Telecommunications (Security) Bill

Lord Coaker Excerpts

Committee stage
Tuesday 13th July 2021 Grand Committee

[Lord Fox (LD)]

This is an interesting debate—one that we started about a year ago. During the summer, on the then Telecommunications Infrastructure (Leasehold Property) Bill, many of these arguments were rehearsed. This Bill was held out, in a sense, as the carrot that would address these issues, and it has been some time coming.

To some extent, the initial issues that came up last year have been discounted, with the Government largely moving on the Huawei issue. However, as we have heard—and will hear over the course of Committee—many questions are unanswered. We should once again thank the noble Lords, Lord Alton and Lord Blencathra, and my noble friend Lady Northover for bringing forward these amendments, as well as the noble Lord, Lord Coaker. I will be interested to hear his perspective as, having been a Minister, he understands some of the trade-offs in decision-making—it is interesting that he chose to sign this amendment none the less.

I thank the noble Lord, Lord Naseby, for his Second Reading speech. He could not give it to us at Second Reading, so we got it anyway. There are some issues around industrial capacity which I will come back to.

The noble Earl, Lord Erroll, picked up a point on which I queried the Minister and did not get a response: at what point are we examining this technology? You have systems, sub-systems, components and software. Frankly, if we are doing this, it must be done at all levels. The capacity to do that and track a chip, a piece of software or something in the software which we do not even know is supposed to be there is a huge task. Do we have the capacity in the intelligence services, and the industrial ability, to do it? It is a very important question, as there is not much point having this if we cannot actually do it.

Before speaking to Amendments 1 and 20, I will say a few words on Amendment 27, the Five Eyes element. As we know, this requires the Secretary of State to review the UK’s security arrangements with companies banned by Five Eyes partners and to decide whether to take similar action on the UK’s arrangements with those companies. As I think my noble friend Lady Northover said, the Minister will no doubt say that we do this anyway. If we do this anyway then, to some extent, we should not be afraid of putting it in the Bill. It is important that we walk in as lock-step a way as we can with our Five Eyes partners, but the point of the noble Earl, Lord Erroll, is apposite; China understands that and will play the Five Eyes against each other. We must be aware of that; we must not be slavish in how we respond but canny, and work with our partners so that they understand why we are moving in the right direction.

Again, this comes down to capacity. The noble Lord, Lord Naseby, asked who does it. The NCSC is supposed to provide the ammunition for the Secretary of State and Ofcom to operate on. There are big questions around the interface between the NCSC and Ofcom and how they relate to each other. How, for example, does the highly secret information the NCSC is dealing with get to DCMS and Ofcom without either breaching security or eroding transparency, or both? We have big concerns about that, and obviously it will come up later.

The noble Lord, Lord Alton, raised Newport Wafer Fab, which until recently I thought was an ice cream firm somewhere in Aberystwyth. However, now I find that, as he set out, it is our only supplier of this equipment. That is an object lesson in itself but it is also completely appropriate to this point. In its response, BEIS confuses manufacturing capacity with technical novelty and has the idea that, because this is not technically novel, that somehow stops it from being valuable to this country. However, manufacturing capacity is central to the delivery of future technical novelty, and if you want somewhere to look, look at the communications industry. We were pre-eminent global leading companies in analogue communications technology; no country could match us. We lost that manufacturing capacity and the ability to innovate in the digital space, and that is why we have the supply chain issues we have today. If the Government have not learned this lesson, and it seems that BEIS has not, we have a long way to travel yet before we get to a sensible place.

In a sense we have heard from the noble Lord, Lord Alton, and others about specific issues but I would like to rise up a bit and look at the bigger picture slightly. In his Mansion House speech on 1 July 2021, Rishi Sunak crystallises the challenge and perhaps the dichotomy, and points us in a number of different directions at the same time. Your Lordships must excuse me, but I will read out a fairly lengthy passage which is appropriate to this debate. He says:

“And our principles will also guide our relationship with China. Too often, the debate on China lacks nuance. Some people on both sides argue either that we should sever all ties or focus solely on commercial opportunities at the expense of our values. Neither position adequately reflects the reality of our relationship with a vast, complex country, with a long history. The truth is, China is both one of the most important economies in the world and a state with fundamentally different values to ours. We need a mature and balanced relationship. That means being eyes wide open about their increasing international influence and continuing to take a principled stand on issues we judge to contravene our values. After all, principles only matter if they extend beyond our convenience. But it also means recognising the links between our people and businesses; cooperating on global issues like health, aging, climate and biodiversity; and”—


here we come to the rub—

“realising the potential of a fast-growing financial services market with total assets worth £40 trillion”.

What does a mature, balanced relationship look like in context? How nuanced are the examples that we have just heard about the Chinese? First, we can see that because of advanced concerns around the security of at least one Chinese vendor, the UK Government are mandating equipment to be torn out of our existing infrastructure and thrown away at the cost of several billion pounds. That is not a nuance. Secondly, we have heard from the noble Lord, Lord Alton, this time and previously, and we have seen the evidence of malevolence within China to its own people on a scale that is, let us say, unusual even for the age in which we live. Thirdly, we can see transparently what is going on in Hong Kong. That in itself is not a nuance either. Fourthly, we have the Chancellor’s stated desire to realise the potential of a fast-growing financial services market.

All this is the context in which Amendments 1 and 20 have been tabled. This gives the chance for the Minister to explain where she and the Bill sit on that nuanced scale, as the Chancellor puts it. He clearly sets out that the Government’s principles will guide our relationship with China, so what are those principles?

[Lord Coaker (Lab)]

My Lords, this is my first Grand Committee appearance, and I hope that I do not disappoint the noble Lord, Lord Fox. I have been in a number of committees, but not at this end of the building. I am still getting used to some of the processes and procedures, but I am very pleased to be speaking on this Bill.

