Investigatory Powers (Communications Data) (Relevant Public Authorities and Designated Senior Officers) Regulations 2020

Lord Foulkes of Cumnock Excerpts

Wednesday 2nd September 2020 Grand Committee

[Lord Foulkes of Cumnock (Lab Co-op)]

My Lords, may I say that it is a great pleasure to be here in person? For one thing, you do not have the problems that my noble and learned friend Lord Morris is experiencing. However, it was said on the way in that I would not be able to cause as much mischief as I normally do in Grand Committee as we are a bit like battery hens in here. I hope that it does not affect our behaviour in that way.

This is a very important issue. I was a member of the Intelligence and Security Committee for three years between 2007 and 2010, so I have a little inside information about what some of the countries that are not our best friends get up to. This is very important in relation to that, and I will come back to it in a minute.

First, the report of the Secondary Legislation Scrutiny Committee quite rightly points out that the Civil Nuclear Constabulary, the Environment Agency and the Pensions Regulator were removed and now they are being put back in again. There is a sort of explanation under paragraph 5, but it is not really a very satisfactory one.

I suspect—the noble Lord, Lord Paddick, is shaking his head; perhaps he can answer on this—that they were taken out by the coalition because of pressure from the Liberal Democrats and the Conservatives, now that they are ruling on their own, have put them back in again. For once, I agree that they should be in and that that is right—let us find out—but it represents yet another U-turn. We have had lots of them in the last few weeks, have we not? Let us add this one to the list—if anyone is keeping one.

Going back to the Intelligence and Security Committee, there was an astonishing U-turn there, mind you. Chris Grayling was so enthusiastic that he wanted to chair the committee; now he finds that he does not have enough time or enough interest even to be a member. Very strange things are going on there, but I do not think that the Minister, however good she is—and she is a good Minister—would be able to answer on that. Once Chris Grayling had dipped his toe in the water, it was not just right for him, as I think Goldilocks said.

The memorandum for the regulations relating to communications data and relevant public authorities states that the regulations

“have been subject to a successful 12-week consultation period with the Investigatory Powers Commissioner and the public authorities to which the modifications relate as required by … the IPA.”

However, given the role that the ISC had—as I know very well—in scrutinising the original Investigatory Powers Bill before it became law in 2016 and the critical recommendations it made in the 2016 report, can the Minister tell us whether the ISC itself was consulted on these regulations? If so, what did it say? If not, why not?

Similarly, I would be interested to know what scrutiny, involvement or consultation the ISC has had in the overseas production order regulations relating to UK and US communications data sharing.

Finally, these regulations come after the introduction of temporary powers—so many of them were brought into effect by the Coronavirus Act 2020—enabling the Secretary of State to grant the Investigatory Powers Commissioner powers to appoint temporary commissioners with powers to sign warrants to allow authorities to access communications data. That was in anticipation of staff shortages due to coronavirus. The time limit on seeking retrospective warrants was also expanded. As with all temporary regulations put in place because of the epidemic, can the Minister say how long she intends to keep these temporary powers in place?

I have just two or three questions to which I would like answers. Otherwise, although it might not seem it from some of my demeanour, I support the Motion.