Investigatory Powers (Amendment) Bill [HL]

Lord Sharpe of Epsom Excerpts

Committee stage
Wednesday 13th December 2023 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, I support the points the noble Baroness, Lady Manningham-Buller, made about Amendment 50 regarding the revelation of whether someone who is in a legislature has been tapped. I do not think that is possible. I think it has all sorts of practical difficulties which she rightly outlined, and that situation is something that I could not in any way support.

I want to come back to the issue of “unable” or “unavailable” with regard to the Prime Minister. I think that it is right that it should be “unable”, because of the gravity of the business of tapping the phone of a Member of Parliament or a devolved legislature. I suspect that such a possibility is hugely remote; it might not happen for years and years. However, when it does happen, it is exceptionally serious, because you are not only depriving that Member of Parliament of liberty—you are in many ways saying that the person who has been elected by his or her constituents as a Member of Parliament or of the Senedd, or whatever it may be, is now in some doubt as a public representative. That is hugely serious, so the triple lock is important, but the word “unable” is more serious a word than “unavailable”, and I support changing the word in the Bill.

I also very much agree with the noble Lords, Lord West and Lord Coaker, about the nature of the Secretaries of State who should be the substitute for the Prime Minister if the Prime Minister was unable to perform his or her duty with regard to tapping the phone of a parliamentarian. I tapped phones for three or four years almost every day, except at weekends—occasionally at the weekend, but mainly on weekdays—and I took it very seriously. I knew that I was depriving someone of their liberty and privacy; generally speaking, they deserved to be deprived of their liberty because of the horrible things that they might do. Sometimes, although very rarely, I would not sign them, because I was not convinced of the argument put to me.

Someone who has the experience over the years of dealing with warrants has an idea of the nature of the act of signing the warrant and how important it is. It is not simply about reading it and putting your name at the bottom—you have to think about it very seriously. Your experience develops as time goes by. In fact, when I was unable or, more likely, unavailable to sign warrants as Northern Ireland Secretary—if I was on the beach somewhere in the Vendée, as I occasionally was—somebody else would sign the warrants that I would normally have signed. It was generally the noble Lord, Lord Blunkett, who was then the Home Secretary—and when he went on holiday somewhere, I signed his. The point about that was that, technically, almost every member of the Cabinet—because by then nearly every member was a Secretary of State—could have signed. But I knew, when the noble Lord, Lord Blunkett, signed mine, that he knew what he was doing—and vice versa, I hope. Therefore, there should be some way in which we designate Secretaries of State who are used to signing warrants to be a substitute for the Prime Minister.

The other issue, on which I shall conclude, is that the debate so far is evidence of why it is so important that the Intelligence and Security Committee puts its views to this House, through the noble Lord, Lord West, and that the committee should look carefully at these matters.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank all noble Lords who have spoken in this debate, which was fascinating. I shall start by addressing the amendments and points raised on the circumstances in which the alternative approvals process would be used—that is, for urgent warrants when the Prime Minister is not available. First, it is worth reminding noble Lords that we have set out a non-exhaustive list of such circumstances in the draft excerpt of the relevant code of practice published last week. I shall come back to that in a moment.

I start with Amendments 44 and 51A, tabled by the noble Lord, Lord Anderson of Ipswich, and spoken to by the noble and learned Lord, Lord Hope of Craighead, which seek to widen the situations in which the alternative approvals process could be used to include situations where the Prime Minister is “unable” to consider a warrant—not only when they are “unavailable”. As the noble and learned Lord indicated, the amendments would extend the circumstances where the alternative approvals process could be utilised to expressly include instances where the Prime Minister has a conflict of interest in considering a warrant application.

I remind noble Lords that the Prime Minister, like all Ministers, is expected to maintain conduct in line with the Nolan principles in public life: selflessness, integrity, objectivity, accountability, openness, honesty, and leadership. When a Prime Minister has a conflict of interest in approving a warrant, due to any personal or professional connection to the subject of the warrant, they are expected to continue to act in the public interest. Therefore, in these situations, the Government consider that the alternative approvals process is not required.

