Investigatory Powers (Amendment)Bill [Lords]

Stuart C McDonald Excerpts

Report stage
Monday 25th March 2024 Commons Chamber

It seems to me that, were we to have those restrictions, that would not inhibit the Government’s perfectly reasonable ability to stop people developing products that stop us applying the security controls that we all want to see to keep us safe, and would strike the balance better between the powers that the Government must have and the ability that we need commercial manufacturers and developers to have to develop new products that benefit consumers. I hope that the Minister will consider that point when he comes to think about the development of the legislation, but in view of what the right hon. Member for North Durham said, that is all I need to say.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to follow the right hon. and learned Member for Kenilworth and Southam (Sir Jeremy Wright), and to take part in what has already been a very thoughtful debate. We also had a very constructive Committee stage, so the amendments in my name and that of my hon. Friend the Member for Midlothian (Owen Thompson) are designed first to pose some further questions to the Minister, particularly in relation to the offence of unlawfully obtaining communications data, which we discussed in Committee. Secondly, and perhaps more significantly, we again seek to remedy some of the serious concerns that we continue to have about the Bill extending powers beyond what we regard as necessary and proportionate, and the absence of sufficient judicial oversight where such judicial oversight is really required.

First, and briefly, our amendment 13 builds on the discussion in Committee about the offence created by the 2016 Act that will be amended by clause 12. We argued in Committee that the so-called example of “lawful authority” for obtaining communications data in proposed new subsection (3A)(e) of the 2016 Act was an extension of the power rather than a restatement of it. The Minister countered that he was actually seeking only to put existing codes of practice into statute. There is obviously a line of argument that codes of practice do not always necessarily comply with the law, but having gone away to look at the codes of practice it seems that there is a difference between what is currently in the codes of practice and what is currently in the Bill. The wording of amendment 13 reflects the code; the wording of proposed new paragraph (e) seems potentially broader than that. The question for the Minister is why the wording is so different, and whether he can assure us that it is not meant to be interpreted any more broadly than the existing exception in the codes of practice.

The remaining amendments set out our more fundamental concerns with the Bill. In particular, there are three areas where we question the strength of the oversight regime: in relation to bulk personal datasets, internet connection records, and Government notices to companies under clause 21. We regard advanced judicial oversight as important and reassuring not just for members of the public but for those who are exercising the powers. Clause 2 on bulk personal datasets is the first example of where we believe that oversight is being unnecessarily watered down. We are told that the system of advanced judicial authorisation is causing delays and stifling operational flexibility, but to us the answer is to fix those logjams in the oversight system, not to water that system of oversight down. The case for a lighter-touch system of category authorisations has not been made to our satisfaction. That is why we tabled amendment 7, which would take out clause 2.

At the very minimum, why not strengthen the ex post facto oversight beyond annual reviews and reports? Amendment 11 highlights one way to do that, so that the judicial commissioners are reviewing whether what is being done under category authorisations is lawful, cancelling authorisations where that is not found to be the case, and ensuring therefore that we have a clear picture of how the new powers are being used. I noted with interest what the Minister said about the role of IPCO, which we absolutely regard as helpful. However, it would be insufficient, and certainly less robust than our proposal in amendment 11.

[Sir Jeremy Wright]

As the hon. Gentleman set out, amendment 11 would strengthen the hand of the judicial commissioner, and I have some sympathy with that. My concern is that his proposed new subsection (4) says:

“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”.

I wonder why he thinks that the wrongful inclusion of one individual dataset in the category would invalidate the category as a whole, because that seems to me to be the effect of what that part of his amendment would do.

[Stuart C. McDonald]

I am grateful to the right hon. and learned Member for that intervention. He possibly makes a fair point. If I recall correctly, the wording of that proposed new subsection was borrowed from another part of the Bill. I might be wrong about that; I need to go away and have a look. I suppose the argument would simply be that if a category authorisation is to any extent being abused, it is right that the category authorisation is cancelled, and if somebody wants to come back with something similar, they can do so. However, I am not without sympathy to his point. I take it in the spirit in which it was intended, and will reflect upon it.

Let me move on from the question of oversight in relation to bulk personal datasets to the issue of “no” or “low” expectations of privacy in relation to such datasets, and how that test will operate in practice. Throughout the passage of the Bill, we have been repeatedly given some very easy examples of so-called “low/no” bulk personal datasets. For example, we have spoken about phone books, academic papers, public and official records, and other data that many people would have access to routinely. It was helpful that, in relation to what is now our amendment 9, the Minister said in Committee that Facebook posts and CCTV pictures would be considered sensitive and would not be caught by these provisions. It is very helpful to have that on the record.

None the less, it would to be useful to have greater precision in the Bill. Amendment 8 would take out reference to “low” expectations of privacy altogether, so that only “no” expectations would be covered by the new provisions. To us, “low” is such a difficult question to adjudicate—low expectations in particular. That is especially the case when we are dealing with datasets of potentially huge numbers of very different people with very different reasons for having very different expectations of privacy, particularly in how that would relate to different organisations. We cannot think of a single dataset example provided during the passage of the Bill that would not be adequately covered by “no reasonable expectation of privacy”. If that is the case, if that is really all the Bill will be used for, why not just accept the amendment? It would be useful to have an understanding of what “low” expectation of privacy is designed to cover.

Amendment 15 brings us to internet connection records. In 2016, the Government emphasised the very targeted nature of the ICR powers, but here we are being asked to incrementally expand those powers so that they are slightly less targeted. To us, that means that the independent assessment of proportionality and necessity is pivotal, so we think that it should be subject to advance judicial oversight. Even the explanatory notes accept that there are difficulties in formulating sufficiently targeted queries, noting that

“such queries are highly susceptible to imprecise construction”

and that “additional safeguards” are required.

For us, the required additional safeguard is judicial oversight. We were led to believe that the powers would be used only exceptionally, so it is hard to see how a judicial authorisation requirement would cause any significant problem. The Government argue that there may be times when warrants are needed on an emergency basis, but that could be dealt with by having emergency processes or very limited exceptions—it is not an argument against a general rule of advance judicial oversight.

I turn to the impact on technology companies of the Bill’s various provisions relating to notices—although the right hon. and learned Member for Kenilworth and Southam probably made more sensible and eloquent points than those I am about to make. The written evidence that the Bill Committee received shows that tech companies, academics and human rights and privacy campaigners are still a million miles away from the Government in their understanding of how the provisions will work and of the impact that they will have on products and services. Apple wrote to the Committee that these provisions

“would dramatically disrupt the global market for security technologies, putting users in the UK and around the world at greater risk.”

It is frustrating and disappointing that we did not have the opportunity to explore those differences in detail through witness testimony. The Minister did his best to reassure us, and he made some important arguments about extraterritoriality and conflicts of laws, but given the serious concerns that have been raised, it is worth again asking the Minister to explain why those witnesses are wrong and he is correct. In particular, the Government’s explanation that the new pre-notification requirement in clause 21 is

“not intended as an approval mechanism”

has not dampened concerns. Apple argued in evidence to the Committee that

“Once a company is compelled to provide notice of a new security technology to the SoS, the SoS can immediately seek a Technical Capability Notice to block the technology.”

Other provisions in the Bill around maintaining the status quo during notice review periods work in tandem with these provisions to deliver what Apple and others see as a de facto block on adoption of new technology—that is the risk that they are highlighting, and it is what the Minister must address in his speech. It is why we have tabled amendments to take out some of those provisions. It is also why we have tabled amendment 19: an alternative that would introduce advance judicial oversight and, hopefully, a degree of reassurance that the new notification notice regime under clause 21 will not deliver the unintended effects that many fear.

Finally, I put on the record our support for the amendments tabled by members of the Intelligence and Security Committee, whose work on the Bill has been as helpful as ever—I congratulate them on their one-and-a-half victories so far. As is often the case when it comes to Bills of this type, we also put on record our support for several of the amendments tabled by the right hon. Member for Haltemprice and Howden (Sir David Davis), some of which are similar to amendments that we tabled in Committee, while others are similar to amendments that we supported during the passage of other Bills, including the National Security Act 2023. In particular, new clause 3, which is designed to place an absolute prohibition on the UK sharing intelligence with foreign Governments where there is a real risk of torture or cruel, inhuman or degrading treatment, is long overdue and would close a serious gap in the law. For us, that is self-evidently the right thing to do.

[Sir John Hayes]

As you will know, Madam Deputy Speaker, and as other Members have made reference to, I was the Minister who took the original Bill, which this Bill amends, through the House—indeed, it became the Investigatory Powers Act 2016.

The purpose of that legislation was both to draw together a number of the capabilities of the agencies necessary for them to keep us safe, and to put in place a series of mechanisms to ensure that there was proper scrutiny and accountability for those powers. We introduced the principle of a double lock, whereby both politicians and judicial commissioners were necessary to authorise some of those very powers. They matter because of the threats we face. Those threats are, as has been said by a number of contributors, metamorphosising. They were bound to do so, and we anticipated that when the original Act was considered in this place.

I accept the argument used by the shadow Minister, the hon. Member for Barnsley Central (Dan Jarvis), that that does not end here tonight. Those threats will continue to change, and it will be necessary to update the legislation to reflect those changes, for our security services and police need two things to do the job that we expect them to do on our behalf: capacity—namely, skills and resources—and capability, which includes legislative powers.

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[Stuart C. McDonald]

I, too, thank all colleagues who have taken part in the proceedings today, in Committee stage and before, especially members of the ISC whose expertise really does benefit our scrutiny processes. I also thank all the various organisations that have provided written evidence and briefings, both in support of, and in opposition to, the Bill. Finally, may I also thank the Committee staff and the Clerks of the House for helping us through what has in some ways been quite a technical Bill?

The Investigatory Powers Act 2016 set out a detailed framework for use of investigatory powers. The existence of such a legislative framework was welcome, as were some aspects of the framework itself. We worked hard to try to improve that framework, but, ultimately, believed that it fell short of what was required and so we voted against that Bill on Third Reading. We are in much the same place today. We get the motivations for this Bill; they are understood and we are sympathetic with some of what the Bill seeks to achieve. However, we are not convinced that all the powers are shown to have been necessary and proportionate and that there are not other ways to get to where those seeking the new powers need to be.

At the same time, with more extensive powers and more extensive use of those powers, there should come greater oversight. In our view, the Bill heads us in the opposite direction, watering down or failing to put into place necessary advanced judicial oversight. Such oversight, we believe, is of benefit in providing reassurance not only to members of the public concerned with implications for their private lives, but to the very people who need to navigate these powers—members of our security and intelligence services and other public bodies. Instead, they are left to make difficult almost impossible judgments as to their lawful use, necessity and proportionality. Therefore, we do not take this step lightly, but for those reasons we will be voting against Third Reading tonight.

Investigatory Powers (Amendment) Bill [ Lords ] (Second sitting)

Stuart C McDonald Excerpts

Committee stage & Report stage
Thursday 7th March 2024 Public Bill Committees

[Tom Tugendhat]

Clause 11 will ensure that there is clarity for telecommunications operators operating within the IPA framework about which regulatory body certain personal data breaches should be notified to. It also provides a statutory basis for the Investigatory Powers Commissioner being notified of such breaches. Without this change, there will be confusion about personal data reporting obligations and a regulatory gap in respect of certain personal data breaches by telecommunications operators not being dealt with by the appropriate regulatory body. The clause also ensures that an individual affected by a personal data breach can be notified of the breach by the Investigatory Powers Commissioner, if the IPC deems to it to be in the public interest to do so. This will enable them to seek remedy from the Investigatory Powers Tribunal.

Government amendments 1 and 2 build upon the provisions already contained in clause 11 by providing a clear route to redress for those affected by personal data breaches committed by telecommunications operators. They ensure that the Investigatory Powers Tribunal has the jurisdiction to consider and determine complaints about personal data breaches committed by TOs and grant a remedy. The IPT already has significant experience of considering complaints from individuals who believe they have been the victim of unlawful interference by public authorities. It is therefore the appropriate forum to consider complaints regarding certain personal data breaches.

Amendment 1 agreed to.

Amendment made: 2, in clause 11, page 32, line 19, at end insert—

‘(1A) In section 65 of the Regulation of Investigatory Powers Act 2000 (the Tribunal)—

(a) in subsection (2), after paragraph (b) insert—

“(ba) to consider and determine any complaints made to them which, in accordance with subsection (4AA), are complaints for which the Tribunal is the appropriate forum;”

(b) after subsection (4) insert—

“(4AA) The Tribunal is the appropriate forum for a complaint if it is a complaint by an individual about a relevant personal data breach.

(4AB) In subsection (4AA) “relevant personal data breach” means a personal data breach that the individual is informed of under section 235A(5) of the Investigatory Powers Act 2016 (serious personal data breaches).”

(1B) In section 67 of the Regulation of Investigatory Powers Act 2000 (exercise of the Tribunal’s jurisdiction)—

(a) in subsection (1)(b), after “65(2)(b)” insert “, (ba)”;

(b) in subsection (5)—

(i) the words from “section” to the end become paragraph (a), and

(ii) after that paragraph insert “, or

(b) section 65(2)(ba) if it is made more than one year after the personal data breach to which it relates.”

(c) in subsection (6), for “reference” substitute “complaint or reference has been”.

(1C) In section 68 of the Regulation of Investigatory Powers Act 2000 (Tribunal procedure), for subsection (8) substitute—

“(8) In this section “relevant Commissioner” means—

(a) the Investigatory Powers Commissioner or any other Judicial Commissioner,

(b) the Investigatory Powers Commissioner for Northern Ireland, or

(c) the Information Commissioner.”’—(Tom Tugendhat.)

This amendment provides for the Investigatory Powers Tribunal to be the appropriate forum for complaints by individuals about certain personal data breaches reported to the Investigatory Powers Commissioner under section 235A of the Investigatory Powers Act 2016 (personal data breaches).

Clause 11, as amended, ordered to stand part of the Bill.

Clause 12

Offence of unlawfully obtaining communications data

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I beg to move amendment 39, clause 12, page 33, leave out lines 16 and 17.

This amendment would remove one of the examples 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”.

[The Chair]

With this it will be convenient to discuss the following:

Clause stand part.

Clauses 13 and 14 stand part.

The schedule.

[Stuart C. McDonald]

The clause relates to section 11 of the Investigatory Powers Act 2016, which created an offence where a relevant public authority knowingly or recklessly obtained communications data from a telecoms or postal operator without lawful authority. That is an extra protection against unlawful invasions of privacy by public authorities. Comms data can of course be vital to prevent serious crime or to assist in missing persons investigations, but it can also be seriously invasive if not monitored, as such data can reveal all sorts of details about our lives and the people that we are linked with. The clause makes changes to that offence.

It is said that there is a lack of clarity around the concept of lawful authority, so the clause includes some examples of what lawful authority is. Most are uncontroversial—for example, where there is a statutory basis for gathering the data, where there is a relevant court order or an authorisation, or where it is obtained to respond to a call to the emergency services. However, we contest the assertion that new subsection (3A)(e) is a proper example of lawful authority, referring to:

“where the communications data had been published before the relevant person obtained it”.

We are concerned that that is not a correct expression of the law as it stands.

The simple fact of data being published is not in and of itself lawful authority for it to be obtained and subject to surveillance. The fact that I publish a Facebook post at such and such a time in such and such a place does not give public authorities the right to seek it from Facebook. In fact, on a Zoom meeting about a controversial political campaign, it cannot be the case that Zoom can then be ordered by the police to obtain the relevant communications data simply because the data was published and available to those who attended the meeting.

We need a very careful explanation from the Minister about what precisely is intended by the example in paragraph (e) because as drafted—again, it depends on how we interpret these things—it seems to be open to an interpretation that anything even semi-publicly available can be obtained by public authorities without anything more.