From our perspective, the Bill is very welcome. The Government are clearly addressing a very real security concern that our nation has, and, in trying to deal with it, have not just my support but that of every single Member of the House of Lords. It is our country, and we want it looked after and defended properly. Many of the amendments and the comments that have been made so far today, and which will be made throughout the Committee and no doubt at Report and beyond, are about challenging the Government, not from an oppositional point of view but from one of trying to improve the legislation. We want to ask the Government testing questions to see where their thinking is. That is what all the various speakers have done so far today.

There are a number of particular issues. As others have said, the amendments in this group, from the noble Lord, Lord Alton, deal with the international context for the security of the telecommunications sector, however you define that. This is really important, because it affects—not infects—every single part of our lives. The noble Lord, Lord Alton, gave the example of Hikvision and CCTV. Whether it is the hardware or the software, this demonstrates that there are examples of new technology and telecommunications which impact on all our lives but which many of us probably do not view as causing a potential security threat to our country and nation. We have only to look at where that is going—whether you look at this sphere or the defence sphere—to know that we are going to see an increase in telecommunications, and in the use of space, drones, artificial intelligence and all those sorts of aspects.

One thing that I will talk about in other debates on other amendments is how you future-proof this—and that is part of some of the later amendments. Hikvision, which the noble Lord, Lord Alton, raised, is an interesting instance. At the nub of it is that, if our allies, who we depend on for our collective security, are banning companies such as Hikvision, as in the United States, how is it in our interests to defend our own security to not do the same? It is unfair to say that it has not been thought about, but there is something of a disjointed approach when one of our closest allies—if not our closest—has banned a tech company that we use. I am sure that there are very good reasons for it, and the Civil Service and others will no doubt tell the Minister X, Y and Z, but it defies common sense. Whatever the reality of it, it just does not appear to be a sensible option, so I very much support the example that the noble Lord, Lord Alton, gave. That is one of the reasons why I added my name to Amendment 27.

With regard to NATO and Five Eyes on a domestic and international level—I shall return to this point on Amendments 18 and 25—who actually holds the ring? Who is the person or what is the department that co-ordinates all this activity across government? Who holds the ring across government? You could say that it is the Prime Minister, but the Minister will know what I mean. Out of all the various aspects of government, who actually in the end decides? And if there is a conflict of interest between them, who then is the judge of that and how does that work on an international level? But as I say, that is more to do with Amendments 18 and 25.

Amendment 27 in particular, as I said, ensures a review of telecoms companies when a Five Eyes partner bans the operation of a vendor of goods or services to public telecommunications providers in its country on security grounds. That is eminently sensible. It a review. The amendment is, essentially, testing the Government by asking, “Why wouldn’t you have a review?” Why would you not—to use a security term—keep that under surveillance?

--- Later in debate ---

[Lord Fox (LD)]

My Lords, in response to the noble Earl, Lord Erroll, I say that it is also a huge issue when you have, essentially, a near-monopolistic private sector supplier, which makes any decision completely catastrophic for the under-bidder. I am speaking not to that but to Amendments 2, 3, 4, 5 and 6, which, as my noble friend Lord Clement-Jones pointed out, bear my name. He set out a very clear rationale for these amendments, which back up the concerns of the Constitution Committee and, indeed, some suppliers. Rather than reiterate those, I beg noble Lords’ indulgence to illustrate the point, inviting them to join me in a thought experiment. They need not worry—it is not going to hurt and I will not be pushing them into a Petri dish or anything like that. I simply ask your Lordships to imagine things the other way around: imagine that the Telecommunications (Security) Bill did indeed include the words currently proposed by my noble friend Lord Clement-Jones and myself, words that clearly identify that the focus of the Bill should be on the security of telecoms.

I ask noble Lords to continue to use their imagination that it was my noble friend and I who were proposing changes to include the words that are currently there; in other words, imagine that we were proposing to take the word “security” from this imaginary Bill and turn it into “anything”. Broadening the cover, as we have heard, would broaden the problem around any interruption very widely. I do not know but I dare say that, if we tried to do that, the Public Bill Office would have something to say, pointing to the Long Title of the Bill, which is:

“To make provision about the security of public electronic communications networks and public electronic communications services”


—in other words, security. Were we to try to take that word out and put in “anything”, I dare say the PBO would not allow us to do so.

If we did however slip it past the PBO, I guarantee that the Minister of the day would tell us that this would subvert the Bill’s intention and would take away the Bill’s focus from security to some of the imaginary things that the noble Lord opposite suggested—or, indeed, a digger backing into a green box somewhere in Kent. This is not the “Telecoms (Mishaps) Bill” but the Telecommunications (Security) Bill. These simple and modest amendments focus the Bill on its stated objective.

[Lord Coaker (Lab)]

This is a really important discussion. I do not want to speak for too long but the noble Earl, Lord Erroll, was right to say that the Bill is about security and not just “anything”. None of us on the Committee wants to compromise the nation’s security or compromise the ability of our military personnel to conduct necessary operations. However, sometimes in legislation words really matter—they are the law of the land. That is why scrutiny of legislation in Committee like this is so important, word by word and line by line, otherwise—and I will have a series of questions for the Minister on this—down the line in one, two, three or five years, something will happen and everybody will go, “How was the word ‘anything’ included?” The unintended consequence of legislation is something that we need to consider, or people will ask how something happened—how that word was allowed.

With that in mind, it is important that the Minister explains to the Committee how this definition is arrived at. The starting point would be to ask her to explain the differences between having the word “anything” and having the phrase “security issue”. Can she give examples of how the Bill would be weakened by having that term rather than “anything”, and what “anything” means—apart from saying that it means “anything”? What does it actually mean, given that the Bill is supposed to be about security issues, as the noble Earl said?

The Government argue that the duty on providers is appropriate and proportionate to ensure that the effects of compromise are limited and to act to remedy the impacts. I understand why Ministers are keen to keep the definition wide, but on its own it is not good enough. For example, can the Minister explain whether there are any thresholds to what amounts to a security compromise, or is it “anything”, and what does that mean to an individual who might stray into territory that they are not sure about? How was the Bill’s definition arrived at? Who came up with it and what advice did they receive? Were alternatives suggested to it, what did security experts say to the Minister was necessary, and were there dissenting voices?