When drafting the Bill, the Government considered at some length whether to make further provision for conflict of interest, along the lines of the noble Lord’s amendment, and concluded that they should not. The primary reason is that, in order for a conflict of interest provision to function, a Secretary of State or unelected official involved in the warrantry process would have to be granted the ability, in certain situations, to take from the Prime Minister a personal power given to them alone by Parliament. Unlike the provisions in Clause 21, which permit the Prime Minister to delegate their power to approve these warrants if they are unavailable, this would require a subjective decision to be made on whether the Prime Minister could, in theory, be judged able to approve the warrant. A conflict of interest provision would also have significant implications for Cabinet hierarchy and the constitution. This is because a Secretary of State or an unelected official would have to determine that the Prime Minister had a conflict in approving the warrant and was therefore “unable” to be made aware of the warrant request. It is for these reasons that the Government decided that a conflict of interest provision should not be included in the Bill.

I have referred to the draft code of practice, and the noble and learned Lord, Lord Hope of Craighead, referred to my letter. I can confirm that many of the words in that letter appear to have reappeared in the code. Paragraphs 5, 5.1 and 5.2 state that:

“Prime Ministerial unavailability should be understood to mean situations in which the Prime Minister is genuinely unavailable to consider the application. For example (non-exhaustive) … The Prime Minister is overseas in a location where they are unable to receive the warrant application due to the security requirements and classification of the documents … The Prime Minister is medically incapacitated and therefore unable to consider the warrant”.


I am very happy to share the code of practice further with all noble Lords, if they would like to see a copy.

I have noted that this conflict of interest provision is specifically not included in the similar Amendments 43 and 51, tabled by the noble Lord, Lord West, which seek to limit the circumstances in which the alternative approvals process can be used due to

“incapacity (ill-health) or lack of access to secure communications”.

As the code of practice sets out, these are two of the key scenarios for which the measure is required, but an amendment of this nature would not cater for unforeseeable events and would leave an unacceptable level of vulnerability in the system. Given that the aim is to increase the resilience of the process, these amendments feel opposite in intent. The moment that a circumstance arises in which the Prime Minister is unable, for a reason other than the two given, to authorise an urgent warrant application, the system would provide a blocker to the intelligence agencies being able to conduct their vital work, which is of course keeping parliamentarians and the public at large safe and secure. I therefore ask noble Lords not to press their amendments. However, I note the views expressed today and am very happy to continue discussions and to meet the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, again to discuss this further.

I turn to Amendments 48 and 53, also tabled by the noble Lord, Lord West. These would introduce a review by the Prime Minister of warrants authorised via the alternative approvals process for interception and equipment interference. Clauses 21 and 22 are set up in such a way that the Prime Minister’s power is afforded to the Secretary of State for the purposes of triple-locked warrantry in specific circumstances; in effect, they are acting as the Prime Minister for the purposes of the Act, not as a deputy. As such, including a requirement for the Prime Minister to review the decision after the fact would not provide additional meaningful oversight beyond that which is provided by the alternative approver on their behalf. The decisions made by the initial Secretary of State and the alternative approver would still be subject to review by the judicial commissioner, so would have already been subject to significant scrutiny. The Government therefore cannot support these amendments.

I turn to the issue of to whom the Prime Minister can delegate this process. Amendments 47 and 49, tabled by the noble Lord, Lord Coaker, and Amendments 46 and 52, tabled by the noble Lord, Lord West, all seek to limit the Secretaries of State whom the Prime Minister can designate as alternative approvers. Directing the actions of the current and any future Prime Minister by limiting the Secretaries of State to only those mentioned in statute is short-sighted, in that it does not consider potential changes to the machinery of government, as the noble Lord, Lord West, noted.