[Tom Tugendhat]

I will speak more widely to clause 12 before addressing the amendment. The clause does not create new routes to obtain communications data outside the Investigatory Powers Act. Rather, it provides examples of existing routes to acquire communications data in order to put the existing position, as set out in the communications data code of practice, on to a statutory footing. This will provide clarity that acquiring communications data in this way will amount to lawful authority for the purposes of the offence in section 11 of the IPA. It makes it clear that sharing of communications data between public bodies is lawful. It is not the intention of section 11 to discourage public sector sharing of data when administering public services for purposes such as fraud prevention. Clause 12 puts that beyond doubt.

While discussing clause 12, I will take the opportunity to set out that a communications data authorisation can amount to lawful authority to require a telecommunications operator to carry out any necessary activity on their systems to enable or facilitate the obtaining of the relevant communications data. The list of examples of what will amount to lawful authority in clause 12 will provide additional clarity to the existing drafting of section 60A(5) in the Investigatory Powers Act, which sets out what can be authorised under part 3 for the purposes of acquiring communications data.

I would also like to address an inconsistency with paragraph 176 of the explanatory notes for the 2016 Act and the conduct that the Act permits. To be clear, a communications data authorisation may authorise interference with equipment by a person where that is done to enable or facilitate the acquisition of communications data for the purposes of identifying an entity as well as information about their previous or current location.

The Government do not support amendment 39, moved by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East. Additional authority for published material should not be required for its disclosure by a telecommunications operator to a public authority when that data has been disclosed with the consent of that operator. The consent of the operator provides the lawful authority for the obtaining of the previously published communications data, which public authorities can rely on. It places the existing position, set out in paragraph 15.11 of the communications data code of practice, on a primary legislative footing. It does not create new acquisition routes.

Clause 13 amends the definition of communications data to include subscriber and account data, ensuring that this communications data is available to investigators with an IPA part 3, even if it is transmitted as the content of the message. That is not a broadening of the definition but a clarification of scope. “Subscriber data”, or “account data”, includes the details provided when someone completes an online registration form for a telecommunications service or system. This change overcomes the current uncertainty for investigators about the data types that will be “communications data” and therefore available to them.

Clause 14 restores the general information gathering powers to regulatory or supervisory bodies, which were repealed by section 12 of the 2016 Act. It will ensure that public authorities will be able to utilise their own pre-existing statutory powers to acquire communications data for civil purposes. These are existing statutory powers that have been conferred on public authorities by Parliament—for example, in the regulation of the financial markets to ensure market stability.

Since 2016, the data sought has increasingly moved online and is now being caught by the definition of “communications data” in the 2016 Act. For example, His Majesty’s Treasury is responsible for the civil enforcement of financial sanctions regulations. Some information that is essential in carrying out its civil enforcement functions, such as the timestamp of an online banking transaction, is now communications data, and His Majesty’s Treasury cannot currently use its powers to compel that information to be provided by a telecommunications operator. Communications data is available under the IPA only if the matter under investigation is a serious crime, and so is out of reach for public authorities exercising civil enforcement functions.

[Stuart C. McDonald]

I thank the Minister for his response and his explanation. We will of course take that away and give it consideration again. He has referred to codes of practice being put into statute, so we will go away and look at those codes of practice. Of course, codes of practice can sometimes be inconsistent with various laws as well, so this is not necessarily the end of the matter. It would be helpful if the Minister could perhaps—in writing, or perhaps we will have to revisit it on Report—look at the specific examples that I gave and just explain whether or not those amount to prior publications of comms data.

[Tom Tugendhat]

I am very happy to write to the hon. Gentleman.

[Stuart C. McDonald]

I very much appreciate that, and that will hopefully help to clear things up before we get to the next stage of proceedings. I will withdraw the amendment.

[The Chair]

The question is that clause—

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[Sir John Hayes]

I had it printed out on parchment.

[Stuart C. McDonald]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 12 ordered to stand part of the Bill.

Clauses 13 and 14 ordered to stand part of the Bill.

Schedule agreed to.

Clause 15

Internet connection records

Question proposed, That the clause stand part of the Bill.

[Tom Tugendhat]

The changes made by clause 15 should transform the intelligence services and the National Crime Agency’s ability to detect serious criminals and those seeking to undermine national security. Current internet connection record conditions only enable identification of individuals involved in known events. That means an investigator must know the date, time and service being used, preventing identification of offenders where they cannot be linked to a specific time of access. For example, where analysis of a seized device identifies a site serving images of child sexual exploitation, it would not currently be possible to search ICRs for subjects accessing that site beyond a specific known event. New condition D would help to identify other subjects accessing those sites. This will not be a fishing exercise. As with all investigatory powers, the case for requesting ICR data must be necessary, proportionate and intelligence-led. As Committee members will have heard this week, the benefit to the agencies is in being more, not less, specific.

The new condition will be subject to robust safeguards, including limiting the statutory purposes available, stringent necessity and proportionality requirements and independent oversight, including regular inspections by the Investigatory Powers Commissioner’s Office. Where internal authorisation takes place for urgent and national security-related applications, authorising officers must be independent of the operation and not in the line management chain of the applicant. If an investigator knowingly or recklessly obtained ICRs—for example, if the request was clearly not proportionate—they would be at risk of having committed a section 11 offence of unlawfully obtaining communications data, which can result in a fine or imprisonment.

[Stuart C. McDonald]

We are now looking at internet connection records. Whether we are for or against the provisions, the requirement in 2016 for companies to generate and provide internet connection records was a radical departure and makes the UK something of an outlier: as I understand it, there is no other European or Five Eyes country that allows the same sort of requirements to be made, certainly in relation to its own citizens.

As the Minister explained, there are various conditions on who can access the records. At present, the investigating bodies need to know which personal device they are looking for ICRs in relation to or know a specific time when a website was accessed to identify who was responsible for the events of interest to them. There is some judicial oversight, but not always. We are being asked to move a little further from that already fairly radical starting point and remove the need for a particular time to be identified, so as to have a general look at who uses certain internet sites and services over broader grades of time. That risks moving us step by step away from suspicion-based surveillance towards broader mass surveillance. People become targets of surveillance because of websites they have visited that are not only of questionable ethics, but potentially in breach of article 18 of the European convention on human rights. Various examples of how that might work are given in the explanatory notes, particularly in paragraph 120.

The Minister also gave some examples in relation to access to sites that are clearly illegal. I was quite surprised to learn that there are not already other powers that can be used to investigate who is engaging with such sites. If that is not the case, why not confine the power to sites that are clearly illegal in and of themselves, rather than enabling a trawling of data in relation to other sites that are not? I am not a tech geek, as will become more and more apparent the more that we debate the Bill, but the explanatory notes themselves confirm that there is a danger of and huge susceptibility to error here. Paragraph 123 says:

“Whilst clearly having the potential to provide significant operational utility it is recognised that such queries are highly susceptible to imprecise construction. As a result, additional safeguards are proposed in this Bill with the intention of managing access to this new Condition and mitigating public concerns.”

I am not absolutely convinced by the additional safeguards that follow in paragraph 124, which seem to revolve around training and various other requirements.

At the very least, I would prefer to see us go for independent judicial oversight in all cases, including authorisations under condition D2. As I understand it, under condition D1 a judicial commissioner would need to authorise what has been sought, but under condition D2 it could be internal. If the Minister wants us to expand the powers without the need for judicial authorisation in all cases, he needs to explain how often he expects the powers to be used and why judicial commissioner involvement in all such cases would not be realistic. Are there not other ways in which we can make this work while still retaining judicial oversight in all cases under the new provisions? I understand what the goals are here, but this is an example where it could be framed more narrowly and oversight could be strengthened.

[Mr Jones]

I agree with the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East, and the ISC feels strongly on this issue. We are clearly speaking English and the Minister is speaking Japanese, because this is about understanding what is actually being given to the agencies without any judicial oversight, which is being dismissed as if these powers are no greater or more intrusive.

As the Committee will know, under the IPA an internet connection record is a form of communications data. It contains data on who has accessed something: it does not actually provide the content of what they have seen or been in contact with. However, under the IPA information can be sought to develop knowledge of who is speaking to who. I think the ISC see the value of this for not only security services but issues around child protection and organised crime, as has already been argued. We are giving the security services and agencies a degree of authorisation here, which I would argue they have not had up until now.

We then come to the argument made by the Minister and the Government that these regulations are not any more intrusive than what we have at the moment. I would argue differently because the power is broad. Previously, targeted discovery condition A, under section 62 of the IPA, required that the agency and officer know the service and precise time of use to discover the identity of an individual, so that they actually know what they are targeting. The Minister used the words “fishing expedition”—this regulation will be a fishing expedition. By default, it will bring in a broader range of individuals who have nothing to do with the target the agencies are looking at the time and connection records for, and are of no interest to the agencies or anybody else.

The Government are arguing that this regulation is no more intrusive—but it is, if we are dragging in a large number of people in that way. Actually, by not having any judicial oversight, they are allowing the agencies to agree that internally. Although the intrusion is not deeper, it is certainly a lot broader than what we have at the moment. The Bill says that the new powers can only be used for “national security” and the catch-all phrase

“economic well-being of the United Kingdom”.

I am still yet to be convinced of that terminology, but I understand that the Minister and the civil service like consistency across Bills, and that is why it is in this Bill.

Under sections 60A and 61 of the IPA, requests to obtain an ICR are like requests to obtain other communication data: they have to be “necessary and proportionate”, which runs through all of this. Again, the Government are allowing the agencies to decide what is necessary and proportionate. I am not suggesting for one minute that they are going to go on a fishing expedition, but again there is a problem with the Government’s approach to the Bill, and certainly with the agencies’ approach. They want these powers, and I do not personally have an objection, but we have to look at how other people, who are not drowned in the detail of this Bill, will perceive them. Some opponents would say, “Why should I be dragged into this?” It is really about giving public confidence; as the right hon. Member for South Holland and The Deepings said this morning, when the IPA was passed, it was about trying to reassure people.

It would be very simple to ensure that this regulation has independent judicial oversight, as the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East has just said. I know the catch-all phrase that the Minister will come back with, because I am a quick learner: he will say, “The IPC has the ability to look back at anything.” Again, that is the haystack—where is the needle? It would be better and more reassuring if they were to have some judicial approval in advance. I will give the Committee one example. Let us suppose that we are looking at train records and patterns of behaviour on WhatsApp or a train-ticketing website. There is possibly a valid reason to do that—to see someone’s patterns of travel, and so on—but it will scoop up a lot of innocent internet users. The assurance here is that they will not be of interest and therefore they will not be part of it, but their information is being dragged into the system. Then a decision has to be made as to which ones people are interested in and which ones they are not.

That is a big change. I accept that it would not be the exact content that somebody accessed, but the connections would be there. It does not sit comfortably with me to leave such a big change to the security services. Knowing them as well as I do, I do not suspect that they will use the provision illegally or for alternative motives, but we have to reassure the public, and I do not think this does that. Would that be onerous? I am not sure that it would be. This comes back to the point that we have made about the ISC all the way through. If we are giving the security services extra powers, we need the counterbalance of a safeguard.

As the right hon. Member for South Holland and The Deepings said this morning, that was exactly how the IPA was approached. Clearly, he was a very good Minister, because he accepted amendments and suggestions, whereas only one has been accepted for this Bill so far. The Minister spoke this morning about working with the ISC. The Minister speaks to us, but he does not necessarily listen to what we say or take a great deal of interest in what we propose. This is an important point. It comes back to the fundamental point that if extra powers are going to be given, it is only right that they come with responsibilities and safeguards.

New condition D removes the existing requirement for the exact service and the precise time of use to be known. Basically, it will now be possible to do a sweep, which will mean dragging people in. Therefore, I cannot see the problem in having some oversight of these powers. I would like to know why the Minister thinks that condition D is not more intrusive. It is more intrusive, because a lot more people will be affected by it. I think the Government are hiding behind the idea that because it is not possible to identify what the individuals have actually seen, it is not really interesting. If that is the case, why have it in the first place? I know the reason for that, but it would be interesting to know what thought has gone into this and how many people will be dragged in. It obviously depends on how the provision would be used in practice. If we went down the street and said to people that we are giving these powers without any judicial oversight—the Minister will say that IPCO can always look at it, and I understand all that—I think that most people would be quite worried. We would give reassurance by providing that important oversight.

This provision certainly needs to be looked at. Is it of benefit and am I convinced that this is a new power that the agencies need? I am, and I think it is right, but coming back to the previous point, we have to ensure that we do not do anything that undermines what is done or that gives ammunition to those people who want to cast aspersions on what is actually done.

I think I know the arguments that the Minister will put forward. We will no doubt come back to this matter on Report, when there will, I think, be amendments from members of the Committee; and if we have an election wash-up, this is one proposal that I think will be pressed by the Opposition.

--- Later in debate ---

[Tom Tugendhat]

The right hon. Gentleman is creating his own haystack here. Although I hope as ever that this power will be used only exceptionally rarely, sadly the nature of serious and organised crime and terror in this country means that it will be used more often. There is a slight misunderstanding as to how this will be used. Targeting a train website or a single authority would not be proportionate or meet the necessity provisions within the Bill. It would be neither necessary nor proportionate. In fact, it would be unnecessary and would be vastly disproportionate, because it would be a mass collection exercise that would neither be targeted in a way that would satisfy the proportionality requirement, and nor would it give a useful answer—it would give such bulk data as to be useless—and therefore it would not be necessary.

The whole point of this is that it sets out a series of conditions in which these powers could be used—perhaps against a certain website, that is true—but on the basis of intelligence. It would have to have a particular cause and a particular time. This is not a Venn diagram with a single circle, but a Venn diagram with four or five circles; it must be in the centre of those for it to be necessary and proportionate.

[Stuart C. McDonald]

I would be reassured if there was independent advanced judicial oversight. The Minister has said a couple of times that the powers will be used “exceptionally”. What is the difficulty in making sure that there is an exception for urgent cases of advanced judicial authorisation for use of these powers?

[Tom Tugendhat]

“Exceptional” does not mean that there is necessarily huge amounts of time to act; exceptional means that the seriousness of the offence is extremely grave. These powers are for things such as child sexual exploitation. I wish it were not so, but even in this country, the police very often have to act extremely speedily to prevent harm to a child and sometimes, very sadly, multiple children. They have also to act extremely speedily to prevent terrorist plots or other forms of very serious organised violence or criminal activity.

That is why “exceptional” does not necessarily mean that it can be dealt with in a procedural way over a number of weeks; exceptional may mean absolutely pressing as well, and that is what this is designed for. The right hon. Member for North Durham may have been aware from briefings that I believe he has received that, in some circumstances, this Bill will reduce the time taken to interrupt serious abuse of children, from months and occasionally years down to days and weeks. That is surely an absolutely essential thing to do, but that will not work unless these powers are used according to the Act, with the important words being “proportionate” and “necessary”. The reason I repeat those words is that were the intelligence services to go on some sort of fishing expedition—and I know that the right hon. Gentleman is not suggesting that they would—that would not be legally permissible under this Act and nor would it achieve the required results, because it would turn up so much data that it would simply be an unusable, vast collection of fluff. Effectively, instead of targeting the needle, they would have merely collected another haystack.

--- Later in debate ---

[Stuart C. McDonald]

As I understand it, the Minister is describing the powers that already exist under the 2016 Act. If we are down to that level of knowledge of where, when and who, then what in the Bill goes beyond that? I do not follow.

[Tom Tugendhat]

In the existing Act, one would have to be entirely specific about a particular time. It could not be 5.30 pm to 6.30 pm; an internet connection record could be done only at 5.30 pm exactly. The Bill extends that a bit, but it still has to be very targeted. This is a proportionate change in the law to allow the intelligence services to collect information that would enable the targeting of serious and organised crime.

