Investigatory Powers (Amendment)Bill [Lords]

Baroness Winterton of Doncaster Excerpts

Report stage
Monday 25th March 2024 Commons Chamber

[Dan Jarvis (Barnsley Central) (Lab)]

I beg to move, That the clause be read a Second time.

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to discuss the following:

New clause 2—Requirement for the Secretary of State to publish an annual report on technology-enabled serious and organised crime and technology-enabled threats to national security—

“After section 234 of the Investigatory Powers Act 2016, insert—

“234A Requirement for the Secretary of State to publish an annual report on technology-enabled serious and organised crime and technology-enabled threats to national security

(1) The Secretary of State must publish a report on technology-assisted crime insofar as it relates to measures set out in this Act and the Investigatory Powers Act 2016.

(2) The report must be published within one year of the passing of the Investigatory Powers (Amendment) Act 2024, and annually thereafter.””

This new clause would ensure the Secretary of State publishes an annual report on technology-enabled serious and organised crime and technology-enabled threats to national security insofar as it relates to measures set out in this Act and the Investigatory Powers Act 2016.

New clause 3—Prevention of torture or cruel, inhuman or degrading treatment or punishment—

“(1) The Investigatory Powers Act 2016 is amended as follows.

(2) Before section 260 (and the cross-heading before that section), insert—

“Prevention of torture or cruel, inhuman or degrading treatment or punishment 259A Prevention of torture or cruel, inhuman or degrading treatment or punishment

No public authority may take any action, whether retention, examination, disclosure, handing over to any overseas authority or any other action authorised by this or any other enactment, in relation to material obtained in accordance with the provisions of this Act if the public authority knows or believes that action—

(a) would result in torture or cruel, inhuman or degrading treatment or punishment, or

(b) presents a real risk of resulting in torture or cruel, inhuman, or degrading treatment or punishment.””

New clause 4—Members of Parliament: interception and examination of communications and equipment interference—

“(1) The Investigatory Powers Act 2016 is amended as follows.

(2) In section 26 (targeted interception warrants and targeted examination warrants: Members of Parliament etc.), after subsection (2), insert—

“(2A) The Secretary of State may not issue the warrant if it relates to communications sent by, or intended for, a member of the House of Commons.”

(3) In section 111 (targeted equipment interference warrants: Members of Parliament etc.), after subsection (7), insert—

“(7A) A warrant may not be issued under this section if it relates to—

(a) communications sent by, or intended for, a member of the House of Commons, or

(b) a member of the House of Commons’s private information.””

This new clause would remove the ability of the Secretary of State to authorise the interception of the communications of, or the obtaining of communications intended for, or private information belonging to, Members of Parliament.

New clause 5—Interception notification for Members of Parliament etc.—

“After section 26 of the Investigatory Powers Act 2016 (Members of Parliament etc.) insert—

“26A Interception notification for Members of Parliament etc.

(1) Upon completion of conduct authorised by a warrant under section 26, or the cancellation of a warrant issued under that section, a Judicial Commissioner must notify the subject of the warrant, in writing, of—

(a) the conduct that has taken place, and

(b) the provisions under which the conduct has taken place.

(2) The notification under subsection (1) must be sent within thirty days of the completion of the conduct or cancellation of the warrant.

(3) A Judicial Commissioner may postpone the notification under subsection (1) beyond the time limit under subsection (2) if the Judicial Commissioner assesses that notification may defeat the purposes of an ongoing serious crime or national security investigation relating to the subject of the warrant.

(4) A Judicial Commissioner must consult the person who applied for the warrant in order to fulfil an assessment under subsection (3).””

This new clause would require members of a relevant legislature who are targets of interception to be notified after the fact, as long as it does not compromise any ongoing investigation.

Amendment 7, page 3, line 9, leave out clause 2.

Amendment 8, in clause 2, page 3, line 17, leave out “, or only a low,”.

Amendment 24, page 3, line 18, at end insert—

“(1A) This section does not apply to a bulk personal dataset unless it has been published in accordance with the Data Protection Act 2018.”.