In seeking clarification, I wonder whether the Minister can explain why the definition does not include, as I understand it, the presence of supply chain components, as the noble Lord, Lord Fox, mentioned on the earlier group of amendments, if they represent a security threat. Maybe it does—but could the Minister clarify that? We need to know that to understand the diversification of the supply chain and how effectively or not it is proceeding. It is important to consider the components of the supply chain, particularly when identifying where they are a threat to our national security. As I see it, that is not included in Clause 1, but perhaps the Minister can tell me that it is and that I have not read the clause correctly. If so, where is it?

I go back to where I started. These amendments are important in testing how the Government have arrived at this use of “anything”. I know it sounds like semantics —what does “anything” mean?—but the point made by the noble Earl, Lord Erroll, is crucial. The Bill is a security Bill. That being so, why does “anything” appear and why is “security issue” not the appropriate way to describe this? Why is it not included in the Bill? It is necessary for the Committee to understand the Government’s thinking on this for us to consider whether we need to bring back this matter on Report.

[Baroness Barran (Con)]

My Lords, the Committee will recall that the UK Telecoms Supply Chain Review Report in July 2019 found that telecoms providers lack incentives to apply security best practice. This Bill is our response to its recommendations and takes forward the Government’s commitment in the report to introduce a new security framework, including new legal duties and requirements, to ensure that telecoms providers operate secure and resilient networks and services.

I thank the noble Lords, Lord Fox and Lord Clement-Jones, for tabling these amendments to Clause 1. Before I address them directly, I hope that it will be helpful if I set out some brief context for the clause as it appears in the Bill and try to address the challenges posed by the noble Lord, Lord Coaker.

Clause 1 inserts a new Section 105A into the Communications Act 2003. New Section 105A places a duty on public telecoms providers, first, to identify the risks of security compromises; secondly, to reduce the risks of compromises occurring; and, thirdly, to prepare for the occurrence of security compromises. To support the duty, new Section 105A creates a new definition of “security compromise”. The definition is purposefully broad and includes anything that compromises the availability, performance or functionality of a network or service, or that compromises the confidentiality of the signals conveyed by it. I thank my noble friend Lord Naseby for his support for this approach.

I am genuinely slightly puzzled by the remarks of the noble Lord, Lord Coaker, about what is included and excluded, because Clause 1 goes into great detail—which I shall not read out now, but I know the noble Lord has looked at it. Not only do we define what is included in “compromise” but we are explicit about what is excluded. This comprehensive approach will help ensure that telecoms providers protect their networks and services properly in the future. It creates a new duty on providers to take steps to reduce the risk of incidents and attacks seen globally in recent years.

As we have heard, the amendments tabled by the noble Lords, Lord Fox and Lord Clement-Jones, would narrow the definition of a security compromise. As both noble Lords noted, this was also a matter that the Constitution Committee recommended the House consider in its recent report. As I have said, the definition is designed to support a long-term approach to security. It aims to be focused enough to address risks that are specific to telecoms networks. At the same time, it is broad enough to ensure the Bill is future-proof and has flexibility to enable us to address new and evolving threats.

I appreciate that the noble Lords are seeking to ensure that legal obligations on telecoms providers are targeted and appropriate to specific risks, but it is important to remember that the framework within the Bill is designed to do exactly that. Certainly, we are not aiming, in the words of the noble Earl, to bash suppliers over the head. Rather, the broad definition in the Bill helps future-proof the legislation, whereas the specific security measures which narrow that focus will be set out in secondary legislation. I tried to get my head around the thought experiment from the noble Lord, Lord Fox, but I got stuck at the idea of trying to fit inside a petri dish, which would definitely be impossible.

Telecommunications (Security) Bill

Lord Coaker Excerpts

Committee stage
Thursday 15th July 2021 Grand Committee

Moved by

[Lord Coaker]

18: After Clause 14, insert the following new Clause—
“Horizon-scanning body
(1) Within three months of this Act being passed, the Secretary of State must establish a body corporate with a remit to consider emerging and future developments for the telecommunications sector for the purposes of identifying current and emerging security threats.(2) The body must include representatives from, but is not limited to— (a) the National Cyber Security Centre;(b) the intelligence services;(c) the National Cyber Force;(d) the Ministry of Defence(e) the Home Office;(f) the Department for Digital, Culture, Media and Sport;(g) the National Security Council;(h) the Investment Security Unit;(i) the Armed Forces;(j) OFCOM;(k) relevant industry bodies and companies;(l) relevant telecommunications and security experts.(3) The body must publish a report annually which is laid before both Houses of Parliament.”

[Lord Coaker (Lab)]

Good afternoon, everyone. I am looking forward to the Committee session this afternoon. Two days ago was my first Grand Committee sitting as a Member of the House of Lords, and I was impressed by the quality of the contributions. I have been moved by the intellectual power of the people here and I look forward to that. I was grateful to the Minister for her contributions and the way she tried to answer the questions, even if one or two of them were not as well put as her Civil Service brief. I appreciated that, and it helps the Committee enormously when we have that positive, constructive engagement, even if there is a measure of disagreement at times. As I said at the beginning, a Bill like this unites us all in wanting to contribute in a way that defends and secures our country and democracies across the world. It is in that spirit that I move Amendment 18 and table Amendment 25 in my name, and I know the Minister will take it in that spirit.

I also thank the noble and gallant Lord, Lord Stirrup, very much for supporting both the amendments. I know the Committee is looking forward to his informed and experienced contribution to our discussions. Although the noble Lord, Lord Alton, is not present—he will no doubt read Hansard—I also thank him for his support for Amendment 25.

These are probing amendments that challenge the Government to explain to the Committee and the wider public their thinking and why these amendments are not necessary. Their various measures are contained elsewhere in the Bill, but it is an important debate for us to have because, as all of us have said, national security is the first duty of any Government and that includes Her Majesty’s Opposition and other parties. That is what “Government” means in total—the responsibility of us all to our citizens.