--- Later in debate ---

[Tom Tugendhat]

Section 87(4) of the IPA provides that a data retention notice cannot require the operator to retain so-called “third party data”. There is no intention to revisit the principle of this important provision, but technological advancements have highlighted some discrete and unintended consequences. For example, the Secretary of State is prevented from placing communications data retention obligations on a UK telecommunications operator in relation to data associated with users of a foreign SIM card within the UK.

Clause 16 addresses those unintended consequences and makes an exception for that data within Section 87(4), so that data in relation to roamers using a foreign SIM in the UK would be treated in an equivalent way to the data that could be retained in relation to users of UK SIM cards. Clause 16 also clarifies that communication data required for an internet connection record can be subject to a data retention notice. All existing safeguards will continue to apply.

Continuing to clause 17, the IPA already has extraterritorial effect. Data retention notices—or DRNs—and interception technical capability notices—or TCNs—can be given to a person overseas where there is an operational requirement, and it is necessary and proportionate to do so. However, only TCNs are currently enforceable in relation to a person overseas.

Clause 17 amends section 95 and 97 of the IPA to allow extraterritorial enforcement of DRNs, if required, for UK security purposes when addressing emerging technology and the increasing volume of data being held overseas, bringing them in line with interception TCNs. It is vital to have this further legal lever, if needed, to maintain the capabilities that the intelligence and law enforcement agencies need to access the communications data that they need to in the interests of national security and to tackle serious crime.

[Stuart C. McDonald]

I have some comments to make about extraterritoriality, but I will do so in the next debate.

Question put and agreed to.

Clause 16 accordingly ordered to stand part of the Bill.

Clause 17 ordered to stand part of the Bill.

Clause 18

Review of notices by the Secretary of State

Question proposed, That the clause stand part of the Bill.

[The Chair]

With this it will be convenient to discuss clause 19 stand part.

[Dan Jarvis]

I will be very brief. I am grateful for the Minister’s remarks, but I want to raise the concerns of some telecommunications operators and of organisations representing the sector about clauses 18 and 19. These include a view that the role of the proposed new notices regime would hinder and even veto product development.

I know that the Minister and his Department have engaged with stakeholders about those concerns, as have Labour Members. I would be grateful if the Minister briefly set out whether recent engagement has taken place with stakeholders with regard to these matters, and whether he has any further plans to address the concerns that they have expressed about clauses 18 and 19.

[Stuart C. McDonald]

I want to make a similar case. We are now getting into territory where I struggle to understand exactly what is going on, because I am not a tech geek. We are speeding past this measure almost as if it were inconsequential, but the language in some of the briefings that we have received about it is pretty dramatic.

The bundle that was emailed to Committee members this morning includes evidence from Apple that I think needs to be addressed:

“At present, the SoS must navigate important oversight mechanisms before they can block the offering of a new product or service they believe will impact…ability to access private user data.”

Apple summarises the suite of clauses that the Committee is considering, including the requirement in clause 18 to maintain the status quo during the review process, as allowing the Secretary of State

“to block, in secret, the release of a product or service even before the legality of a Technical Capability Notice can be reviewed by independent oversight bodies. The effect of this amendment will be to, extraordinarily, hand the SoS the power to block new products or services prior to their legality being ascertained. This result upends the balance of authority and independent oversight Parliament struck in the IPA.”

Given the new definition of “telecommunications operator” in clause 19, Apple has also warned that there will be serious implications for conflicts with other laws, including the EU GDPR and with US legislation.

As well as Apple, we have heard from various other organisations. TechUK has highlighted problems with broadening the definition of “telecommunications provider” before control of provision of a telecoms service, including to UK users, is established overseas. It also highlights the potential conflict of laws. What if the domestic law in the country in which a company is based does not allow for compliance with the notice that the Home Secretary has delivered? That company might not even be able to raise the issue of a conflict of laws, because it would be sworn to secrecy under the Bill.

According to TechUK, the proposed changes mark a departure in the way that the UK approaches the extraterritorial reach of the UK or UK laws and the consequential conflicts of laws. That was all recognised in the 2016 Act, in which a partial solution was found in the form of a UK-US agreement. Currently, however, the Government have not set out any plans to work towards equivalent solutions.

In relation to clause 21, I will raise similar concerns from other experts, but it is clear that some very serious companies and organisations have significant concerns about what the combination of these notices may end up delivering. Those concerns need addressed.

[Tom Tugendhat]

I thank hon. Members for the spirit in which they have engaged. To be clear, it is absolutely right that we listen to representations from companies around the world, as I am absolutely sure all Members across the House would expect. We are still engaged in conversations: the Home Secretary was on the west coast of the United States only last week, I think, and I maintain regular communication with many different companies, including many of the same companies to which the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East referred.

Let me be quite clear about one aspect. There is a real challenge here, and it is absolutely worth getting to the heart of it. The way in which communications data has evolved means that there are now jurisdictions in which the UK cannot protect its citizens without the co-operation of certain companies overseas. That was always bound to happen to a certain degree, but it is now very much the case: I do not know whether the hon. Gentleman has children, but he will know that many children use tablets and internet-connected devices in their bedroom.

The reach of these companies into the personal life of children in our country has to be a matter of concern to the British Government—it just has to be. The question is who governs these spaces. Are they governed by the association agreements and terms and conditions of the companies, or are they governed by the laws of the United Kingdom passed by Members of this House, of whichever party? That is the fundamental question.

The jurisdiction of this House must be sovereign. If sovereignty is to mean anything, it must mean the ability to protect our children from serious harm. That is basic. Under the IPA and previous legislation going back to the 1980s, this House has always exercised a certain element of influence. Yes, the Bill is extraterritorial, but so are many other Bills that this House passes in relation to the protection of our citizens and our interests. We can have operational reach further than the UK border in order to protect our citizens. That is what we are doing here, and that is what makes it proportional.

It is true that there are conflicts of interest that we have to resolve. I must be honest with the hon. Gentleman: this has come up before. It has even come up in my time. It is something that we have to look at in order to ensure that we address those conflicts and see where the balance of proportionality lies.

It is our very good fortune that many of the conflicts arise between jurisdictions with which we are extremely close. The United States, for example, is an extremely close ally. We regularly—in fact, I regularly—have conversations with the US Justice Department and others to make sure that we manage those conflicts of interest in the best interests of all our citizens. It is unusual for us not to find a resolution, but there are means of dispute resolution when we do not. Although I take the hon. Gentleman’s point, it is not exceptional for companies rightly and understandably to defend their interests where they feel that they have a commercial advantage. That is, of course, reasonable.

The reality is that we are not stopping companies doing anything; we are asking them not to change our ability to protect our citizens, until we have found a fix. If they want to introduce a new product or service or change the way they operate, that is fine: it is nothing to do with us. All we ask is that they maintain our ability to protect our citizens during that translation and into the future.

[Stuart C. McDonald]

I will come on later to another line of argument that relates to the unintended consequences of these permissions, but for now I have a specific question. The Minister has spoken about how conflicts of law can be resolved. Is there not an added complication? If we put a notification notice—if we are calling it that—on a company, it cannot share the fact of that notification with anybody at all. Does that not make it well-nigh impossible to resolve the issue with conflicts of law?

[Tom Tugendhat]

Without going into details that it would be inappropriate to share: no, it does not. I can assure the hon. Member that this is a long-standing practice that has been tested, and it does operate.

On clause 19, I wish to put one further point on the record. The clause will amend the definition of a telecommunications operator, out of an abundance of caution, to ensure that the IPA continues to apply to those to whom it was intended to apply, building on the work that my right hon. Friend the Member for South Holland and The Deepings has laid out. There are circumstances in which a telecommunications system that is used to provide a telecommunications service to persons in the United Kingdom is not itself controlled from the United Kingdom; we have talked about some of those services. The clause will ensure that multinational companies are covered in their totality in the context of the IPA, rather than just specific entities.

Clause 19 does not seek to bring additional companies within the scope of the definition, nor does it seek to constrain how a company structures itself. It is a clarificatory amendment that will improve the effectiveness and efficiency of the regime and the process of giving notices.

Question put and agreed to.

Clause 18 accordingly ordered to stand part of the Bill.

Clause 19 ordered to stand part of the Bill.

Clause 20

Renewal of notices

Question proposed, That the clause stand part of the Bill.

--- Later in debate ---

[Tom Tugendhat]

Clause 21 is required to safeguard lawful access to critical data, which is needed by law enforcement and intelligence agencies to keep the public safe from serious threats such as terrorism and child sexual exploitation.

Technology has advanced rapidly since 2016, presenting a risk to lawful access capabilities. Notification notices have been introduced in response to technological advancements and will require relevant operators who provide, or are expected to provide, lawful access to data of significant operational value to inform the Secretary of State of any technical changes that they intend to make that will have an impact on existing lawful access capabilities.

The requirement will apply only to relevant services or systems specified within the notice, which will be agreed in consultation with the operator, prior to the notice being given, and will not necessarily apply to all elements of their business. It should be noted that technical capability notices already contain a notification requirement; this is not a new concept to the IPA. The clause replicates the power as a standalone obligation within notification notices.

To be clear, there is no ability within the notification process for the Secretary of State to delay, prevent or alter the roll-out of the operator’s intended change. The requirement is needed to provide the Secretary of State—and, by extension, operational partners—with time to identify and evaluate any potential impact that the change may have on lawful access capabilities. It will also be important in giving operational partners time to adjust their ways of working to ensure that lawful access is maintained. The primary objective of the obligation is to create an opportunity for collaborative working between operators and Government to protect the crucial capabilities required to keep people safe.

Amendments 6 to 13 are minor and technical amendments to ensure consistency of language throughout the clause and the IPA.

[Stuart C. McDonald]

I want to pursue another line of argument that has been put to members of the Committee. I spoke earlier about the principles of the notification regime; I now want to probe the Government on the extent to which they have considered the possible unintended consequences of setting it up.

The evidence circulated this morning includes a letter from academics and experts from the United Kingdom and across North America, who express considerable concern about the outcome of the proposal. During the last debate, the Minister explained that the justification is that companies from across the world have a reach into children’s homes in the United Kingdom, and it is the duty of this Parliament and legislators to keep them safe. I do not think anyone would dispute that at all.

The experts argue that an unintended consequence of being as radical as the proposal in the Bill is that citizens in the United Kingdom could be less safe. Although the Government are trying to restrict the scope of the regime to what happens in the United Kingdom, in reality it will mean that certain updates and security features will not be rolled out to the United Kingdom. In fact, certain organisations may think twice about developing products for the UK market at all.

I am way outside my comfort zone, so I will go straight to what the experts argue in their evidence:

“If enacted, these proposals would have disastrous consequences for the security of users of services operating in the UK, by introducing bureaucratic hurdles that slow the development and deployment of security updates. They would orchestrate a situation in which the UK Government effectively directs how technology is built and maintained, significantly undermining user trust in the safety and security of services and products.”

They argue that this contains a significant risk of increased cyber-crime, as well as of endangering the encryption of important services. They conclude that

“these proposals are anathema to the best interests of UK citizens and businesses and internet users everywhere, and contradict universally accepted security best practices.”

I want to probe the Government on the extent to which they have considered the possible unintended consequences of how these companies may react to their proposals.

[Tom Tugendhat]

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East for the way in which he has approached the issue, and I am grateful to him for raising it, but I simply disagree. I disagree on the basis of advice that I have received from intelligence services, from UK-based companies, from the National Cyber Security Centre and indeed from many others.

Let us be quite clear. A notification notice does not create any conflicts of law, prevent any updates or prevent the application of any security patches. The only thing that it does is ask a company to keep the UK Government informed if it is going to change the way the UK Government will be able to protect British people. That has led to somewhat more caution in the reading than is necessary in reality; I have had many conversations with companies about that.

[Stuart C. McDonald]

This is a difficult area, but as I understand it, the argument is not that the notification notices themselves have that issue, but that the combination of notices, together with the technical capability notice, the new provisions in relation to review and the status quo, could give the Government that sort of power. That is the argument.

[Tom Tugendhat]

I hear the hon. Gentleman’s point. I will just say that many of these powers have been in place for a significant period. The situation that he describes is not one that we have found or noticed in any way at all. I believe that this is a case of people gilding a lily to turn it into lead.

Amendment 6 agreed to.

Amendments made: 7, in clause 21, page 45, line 8, leave out “person’s” and insert “relevant operator’s”.

See amendment 6.

Amendment 8, in clause 21, page 45, line 29, at end insert—

“‘relevant operator’ has the same meaning as in that section.”

See amendment 6.

Amendment 9, in clause 21, page 45, line 35, leave out “notice, as varied,” and insert “variation”.

This amendment provides that references to the variation of a notice are used consistently in Chapter 1 of Part 9 of the Investigatory Powers Act 2016.

Amendment 10, in clause 21, page 46, line 2, leave out first “person” and insert “relevant operator”.

See amendment 6.

Amendment 11, in clause 21, page 46, line 2, leave out second “person” and insert “relevant operator”.

See amendment 6.

Amendment 12, in clause 21, page 46, line 5, leave out “person” and insert “relevant operator”.

See amendment 6.

Amendment 13, in clause 21, page 46, line 6, leave out “person” and insert “relevant operator”—(Tom Tugendhat.)

See amendment 6.

Clause 21, as amended, ordered to stand part of the Bill.

Clause 22

Interception and examination of communications: Members of Parliament etc

--- Later in debate ---

The ISC is the only Committee of Parliament that can appropriately hold a Prime Minister to account on investigatory powers. There must be accountability at the highest levels for decisions to issue warrants using investigatory powers affecting Members and wider national security, and the Prime Minister should not be an exception in that regard. The breaking of what has been a long-established convention has been unfortunate to say the least. As the years pass, there is now a risk of a new convention being created of the Prime Minister not appearing in front of the ISC. If it now seems necessary to codify a requirement for the Prime Minister to appear in front of the ISC, I hope the Minister will carefully consider what provision should be in place to ensure that the Prime Minister does appear.

[Stuart C. McDonald]

I shall speak to new clause 4. We are discussing our very important role as legislators—people who have to scrutinise the Government to represent our constituents. Any interference with that role, and any surveillance of us, is a matter of great significance and some controversy, so there should be as much oversight and transparency as possible. I am not a member of the ISC, and I do not know whether this is something the Minister will be able to tell us, but I would be interested to know how often powers have been used to institute surveillance on MPs in each and every of the past few years.

New clause 4 allows us to debate the possibility of post-surveillance notification. That proposal was debated in the House of Lords, but I think it is something that MPs should be alive to as well. Post-surveillance notification would give judicial commissioners a mandatory duty to notify parliamentarians subject to surveillance once a particular operation or investigation had ended. That would typically introduce a further safeguard to protect democracy and our role as legislators, and would ensure the Government are complying with their obligations under article 8 of the European convention on human rights.

Various objections were made to that line of argument in the House of Lords. For example, it was argued that notification would risk revealing sources or methods. That does not have to be the case; post-surveillance notification can inform an individual of the fact of past surveillance without having to disclose such information. Such a post-surveillance notification regime works in Germany, for example.

In particular, there would be no risk—this was alleged by the Government in the House of Lords—of affording judicial commissioners any operational decision-making power. That is because notification would occur only when a surveillance operation was no longer active and, secondly, any such notification regime could allow the judicial commissioner to consult whomever applied for the warrant in the first place. I am absolutely open to a discussion with the Government about the safeguards that would needed to allow such a measure to be implemented.