This probing amendment would mean that individual and category authorisations for bulk personal datasets would not apply to bulk personal datasets unless they had been published in accordance with General Data Protection Regulation (GDPR) set out in the Data Protection Act 2018.

Amendment 9, page 3, line 34, at end insert—

“(4) By way of example, bulk datasets of images obtained by CCTV and bulk datasets of Facebook posts are not to be considered datasets where the individuals to whom the data relates could have no, or only a low, reasonable expectation of privacy.”.

This is a probing amendment regarding the scope of “low or no reasonable expectation of privacy”.

Amendment 10, page 5, line 7, leave out “any dataset that falls” and insert “all datasets that fall”.

This amendment would clarify that all the datasets covered by a category authorisation must be “low or no privacy” and not just some of them.

Amendment 11, page 11, line 2, at end insert—

“226DZA Notification and review of bulk personal datasets retained under category authorisations

(1) This section applies where a category authorisation has been approved by a Judicial Commissioner under section 226BB.

(2) The head of an intelligence service, or a person acting on their behalf, must notify the Judicial Commissioner within 28 days of a bulk personal dataset being retained or retained and examined under the category authorisation.

(3) The notification under subsection (2) must include a description of the dataset and the data it includes, the purpose for which it is being used and the number of individuals whose data is contained in the dataset.

(4) The Judicial Commissioner, on reviewing any notifications received under subsection (2), must cancel the category authorisation if the Commissioner considers that section 226A no longer applies to any dataset that falls within the category of datasets described in the authorisation.

(5) The Judicial Commissioner, on reviewing any notifications received under subsection (2), must cancel the relevant individual authorisation if the Commissioner considers that the condition in section 226B(4) is not met in relation to that bulk personal dataset.”

This amendment would provide for ex-post facto judicial oversight of the use of category authorisations, including the conditions for individual authorisations made under them.

Amendment 13, in clause 12, page 34, leave out lines 5 and 6 and insert—

“(e) where the communications data has been made publicly or commercially available by the telecommunications operator or postal operator”.

This amendment would align the new provisions with existing Communication Data Codes of Practice.

Amendment 12, page 34, leave out lines 5 and 6.

This amendment would remove one of the example cases where a relevant person has lawful authority to obtain communications data from a telecommunications operator or postal operator, being where the data has been “published”.

Government amendments 3 to 6.

Amendment 14, page 36, line 2, leave out clause 15.

Amendment 15, to clause 15, page 36, line 35, at end insert—

“(c) the Investigatory Powers Commissioner agrees with the judgment of the officer made in accordance with paragraph (b)”.

This amendment would ensure that all use of new powers in relation to Internet Connection Records was subject to oversight by the Investigatory Powers Commissioner.

Amendment 16, page 38, line 11, leave out clause 18.

Amendment 17, page 44, line 39, leave out clause 21.

Amendment 18, in clause 21, page 45, line 3, at the beginning insert “Subject to subsection (1A),”.

This amendment is consequential on amendment 19.

Amendment 19, page 45, line 6, at end insert—

“(1A) The Secretary of State may not give a relevant operator a notice under this section unless the notice has been approved by a Judicial Commissioner.

(1B) In deciding whether to approve a notice under this section, a Judicial Commissioner must review the conclusions of the Secretary of State as to the matters referred to in subsections (5) and (6)”.

This amendment would introduce judicial oversight of new powers to issue communications providers with notices requiring them to notify the Secretary of State of relevant changes to the service.

Amendment 25, page 47, line 28, leave out clause 22.

This amendment is consequential on NC4.

Amendment 20, in clause 22, page 48, line 13, leave out

“has the necessary operational awareness to decide whether”

and insert

“is either required in their routine duties to issue warrants under section 19 or section 102 or has the necessary operational experience”.

This amendment would permit the Prime Minister to nominate a Secretary of State to act for the Prime Minister under this section if they are required in their routine duties to issue warrants under section 19 or section 102 of the Investigatory Powers Act 2016 or if they have the necessary operational experience.

