting the Government. In that spirit, I wish briefly to add some words to what has been said by my noble friend.

The notion of conflicts of interest is not a difficult one. Lawyers dealing with extremely complex cases have to deal with that problem more or less every day. It is something with which we are familiar. The notion that a Prime Minister could face a conflict of interest is not ludicrous. If we just look at the way in which proceedings have proceeded so far in the Covid inquiry, for example, we know that the most intense examination is now given to past communications. We are in a different age from the era when Prime Ministers did not use social networking. We are coming to a period when there will be a Prime Minister whose youthful exchanges with his or her friends will be available to public inquiries in the years to come. It is easy to imagine circumstances in which conflicts of interest might occur. For example, there could be conflicts of interest arising from kinship, as my noble friend Lord Anderson mentioned. Conflicts of interest could arise from earlier employment or from books and articles that person has written. We recently had a Prime Minister who has written quite a lot of interesting books but certainly provoked some interest of another kind when he was Prime Minister.

I urge the Minister not to brush aside this issue of conflict of interest, because it could happen, and it is better to anticipate these things than to leave them till later. I ask the Government to take seriously Amendment 40, for the reasons that have been given by the noble Lord, Lord Anderson, so we can return to this matter before the Bill is passed.

Investigatory Powers (Amendment) Bill [HL]

Lord Anderson of Ipswich Excerpts

3rd reading
Tuesday 30th January 2024 Lords Chamber

[Lord West of Spithead (Lab)]

My Lords, first, I thank the Minister and his team for the liaison and the work we did together to try to meet all our concerns about the Bill. I also thank him for giving me the excitement of my life in that I had an amendment accepted—for the first time in 14 years. That is a pretty good strike rate, is it not? I was pleased about that as well.

We on the ISC are very happy that the Bill is needed. However, as the Minister knows, we are still concerned that there is insufficient acceptance of the fact that parliamentary scrutiny is required by the ISC more broadly in this and a number of other areas. I am sure this will be brought up in the other place; otherwise, I am pleased that we have moved this Bill forward at pace.

[Lord Anderson of Ipswich (CB)]

My Lords, I echo all the thanks that came from the Minister. I do not think I can add to his list, but I certainly endorse everything he said.

Bills of this nature can be controversial. We are seeing this in some other parts of the world at the moment. That was not the case in your Lordships’ House. That is testimony to the care with which the Bill was prepared, the civilised way in which it was debated and the openness of the Government to some of the important points made during our debates. I single out in particular the work of the Intelligence and Security Committee for the great scrutiny that it applied to it.

If I may, I will depart briefly from the studied impartiality associated with the Cross Benches. With the Government and Opposition so closely aligned on a Bill, it was particularly useful that we heard from the Liberal Democrats—with their sometimes annoying but rather necessary process of probing amendments. They caused everyone to think carefully about what we were doing. All in all, it was a happy experience for me. I hope that this is a good model for future Home Office Bills.

[Lord Fox (LD)]

My Lords, having been cleared to annoy your Lordships’ House, I will do my best to do so.

This Bill started in your Lordships’ House and now heads to the Commons. Its primary purpose of enabling the intelligence services to better build their data models and teach their AI systems has been left completely unmolested by your Lordships. However, other parts of the Bill have attracted a fanfare of concern from certain external parties—particularly the large platforms. Whether the Government and Apple are at cross purposes or the Minister really is out to get it, we in your Lordships’ House were unable to muster sufficient traction to find out or clarify. It is now up to the MPs if they choose to pick up that particular baton.

There was also an unresolved issue around the triple lock and the Prime Minister’s role when they might be in conflict. Again, this has moved from our orbit. I hope the tenacity of the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, might still be involved somehow between here and the other place. The Minister raised the important issue of legislative consent. I hope he is successful in these negotiations.

I echo what other noble Lords have said. This has been a well-mannered and constructive process of discussion, with everybody moving in the same direction, albeit at different speeds.

I thank the Minister and the team he named for their time, availability and openness in our discussions. I also thank all the many external organisations and individuals who took time either to meet and brief or to send information which helped inform our debate. The discussion was greatly enhanced by the noble Lords, Lord Coaker and Lord Ponsonby, from the Front Bench, and by colleagues on their Benches, as well as the Cross Benchers. They played a pivotal role in our discussions.

Finally, I thank the home team: my colleague, my noble friend Lord Strasburger, and, most of all, Elizabeth Plummer in the Lib Dem Whips’ Office, without whom nothing is possible.