The other line of argument pursued by the Government in the House of Lords was that redress is already available to parliamentarians thorough the Investigatory Powers Tribunal. As we all know, however, if someone does not know that they have been subject to surveillance, they have no reason to go to the tribunal in the first place.

This proposal is not without some difficultly, but it is worthy of discussion. The Government’s resistance to it has not always stacked up so far, so I look forward with interest to hearing what the Minister will say.

[Tom Tugendhat]

On the point about notification: forgive me, but it is inconceivable that it should be required in law to inform somebody that they have been subject to an investigation by the intelligence services in such a way. I would be delighted to discuss with the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East in a more secure environment why, for a whole series of reasons, that may not be such a good idea. On the question of the Prime Minister appearing before the ISC, my friend the hon. Member for Barnsley Central knows my views—I have expressed them on many occasions—but that is way above my pay grade.

Investigatory Powers (Amendment) Bill [ Lords ] (First sitting)

Stuart C McDonald Excerpts

Committee stage & Report stage
Thursday 7th March 2024 Public Bill Committees

[Dan Jarvis (Barnsley Central) (Lab)]

It is a pleasure to serve under your chairship, Mrs Cummins. I rise to speak very briefly to clause 1, and to thank the Minister for his opening remarks.

At the outset of our consideration, we should all take the opportunity to pay tribute to the exceptional men and women who have served in our law enforcement and security services. We owe them a deep debt of gratitude. Let me say that the Opposition support the Bill, which updates aspects of the Investigatory Powers Act 2016. It is imperative that legal frameworks are updated to ensure that our security and law enforcement services keep up with the challenges to communications technology in an increasingly challenging and complex landscape of threats to our safety and national security. None the less, the important provisions proposed in this Bill need to be scrutinised carefully. The shadow Home Secretary and I made it clear on Second Reading that we will work with the Government to improve it in places, following the example of the constructive cross-party work that was done in the other place.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is good to see you in the Chair, Mrs Cummins.

I echo what the shadow Minister says. We are all here to assist the brave personnel in our security and intelligence services, but that does not mean that we will not closely scrutinise this legislation. We did not oppose the Bill on Second Reading. Some parts are good, but we have indicated our serious concerns about other parts because we think the powers go too far. They have not been shown to be necessary and proportionate; rather, they are more for the convenience of the security and intelligence services. How these powers are drafted also causes us concern, because they seem to allow behaviours beyond what we were told the powers were going to be used for. At other times, it is the nature of the oversight that is a concern, as the Bill introduces potentially intrusive powers.

I have one other brief point to make, which I indicated I would make at last night’s meeting of the Programming Sub-Committee. I had hoped that this morning we could perhaps have had some witnesses to guide us through this process. I think that would have been very helpful. It was very helpful in 2016, when we were looking at the original legislation, and I regret that we do not have such an opportunity this morning.

The provisions on bulk personal datasets and so-called low/no datasets are an area where we fear that the legislation is rather more a matter of inconvenience than something that has been shown to be a necessity. That will emerge in the debate about clause 2, which contains quite a lot of the detail about how the regime is supposed to work. Basically, we have been told that there will be a significant increase in the use of bulk personal datasets. We have been told that scrutiny is too slow, so we will either have to remove it or, perhaps more accurately, water it down in relation to these so-called low/no datasets. Fundamentally, I do not like that argument. The Minister will need to make a compelling case.

When we discuss clause 2, it would be useful if the Minister told us how many bulk datasets are retained and examined each year currently; how many datasets it is envisaged will be retained and examined after these powers come into force; what percentage of the datasets he thinks would be considered low/no datasets; how long authorisation processes take currently and why they take that length of time; and why cannot we improve or accelerate that process in some way, rather than having to water it down in the way that this Bill suggests. We will ask the Minister for that sort of evidence, because he is asking us to do away with parts of the oversight system that were put in place in 2016, and we want to understand how that oversight system is causing a problem at the moment. If he cannot explain that, we cannot support this new regime.

[Mr Kevan Jones (North Durham) (Lab)]

It is a pleasure to serve on this Committee with you in the Chair, Mrs Cummins.

My hon. Friend the Member for Barnsley Central said very clearly that there is general support for the Bill. The need for it is self-evident: things have moved on since the passage of the 2016 Act—indeed, they have moved on very quickly in terms of the amount of data there is, not only data that the security services have to deal with but data in general life.

Bringing the legislation up to date is important, but if we look at the Hansard reports of the debates in 2016, when the right hon. Member for South Holland and The Deepings took the original legislation through the House, we see that there was then, quite rightly, concern that the state acquiring bulk data was intrusive into people’s private lives.

Having read those Hansard reports a couple of days ago, I accept that some of the concerns expressed in 2016 were overblown, as are some of the concerns expressed about this Bill. Frankly, if the accusations regarding what our security services are able to do were true, they would be 10 times, if not 100 times bigger than the actual security services we have today. Nevertheless, it is important in a democracy to ensure that the security services act proportionately—I am confident that they do—and that there is the necessary oversight of their actions and how they deal with the data they have. It is not just parliamentarians who need reassurance in that regard, but the public. The public need reassurance about the data that the state is holding.

Examples have been given, but frankly, they are a bit silly, because things such as the electoral register, which you, Mrs Cummins, I and everybody else can access, fall under the existing regime. The expectation that the data will not be made public is ridiculous, and the same is true of some of the other examples that have been given. For instance, some datasets for machine learning are open on the internet for everybody to see. I do not have any problem with that and I do not think that anybody else does.

Oversight, which we will discuss later, is important. We are giving the security services the powers to determine what is low and what is no. Do I trust that they will have the protocols in place to ensure that that process is done fairly? Yes I do, but I have been on the Intelligence and Security Committee for the last seven years; I know exactly how the protocols work internally in those organisations. To reassure the general public, we need a definition of how this process will take place. I will not touch on that now, but later I will raise the question of how we will have independent oversight of that process.

Neither I nor anyone else is saying that we distrust how the security services will handle those datasets, but one thing the ISC has been very clear on is that if we are going to extend the security services’ powers, there needs to be a corresponding extension of oversight to balance that. I do not want to put in place oversight that prevents operational effectiveness; it would be silly to give the security services powers and then make it impossible or too onerous for them to operate in practice, but striking a balance is important in a democracy.

We broadly got that balance right in the 2016 Act. Looking at international comparisons, we are way ahead of many other democracies in how we deal with oversight of those potentially very delicate issues.

--- Later in debate ---

[Dan Jarvis]

May I reflect on my gentle amusement at hearing the Minister’s remarks about a former shadow Security Minister and his onward passage to becoming Leader of the Opposition? I know that these are matters on which he speaks with great authority.

We have already had very helpful contributions from two senior Intelligence and Security Committee members. Questions about the meaning of “low or no reasonable expectation of privacy” in relation to BPDs have been raised throughout the Bill’s progress in the other place and on Second Reading in this House, including by members of this Committee. The amendment seeks to probe the meaning of the phrase, but I should be clear at the outset that I do not intend to divide the Committee on this or any other amendment on which I intend to speak.

I will set out two scenarios. It would be genuinely helpful if the Minister could clarify the limits to the factors relating to the Data Protection Act 2018. The first scenario is where the data can be attributed to a leak that, although unintentional, resulted in the unconsented publication of personal information in the public domain. Would a leak of the personal details and working patterns of the staff of Members of this House—a number of hon. Members will remember the one that happened in March 2017—be subject to a low or no reasonable expectation of privacy?

The second scenario is the deliberate and unlawful publication of personal information into the public domain. If there were a hack resulting in the unlawful publication of personal information into the public domain, would that information also be subject to a low or no reasonable expectation of privacy? Data breaches of that nature occur regularly: the personal information of more than 2 million Duolingo users was compromised last year. A user’s mastery of French verb conjugation is unlikely to be of interest to anyone, with the possible exception of our friends over the channel, but other personal information could be. The Duolingo data was put up for sale on the dark web, so it might be regarded as third party BPDs. It is important that the Minister clarifies the meaning of “low or no reasonable expectation of privacy” in relation to those two scenarios.

Labour Members are not opposed to the concept of “low or no reasonable expectation of privacy” in relation to BPDs. We want to ensure that the police and security services are not unnecessarily limited in their intelligence gathering, but there need to be parameters for what is considered fair game. There must be clarity on important definitions relating to personal data. I hope that the Minister will respond in the constructive spirit in which the amendment was intended.

[Stuart C. McDonald]

Clause 2 will remove the need for further judicial authorisation for personal dataset retention and examination if the datasets are deemed to fit into the low or no category, for which there is already authorisation, or if there is urgency. Many personal datasets can be contained within one warrant, so we have lots of questions about how proposed new part 7A will work. Amendment 14 demands an explanation of how the regime fits alongside data protection standards and how it applies to leaked and hacked datasets, as opposed to those that are lawfully obtained.

Our amendment 21 simply seeks to push the Minister to give examples of personal datasets that would be considered to have a low or no reasonable expectation of privacy. I refer hon. Members to a letter from the Chair of the Joint Committee on Human Rights, my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), which has been shared with us all:

“There is perhaps some ambiguity or confusion as to what data is envisaged to be caught by these provisions. For example, is it merely online encyclopaedias, Companies House registers or news articles; or would it also cover, for example, quite extensive discussions over the internet or mass voice or face images, as has been mentioned in evidence?”

That is the question that we are getting at here.

The whole concept of a reasonable expectation of privacy seems to have been borrowed from the US, where it has been criticised for permitting fairly intrusive surveillance at quite a considerable scale. To my mind, it difficult to grasp the concept or even understand how the test to be applied. It is bad not just for citizens in general, but for people who are having to make these decisions who are not absolutely clear whether or not they can consider a set of data to have a low or no expectation of privacy.

Would bulk datasets of CCTV images or Facebook posts be no/low? How can someone assess whether a bulk personal dataset falls into the category if they do not know all the information within it because they cannot see it until they have a warrant? If the dataset contains information about many thousands or millions of people, with different types of information about different people, how can there be one single level of expectation? People with a low expectation of complete privacy might reasonably have a high expectation that their data will not be retained and processed by the intelligence services.

Why is the sensitivity of the data not expressly mentioned in the Bill? That should surely be pivotal, particularly if the Government want to operate within our human rights obligations. There is no clarity in the Bill to reassure us that sensitive information such as health data would absolutely not be captured by these provisions. Why could that not be on the face of the Bill? Why is publication the important factor instead? Publication in the context of small Facebook groups, for example, does not mean that there are no expectations that security services would not hold that information.

--- Later in debate ---

[Dan Jarvis]

I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Stuart C. McDonald]

I beg to move amendment 22, in clause 2, page 4, leave out lines 27 to 30.

This amendment is consequential on Amendment 23.

[The Chair]

With this it will be convenient to discuss the following:

Amendment 23, in clause 2, page 5, leave out lines 1 to 14.

This amendment would remove proposed new section 226BA, thereby removing the ability to grant “category authorisations”.

Amendment 24, in clause 2, page 5, line 17, leave out “or a category authorisation”.

This amendment is consequential on Amendment 23.

Amendment 25, in clause 2, page 5, leave out lines 23 to 25.

This amendment is consequential on Amendment 23.

Amendment 26, in clause 2, page 5, line 34, leave out “or a category authorisation”.

This amendment is consequential on Amendment 23.

Amendment 27, in clause 2, page 5, line 39, leave out “or a category authorisation”.

This amendment is consequential on Amendment 23.

Amendment 28, in clause 2, page 7, line 3, leave out “or a category authorisation”.

This amendment is consequential on Amendment 23.

Amendment 29, in clause 2, page 7, line 27, leave out “or a category authorisation”.

This amendment is consequential on Amendment 23.

Amendment 30, in clause 2, page 8, leave out lines 6 to 15.

This amendment is consequential on Amendment 23.

Amendment 31, in clause 2, page 8, leave out lines 19 to 23.

This amendment is consequential on Amendment 23.

Amendment 32, in clause 2, page 8, line 37, leave out “or a category authorisation”.

This amendment is consequential on Amendment 23.

Amendment 33, in clause 2, page 8, line 41, leave out from “authorisation” to “they” on page 9, line 1.

This amendment is consequential on Amendment 23.

Amendment 34, in clause 2, page 9, leave out lines 14 to 16.

This amendment is consequential on Amendment 23.

Amendment 35, in clause 2, page 9, leave out from the beginning of line 38 to the end of line 13 on page 10.

This amendment is consequential on Amendment 23.

Amendment 36, in clause 2, page 11, leave out lines 17 to 29.

This amendment is consequential on Amendment 23.

Amendment 37, in clause 2, page 11, leave out lines 32 and 33.

This amendment is consequential on Amendment 23.

[Stuart C. McDonald]

First, unless I was distracted, I do not think I got a specific answer on the types of data mentioned in the amendment—for example a Facebook post, CCTV footage or anything else.

[Tom Tugendhat]

Those are covered under sensitive data areas; they would not be covered under bulk personal data. The hon. Gentleman also mentioned health data, and he is absolutely right that I did not answer that. I should be absolutely clear: it is hard to envision a case in which health data would be considered “low or no”, unless it was of very ancient historical standing, or there were other exceptional reasons.

[Stuart C. McDonald]

I am grateful for that. Could the Minister perhaps follow up on that in writing? That is useful to have on the record.

This discussion is mainly about amendment 23; the other amendments are all consequential. Basically, the amendments would remove the concept of category authorisations from the Bill. Again, I take the same approach as the shadow Minister; I will not be pushing any of these amendments to a vote, but they are designed to probe and allow for debate on some of the important concepts in the Bill.

It is this clause, and the notion of category authorisations, that leads to the restricted judicial oversight of the “low or no” categories that are being retained. It would be useful for the Minister to give us an example here of what a category authorisation might look like. I am not on the ISC, so it is hard for me to understand exactly how broadly they might be drafted. I absolutely appreciate that there are operational reasons why the Government might have to be careful about the examples they give. However, to provide some reassurance, I am sure it would be possible to put on record what one of these authorisations might look like, just so we know how broadly they will be drafted, or indeed how focused they will be.

The Minister spoke a little about oversight at the end of his previous contribution, but it is the oversight of category authorisations that causes me some concern. The tests for a category authorisation set out in proposed new section 226BA of the Investigatory Powers Act 2016 are simply that it must be classed as “low or no” and that the decision has been approved by a judicial commissioner. There are none of the other tests that are set out for the individual authorisation, such as it being necessary for the

“exercise of any function of the intelligence service,”

that it

“is proportionate to what is sought to be achieved,”

or that there are various arrangements in place.

It seems to me that the degree of oversight at the stage of granting a category authorisation is far more restricted. That has a knock-on consequence: when the judicial commissioner comes to review the granting of a category authorisation, they are only then considering whether it applies to a “low or no” group of datasets. The judicial commissioner, even on the low-level judicial review criteria, does not look at whether the category authorisation will be necessary or proportionate, or any of the other tests for the other authorisation.

[Sir John Hayes]

I do not want to do the Minister’s job for him, because I am sure he will say this anyway, but when an application is made by an agency for the acquisition and retention of bulk personal datasets, a specific case needs to be made in the warrant application, and a particular case has to be made where that application applies to exceptional material. That case is considered through the double-lock mechanism by both the judicial commissioner and the Minister. That case needs to specify the reason that it is necessary for operational purposes.

[Stuart C. McDonald]

It is useful to have that explanation. I understand that is the existing process, as the 2016 Act applies just now. However, my simple question concerns the fact that that does not seem to be what is set out here.

[Tom Tugendhat]

I will just answer that directly, as the hon. Gentleman seems to be running away with this issue slightly. The test set out in proposed new section 226A still applies to all datasets. It is not removed; it goes through the whole thing.