These amendments are also saying that, to secure democracies across the world in the face of the autocratic challenges and threats we see, it is necessary for us to work well not only in our own country but with our allies. That is clearly something the Government wish, as well.

Our telecoms infrastructure, as I saw yesterday when I went to Airbus—a brilliant company in Portsmouth—is clearly critical to our defence and security as well as our economic prosperity. The Bill’s impact assessment rightly highlights the threats we face, stating that the

“most significant cyber threat to the UK telecoms sector”

comes from other states. It is not a terrorist threat in the normal sense of a threat from individuals; but when powerful states can take action against us, that is significant for our country and for democracies across the world. The impact assessment continues:

“The UK Government has publicly attributed malicious cyber activity against the UK to Russia and China as well as North Korea and Iranian actors”.


That is worrying and significant for all of us.

Both amendments say that our approach to security has to be co-ordinated domestically and with our allies. That is, frankly, a challenge for any Government. As to the list of bodies I have included in the amendment, I am sure the Minister could say that I have not mentioned this or that body. However, those that I have listed are based on my own research. I am sure that other significant bodies should be on it. However, the point is that the challenge is significant. How will cross-departmental co-ordination on the current security infrastructure work at a domestic and international level? I know that the response is often that we have the National Security Council and that is why it was set up, and the Prime Minister chairs it. It is obviously incredibly important and it would be ridiculous to say that it is anything other than an effective co-ordinating body. However, that does not alter the fact that coming to the table are significant actors in their own right within the sphere. It is right to ask, how do the Government expect the new duties placed on the telecoms sector to work and be policed by all the various bodies?

The amendments also highlight the question of how we future-proof this legislation against current and emerging threats. To be blunt, it is hard enough to deal with the current threats as we understand them. At security levels far higher than those we have in this Committee, there will be those who will not only be trying to deal with the current threats but looking at what might happen, five, 10 or 15 years down the road. That is a real challenge for anyone. How do we stop those threats?

We have come to a view about Huawei. Some may argue that perhaps we should have done so two, three or four years ago but we are where we are and we have now concluded that all Huawei equipment should be out of our country’s networks by 2027. Would it not have been better to have predicted that several years ago, so that we would not have to try to stop that company’s involvement now? How does the Minister believe that the current structures and those envisaged in the Bill will deal with not only current but future threats?

The concern is shared by our allies. The recent NATO summit communiqué stated:

“NATO and Allies…will maintain and enhance the security of our critical infrastructure”,


including “communication information networks” such as 5G. I should say to the Minister—the noble and gallant Lord, Lord Stirrup, will have much greater understanding and awareness of this issue—that one of the most significant moves that the alliance made in that communiqué was to confirm that a cyberattack, including on our own telecoms networks, could trigger an Article 5 response.

With the Committee’s permission, I will read from paragraph 32, as it is so important:

“We reaffirm that a decision as to when a cyberattack would lead to the invocation of Article 5 would be taken by the North Atlantic Council on a case-by-case basis. Allies recognise that the impact of significant malicious cumulative cyber activities might … be considered as amounting to an armed attack.”


I emphasise “armed attack”. We and our allies are saying, quite rightly, that the theory of deterrence is now being applied to the world of cyber. The Minister will understand the principle that an attack on one is an attack on all, so theoretically it could be one of our allies that is subject to that attack and that we come to the defence of. Again, I think that is quite right. Does the Minister have any comment highlighting how the Government see that being taken forward?

Amendment 18 seeks to establish a horizon-scanning body for our telecommunications sector, to identify current and emergent threats and produce an annual report for Parliament. The body would include representatives from the Armed Forces, relevant departments, the intelligence services and the National Cyber Security Centre, as well as industry and security experts. Can the Minister explain how the Government will watch out for future threats without such a body? How will cross-departmental work be managed? Will the new telecoms advisory council include security experts or ex-military personnel?

The Spectator is not a magazine whose political opinions I agree with, but this is so serious. The front page this week features the relationship between China and Cambridge. Whatever the rights and wrongs of it, I am just reporting to the Committee what is said in a well-regarded magazine that I and many other noble Lords read. To have that on its front page, and then inside, significant articles about the relationships and the potential difficulties that they may cause for us on a security level, shows to the Committee and the wider public how difficult this is becoming. You have one of the most brilliant universities in the world being questioned in terms of its relationship with China, in a well-regarded publication. That is a challenge for us as we take this Bill through and what it means for us in maintaining our security to defend our democracy.

Amendment 25 seeks to ensure that the Government publish a long-term strategy for our telecommunications security and resilience. Can the Minister outline how she expects that to happen? We should consider how to collaborate more effectively with our allies—NATO and the Five Eyes—and consider proper resourcing of UK security infrastructure. I believe DCMS is now developing a long-term strategy to consider how international standards can be developed. Can the Minister explain how the UK will work with our allies on R&D or adoption and deployment? This is critical for the security of our nation, so it would be helpful for the Committee to understand.

I hope that the Minister takes my contribution in the spirit in which it is meant, which is to challenge in a way that I hope is helpful to the security of the nation and of our telecoms infrastructure and businesses. The last year or two have been a bit of a wake-up call for all of us, including me, as to the potential threats that there are. Given the security level that we are all at, what some people working at STRAP levels know and understand about the threats to our nation one can only begin to imagine. I look forward to the Minister’s response and to the contributions of the noble and gallant Lord, Lord Stirrup, and other Members of the Committee. This is meant to be a probing, challenging amendment. I hope that the Minister will be able to respond in that spirit, and that we can all look forward to seeing how the security of our nation can be effectively maintained against the threats as we understand them now and as they may emerge in the future. I beg to move.