Furthermore, I invite noble Lords to consider the scenario where, for example, the Home Secretary has provided the initial approval for the application before it is considered as part of the alternative approvals process. The Home Secretary should not then consider the application on behalf of the Prime Minister; this is because it would remove a stage of scrutiny in the triple lock process. Additionally, given the potential for there to be concurrent overseas travel of the Prime Minister and at least one other relevant Secretary of State, limiting the process in this way could fail to provide the necessary resilience. While there should not be an unlimited number of designates, it is important that there are enough alternative approvers to be prepared for these scenarios.

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[Lord Fox (LD)]

I am anticipating the Minister sitting down shortly. I remind the Minister that I asked a specific question on directly elected regional mayors, their rise, and the role that they play in democracy, which is so different to when the IPA was originally conceived. The Minister may not have an answer now, but a written answer would be very helpful.

[Lord Sharpe of Epsom (Con)]

I am happy to acknowledge that the noble Lord is right: their powers have expanded, as have their influence and celebrity over the years. I do not have an answer now, but I will come back to the noble Lord on that.

The objective of these clauses is to provide greater resilience in the process. It is critical that we do not undermine this from the off. I therefore hope noble Lords feel reassured by the explanations given, and the information set out in the draft code of practice, which is the appropriate place to set out the detail of this alternative process.

[Lord Coaker (Lab)]

May I say to the noble Lord that the answer he gave to me with respect to the Mail on Sunday story was a really good answer? I am seeking transparency, which we will come on to in the next set of amendments, where Ministers can provide it without compromising operational security, as the noble Baroness, Lady Manningham-Buller, rightly pointed out. The Minister went as far as he could to say that the story needs to be looked at, it raises particular issues and I can pursue those outside of the Chamber. That was an extremely helpful comment and shows what I am trying to get at with respect to transparency—rather than just dismissing it and saying we cannot talk about it. I am very grateful for the response and thought it was very helpful.

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[Lord West of Spithead (Lab)]

My Lords, I absolutely support what my noble friend has said. I was about to leap up and say that this should not be discussed in this forum because some of it is so sensitive. The Minister handled it extremely well, but we are getting quite close to the margins.

[Lord Sharpe of Epsom (Con)]

I thank both noble Lords for their thanks. I have forgotten where I was, but I had pretty much finished.

[Lord West of Spithead (Lab)]

I beg leave to withdraw my amendment.

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Moved by

[Lord Sharpe of Epsom]