[Stuart C. McDonald]

That is useful to know. I will pray in aid the fact that we did not have any witnesses; anything I say that is daft, and anywhere that I do not understand how the Bill operates, I will blame on the lack of witnesses.

That is useful to know. I will go away and look at that and make sure that that all makes sense to me. That just leaves me with my earlier request: can we have some examples of what a category authorisation looks like? I can imagine that they could be incredibly broadly drafted, but they could also be very narrow. It would be useful to get a better understanding of how they will operate.

My final point is that the Government’s case appears to centre quite largely on using the material for machine learning. We have heard about language, online encyclopaedias and whatever else. If nothing else, why not use this streamlined process on that category of information and keep the existing processes in place for everything else?

[Tom Tugendhat]

I welcome the spirit in which the hon. Gentleman approaches this issue. He is asking important questions, and I do not challenge at all the validity of the way he has approached the issue; in fact, I should put on record that I am grateful for the way the whole House, and this Committee in particular, have approached it. It is important that any questions that any Member has, particularly the questions honourably and reasonably raised by the hon. Gentleman, are addressed.

The hon. Gentleman’s question on category authorisation is important, because the individual authorisation authorises the retention or retention and examination of a bulk personal dataset, to which part 7A applies. In other words, for every individual dataset there will be an individual authorisation. The normal rule is that each individual authorisation must be approved in advance by a traditional commissioner, as my right hon. Friend the Member for South Holland and The Deepings quite rightly addressed.

A category authorisation does not itself authorise the retention or retention and examination of a dataset; rather, the category itself is the means by which the normal rule of prior judicial approval may be disapplied in respect of the individual authorisation of datasets that fall within the description approved by the category authorisation. As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East knows, that allows for the internal authorisation of an individual dataset that falls within an existing category. By definition, those categories are narrow enough to be identifiable but large enough to be useful. The reality is that that must be done on a case-by-case basis, but under the watchful eye of not just the unit within the intelligence service that requests it, but a senior officer in that service and a judicial commissioner.

That oversight means that we have an effective way of ensuring that we are able to use bulk personal data as categorised in different areas in a speedy fashion to enable the detection and prevention of harm, but with the oversight regime that the hon. Gentleman quite rightly expects of any apparatus of the state. The intelligence services in particular, for reasons of operational necessity, operate in the shadows, and therefore require an extra guarantee of reliance.

[Stuart C. McDonald]

I will go away and consider what the Minister said. Our basic issue here is that a process is in place whereby every single individual dataset must be approved and have the approval and authorisation of a judicial commissioner. Under this scheme, if there is a category authorisation and then an individual authorisation under it, there will not necessarily be any involvement from a judicial commissioner. That is the bit that we have an issue with.

[Tom Tugendhat]

May I come back straightaway on that? To be clear, category authorisations are reviewed by IPCO at the very latest a year—12 months—after the authorisation, but they could actually be reviewed at any point. I am afraid the idea that a category authorisation stands forever just because it has been allowed is not accurate—I know that is not what the hon. Gentleman is suggesting. The judicial commissioner would have oversight of the wider category authorisation, and the IPCO review means that the whole thing is checked at the very latest every 12 months, and probably more frequently than that.

[Stuart C. McDonald]

Again, I get all that, and I do not think that we are really at cross-purposes. However, we are talking about 12 months of access to datasets without necessarily having them before a judicial commissioner.

I do not think that anyone disputes that this is a slightly weaker form of oversight, which is because the services want to access this material at scale and regard the existing oversight mechanisms as cumbersome, slow and whatever else. We still ask the question of whether there is another way to do that that would still involve judicial commissioners but happen much more randomly and at scale. However, we will go away and consider that. I repeat my request—I know it is not easy—for some examples to reassure members of the public on how exactly this will work. That would be useful. In the meantime, I do not intend to push the amendment to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Dan Jarvis]

I beg to move amendment 15, in clause 2, page 5, line 14, at end insert—

“(4) The head of an intelligence service, or a person acting on their behalf, must notify the Investigatory Powers Commissioner as soon as is reasonably practical after a decision has been taken to include a bulk personal dataset within a category authorisation in effect under this section.”

This amendment would require that the Investigatory Powers Commissioner is notified when a new bulk personal dataset is added by an intelligence agency to an existing category authorisation.

--- Later in debate ---

[The Chair]

I remind members of the public to please turn their electronic devices to silent as well.

[Stuart C. McDonald]

I will be very brief, because I fully support what the shadow Minister and the right hon. Member for North Durham have said. If we are going to go down the route of somewhat watering down the oversight of certain bulk personal datasets, we need greater transparency and accountability. Our amendment 38 has very similar motivations. It requires complete transparency with the ISC by listing all the bulk personal datasets that would be retained under a category authorisation in the report the Bill requires to be sent to the ISC. It answers the question of how we are supposed to know how these new powers will be and are being used unless we have one of these methods of transparency.

[Tom Tugendhat]

If I may, I will come to the last point first. The information going to the ISC on this basis would be, as far as possible, the same as that going to the Secretary of State. Obviously, the operational data may not be included, depending on the relevant operational case. I hope that will reassure this Committee and, indeed, the ISC that the intention is to make sure that the ISC is as fully informed as possible.

On the point made by the right hon. Member for North Durham, he will know that the Bill, in many ways, has been a joint project between the Government and the ISC. I have spent many hours with members of the ISC, including the Chair, my right hon. Friend the Member for New Forest East (Sir Julian Lewis), and with various members of the Committee. Their input has been exceptionally important to me and has been included in many areas of drafting on this.

Turning to amendment 15, the right hon. Member for North Durham and the hon. Member for Barnsley Central, in many ways, have both been the Occam’s razor of the Bill process, not just here, but in other areas. They have been rightly keen that we should not include powers or requirements that would otherwise constrain or block processes or confuse the law. I understand the argument that hon. Members are making about a one-line email, but the reason that I am not convinced—though I am very happy to have the conversation suggested—is that the reality is that it is possible for IPCO to investigate at any point, and it must investigate at 12 months. Therefore, if we ask for a legal requirement on the services, that would force an extra legal duty into the various elements and it will be an extra change.

--- Later in debate ---

[Stuart C. McDonald]

I fully understand the questions that have been proposed by the shadow Minister, and it will be interesting to hear the answers that he gets.

On clause 5, it makes sense to ensure that access to third-party bulk personal datasets is subject to the general Investigative Powers Act scheme and oversight regime, including the double lock. Of course, we had extensive debates back in 2016 on whether that double lock was strong enough. My party argued that the judicial review standard was not tough enough and that we should be asking judicial commissioners to look at the positions again on their merits. But we lost that battle, and we are where we are.

Some of these datasets will include hugely personal information on internet searches and shopping history. These profiles can build up a pretty intrusive picture of how we go about our lives, and sometimes not very accurately. We are also talking expressly about personal datasets, which could include health data. That is on the face of the Bill. Does the Minister envisage that such access will be used only to make inquiries on subjects of particular interest, or will it be used for broader trawls of information?

As set out in the letter from the Chair of the Joint Committee on Human Rights, there is also concern about how this provision will apply to datasets that have been obtained unlawfully. Should there be additional safeguards on the use of illegally obtained data? What is the Government’s thinking on that?

Investigatory Powers (Amendment) Bill [Lords]

Stuart C McDonald Excerpts

2nd reading
Monday 19th February 2024 Commons Chamber

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Let me start with two thank yous. First, let me put on record my party’s gratitude to the intelligence services and law enforcement organisations that work so incredibly hard to keep all our citizens safe in the face of constantly changing and developing threats. Secondly, I thank all those who took part in the reviews of the 2016 Act that have informed the Bill. However, as Lord Anderson said in his own review, they should be a starting point for parliamentary scrutiny and debate rather than a finishing point.

Although any opportunity to revisit and improve the 2016 Act would generally be welcome, my party has serious concerns about certain provisions in this amendment Bill. In short, while it is constantly presented as “updating”, and as protecting and making efficient pre-existing powers, we fear that the reality is a very significant expansion of what are, we must remember, already extraordinarily wide powers by international standards. There are significant privacy and human rights risks, and the danger of increasingly widespread suspicionless surveillance. We fear that we may be handing invasive powers to intelligence and law enforcement agencies not because the powers are necessary or essential to their work but because they are convenient, and that is not striking the right balance.

All this is consistent with the very detailed and principled privacy and human rights concerns that my party raised in relation to the 2016 Act itself—particularly in the speeches made by my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry), who is here to take part in the debate again today. As will be the case today, we did not oppose the Second Reading of that Bill, but in the absence of important amendments, or concessions and reassurances—again, as with the 2016 legislation—we keep open the option to oppose the current Bill at a later stage.

Today I will focus on concerns relating to bulk personal datasets, and on notices relating to changes in telecommunication services. I will also briefly flag up our concerns about internet connection records and changes to the offence of unlawfully obtaining communications data. My party also believes that this Bill provides an opportunity to revisit the whole issue of snooping on parliamentarians, if we are bold enough to take it.

I shall turn first to bulk personal datasets and part 7 of the 2016 Act. In short, we struggle to see that the proposed changes have been shown to be necessary. We fear that they will instead create even larger gaps in the oversight regime in relation to these capabilities. A whole host of concerns arises in relation to the provisions of clause 2 and the concept of data in relation to which there can be

“low or no reasonable expectation of privacy”.

Bluntly, I struggle to see how a decision maker is supposed to assess people’s reasonable expectations of privacy, and when we say “people” we can be talking about hundreds or thousands of people or potentially several million people. Within that group of individuals there will be many varying attitudes to further privacy, and the data related to individuals could vary hugely from the mundane to the deeply personal. It may be that there is supposed to be some type of “reasonable person” test applied, but is that reasonable person black, gay, Jewish or indeed a trade unionist? How are potentially very different subjective attitudes to be accounted for? These might seem like odd questions, but the experience in the United States of America, where a similar test is involved, proves that these questions are very real indeed. Is it a general question of privacy in relation to the data or a more specific question of expectations of the use of that data by intelligence services? What precisely is low expectation? This seems to be an impossible assessment to undertake in any realistic or meaningful sense.

[Joanna Cherry]

I thank my hon. Friend for his kind comments earlier. As usual, he is making a very forensic speech. On this issue of a reasonable expectation of privacy, does he agree that clause 2 and clause 11(3) seem to be based on a legal misunderstanding that people lose their right to privacy when they happen to share certain information with someone else? He will be as aware as I am that that runs contrary to the jurisprudence of the European Court of Human Rights and that, by contrast, the Court has actually said that privacy includes

“the right to establish and develop relationships with other human beings”.

Does he agree that it is important to ensure that this Bill is commensurate with our obligations under the European convention on human rights?

--- Later in debate ---

[Stuart C. McDonald]

My hon. and learned Friend will not be surprised to hear that I completely agree with her.

In fact, that brings me to the next point I want to raise in relation to clause 2. As well as putting in place what I struggle to see as being a reasonably operated assessment, the clause raises concerns in relation to consistency with data protection legislation and with human rights obligations. The factors to be taken into account when undertaking that really difficult assessment do not even expressly include the sensitivity of the data in question, which surely should be central to any question of processing. That is an inconsistency with existing data protection principles and laws, and I agree that the compatibility of such provisions with our human rights obligations is also surely highly dubious. Just because someone has shared personal data does not mean that they automatically lose their right to further protection around how that data is shared and processed, especially when it is sensitive personal data, as my hon. and learned Friend has just said.

The role of judicial commissioners in this area is even further diluted, reduced to reviewing by judicial review standards whether datasets do indeed relate to data where there can be low or no expectation of privacy. Frankly, that is not a safeguard at all. At the very least, their role needs to be strengthened when the Bill is considered in Committee. We also need to seek assurances around how the Bill will impact on the reporting of the retention and use of bulk personal datasets. If large numbers are retained under category authorisations, we may not know how many datasets are actually being gathered.

Let me turn to various aspects of part 4, on notices. Again there are some controversial provisions, particularly in clause 21 and the requirement on selected telecommunications operators to inform the Secretary of State if they propose to make changes to their products or services that would negatively affect existing lawful access capabilities. That seems like an extraordinarily broad power, without anything remotely appropriate in terms of oversight and limitations. These powers are going to make the UK a real outlier. Essentially, the Secretary of State will be empowered to say to tech companies, “You are not allowed to improve your products without consulting us, so that we can still break in to access the data that we need and when we want it”. Despite what the Secretary of State says, taken together with other changes to review processes, such powers could easily be used to significantly delay, or de facto veto, updates to security, rendering everybody’s data more vulnerable to hacking by third-party actors.

[The Minister for Security (Tom Tugendhat)]

That is simply incorrect, and I know that the hon. Gentleman would not wish to continue down a road that he knows to be incorrect. Let me just be very clear: this is a continuation of a power that was granted in 2016. The notice does not extend that power; it merely enables a conversation to begin with companies before any action is taken, to maintain an existing standard and not in fact to change it.

[Stuart C. McDonald]

I am grateful for that clarification from the Minister, and we will of course engage further in this debate in Committee.

These concerns have been raised not just by me but by significant tech companies; this is not something that has come to me simply through perusing the Bill. The key question remains: why is there to be no proper oversight of these notices and notice powers by independent advance authorisation? Why is there not even the double lock that applies to other notices that can be served on communications providers under that Act? Surely that scrutiny should be carried out in advance. There are also lots of question marks around the expanded claims of international jurisdiction. How will potential conflicts of law be resolved, especially if a company subject to one of these notices that is contrary to its domestic laws cannot even say anything about it because it is bound to secrecy by this legislation? What are the prospects of other Governments copying what our Government are doing and seeking to replicate such provisions, and what would the impact of that be on UK companies?

Turning to internet connection records, the starting point is that we should remember that no other European Union or Five Eyes country permits the requiring of ICR generation or retention in relation to its own residents, so this was a hugely controversial development in the 2016 Act. As we have heard, ICRs can reveal huge amounts of deeply sensitive information about a person. For now, secret services can seek ICRs only when certain facts that are already known, such as the identity of a person connecting or the time and use of the connection, so that the retention is at least targeted in some way.

The risk in this Bill is that reasonable suspicion will no longer precede targeted surveillance. Instead, the Bill would seek to use ICRs for the discovery of new targets, which is a really significant jump and development. I can genuinely understand some of the reasons being offered for this change, and I am not unsympathetic to the case being made, but if these powers are not carefully circumscribed, they risk creating a big step towards mass surveillance and fishing exercises. We need to ask whether there are less invasive alternatives and whether these powers are therefore really necessary. Alternatively, we need to look again at the oversight mechanisms for the use of these powers.

We also have concerns about the Bill’s proposals in relation to the offence created by the 2016 Act, where relevant persons in a relevant public body knowingly or recklessly obtain communications data from a telecoms or postal operator without lawful authority. This Bill seeks to set out examples of what would amount to lawful authority, which is a laudable aim. However, there are real questions about whether some of the examples in clause 12 are not in fact redefining the concept of lawful authority. In particular, the assertion that there would be lawful authority simply because

“the communications data had been published before the relevant person obtained it”

is controversial. That is particularly so when

“‘published’ means make available to the public or a section of the public (whether or not on a commercial basis).”

As I said in relation to bulk personal datasets, limited publication is not authority for intrusive surveillance. Could a simple private message not amount to publication of comms data? The implications of this definition of lawful authority need very careful scrutiny indeed.

Finally, on the interception and hacking of parliamentarians, making provision for circumstances where the Prime Minister is unavailable to play his part in a triple lock seems sensible, but the fact that the issue of snooping on MPs and others is being revisited should trigger us all to rethink the whole scheme. Our role of representing our constituents, interrogating legislation and holding the Government to account should not be interfered with lightly. We should take the chance to consider post-surveillance notification of MPs who have been spied upon, by judicial commissioners, once investigations are completed. As matters stand at the moment, redress is almost impossible to obtain. We should also require that the investigatory power commissioners be informed every time these powers are used, so that there is transparency about how often this is happening. All other options should be on the table as well.