--- Later in debate ---

[Baroness Barran (Con)]

I tried to present the breadth and depth of approaches that the Government are taking to address this incredibly serious and complex problem. If I may borrow the word used by the noble and gallant Lord, Lord Stirrup, we have tried to show some agility in responding to changing circumstances. The noble Lord will be aware that there were changes to the US foreign-produced direct product rules in May 2020 which changed the risk profile of our engagement with Huawei, and we acted on that, so I do not feel that I have to apologise at this point.

[Lord Coaker (Lab)]

I thank the Minister for her reply and for again seeking to answer the questions. We may well have to come back to some of this, but I take the point that the Government are seeking to address current and emerging threats; I just think that this needs to be more clearly stated in the Bill. The Minister gave examples of cross-government working. We all know that there are examples of cross-government working, but the Committee is saying—I think that there was agreement across the Committee—that sometimes there is a need for a mechanism to ensure that it happens. It may be that another body will do that more effectively in the face of the threats that we face now or may face in the future—it may be that we seek to replace rather than add a body. The Government may want to consider that.

--- Later in debate ---

Moved by

[Lord Coaker]

22: After Clause 23, insert the following new Clause—
“Provision of information to the Intelligence and Security Committee
The Secretary of State must provide the Intelligence and Security Committee of Parliament as soon as is reasonably practicable with a copy of—(a) any direction or notice (or part thereof) that is withheld from publication by the Secretary of State in the interests of national security in accordance with section 105Z11(2) or (3) of the Communications Act 2003;(b) any notification of contravention given by the Secretary of State in accordance with section 105Z18(1) of the Communications Act 2003;(c) any confirmation decision given by the Secretary of State in accordance with section 105Z20(2)(a) of the Communications Act 2003;(d) any reasons for making an urgent enforcement direction that are withheld by the Secretary of State in the interests of national security in accordance with section 105Z22(5) of the Communications Act 2003; and(e) any reasons for confirming or modifying an urgent enforcement direction that are withheld by the Secretary of State in the interests of national security in accordance with section 105Z23(6) of the Communications Act 2003.”Member’s explanatory statement
This new Clause would ensure that the Intelligence and Security Committee of Parliament is provided with any information relating to a designated vendor direction, notification of contravention, urgent enforcement action or modifications to an enforcement direction made on grounds of national security.

[Lord Coaker (Lab)]

I apologise to the Committee for having to hear so much of me in the first 48 minutes. This is a really important amendment and I will make a couple of general remarks before making some more specific comments.

Concern has been expressed throughout consideration of this Bill about the extent to which the Bill provides for parliamentary scrutiny. Parliamentary scrutiny is the important area that Amendment 22 seeks to address, and I am grateful for the support of my noble friend Lady Merron and the noble Baroness, Lady Northover.

Amendment 22 seeks to improve and prioritise national security. We have all said that we support the intention behind this Bill and the need for national security, but the sweeping powers that the Bill gives the Secretary of State must be used in the interests of securing our critical national infrastructure. Removing Huawei does not in itself do that, so there is a question of accountability here. Amendment 22 is designed to ensure greater scrutiny, focus and transparency and address the deepening hole in accountability presented by the Government. At its heart, it would

“ensure that the Intelligence and Security Committee … is provided with any information relating to a designated vendor direction, notification of contravention, urgent enforcement action or modifications to an enforcement direction made on grounds of national security”

by the Secretary of State, as soon as reasonably possible.

The Minister knows that, during the passage of the National Security and Investment Bill, noble Peers from all sides of this House repeatedly tried to ensure that the Intelligence and Security Committee had oversight of national security issues. To be frank with the Minister, it was difficult to understand why the Government were so determined not to give the committee a role. This amendment says to the Government that the ISC is the appropriate place to discuss matters of national security and that it has a unique role in assessing security implications, as even Ministers accept.

The key point is to ask the Minister how this would work. This is the nub of the amendment and goes to the heart of what many noble Lords have said. The DCMS Select Committee and many of the people who will be looking at these documents do not have the required clearance to scrutinise highly classified evidence, so should the ISC, which does have the necessary security clearance, not have a role? It is the only committee of Parliament that has regular access to documents marked “information sensitive for national security reasons”.

I am sure that many of us simply do not understand that when you look at the state security threats to the telecommunications infrastructure that have been identified by the Government, the level of clearance will not be official-sensitive, STRAP 1 or STRAP 2, it will be STRAP 3. No one in this Committee will see that. Some Members of the Committee may have seen it in the past. So how can Parliament be reassured without knowing that the Intelligence and Security Committee has looked at it? Who has oversight of it? Even the Minister will not have the level of clearance to see all of it, yet she will tell the Committee that Parliament has oversight of these matters, when none of us—or very few of us—have the security clearance to actually look at and scrutinise those threats. So how will Parliament scrutinise it if we do not have the security clearance to do that? It is logically inconsistent. Yet time and again, the Government refuse to allow the committee set up with that express purpose—namely, the Intelligence and Security Committee—the function that it was set up to do on behalf of Parliament. With respect, I simply do not understand why the Government are so resistant to that. On many of the other things that we mention, there is a debate and opinions are exchanged. But this is completely and utterly illogical.

I ask the Committee to consider this. Given that the level of security clearance needed to protect our country, its telecommunications structure and that of our allies from the threats posed by other states is above that of the vast majority of Ministers of the Crown, Members of the House of Lords and civil servants, who is to scrutinise these matters if not the Intelligence and Security Committee? I fail to understand what the answer to that is. Parliament deserves to scrutinise these matters and it should be done by the committee set up to do that because it is the only committee of Parliament that has the necessary security clearance. I beg to move.

[The Earl of Erroll (CB)]

My Lords, the noble Lord, Lord Coaker, has summed up an important recurring theme that was raised at Second Reading. The Government should take this very seriously indeed.