56: Clause 26, page 44, line 22, at end insert—
“(3) After paragraph 24 insert—“25 “(1) Nothing in section 56(1) prohibits—(a) a disclosure to a relevant coroner conducting an NI investigation or inquest, or(b) a disclosure to a qualified person—(i) appointed as legal adviser to an inquest conducted by the coroner, or(ii) employed under section 11(3) of the Coroners Act (Northern Ireland) 1959 (c. 15) (“the 1959 Act”) by a relevant coroner to assist the coroner in an investigation conducted by the coroner,where, in the course of the investigation or inquest, the relevant coroner (“C”) has ordered the disclosure to be made to C alone or (as the case may be) to C and any qualified person appointed or employed by C as mentioned in paragraph (b).(2) A relevant coroner may order a disclosure under sub-paragraph (1) only if the coroner considers that the exceptional circumstances of the case make the disclosure essential in the interests of justice.(3) In a case where a coroner (“C”) conducting, or who has been conducting, an NI investigation or inquest is not a relevant coroner, nothing in section 56(1) prohibits—(a) a disclosure to C that there is intercepted material in existence which is, or may be, relevant to the investigation or inquest; (b) a disclosure to a qualified person appointed by C as legal adviser to the inquest or employed by C under section 11(3) of the 1959 Act to assist C in the investigation, which is made for the purposes of determining—(i) whether any intercepted material is, or may be, relevant to the investigation, and(ii) if so, whether it is necessary for the material to be disclosed to the person conducting the investigation.(4) In sub-paragraph (3) “intercepted material” means—(a) any content of an intercepted communication (within the meaning of section 56), or(b) any secondary data obtained from a communication.(5) In this paragraph—“the 1959 Act” has the meaning given by sub-paragraph (1);“coroner” means a coroner appointed under section 2 of the 1959 Act;“NI investigation or inquest” means an investigation under section 11(1) of the 1959 Act or an inquest under section 13 or 14 of that Act;“qualified person” means a member of the Bar of Northern Ireland, or a solicitor of the Court of Judicature of Northern Ireland);“relevant coroner” means a coroner who is a judge of the High Court or of a county court in Northern Ireland.26 (1) Nothing in section 56(1) prohibits—(a) a disclosure to a relevant person conducting an inquiry under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (2016 asp 2) (“IFASDA 2016”), or(b) a disclosure to a qualified person appointed under section 24 of that Act to assist a relevant person in the inquiry,where, in the course of the inquiry, the person conducting the inquiry has ordered the disclosure to be made to that person alone or (as the case may be) to that person and any qualified person appointed to assist a relevant person in the inquiry.(2) A relevant person may order a disclosure under sub-paragraph (1) only if the person considers that the exceptional circumstances of the case make the disclosure essential in the interests of justice.(3) Nothing in section 56(1) prohibits—(a) a disclosure to a relevant person conducting an inquiry under IFASDA 2016, or(b) a disclosure to a qualified person appointed under section 24 of that Act to assist a relevant person in the inquiry,that there is intercepted material in existence which is, or may be, relevant to the inquiry.(4) In sub-paragraph (3) “intercepted material” means—(a) any content of an intercepted communication (within the meaning of section 56), or(b) any secondary data obtained from a communication.(5) In this paragraph “relevant person” means—(a) a sheriff principal,(b) a temporary sheriff principal, or(c) a sheriff or part-time sheriff (but not a summary sheriff or part-time summary sheriff) designated as a specialist under section 37(1) or (3) of IFASDA 2016.(6) In this paragraph “qualified person” means an advocate or solicitor; and “advocate” and “solicitor” have the same meaning as in IFASDA 2016 (see section 40 of that Act).”” Member's explanatory statement
This amendment inserts into Schedule 3 to the Investigatory Powers Act 2016 (exceptions to exclusion of matters from legal proceedings etc) exceptions about disclosures to inquiries or inquests in Northern Ireland or Scotland into a person’s death. The exceptions are similar to existing provision in relation to England and Wales.

[Lord Sharpe of Epsom (Con)]

My Lords, I will speak to government Amendments 56, 59 and 60. As I set out in my letter to all noble Lords on 4 December, these small amendments will ensure that the legislation works effectively.

Government Amendment 56 amends Schedule 3 to the Investigatory Powers Act 2016 to provide exceptions for disclosures of intercepted materials to inquiries or inquests in Northern Ireland and Scotland into a person’s death. This will create parity with existing provisions for coroners in England and Wales by putting relevant coroners in Northern Ireland and sheriffs investigating deaths in Scotland on the same footing as their counterparts in England and Wales. Where necessary in the interests of justice, intercepted materials can be considered in connection with their inquiry or inquest.

Government Amendments 59 and 60 will maintain the extent of the IPA 2016, as set out in Section 272 of that Act. They amend this existing power to ensure that the measures in the 2016 Act, as amended by this Bill, can be extended to the Isle of Man or the British Overseas Territories, thus ensuring consistency across the legislation. If the Government sought to extend any provision to the Isle of Man or any of the British Overseas Territories, this would require an Order in Council and the Government would, of course, consult the relevant Administrations well in advance. I ask noble Lords to support these amendments.

[Lord Coaker (Lab)]

My Lords, I will speak to my Amendments 57 and 58. They are obviously probing amendments but may generate a little discussion because they are none the less important.

Let me begin by saying that I accept absolutely what the noble Baroness, Lady Manningham-Buller, said about the important of ensuring the secrecy of much of what our security services and others do. That is an important statement of principle, and it was reinforced by my noble friend Lord Murphy when he recounted, as far as he could, some of the responsibility he had in his posts, particularly as Secretary of State for Northern Ireland. It is important to establish that I accept that principle.