I started by thanking intelligence and law enforcement authorities and I am happy to do so again in closing, but our respect for them does not mean we should ever consider writing blank cheques or handing them whatever powers they ask for. They are not perfect. From time to time they exceed their powers and certain individuals abuse their lawful capabilities. The powers that they seek through this Bill are extremely invasive and broad in scope. There is a real danger that key provisions of the Bill will go beyond what is necessary and get the balance with privacy and human rights wrong. These provisions will need serious scrutiny and revision in Committee, and that is what we in the SNP will seek to secure.

Draft Investigatory Powers Act 2016 (Remedial) Order 2023

Stuart C McDonald Excerpts

Tuesday 23rd January 2024 General Committees

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is very good to see you in the Chair, Mr. Hosie. I am grateful to the Minister for his explanation of the order before us today, and I join the shadow Minister in sending our praise and thanks both to the security services and to the journalists who also serve this country.

As you know better than anyone, Mr Hosie, the SNP has regularly raised concerns about the vast scope of some bulk interception powers and various others in our investigatory powers legislation, as well as the inadequacy of certain oversight arrangements and protections. For those reasons, we welcomed the European Court judgment in the Big Brother Watch case, which emphasises the importance of that institution and remaining part of the convention. We note that in this Parliament the Joint Committee on Human Rights has supported the draft order. For the reasons set out by that Committee, the SNP supports the remedial measure proposed today, which aims to make our arrangements compliant with the Big Brother Watch judgment.

I emphasise that the draft order does not fix all our concerns about the sweeping powers enjoyed by our services under the Investigatory Powers Act, but our ongoing concerns are a matter for another day. For the time being, we support the order.

Refugee Family Reunion Routes: Sudan

Stuart C McDonald Excerpts

Wednesday 29th November 2023 Commons Chamber

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I am grateful to have the opportunity to draw the House’s attention to the catastrophic situation in Sudan and to highlight the circumstances of the people in danger there, some of whom have family members recognised as refugees here in the United Kingdom. I hope to take this time to illustrate how the UK’s family reunion rules make it incredibly difficult for those individuals—most of them children—to join their family members here. Finally, I want to ask the Government to think again about how they apply the family reunion rules, given the horrendous circumstances that those individuals face, and to urge the Minister and his colleagues to think about a new approach to facilitate and support reunion with family members here rather than hindering it, as seems to be the case in too many instances.

I turn, first, to the circumstances in Sudan. What is unfolding there has been described by the United Nations as one of the

“worst humanitarian nightmares in recent history.”

Since fighting broke out between the Sudanese armed forces and the paramilitary Rapid Support Forces, more than 9,000 have been killed. Horrific reports of rape and sexual violence continue to emerge, and clashes are increasingly along ethnic lines, particularly in Darfur. Every hour children are killed, injured or abducted. Many hospitals have had to suspend operations; others have been bombed or turned into military bases.

Last month, the Minister for Africa said that the violence there bore

“all the hallmarks of ethnic cleansing”.

The fighting that commenced in mid-April has led to more than 1 million people fleeing Sudan altogether to neighbouring Chad, Egypt, Ethiopia, South Sudan and the Central African Republic. Meanwhile, more than 5 million have been forced from their homes, internally displaced within Sudan. Among those displaced are almost 1.5 million refugees and asylum seekers from other countries, who had already had to flee persecution in their home territories to Sudan, particularly Eritrean nationals. More than 6 million people are on the edge of famine, and more than 20 million face acute food insecurity. More than 4 million women and girls face the risk of gender-based violence, with limited or no access to protection services and support.

Against that background, I have had the pleasure of working with the Refugee and Migrant Forum of Essex and London—RAMFEL—which has a number of refugee clients here in the UK with family members stuck in Sudan who want to get here. Altogether, RAMFEL represents 14 individuals—a tiny sample of that country—who have been struggling to leave Sudan to join their family here. Seven months on from the start of the most recent conflict, only two have made it here so far. Of those two, one—a child—was successful only after an appeal. Of the 12 who have not yet made it here, all are children under 18. Ten are Eritrean, and two are Sudanese. Of those 12, eight are still in Sudan itself—children in a war zone, facing extreme danger. The other four have made it to neighbouring countries but, as we will see, they are not out of danger yet.

To all reasonable observers, given the circumstances of those children, reunion with their family members in the United Kingdom must be appropriate and the right thing to do. Is it not precisely for such situations that we have family reunion policies at all? Family reunion would provide a safe legal route to the UK, allowing both the individuals here and those coming here to get on with rebuilding their lives. It would remove any temptation to seek assistance from people smugglers—breaking the business model, to borrow that expression. Most fundamentally, those children would be safe.

[Jim Shannon (Strangford) (DUP)]

I commend the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) on securing this debate—that constituency is quite a mouthful, and I hope I pronounced it right. He is at the fore in addressing this issue. In Sudan, 4.3 million people have been displaced, and 1.1 million are living in five neighbouring countries. The British Red Cross has been instrumental in reuniting more than 10,000 displaced people and their families. It can offer support with visa applications if the individual is based in London, Liverpool, Preston or Plymouth, according to its website. Does he agree that it is important to have visa assistance hubs throughout the United Kingdom of Great Britain and Northern Ireland, with at least one for the devolved institutions in Northern Ireland.

[Stuart C. McDonald]

The hon. Gentleman makes perfect sense. Organisations such as the Red Cross and RAMFEL, which I have been working with on this topic, are fantastic. The more support we can give them and people across the United Kingdom, the better.

These are precisely the circumstances in which we should have refugee family reunion rules. I regret to report that, unfortunately, the rules and processes are making it harder for these people than it should be. In particular, while UK rules are pretty generous for spouses, partners and children—I acknowledge that—they are more restrictive for other categories of relative, including siblings. Most of the children I am talking about today have lost their parents, and it is an older sibling here in the UK that they are seeking to join.

Furthermore, the rules require enrolment of biometric information before an application will even be looked at. That means the children cannot even get over the starting line, because the visa application centre in Sudan, understandably, had to close after the outbreak of the conflict. If there is no way to safely provide biometric information, surely we should stop asking for it in advance?

I will set out precisely how the application of the family reunion rules and procedures has impacted on the children. I am using pseudonyms to protect the identity of individuals. Sixteen-year-old Adila fled to Sudan to escape persecution in Eritrea, including forced conscription into the army. As a lone 16-year-old girl in a war zone, she clearly faces significant risks. She has already been displaced from Khartoum to a city in eastern Sudan and is struggling severely with her mental health. She seeks family reunion with her older brother, who is a recognised refugee here in the UK. However, hers is one of a number of cases that cannot get off the ground because the Home Office insists she attends a visa application centre to enrol biometric information. The centre in Sudan is closed, so that would mean having to make an irregular and dangerous journey to a neighbouring country to do it there.

I acknowledge that the Home Office does consider applications to defer enrolment of biometric information until the person either arrives at or is at least en route to the UK, so that the application can proceed. But even a cursory look at the relevant policy document shows that it is only in very few circumstances indeed where the Home Office allows that to happen. When 16-year-old Adila asked to defer enrolment, she was refused that application. The Home Office said she had not proved her identity with reasonable certainty and asserted that having crossed one border irregularly—fleeing Eritrea to get to Sudan—she could obviously manage to do so again.

I do not believe that that is a fair approach to take to a 16-year-old girl in Sudan. Allowance has to be made for the fact that Eritrean refugees in Sudan will almost certainly not be able to produce passports. A degree of latitude is therefore required. The idea that because someone fled over a border in fear of persecution, they can just be called on to make another dangerous and irregular journey is in itself a dangerous idea. It rides a coach and horses through the Home Office’s own policy. It would not be worth the paper it is written on. If an unaccompanied 16-year-old girl in a war zone cannot avail herself of the deferral policy, who on earth can?

Seven of the other individuals are in a similar situation. They cannot apply because they are in Sudan and there is no place to go to enrol their biometric information. Even among those who have made it out of Sudan, similar issues can arise. For example, Fatima, a 15-year-old Eritrean girl, had originally made a family application to join her brother in the UK just prior to the outbreak of the war in Sudan. She had got as far as booking an appointment at the visa application centre in Khartoum. That, of course, had to be cancelled when the centre closed after the outbreak of fighting. Fatima ended up trafficked from Khartoum to South Sudan some weeks after the outbreak of war, and was released only on the payment of a ransom. She clearly remains at severe risk of kidnapping, sexual exploitation and all other manners of harm. There is no visa application centre in South Sudan, but again the Home Office refused to defer biometric enrolment.

RAMFEL asked the Home Office if, as an alternative, mobile biometric enrolment could take place—someone would travel to South Sudan from a regional VAC to take the biometrics there. If required, RAMFEL would offer to pay, but even that reasonable offer was refused. I ask the question again: if those circumstances do not merit the deferral of biometric enrolment or other compromise action, what on earth does?

[Patrick Grady (Glasgow North) (SNP)]

Is that not the problem with the hostile environment? There are no circumstances; they do not want people to come. It does not matter how dreadful the circumstances are that people are living in. It does not matter that this is the country where they have family members who can make them feel at home and welcome, and help them to start to overcome the trauma they have gone through. The Home Office does not want to know. Computer says no. The door is closed.

--- Later in debate ---

[Stuart C. McDonald]

“Computer says no” is pretty close to the bone. The Home Office has a policy on biometric enrolment, and it sticks rigidly to it even when dramatic circumstances such as those persisting in Sudan mean that a different approach should be taken.

The Home Office can take a different approach, and it has done so in certain circumstances. The Minister would not like it if I made a comparison with Ukraine, and I do not want to do so, but I simply point out that, in those incredible circumstances, the Home Office was able to take a different approach. I am not asking for anything remotely approaching what was done in that situation; I am just asking the Home Office to be a little more deft, a wee bit more responsive, and to think about the considerations that should apply for people applying from Sudan.

[Anne McLaughlin (Glasgow North East) (SNP)]

I am sure my hon. Friend is aware that there is a big Sudanese community in Glasgow, and I remember a meeting I had with a number of Sudanese people who made that very point about Ukraine. They said, “We want this country to look after Ukrainians. Of course, it has to look after them; they are going through a terrible war and they are being attacked—but so are our families. What is the difference?” Does my hon. Friend understand how important this debate will be to Sudanese people living in this country? At last, somebody is talking about their pain and cares enough to secure a debate in the House of Commons. I know they really appreciate everything he is trying to do.

[Stuart C. McDonald]

I am grateful to my hon. Friend for her remarks, but the tribute should be paid to RAMFEL and the other organisations out there that do amazing work on behalf of the Sudanese community.

There are people who would make a legitimate argument that there should be some sort of equivalence in the treatment of Ukraine and Sudan, but that is not the case I am making tonight. I am simply saying that the Home Office showed in the case of Ukraine that it was willing to apply different rules, or to apply the same rules differently. It was able to be nimble and to respond accordingly to a grave situation. This, too, is a grave situation and there should be some sort of flexibility in the response.

On this point, the solution is pretty obvious: we need a more generous set of exceptions to the rule that requires biometric information be provided in advance. I am not the only one saying that. The House of Lords Justice and Home Affairs Committee recently reported on family migration:

“The Home Office should exercise its discretion to lift or delay the requirement to submit biometrics when this would involve travelling in dangerous conditions or outside the applicant’s country of residence. The Home Office should allow biometrics to be completed on arrival in the UK for a wider range of nationalities in crisis situations.”

That seems to be the compassionate and common-sense thing to do. If the Minister is not willing to go as far as the Committee suggests, surely he must see that the application of the rules in the types of circumstances I have described is gravely unsettling and must be revisited in some form.

I turn next to rules in relation to siblings. Even those who ultimately are able to jump through the first administrative hoop are far from guaranteed success in their family reunion application. Existing rules focus on family reunion for spouses and for children under 18. I have spoken in previous debates about various problems with what I regard as the overly restrictive category of relationships that can benefit from family reunion without further tests applying, but today I will focus on siblings.

Given the situation prevailing in Sudan and neighbouring countries, many children find themselves either orphaned or without any contact with their parents. For these kids, their siblings here in the UK are essentially their only remaining family. That said, if a 15-year-old seeks to join their 20-year-old brother here, they must first pay a fee and a health surcharge, unless they are granted a waiver, which adds an additional hurdle. Then, as well as proving their relationship, they must show that there are exceptional circumstances and that the refusal of their application would result in unjustifiably harsh consequences for the applicant.

Meeting those tests can be surprisingly difficult. It often seems that the general country situation, however hellish, will never be enough to make a person’s circumstances—even a child’s circumstances—exceptional enough to overcome that hurdle. A person seems to need to be able to show that their circumstances are exceptional, even compared with other individuals in that country—in that warzone. That is a hugely difficult prospect, likely requiring legal advice and lawyers, and it is difficult to obtain the necessary evidence.

Surely the Home Office can be more responsive to the situation on the ground in Sudan. At the very least, could we not have clear guidance that any child living unaccompanied in Sudan should be treated as meeting the necessary tests of exceptionality and harsh consequences, and therefore should, in principle, be allowed to be reunited with a UK-based sibling? Surely that is the bare minimum we can do.

As I said, even if those tests are overcome, the fact that siblings are not considered “core” family members for the purposes of the rules has other consequences. I turn to another case study. Two unaccompanied Eritrean children saw a household member killed. One of the kids was beaten up during the same raid. They submitted applications for family reunion in November 2022, some months before the most recent upsurge in fighting. The applications were originally refused, but an appeal was lodged and the Home Office eventually conceded it. That was welcome, but the Home Office is now insisting on payment of the immigration health surcharge, which, of course, the family simply cannot afford. Surely in such circumstances any fee or health surcharge should be waived.

Finally, I turn to processing times. If one of these kids is somehow in a position to jump through all the hoops I have described, surely the least we will offer is a speedy priority service. The service standard for family reunion applications is 12 weeks, but I am told that many applications take six months to a year. If an appeal is required in order to overturn a refusal—we have just heard about an example of that—the wait can be more than doubled. Family separation will always be painful, but for unaccompanied children in Sudan, and even in some of the neighbouring countries, it is also seriously dangerous. Surely some sort of priority processing has to be given to cases where the applicant is directly in danger.

Another case study involves Wissam, who is 17, and Abdul, who is 14. They applied to join their older brother just before war broke out and had an appointment to enrol their biometrics in Khartoum. That could not happen, as the centre closed down. Struggling to access food and water, and at risk of kidnapping, trafficking or exploitation, the brothers were victims of robbery. Ultimately, they decided to flee again and make a dangerous, irregular journey to Uganda. They now live unaccompanied in cramped conditions and, because of their age and nationality, face regular discrimination in accessing sanitation, including clean water. The 14-year-old is struggling with mental health issues and suffering night terrors because of his experiences in Sudan and on the journey to Uganda. Surely we cannot leave those two brothers, who are now in a position to submit their application, to wait for months and perhaps years. Surely applications have to be given priority in those circumstances.

The Minister will no doubt tell us about the significant number of people who do arrive here in the UK under our family reunion arrangements. I acknowledge that fact and I welcome it. However, it would be totally wrong to say that the system is functioning well; various reports by the independent chief inspector of borders and immigration testify to that. Lots of improvements still have to be made. I am not asking for a revolution today, although perhaps I will pursue that further in the months to come. Today, I simply ask that the Home Office accepts that it has to be nimble, to respond and to tweak its rules and processes where circumstances require. The utterly dire circumstances in Sudan surely justify such a response.