Oversight by a body with top-level security clearance is essential. I certainly would sleep safer if I knew this was happening. Part of this comes from the Minister’s reply when I started to query the status of Ofcom and its relationship to the Civil Service department. I gather that the relationship of Ofcom is similar to that of an agency—if it is not actually set up as an agency; it is set up as a regulatory body, I think. I remember the huge problem—debacle would be a better word—when Defra failed to bring in the new mapping system back when we were changing the way of paying farmers. Everyone knew that it was about to be disastrous. Everyone could see the train crash coming. The Minister could not do anything about it except stand at the Dispatch Box and say, “I’m not allowed to interfere. It is a separate company. We can only call it to account at the end of the year.” As a result, when it all went pear-shaped and farmers suffered disastrous and severe financial problems, the Minister was retired—and it was not any fault of his. He knew perfectly well what was going on but had no power under the structure.

This is my problem with the agency structure that was set up, I think under Mrs Thatcher, when she was trying to cut back the Civil Service so she took things off the Civil Service books to make the figures look better. We have to be very careful when we are handing huge powers or these momentous decisions to an agency. Therefore, it is important that we get into the Bill mechanisms by which we can know what is going on at the time and make sure that it is not going wrong. This oversight, certainly by the Intelligence and Security Committee, is essential—a no-brainer.

I will just mention that the same principle applies in Amendment 29 in the names of the noble Lords, Lord Clement-Jones and Lord Fox, which I did not put my name to because I thought that was unnecessary. Exactly the same thing applies to the Investigatory Powers Commissioner. Rather than me wasting time speaking again, I will say it now: please will the Government start looking at this more seriously?

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[Baroness Barran (Con)]

My Lords, I thank the noble Baroness, Lady Merron, for tabling this amendment, and the noble Lord, Lord Coaker, for moving it. The role and remit of the Intelligence and Security Committee, as noble Lords have remarked, have been raised a number of times in the other place and at Second Reading of this Bill, so I welcome the opportunity to clarify how appropriate oversight of the Bill’s national security powers will be provided for in the Bill and through existing mechanisms.

Amendment 22 would require the Secretary of State to provide the Intelligence and Security Committee with copies of designation notices and designated vendor directions when such notices, or parts of them, are withheld under Section 105Z11(2) or (3) in the interests of national security. It would also require the Secretary of State to provide copies of notifications of contraventions, confirmation decisions, the reasons for giving urgent enforcement directions when withheld under Section 105Z22(5), and the reasons for confirming or modifying such directions when withheld under Section 105Z23(6).

I will try to correct the suggestion made by the noble Baroness, Lady Northover, and the noble Lord, Lord Fox, that the Government are trying to avoid parliamentary scrutiny on this particular point. That simply is not borne out by the way that the Bill is drafted. We are very clear about where parliamentary scrutiny should take place. I recognise the desire of your Lordships for the Intelligence and Security Committee to play a greater role in the oversight of national security decision-making across government, including in relation to this Bill. As I mentioned earlier, through the oversight of the National Cyber Security Centre, the Intelligence and Security Committee can request information around NCSC advice on, and activities relating to, high-risk vendors.

However, this amendment would extend the role of the Intelligence and Security Committee in an unprecedented way. As noble Lords are aware, the activities of the Department for Digital, Culture, Media and Sport are not within the ISC’s remit. That committee’s remit extends to the intelligence agencies and other activities of the Government in relation to intelligence or security matters, as they are set out in its memorandum of understanding.

The noble Lord, Lord Coaker, asked what he called the “central question” of how this will work in practice in terms of security access. My understanding is that according to the Osmotherly rules detailing how the Government may share information with Select Committees, members of the Digital, Culture, Media and Sport Committee are able to view and handle classified and other sensitive material, subject to agreement between the department and the chair of the committee on appropriate handling. Documents may also be shared with the chair of the DCMS Committee on Privy Council terms, subject to agreement between the committee chair and the department.

The advice of the intelligence agencies will not be the only factor that the Secretary of State will take into account when deciding what is proportionate to include in a designated vendor direction. As well as the advice of the National Cyber Security Centre, the Secretary of State will consider, among other things, the economic impact, the cost to industry and the impact on connectivity caused by the requirements in any designated vendor direction. The ISC does not have the remit to consider non-security issues such as the economic and connectivity implications of the requirements in designated vendor directions. The Digital, Culture Media and Sport Select Committee can consider those wider aspects and that is why it is the correct and appropriate body to see copies of designation notices and designated vendor directions that are not laid before Parliament. Any future changes to the ISC’s remit would be best managed through consideration of the Justice and Security Act 2013 and the associated memorandum of understanding.

For the reasons that I have set out, I am unable to accept the amendment and I hope that the noble Lord, Lord Coaker, will therefore withdraw it.

[Lord Coaker (Lab)]

I thank the Minister for her reply. The Government are going to have to reconsider this matter. The explanation of what can or cannot be looked at is very unclear. The purpose of the amendment is to make it clear through the legislation that the Intelligence and Security Committee would have an automatic right to look at some of the threats, rather than it being the judgment of someone, who has to consult someone else to make a decision. That is the whole point. It should not be a question of someone deciding after discussion whether the matter should go forward; there should be a requirement in the Bill that that be done.

The point that I keep making is that at security clearance level 3, hardly anyone in the country could look at this matter, but there may well be aspects of a threat to telecommunications from a state that are at that level. All that any of us is saying is that of course Parliament should not be openly told about it, but that does not mean that there should be no scrutiny by the committee set up with that express purpose, so that we have oversight and scrutiny of even the most highly classified information. It would be a great credit to our democracy if the even highest level of security threat were subject to a check, set up by Parliament.

I and the Committee are saying to the Minister that this matter needs to be reconsidered. Even the Government, in response to the debate in the other place, have said that they are going to look at the next annual report of the Intelligence and Security Committee to see whether its remit should be extended to include the DCMS Committee. The Government are therefore aware that there is a problem here and say that they will look at this issue. We are trying to horizon-scan here and are saying that this will be a problem if this proposal is not included in the Bill.