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[Lord Fox (LD)]

My Lords, I shall be brief. Just on the subject of suspicion, which I think I raised it, I was thinking—perhaps I did not articulate it well—that it was at the political-class level. It is not hard to construct a suspicious scenario where a Westminster-based Executive are hacking an Edinburgh-based politician—I am sure that suspicion would apply there. However, the noble Baroness is right about the public.

The amendment in the name of the noble Lord, Lord Coaker, is important, not because this sort of thing needs to go into primary legislation, but because his point around emphasising public understanding and support which has come out is really important. He picked out the fact that a number of officeholders have worked hard at generating a positive profile for the services, and for that they should be thanked and congratulated. I would add GCHQ, the public profile of which probably did not even exist a decade or so ago. I have several very sad friends who can hardly wait with excitement for the annual GCHQ quiz to arrive. Things like that essentially draw attention to the nature of the work that such organisations do. I laugh at those friends but then I cannot solve it and they can, so perhaps they are the winners there. Those sorts of things do not shed light and throw open the doors on the things the noble Baroness and others fear should not be public, but they create an ambience around those services which is important.

Nobody has mentioned the amendments in the name of the noble Lord, Lord Sharpe, which I guess is exactly what he wanted, and I have nothing to add to them either.

[Lord Sharpe of Epsom (Con)]

My Lords, I thank the Committee very much indeed for the points raised in this short debate, which eloquently explained the fine balance that needs to be struck in this area. As this is the last group, I take this opportunity to thank all the men and women in all the security services, who do so much to keep us safe.

[Noble Lords]

Hear, hear.

[Lord Sharpe of Epsom (Con)]

It is nice to hear that the Committee reflects that sentiment.

I appreciate the sentiment behind the amendments in the name of the noble Lord, Lord Coaker, but the Government cannot accept them. He is right that public trust and confidence in public authorities’ use of investigatory powers is of course essential. The Investigatory Powers Commissioner, along with his judicial commissioners, fulfils that very important function, as does the Investigatory Powers Tribunal. The IPC provides independent, robust and transparent oversight of public authorities’ use of investigatory powers. The safeguards in the Act are world-leading in that regard. The IPT, meanwhile, provides for a redress mechanism for anyone who wishes to complain about the use of investigatory powers, even if they have no evidence of potential wrongdoing.

As the noble Lord is aware, the Investigatory Powers Commissioner is already required to produce an annual report, which is published and laid in Parliament. One of the purposes of this public report is to provide transparency around how the powers are used, any errors that have been reported on public authorities’ compliance with the legislation, and where he considers that improvements need to be made. Amendment 57 would not really provide meaningful or additional oversight over and above what is already in place, and would in many areas be duplicative.

On Amendment 58, the noble Lord, Lord Coaker, is seeking to introduce a similar requirement to that in the original Act, in that case requiring a report on the operation of the Act to be produced five years after it entered into force. That report was published by the Home Secretary in February this year and formed the basis for the Bill, along with the report from the noble Lord, Lord Anderson. As set out in the Home Secretary’s report—and noted by the noble Lord, Lord Anderson—it is the Government’s view that future legislative reform is likely to need to keep pace with advancements in technology and changes in global threats.

It is not necessarily helpful to put a time limit on when these updates should be made. The Bill makes urgent and targeted amendments to the IPA, and it is important that there is adequate time to implement those changes and assess over an appropriate period whether they are sufficient. As I said, the Government are well aware that future legislative reform is likely and, if I may channel my inner Ronan Keating, “Life is a rollercoaster”. I hope that my explanations have reassured the noble Lord, Lord Coaker, on the existing process in place and invite him to not press his amendment.

Amendment 56 agreed.

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Moved by

[Lord Sharpe of Epsom]

59: Clause 29, page 45, line 12, leave out “to subsection (2)” and insert “as follows”
Member's explanatory statement
This amendment is consequential on the amendment in the name of Lord Sharpe of Epsom at page 45, line 14.