In summary, I am asking the Home Office three things. First, I ask it to rethink the requirement for people trapped in Sudan—particularly children—to provide biometrics in advance at a visa application centre. Please look at alternatives, whether waiting until people’s arrival in the UK before requiring biometrics, or some other compromise that does not hold up the consideration of applications.

Secondly, I ask the Home Office, either by tweaking the rules or, perhaps more realistically, by issuing guidance for cases such as those I have described, to make it clear that, as a general rule, children from Sudan seeking to join siblings or other family members in the UK should be treated as meeting the “exceptional” test for the family reunion rules. I would like to think that that would be applied to siblings more generally, but for today’s purposes I make a special case for those seeking to leave Sudan. I also ask the Home Office not to make any such applications subject to fees and health surcharges.

Thirdly, I ask the Home Office to prioritise these applications, in recognition of the dangers that the people making them face. Do not leave them waiting for months. Finally, if possible, seek to work with international organisations and non-governmental organisations to help support safe passage from Sudan, as and when applications are allowed.

I close with a warning, because the danger is that if we do not facilitate their applications, these youngsters will end up seeking to make their own way to the UK, irregularly and dangerously. That brings me to the final case I want to mention, which is that of 16-year-old Daoud, who fled Eritrea to Sudan. In the light of the situation there, he fled again, to South Sudan. With no progress on securing refugee family reunion from there, he took matters into his own hands and started making his way towards the Mediterranean. He is currently arbitrarily detained in Libya. Some might say he made his own choices, but I think we left him with no choice at all.

I do not want to have to come back here in a few months with another Adjournment debate on this subject and to have to provide similar—or even worse—updates on the other children I have mentioned in this debate. I know the Minister cannot make policy on the hoof, but I urge him to speak with officials, to rethink the Home Office strategy in relation to those who are suffering in Sudan, and to ensure that we are doing all we can to facilitate and support family reunion.

[The Minister for Immigration (Robert Jenrick)]

I thank the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East (Stuart C. McDonald) for securing this Adjournment debate. We share his deep concern about the situation in Sudan and all those affected by it, including those seeking refugee status in the United Kingdom or other safe countries. The Government remain committed to upholding the principle of family reunion by providing a safe and legal route to bring families together through the refugee family reunion policy.

The family reunion route allows individuals with protection status in the UK to sponsor their partner or children to stay with or join them here, provided they formed part of a family unit before the sponsor fled their country of origin to seek protection. While we sympathise greatly with the situation in which many individuals in Sudan find themselves, we do not intend to prioritise refugee family reunion applications from those impacted by the Sudanese conflict, as there are many other individuals in the queue who will be facing broadly comparable situations elsewhere in the world. We want to treat all individuals facing such situations in the same manner and ensure that, where appropriate, they can be supported to a life in the UK in accordance with our rules.

[Stuart C. McDonald]

I would not necessarily say that people seeking to come here from Sudan because they are in danger there should be prioritised ahead of others who face similar risks elsewhere—a point that the Minister fairly makes—but does the Home Office make any consideration or assessment of risk at all? There are people who apply for refugee family reunion, quite rightly and fairly, who do not face any imminent risk because they are in a relatively safe third country. Surely the fact that people are facing real danger is an added reason to give priority to their family reunion applications. That should be something that the Department considers.

[Robert Jenrick]

The hon. Gentleman makes a valid point, which I am happy to take up with my officials. Our policy is one of non-discrimination, so individuals are treated equally, regardless of their country of origin. Obviously, there are a number of places in the world with great danger and we do not choose to rank them in order of priority. However, I can see some merit in what he is saying, so I am happy to give that consideration.

It is important to note that the UK has a very strong record of supporting refugees. Since 2015, we have resettled over half a million people seeking safety, which is among the most generous offerings in our country’s history. The UK ranks highly among other developed countries in that regard. We continue to welcome refugees through our existing global resettlement schemes, including the UK resettlement scheme itself, community sponsorship and the mandate resettlement scheme. Since 2015, we have issued 49,000 family reunion visas to family members of those with protection status, with over half of those visas for children. That figure demonstrates our commitment to refugee family reunion.

We have welcomed Sudanese nationals through both our UK resettlement scheme and the community sponsorship scheme in 2022 and 2023. Between 2015 and 2023, 6,500 Sudanese nationals have been granted visas under refugee family reunion. In the year to September 2023, 618 Sudanese nationals were granted visas under refugee family reunion. The UK is making a significant commitment, although of course the need is very great, as the hon. Gentleman says, due to the situation in Sudan.

We will continue to consider our approach to refugee family reunion in the round rather than on a crisis-by-crisis basis. The UK has no plan at the moment to introduce a designated resettlement scheme for Sudanese refugees. As a general rule, it is important that the UK does not treat migration as the first lever that we pull to try to help people in grave situations in the world.

Generally speaking, the greatest impact that the UK can make, whether that is in Sudan or in other crisis situations, is by using our full diplomatic muscle and our development aid to support people in the region, which is, in fact, the place where the majority of refugees find themselves. Indeed, that happens with respect to the Sudanese situation, where hundreds of thousands of individuals are being supported by the United Nations High Commissioner for Refugees and other organisations in the immediate environs of Sudan. The UK is proud to be supporting those efforts to help those individuals.

I wish to turn more specifically to some of the very valid questions that the hon. Gentleman raised. First, he raised the question of those fleeing conflict zones who find it difficult to provide documents for family reunion purposes. We recognise that this is a challenge for those fleeing their homes and their home countries. Although the onus is on the applicant to show that the relationship is genuine, there are no specific requirements to provide certain types of evidence. We recognise that documentary evidence may not always be available, particularly in countries where there is no functioning administrative authority to issue a passport, a marriage certificate, or a birth certificate. Decision makers should take into consideration evidence from a range of sources, including information provided by their UK family sponsor. Each decision is considered on the balance of probabilities to identify whether there is sufficient evidence to prove that the individuals are related as claimed.

It is important to prevent abuse of the refugee family reunion policy and to safeguard applicants by carefully reviewing their applications where fraudulent documents are submitted, or where there is evidence that the sponsor obtained leave by deception.

With more specific regard to the situation in Sudan, the hon. Gentleman is right to say that the visa application centre in Khartoum is closed until further notice. As a result, any passports remaining there are having to be held in secure storage. We are committed to doing everything we can to support people who find themselves affected by that closure and to reopen the centre as soon as it is safe to do so for our staff and their contractors. There are other visa application centres in the wider vicinity of Sudan. I appreciate that the distances are long, and that the journeys can be arduous and, at times, unsafe. We do have visa centres in Cairo and Jeddah, and many people have made use of those in the time since the crisis began.

[Stuart C. McDonald]

Even among the cases that I spoke about, one or two individuals had made it into a neighbouring country—unfortunately one had made it to South Sudan where there is also not a visa application centre—but surely, particularly in the case of children, it is too much to ask them to make a dangerous journey such as that to supply biometric information. There should be some sort of presumption against the need to provide biometric information, or at least a willingness to consider deferring it before the Home Office even looks at the application.

[Robert Jenrick]

In most cases, unfortunately, individuals will have to make a journey to leave Sudan, as it is very unlikely that they will fly directly from Sudan. Most of the cases that I have been made aware of as Immigration Minister are of individuals who have made the journey to Cairo or to Jeddah or other neighbouring countries.

[Stuart C. McDonald]

rose—

[Robert Jenrick]

Before I give way to the hon. Gentleman, I will reply directly on the biometrics point, which is an important question. Fundamentally, we believe that biometrics are extremely important, because we want to protect the UK’s national security and the safety of our citizens here. Although, of course, we all want to see the best in individuals coming here, particularly in young people and children, there are individuals whom we would not want to enter the United Kingdom. As such, biometrics, in the form of facial image and fingerprints, underpin our immigration system. However, we make exceptions for individuals who find themselves in the most difficult situations.

We published guidance in May 2023, which sets out our approach to handling applicants who claim that it is unsafe to travel from Sudan to a visa application centre in another country to enrol their biometrics—he referred to that situation in his speech. The guidance sets out the circumstances under which UK Visas and Immigration will either predetermine an application or defer the requirement to enrol biometric information until the applicant arrives in the UK, when the applicant has demonstrated their circumstances to be exceptional. In most cases, we require biometrics to be taken as part of the application so that we can conduct the checks on a person’s identity and suitability to come to the UK. It is ultimately the responsibility of the applicant to satisfy the decision maker about their identity.

I hope that the hon. Gentleman can take some comfort from the fact that the guidance gives that flexibility. I hear that he feels that it is being applied too onerously and in a way that is insufficiently sensitive to the situation in Sudan. I am happy to take that away, speak to my officials and, if he has further examples, to put those in front of them so that we can make sure that the guidance is being applied fairly.

[Stuart C. McDonald]

I am grateful that the Minister is open to having a discussion about this issue. He is right that, ultimately, all these kids will probably have to leave for a neighbouring country for onward travel. However, it is one thing to ask them to leave in the certainty that they will be allowed into the United Kingdom; it is another to ask them to leave and provide biometric information on the off-chance that they might be allowed in at some future point.

One compromise might be to consider the family reunion application without the biometric information; if it is granted, then tell them to come to a neighbouring country and provide the biometric information there. Will the Minister take that away and think about it?

[Robert Jenrick]

I will be happy to look into that and come back to the hon. Gentleman. We both agree that biometrics are important. We want to ensure that they are compromised only in the most exceptional circumstances so that we can protect national security, but it is important that we show a degree of discretion when people—young people, in particular—find themselves in the hardest of situations. I will be happy to look into the issue and write to him.

The hon. Gentleman also mentioned processing time for family reunion applications, and I want to address that directly. In general, UKVI is operating well and is meeting its service standards in all, or almost all, visa categories, but there are delays with respect to family reunion—a point that he and other Members have raised in the past. We acknowledge the need to dedicate more resource to support the safe and legal routes and are reviewing processes to streamline decision making to make it more efficient for applicants.

We recognise that the family members of those with protection status in the UK are particularly vulnerable. When the out-of-country decision making team receives a request for prioritisation from an applicant or their representative, that will be assessed to determine whether the application should be prioritised. As I said in answer to the hon. Gentleman’s previous comment, we do not prioritise in a blanket way because of nationality, but we do give priority to cases involving particularly vulnerable individuals.

Examples of grounds for prioritisation may include applicants or sponsors who have serious medical conditions or terminal illnesses. The list of grounds for prioritisation is non-exhaustive; managers undertake a holistic consideration of the applicant’s circumstances when considering a request for prioritisation. The hon. Gentleman also asked about the cost of refugee family reunion. It is free—no fee it levied, although he did raise some of the allied costs that go with it. We make sure that the route is free for obvious reasons.

The hon. Gentleman also asked about child sponsors. The family reunion policy is intended to allow those granted protection status in the UK to sponsor, pre-flight, immediate family members to join them here. We must avoid creating an incentive for people, particularly children, to leave their families and risk very dangerous journeys, hoping that relatives will be able to join them later. We do, unfortunately, come across examples of that, including through the small boats route, which is among the most perilous of journeys that a child could make.

There are other provisions in the immigration rules that cater for extended family members and, where a valid application does not meet the criteria within our rules, including child sponsors, we consider whether there are compelling compassionate factors that warrant a granting outside the rules. We believe that were children allowed to sponsor parents, that would create a real risk of an incentive for more children to be encouraged, or even forced, to leave their family and risk very hazardous journeys to the UK. That plays into the hands of criminal gangs that exploit vulnerable people, and goes against all our safeguarding responsibilities and instincts. Our policy is not designed to keep child refugees apart from their parents, but in considering any policy we have to think carefully about the wider impact to avoid putting more people unnecessarily into harm’s way.

Finally, I will answer the broader question about refugee resettlement. We have a proud record as a country, having offered half a million people a safe and legal route into the UK. We understand that the scale of disruption and situations around the world mean that so many people find themselves in grave need. Our approach has to be considered very carefully, but we want to continue to work with international organisations, such as the ones that the hon. Member referenced. We have a good relationship with the United Nations High Commissioner for Refugees through our global resettlement scheme, and earlier in the year, through the Illegal Migration Act 2023, we legislated so that we can introduce further schemes in the future.

I recently launched a consultation in which we asked every local authority in the whole of the United Kingdom to give us their capacity to take refugees on such schemes over the course of the year to come. That consultation is open and I encourage the hon. Member to talk to his local authority and see whether it is taking part in it. We will carefully consider the responses, and if they suggest that there is further capacity across the UK, that will lead us either to extend existing schemes or to create new ones so that the UK can play an even greater and more generous role in the years ahead in helping more people from places such as Sudan to come to the UK.

I thank the hon. Member for securing the debate, and all our colleagues tonight who have listened or contributed. I fully understand the interest in the subject, given the great concern that everyone feels about the situation in Sudan. I hope that I have set out our record and the work that we are doing, and given him some assurances that he and I can work closely together to learn from his experiences, and his evident sincere concern about the issue, to ensure that the scheme is operating as well as it can.

Question put and agreed to.

Illegal Immigration

Stuart C McDonald Excerpts

Wednesday 15th November 2023 Commons Chamber

[James Cleverly]

My hon. Friend makes an important point, and my commitment, which is echoed by the Prime Minister, is that we will look at our domestic legislative framework and take action. We have passed one of the most ambitious pieces of legislation and we are unafraid to do so. This is core to the lives of the British people and their confidence in the security of their country, and it is core to our mission as a Government.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

What the Home Secretary is ultimately arguing for is a system whereby rich western countries get to pack off asylum seekers and refugees to poorer countries that already bear a vastly disproportionate share of responsibility for sheltering refugees around the world. There is zero evidence that that will work, and an abundance of evidence of the harm it does to the individuals caught up in it. Is it not the case that this is not just illegal, but immoral and impracticable?

[James Cleverly]

So what would the hon. Gentleman do? Would he say that every person in the world—[Interruption.] The world is a big place, and there are lots of people in it. Is he credibly saying that anybody choosing to come here by any means, including through the hands of evil criminals, should automatically have the right to stay? It is an untenable position. We are addressing poverty and conflict in the developing world. We are addressing climate change, which is affecting farmers in the developing world. We are doing all those things, but we are also discharging our duty to the British people to protect their borders. If he does not feel that that is a function of Government, then he is wrong.

Contest: UK Strategy for Countering Terrorism 2023

Stuart C McDonald Excerpts

Wednesday 19th July 2023 Commons Chamber

[Mr Speaker]

I call the Scottish National party spokesperson.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

May I start by expressing my party’s deep gratitude to all those who are working to protect us from despicable terrorist attacks? Of course, our thoughts remain with all those who have suffered as a result of such evil crimes.

On that note, while I welcome the strategy’s focus on victims, may I raise the recent reports of survivors of terrorism who have been deeply upset by poor treatment by the criminal injuries compensation scheme? What discussions has the Home Secretary has had with colleagues about fixing those problems?

The strategy’s commitment to engage across the tech sector is welcome but, like the shadow Minister, I was surprised by its very limited reference to the use of artificial intelligence for radicalisation and instruction. The Windsor castle crossbow attacker is a perfect example of someone being radicalised in that way. Does the Home Secretary believe that legislation is required, and what concrete steps are being taken to address the use of AI in that way?

What extra funding will support the refreshed strategy, especially given the reports that later this year a significant number of convicted terrorists will complete their sentences, which will require the most careful management? The strategy recognises the critical importance of the closest partnership working with the devolved Governments and agencies that have responsibility for delivering various aspect of Contest. Can we have the Home Secretary’s assurances that that close working will continue?

