Investigatory Powers (Amendment)Bill [Lords]

Debate between Stuart C McDonald and Jeremy Wright

Report stage
Monday 25th March 2024 Commons Chamber

[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.

National Security Bill

Debate between Stuart C McDonald and Jeremy Wright

Consideration of Lords amendments
Wednesday 3rd May 2023 Commons Chamber

[Stuart C. McDonald]

I am grateful to my hon. Friend for intervening. His constituent’s case is one that I had in mind when drafting this part of my speech. We do not need to look too far to think of other possible examples. I hope the provisions that he is referring to do not have those implications, but more could have been done to make that absolutely clear. What would be useful today at least would be to have assurances from the Minister that mere assertions by foreign Governments will not be enough to allow that clause to apply. It must be for the courts to interrogate whether assertions that somebody was involved in torture are made out.

Let me turn to the amendments under discussion today. Lords amendment 22 would place additional duties on political parties in relation to risks of donations from foreign powers. In the interests of transparency, I should declare an interest: I have recently had the great honour of being appointed the national treasurer of the Scottish National party, so this amendment would add to my already rather full in-tray. Notwithstanding that, we must acknowledge the serious dangers posed by such donations to our democratic political systems and indeed to our security.

We have been warned by the Intelligence and Security Committee in its Russia report, by MI5 and by various other bodies about the dangers of foreign influence being sought through donation. Yes, we do have the Political Parties, Elections and Referendums Act 2000, but we cannot seriously think that we are remotely in a position to say that the risk has been dealt with. Far from it, the repeated and significant circumvention of those rules is precisely why we continue to receive the warnings that I have just referred to. We need to think about going beyond basic status checks on donors to investigating—where an assessment of risk requires it—the real source of donations. There is support for that type of approach from the Electoral Commission and the Committee on Standards in Public Life.

We welcome this amendment by Lord Carlile, a former independent reviewer of terrorism legislation, with support from the former head of MI5, Lord Evans, and others. As the Chair of the Intelligence and Security Committee has said, this is a modest rather than revolutionary proposal, but it is definitely a step in the right direction. Frankly, opposition to the amendment seems rather fishy indeed.

On Lords amendment 122 and the role of the Intelligence and Security Committee, my general approach is to give colleagues on the ISC all the support that they request. The job that they do is utterly crucial, and I have never had any reason to doubt how seriously and assiduously they go about their task. Their annual report highlighted the need for an updated memorandum of understanding, particularly given the outsourcing of intelligence and security activities to different policy Departments, but there is no sign of that update happening. The support of ISC colleagues for Lords amendment 122 therefore attracts significant deference and weight. Frankly, if nothing else, the Government need a metaphorical kick up the backside in their approach to the ISC—an approach exemplified by the failure of any Prime Minister to meet the ISC since 2014. Therefore, we support Lords amendment 122.

Finally, we welcome the significant change in approach to the offences under part 2 of the Serious Crime Act 2015, and thank all involved in the drafting of the new clause. In particular, it is welcome that the provision now takes the form of a defence rather than an exemption or a carve-out. However, we do remain concerned that there is no specific exclusion in relation to serious harms, such as torture, cruel, inhuman and degrading treatment and sexual offences. If anything, we are even more concerned now than before. Obviously, the Government have spent a lot of time redrafting the Bill in the light of the concerns that have been raised, yet they have still decided to exclude such serious harms from the scope of the defence. It seems a very deliberate and conscious choice that they have made and the Fulford principles do not provide sufficient safeguards on their own.

We therefore support amendment (c) to Lords amendment 26, tabled by the right hon. Members for Orkney and Shetland (Mr Carmichael) and for Haltemprice and Howden (Mr Davis). At the least, it would be very useful to have the Minister say at the Dispatch Box that the Government do not see any circumstances in which such activities could be deemed necessary for the purposes of an intelligence function. On that note, we welcome amendment (c).

We do support the Bill, but we still think there is further to go to get it to where it needs to be.

[Sir Jeremy Wright]

I am grateful for the opportunity to speak in this debate, and also grateful to my right hon. Friend the Member for New Forest East (Sir Julian Lewis) for setting out so clearly the position of the Intelligence and Security Committee, of which I am also a member. He made many points with which I agree and which I do not need to repeat, but I do want to say something very briefly about Lords amendments 22 and 122 in slightly more detail. Both amendments have something in common, which is that they highlight a significant problem and put forward, perhaps, an imperfect solution to those problems. The Government’s saying that they are imperfect solutions has validity, but it would have more validity if the Government were prepared to come forward with solutions to those problems that were less imperfect, which we could all then support.