I honestly believe that the Government really are going to have to look at this. I am going to repeat that because it is so important. The Minister herself, even the Secretary of State, will not know of some of this. The noble and gallant Lord, Lord Stirrup, knows how many people know, but it is very few. Yet the Intelligence and Security Committee was set up to consider this issue and we are saying that there should be measures in the Bill to deal with it.

The reason why the noble Lord, Lord Fox, and I are incredulous is that this just does not logically hold together. This is not an opinion but a fact: if the Bill goes through unamended, we in Parliament will not be able to look at the security threats that people are making decisions about. It is accepted that not everybody should be told about such things—of course not—but I doubt whether Parliament thinks that this situation is acceptable. I ask the Minister to reconsider that.

Telecommunications (Security) Bill

Lord Coaker Excerpts

Report stage
Tuesday 19th October 2021 Lords Chamber

Moved by

[Lord Coaker]

9: After Clause 23, insert the following new Clause—
“Provision of information to the Intelligence and Security Committee
The Secretary of State must provide the Intelligence and Security Committee of Parliament as soon as is reasonably practicable with a copy of—(a) any direction or notice (or part thereof) that is withheld from publication by the Secretary of State in the interests of national security in accordance with section 105Z11(2) or (3) of the Communications Act 2003;(b) any notification of contravention given by the Secretary of State in accordance with section 105Z18(1) of the Communications Act 2003; (c) any confirmation decision given by the Secretary of State in accordance with section 105Z20(2)(a) of the Communications Act 2003;(d) any reasons for making an urgent enforcement direction that are withheld by the Secretary of State in the interests of national security in accordance with section 105Z22(5) of the Communications Act 2003; and(e) any reasons for confirming or modifying an urgent enforcement direction that are withheld by the Secretary of State in the interests of national security in accordance with section 105Z23(6) of the Communications Act 2003.”Member’s explanatory statement
This new Clause would ensure that the Intelligence and Security Committee of Parliament is provided with any information relating to a designated vendor direction, notification of contravention, urgent enforcement action or modifications to an enforcement direction made on grounds of national security.

[Lord Coaker (Lab)]

My Lords, I welcome the noble Lord, Lord Parkinson, to his position. I am sure we will end up speaking to each other across the Dispatch Box. I wish him all the best and good luck with the important work he will be doing as a Minister of the Crown. We all wish you well in that role.

Turning to my amendment, we appreciate that, obviously, it is sometimes difficult to strike a balance between the public availability of information, even for debate by Parliament, and national security. This amendment seeks to probe the Government’s thinking. So far, their reassurances have been somewhat lacking.

I often use, and want to use, evidence—not just what I think and others may wish to say—regarding how the Government should use the Intelligence and Security Committee. It was set up by a unanimous decision of both Houses of this Parliament because they recognised that some information is so sensitive that it cannot be put in the public domain, as that would undermine national security. No Member of this Chamber or the other place would argue with that or say that that is wrong in principle. But so far, in respect of the security aspect of telecommunications, the Government have said that the existing processes and way of doing things works. Many of us would disagree with that and feel that more reassurance needs to be offered and that the Government need to rethink this.

In moving this amendment, I will use evidence from the chair of the Intelligence and Security Committee himself. I do not need to go on about this, because he summed it up in one sentence. Speaking about the Telecommunications (Security) Bill in the other place, he said:

“It is both puzzling and exasperating that the Government are yet again refusing to use the Intelligence and Security Committee for the purpose for which it was created.”—[Official Report, Commons, 25/5/21; col 286.]


That is quite a stunning sentence. I could quote the whole speech, but for me that encapsulates it. It is for the Minister say why he is wrong. Why is the chair of the Intelligence and Security Committee wrong to say that about the powers in this Bill and the security issues that will arise in respect of telecommunications now and in future? Why is it wrong for the Intelligence and Security Committee to be the body that looks at that information for us?

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I thank the noble Lord, Lord Coaker, for his kind words of welcome and for tabling this amendment. The important matter of parliamentary oversight has been raised a number of times in both your Lordships’ House and another place. I welcome the opportunity to clarify further how appropriate oversight of the Bill’s national security powers will be provided for both in this Bill and through existing mechanisms. The noble Lord’s amendment would require the Secretary of State to provide the Intelligence and Security Committee with copies of a directional notice when such documents, or parts of them, are withheld under Section 105Z11(2) or (3) in the interests of national security.

As regards enforcement, this amendment would also require the Secretary of State to provide the committee with copies of notifications of contraventions and confirmation decisions. Further, it would require the provision of reasons for giving urgent enforcement directions when withheld under Section 105Z22(5), as well as the reasons for confirming or modifying such directions when withheld under Section 105Z23(6).

We thoroughly agree with the need for effective scrutiny of the use of the Bill’s national security powers—that is why we have included measures to facilitate parliamentary oversight of the use of those powers. The Bill requires the Secretary of State to lay before Parliament copies of designation notices, designated vendor directions, and variations or revocations of either, unless doing so would be contrary to the interests of national security. We would expect in the vast majority of cases to lay copies of the directions and notices before Parliament. However, on very rare occasions there may be instances where the Secretary of State chooses not to do so because laying the documents would be contrary to the interests of national security. This would only be done in extremis.

We have already demonstrated our commitment to transparency with the publication of the illustrative draft designated vendor direction and designation notice last November. Indeed, it is in the Government’s interest to publish such documents as it sends a clear message to industry of our intent to use the powers in the Bill where necessary. However, while the presumption is to publish the directions and notices, it is right that we have the option to protect the UK if our national security could be put at risk through their publication.

It is worth noting that, under Section 390 of the Communications Act 2003, the Secretary of State is required to prepare and lay before Parliament annual reports on their functions under that Act. Those reports will show when the Bill’s national security powers have been exercised, whether or not copies of directions or notices are laid before Parliament. This will ensure that Parliament will always be made aware of the Secretary of State’s use of the national security powers to issue designated vendor directions and designation notices.