Amendment 21, page 48, line 14, at end insert—

“(2DA) The Prime Minister must be notified of the individual’s decision as soon as it is reasonably practicable to do so.”.

This amendment would require the Prime Minister to be notified of the decision of the designated Secretary of State as soon as is reasonably practicable.

Amendment 27, page 48, line 21, at end insert—

“(2G) The Prime Minister may not give approval under this section unless it has been authorised by a judge of the Supreme Court.”.

This amendment would require the authorisation of a judge of the Supreme Court before the Prime Minister could approve the interception of the communications of a Member of Parliament.

Amendment 26, page 48, line 22, leave out clause 23.

This amendment is consequential on NC4.

Amendment 22, in clause 23, page 49, line 13, leave out

“has the necessary operational awareness to decide whether”

and insert

“is required in their routine duties to issue warrants under section 19 or section 102 or has the necessary operational experience”.

This amendment would permit the Prime Minister to nominate a Secretary of State to act for the Prime Minister under this section if they are required in their routine duties to issue warrants under section 19 or section 102 of the Investigatory Powers Act 2016 or if they have the necessary operational experience.

Amendment 23, page 49, line 14, at end insert—

“(7DA) The Prime Minister must be notified of the individual’s decision as soon as it is reasonably practicable to do so.”.

This amendment would require the Prime Minister to be notified of the decision of the designated Secretary of State as soon as is reasonably practicable.

Amendment 28, page 49, line 18, at end insert—

“(7F) The Prime Minister may not give approval under this section unless it has been authorised by a judge of the Supreme Court.”.

This amendment would require the authorisation of a judge of the Supreme Court before the Prime Minister could approve the obtaining of communications intended for, or private information belonging to, a Member of Parliament.

[Dan Jarvis]

It is a privilege to open debate on Report of this important Bill. At the outset, it is worth reiterating that Labour supports the Bill, which updates aspects of the Investigatory Powers Act 2016. That is because it is imperative that legal frameworks are updated to ensure that our police and security services keep up with changes to communications technology. Doing so ensures that they are always one step ahead of criminals and malign forces who seek to harm us and undermine our national security.

I hope the Minister, and all Members who were present in Committee, agree with me that we had a constructive debate, testing the Bill’s proportionality and robustness. Some matters relating to third-party bulk personal datasets and the oversight process for the addition of new BPDs to existing category authorisations have been largely resolved to the satisfaction of Labour Members, but other important matters still need to be addressed. I will speak first about the new clauses and amendments that stand in my name, before dealing with some of those tabled by other Members.

New clause 1 seeks to ensure that the Secretary of State publishes an annual report on the engagement between the Prime Minister and the Intelligence and Security Committee regarding the investigatory powers regime. A very similar amendment was tabled in Committee, but was withdrawn after a lengthy debate on the ISC oversight arrangements did not make any meaningful progress despite helpful contributions from my right hon. Friend the Member for North Durham (Mr Jones) and the right hon. Member for South Holland and The Deepings (Sir John Hayes). We tabled this new clause because the Government must recognise that the ISC has a vital role to play in the democratic oversight of some of the most powerful measures that the state has at its disposal to keep us safe, to intercept communications and to interfere with equipment.

The ISC is and should be the only Committee of Parliament that can appropriately hold a Prime Minister to account on investigatory powers. There must be accountability at the highest level, and the Prime Minister is no exception. However, many Members, not least members of the ISC, know that this important mechanism is not just broken but has stopped working altogether. Not since 2014 has a Prime Minister appeared before the Committee, but, when asked about successive Prime Ministers’ lack of appearance, the Minister said that such decisions were above his pay grade. That might well be true, at least for now, so if the Minister cannot commit himself to reinstating the convention of Prime Ministers’ appearing before the Committee, the new clause would, at the very minimum, ensure that this new convention of non-attendance is reviewed annually, and scrutinised by this House and the other place. I therefore give notice of our intention to push the new clause to a vote.