[Suella Braverman]

I thank the hon. Gentleman for his observations. He talked about support and compensation for victims of terrorism. More can and must be done, which is why the Government are reviewing the support available to better address victims’ needs. We are absolutely committed to ensuring that victims of terrorism get the full compensation to which they are entitled, in line with schemes administered by the Criminal Injuries Compensation Authority. Those schemes deliver for victims of terrorism. The truth is that no amount of compensation can ever make up for the ordeal suffered by victims of terror. That is why it is right that survivors get all the support they need, in whatever form it may be required, through the publicly funded CICA, which paid out more than £158 million to victims of violent crime last year alone.

Illegal Migration Bill

Stuart C McDonald Excerpts

Consideration of Lords message
Monday 17th July 2023 Commons Chamber

[Robert Jenrick]

I am grateful for those points. Social workers will clearly be at the heart of all this work, as they are today. Every setting in which young people are housed by the Home Office, whether it be an unaccompanied asylum-seeking children hotel, which we mentioned earlier, or another facility, has a strong contingent of qualified social workers who support those young people. I am certain that social workers will be at the heart of developing the policy and then, in time, operationalising it.

Their lordships have attempted but failed to smooth the rough edges of their wrecking amendments on legal proceedings, but we need be in no doubt that they are still wrecking amendments. They would tie every removal up in knots and never-ending legal proceedings. It is still the case that Lords amendment 1B would incorporate the various conventions listed in the amendment into our domestic law. An amendment shoehorned into the Bill is not the right place to make such a significant constitutional change. It is therefore right that we continue to reject it.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

Will the Minister give way?

[Robert Jenrick]

I will not, because I need to close my remarks; this is a short debate.

Lords amendment 9B continues to undermine a core component of the Bill: that asylum and relevant human rights claims are declared inadmissible. The Lords amendment would simply encourage illegal migrants to game the system and drag things out for as long as possible, in the hope that they would become eligible for asylum here.

Lords amendment 23B brings us back to the issue of the removal of LGBT people to certain countries. The Government are a strong defender of LGBT rights across the globe. There is no question of sending a national of one of the countries listed in the amendment back to their home country if they fear persecution based on their sexuality. The Bill is equally clear that if an LGBT person were to be issued with a removal notice to a country where they fear persecution on such grounds, or indeed on any other grounds, they could make a serious harm suspensive claim and they would not be removed—

--- Later in debate ---

[Madam Deputy Speaker (Dame Eleanor Laing)]

I call the Scottish National party spokesperson.

[Stuart C. McDonald]

We should oppose all nine Government motions, which is precisely what my SNP colleagues and I will do this evening. Let me say again that this Bill is so appalling that the House of Lords should stop it in its tracks. However, Baroness Jones was the one speaker who had the guts to say:

“we should be stubborn about not allowing the Bill to go through.”—[Official Report, House of Lords, 12 July 2023; Vol. 831, c. 1814.]

As I asked last week, if the Lords will not consider halting this Bill, which Bill will it be? This Bill is about locking up kids, forcing trafficking victims back to their exploiters, mass detention, closure of the UK asylum system and the trashing of international laws. If the Lords will not use their powers to block this Bill—a Bill that also runs totally contrary to what was in the 2019 Conservative manifesto—what is the point of their powers, and what is the point of the House of Lords? Let us hope that we can salvage something from these final proceedings.

On Lords amendment 1B, if the Bill is consistent with our international obligations, the Government cannot have any objections to the amendment. On the other hand, if, as the Government have at other times argued, it wrecks the Bill to have to be read consistently with international law, then the problem is with the Bill, not the amendment. That is a good reason in itself for the whole Bill to be stopped in its tracks. The revisions to the amendment mean that arguments about allegedly incorporating international laws have been addressed, despite the completely unsubstantiated assertion from the Minister. We have heard lots of strong words about protecting a dualist system of law, but given that the Government could not even make the normal human rights compatibility statement, we need strong action to protect fundamental human rights and the rule of law.

The grouped amendments 7B and 90D are also important in upholding the rule of law. They preserve judicial oversight, so that illegal decisions by the Government can be properly challenged before they are implemented. It really is as simple and fundamental as that. The Government keep talking about loopholes, but access to courts, the rule of law and fundamental rights are not loopholes; they are fundamental principles that we should be upholding.

Lords amendment 9B is another crucial amendment. It now includes safeguards to assuage the usual Government concerns about gaming the system, but retains the vital protection that if a person cannot be removed to Rwanda even after six months, they will then have their case assessed here. It simply preserves the status quo and is an essential protection. It remains an appalling prospect that people who are refugees will be left in limbo forever by the Government; never allowed to have their claim heard here and never able to contribute, even if removal is a near impossible prospect.

Indeed, it is also ludicrous that there will be people with totally unfounded claims for asylum who will get to remain here in limbo, often at considerable taxpayer expense, because of the Bill. The Bill stops unfounded claims being dealt with, just as it stops well-founded claims being dealt with. The end result is that thousands of people will need to be detained and accommodated in perpetuity. Many more will disappear underground, as they will have no reason to stay in touch with the Home Office. It is the end of the UK’s contribution to the refugee convention. Again, if the Government are not willing to move on that, their lordships should hold up the whole Bill.

On mass and limitless detention of children in inappropriate accommodation, of course we continue to support all efforts to curtail the horrendous new powers and to limit the extraordinary harm that we know—and the Home Office knows—detention causes to them. We therefore support Lords amendments 36C, 36D and 33B. As I said last week, the Government’s amendments in lieu really represent a pathetic non-concession. A theoretical right for some kids detained for removal to seek bail after eight days is just not remotely acceptable. At the very least, we need short, hard and fast limits, and those limits should be automatic and not dependent on a child being able to navigate the bail system and accessing the legal support that would be required to do that. And the time limits should apply to all kids, whether accompanied or not, and regardless of which particular powers they were detained under. The Government make claims about creating incentives to play by the rules, but, as with most of their claims, they offer absolutely no evidence. There is no suggestion, for example, that the introduction of strict time limits by David Cameron’s Government had the impact suggested here. It is just another myth.

As Members on both sides have said, the Bill is a serious threat to victims of modern slavery and trafficking, and yet again it totally ignores devolved powers on this subject. Those being exploited are the ones who will suffer, not the traffickers, whose power over their victims will only be enhanced by the withdrawal of any route to safety for those they are exploiting. We therefore support Lords amendment 56B and anything that will undo some of the damage that the Bill will do to modern slavery and trafficking provisions. Without 56B, the damage the Bill will do to slavery and trafficking laws across the UK is yet again sufficient to justify holding up the whole Bill.

On Lords amendment 23B and protections for LGBT people, we fully support everything Lord Etherton said in support of his amendments. Put the fact that these countries are not safe for LGBT people on the face of the schedule. Anything that builds on the flimsy and almost certainly unworkable system of “suspensive claims” should be welcomed. LGBT people should not have to go through that process in the first place. If the Government are committed to safe legal routes, they should have no problem with Lords amendment 102B. On the archbishop’s amendments 107B and 107C, a 10-year strategy is utterly sensible—indeed, it is essential. Long-term thinking is as necessary for issues surrounding forced migration as other pivotal challenges such as climate change.

Ultimately, the amendments can only add a little polish to an odious Bill that is utterly beyond redemption. It should be stopped in its tracks entirely and any parties that still send people to the relic of a second Chamber should be using their influence to see that that happens. Otherwise, this is all just for a show and very vulnerable people will suffer as a result.

[Sir John Hayes (South Holland and The Deepings) (Con)]

Edmund Burke said that what matters

“is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do.”

In considering the Government’s response to the Lords amendments, it is important to re-emphasise that the Bill is about fairness; about affirming the integrity of our nation by defending our borders from those who seek to arrive here illegally. We must have the power to remove those entrants from our country. To do so is just and fair. It is what the British people expect, what they voted for in 2019, and what they chose in the Brexit referendum.

Considering the arguments made in the other place, I was struck by the absence of a credible alternative to the Government’s proposal; there seems little sense there of the need to control our borders, stop the boats, save lives, and to make our immigration system fairer, more reasonable and more just. Sadly, much of the debate on the amendments in the other place has been characterised by a combination of denial and detachment from the popular will—denial about the urgency of the problem, and detachment from the sentiments expressed by my constituents and the constituents of other Members on both sides of this Chamber. Those arriving in small boats must be detained securely and removed swiftly, and it must be a straightforward process, for only through that process will we deter more people from arriving.

--- Later in debate ---

[Robert Jenrick]

With the leave of the House, let me say a few words to close this short debate.

As I said at the outset, when we met and voted 18 times last week, we supported the Bill time and again. In each of those 18 votes, we in this democratically elected Chamber voted to stop the boats, secure our borders and enable this important Bill to move forward. Now is the time for the other place, which is, at its heart, as a number of colleagues have said—

[Stuart C. McDonald]

Will the Minister give way?

[Robert Jenrick]

I will not—we have heard from the hon. Gentleman a number of times.

The other place is ultimately a revising Chamber, and it is now time for it to support the Bill. Today’s debate has, like some of the others, been short on new arguments and completely short of any credible alternative. I go back to the arguments made in the other place by many distinguished Members of that House and former Members of this House, most notably the noble Lord Clarke, who said clearly that he was not able, having listened to the debate for hour after hour, to discern a single credible alternative to the Government’s plan. It is incumbent on those who want to vote against the Bill to bring forward alternatives, but we have not heard a single one.

I used to say that Labour Members do not have a plan to stop the boats, but that is not true. They do have a plan, but it is one that is so dangerously naive that it is a recipe for even more crossings and even greater misery. They would create a massive pull factor by giving economic migrants crossing the channel from a safe place such as France the ability to work sooner. They would attempt to grant their way out of the problem and sacrifice the remaining integrity of the system. They would create bespoke country-specific routes for every instance of instability in the world, which would impose more and more pressures on local communities.

Is it not the most telling fact in this debate that today, in the shadow Immigration Minister’s own town of Aberavon, there is not a single asylum seeker? If Members want more asylum seekers, they should have the honesty to have them in their own constituency. From the letters I receive from Labour MPs, I assume that they would house asylum seekers even more expensively than we do today, with no regard to the taxpayer. I am not clear how they would remove illegal migrants when their own leader, the right hon. and learned Member for Holborn and St Pancras (Keir Starmer), campaigned to close an immigration removal centre, tens of Labour MPs have opposed the reopening of two other centres, and the Labour party’s own membership recently voted to abolish them altogether.

The fact is that as its Members vote against the Bill today, Labour’s message to the law-abiding people of this country—from Stoke to Blackpool to Peterborough—when it comes to illegal migration is quite simply “Put up with it.” Its message to the British families who have to wait longer for social housing or GP appointments is “Tough luck”, and its message to the hard-working taxpayer faced with the ever-rising costs of the system is “Cough up.” It is only the Conservative party that can see the fundamental injustice of illegal migration—that it ultimately affects the poorest people in society the most—and has the determination to fix it. That is why the Bill is so important, and it is why the Lords now need to back it.

Question put, That this House disagrees with Lords amendments 1B, 7B and 90D.

Illegal Migration Bill

Stuart C McDonald Excerpts

Consideration of Lords amendments
Tuesday 11th July 2023 Commons Chamber

[Robert Jenrick]

I would be pleased to meet my hon. Friend, as I have in the past. She knows that I have met local authority leaders in Kent on a number of occasions. I want to do everything I can to support them. Historically, they have borne a high burden as a result of their location adjacent to the points of entry, and that has placed some public services in Kent under a great deal of pressure. In the past 12 months, we have created the national scheme to ensure that unaccompanied children are moved across the country and that all local authorities play an equitable part in supporting them. We have also provided substantial financial incentives to local authorities to help them play their fair part.

I appreciate that nothing is ever as simple as that. Developing further capacity with local authority children’s homes or foster carers takes time, but I hope that the measures we have put in place will make a noticeable difference. Prior to the recent seasonal increase in individuals crossing the channel, we had successfully managed to clear all the UASC—unaccompanied asylum-seeking children—hotels that the Home Office had utilised, and I hope we can keep reliance upon them to an absolute minimum this summer and autumn.

In the case of unaccompanied children, the change I have just described will apply where an unaccompanied child is detained for the purpose of removal, and it aligns with the eight-day period for making a suspensive claim. That approach will ensure that we can continue to detain a person whom we suspect to be an adult, but who claims to be a child, pending the outcome of an age assessment.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is important for the Chamber to note that this is not really a concession; it is not even a time limit on the detention of children. It is the ability to apply for bail, as I understand it, after eight days. The person has to be aware of their rights and have access to the ability to challenge detention. It also applies only to a small cohort of children; the vast majority of children detained under the Bill will not have access to this process at all.

[Robert Jenrick]

Respectfully, the hon. Gentleman has misunderstood what we are proposing. If a child who is a genuine child and not subject to age assessment arrives unaccompanied in the United Kingdom, they will be swiftly processed. They will then be sent out into the local authority care system as quickly as possible, until they turn 18. We will seek to remove unaccompanied children in two circumstances, as I set out when we last debated this in the House. The first is where we, the Home Office, manage to reunite them with parents in other countries, as we do in a small number of cases today. The second is where we, the Home Office, manage to return them to their home country, which is a safe country, and in most cases into the care of social services immediately upon arrival. Again, that happens already in a small number of cases. There is no intention to change present practice. We are taking the power to detain, if required, a young person in that situation for up to eight days, housed in age-appropriate accommodation to enable us to make that removal effective.

--- Later in debate ---

[Robert Jenrick]

My right hon. Friend is right. We take age assessment extremely seriously. As he knows, there are some young adults and individuals who abuse the system. Indeed, some are not so young—as I understand it, the oldest individual we have encountered who posed as a child was subsequently found to be 41 years of age. That is wrong as a matter of principle, and it is also a serious safeguarding risk to genuine children and all the caring people who are involved in supporting them, whether they be foster carers, teachers or members of the general public. We therefore have to take the issue seriously. That is why the Bill retains the power to detain an individual who is subject to age assessment for up to 28 days. During that period, the Home Office or local authorities would conduct age assessment. Today, that is done through the Merton system, which is proving to take longer than we would like, but which we want to be conducted within 28 days.

We are now taking advantage of the powers taken through the Nationality and Borders Act 2022 to begin to roll out scientific forms of age assessment. That will happen over the course of this year. Initially, it will happen concurrently with the Merton assessment. We want to ensure that that system is demonstrated to be robust and as swift as possible. I hope that hon. Members on both sides of the House will unite in common agreement that it is important that we weed out cases of abuse, because they pose such a risk. I am afraid that we have seen some very tragic instances such as the murder that occurred in Bournemouth at the behest of somebody who had posed as a child. The state has to do everything in its power to prevent that from happening again.

[Stuart C. McDonald]

Will the Minister give way?

[Robert Jenrick]

If I may make some more progress, I will happily come to the hon. Gentleman later. I want to conclude the point that I was making to my right hon. Friend the Member for Chelmsford (Vicky Ford) on the detention periods and standard of accommodation, because that is important. I assure her, and indeed my hon. Friend the Member for East Worthing and Shoreham (Tim Loughton), who has also taken an interest in the issue, that we will seek to detain unaccompanied children for the shortest possible period. Where there is no dispute that someone is under 18, they will be transferred to the local authority accommodation estate as quickly as possible. Where there is doubt about whether a person is indeed under 18 as they claim to be, they will be treated as a child while an age assessment is undertaken. Such a person will be detained in age-appropriate accommodation, as the law already provides. That is set out in the Detention Centre Rules 2001 made under section 153 of the Immigration and Asylum Act 1999. Rule 11 provides that:

“Detained persons aged under 18 and families will be provided with accommodation suitable to their needs.”

If no such accommodation is available, they will not be detained and instead will be transferred to a local authority as soon as possible. I hope that provides my right hon. Friend with the assurance she seeks.