Having thus been made aware, the Intelligence and Security Committee will be able to request relevant information from the vital organisations it already oversees, such as the National Cyber Security Centre. Moreover, the ISC will be able to request such information at any time from the NCSC in relation to its assessment of high-risk vendors. The noble Lord is right to point to the importance of the committee. Given the cross-party support he enjoys, he knows better than most, as a former Security Minister, the important work it undertakes. The ISC will be able to do the work I have just outlined in line with its remit, as set out in the provisions of the Justice and Security Act 2013 and accompanying memorandum of understanding.

At Second Reading, the Noble Lord, Lord West, noted that the ISC had made a request for its memorandum to be formally reviewed. I understand that the chairman of the ISC has written to the Cabinet Office on these matters and that they are under consideration. Discussions and decisions regarding any changes to the ISC’s remit are of course for the Cabinet Office and the ISC to agree. That is the appropriate route for the ISC’s remit to be considered, not this Bill.

As I am sure noble Lords will appreciate, however, the advice of the security services will not be the only factor that the Secretary of State will take into account when deciding what is proportionate to include in a designated vendor direction. As well as the NCSC’s advice, the Secretary of State will consider, among other things, the economic impact, the cost to industry and the impact on connectivity of the requirements in any designated vendor direction. Those go beyond security matters and indeed fall under the work of DCMS; therefore, the Digital, Culture, Media and Sport Committee is best placed to consider those wider impacts. Hence, that is the appropriate body to oversee the Government’s use of the powers to issue designation notices and designated vendor directions, including where those directions and notices are not laid before Parliament. The Government will work with the committee to ensure that it has access to all the information it needs to carry out that oversight.

Those are the reasons why the Government cannot accept the amendment. I hope that the noble Lord will be content to withdraw it on that basis.

[Lord Coaker (Lab)]

I thank the Minister for a generally helpful reply and for his engagement with the amendment itself, my remarks and those of the noble Lord, Lord Fox. It is helpful when a Minister engages with a debate, rather than just reading the words in front of him. The Minister did that, and that is to be welcomed.

The Minister offered reassurance on many of the issues that I raised—and they are issues. The debate has in some ways gone beyond the Bill itself and will help the debate within government about how to resolve the issue of national security and parliamentary scrutiny. Of particular importance was the Minister saying that the memorandum of understanding between the Government and the ISC is being reviewed. That MoU is crucial, and the debate we have had on this Bill and, indeed, this amendment, should inform the Government of the view of many in this House and beyond that the memorandum of understanding needs to be clarified and perhaps reviewed and changed. I ask the Minister to ensure that that review happens in the discussions that take place within government.

With those remarks, I beg leave to withdraw the amendment.

Amendment 9 withdrawn.

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Moved by

[Lord Coaker]

10: After Clause 23, insert the following new Clause—
“Long-term strategy
(1) Within six months of this Act being passed, the Secretary of State must publish a long-term strategy on telecommunications security and resilience.(2) The strategy must include but is not limited to—(a) the objectives of the United Kingdom in working with NATO, Five Eyes partners, and other allies, on research and development, adoption and deployment, standards, and overall strategy;(b) how the strategy will provide security and resilience in the long term;(c) how this Act supports strategic objectives in the Integrated Review of Security, Defence, Development and Foreign Policy;(d) how this Act will complement the powers in the National Security and Investment Act 2021 in the long term and whether a review is needed;(e) whether, for the purposes of telecommunications security, an international advisory body should be set up to help coordinate, influence and develop guidance and standards;(f) how the United Kingdom, in collaboration with its allies, will monitor, horizon-scan for, and respond to, current and emerging threats;(g) whether the United Kingdom security infrastructure is adequately resourced to respond to threats against its telecommunications network;(h) how to secure the adequacy of OFCOM’s resourcing in fulfilling its functions provided in this Act.(3) The strategy must be laid before Parliament.”

[Lord Coaker (Lab)]

In moving Amendment 10 I will also speak to Amendment 11 in the names of the noble Lords, Lord Alton, Lord Blencathra and Lord Fox, to which I have also put my name.

Amendment 10 seeks to future-proof the Bill. It strengthens the bonds with our international partners, ensures horizon-scanning and provides security and resilience in the long term. It again pushes the Government on a long-term strategy for the security and resilience of our telecoms network. What plans do the Government have for that?

I think all of us in this House understand that this is a fast-changing world, and many of us would not have predicted just a few years ago some of the challenges and threats we face now. Flexibility and adaptability are crucial, and a strategy needs to be put together alongside that. Indeed, the Government themselves have accepted that in their response to the House of Commons Science and Technology Committee document, 5G Market Diversification and Wider Lessons for Critical and Emerging Technologies. Indeed, the Government’s response says that there is a need for strategies and for the Government to look to future threats. Amendment 10 is an attempt to understand how all the Government’s various strategies—I did not count them, but they are putting forward many—will be put together to ensure that we have one overarching strategy dealing with the threats this country faces with respect to security and telecommunications, and in a way that is understandable and meets the challenges we may face in the future. As I say, the purpose of this amendment is to push the Government again on what their strategy is.

Amendment 11 is an incredibly important amendment. Leaving aside the various intellectual arguments, the policy documents that can be quoted, the evidence that can be cited and so on, the ordinary member of the public, who often gets left out of debates such as this, would say something like the following. The Five Eyes, which includes Australia and New Zealand, is one of our most important intelligence communities. Indeed, we have just signed the AUKUS deal, which does not involve all of the Five Eyes but is nevertheless important. Therefore, it is really important that within the Five Eyes there is a commonality of purpose, of understanding and of action.

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[Lord Coaker (Lab)]

My Lords, I thank the Minister for his reply. Speaking first to Amendment 10, the Minister gave some reassurance to the House in respect of a strategy. He and I mentioned numerous strategies and I think all of us hope that somewhere along the line they are co-ordinated; otherwise, we will end up with a strategy to deal with a strategy, which is not a good place for anyone to be. I shall leave the noble Lord, Lord Alton, to deal with Amendment 11. I beg leave to withdraw Amendment 10.

Amendment 10 withdrawn.