Draft Investigatory Powers Commissioner (Oversight Functions) Regulations 2022 Draft Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022

Tom Tugendhat Excerpts

Wednesday 23rd November 2022 General Committees

[The Minister for Security (Tom Tugendhat)]

I beg to move,

That the Committee has considered the draft Investigatory Powers Commissioner (Oversight Functions) Regulations 2022.

[The Chair]

With this it will be convenient to consider the draft Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022.

[Tom Tugendhat]

It is a pleasure, as always, to see you and to serve under your chairmanship, Sir Robert. The draft Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022 were laid before the House on 19 October, while the Investigatory Powers Commissioner (Oversight Functions) Regulations 2022 were laid on 18 October.

Maintaining our national security and keeping the public safe is the top priority of this Government and, I hope, every Government. We seek to make these regulations to ensure the maintenance of transparent oversight and the effective operation of the safeguards that are in place to manage the important powers exercised under both the Investigatory Powers Act 2016 and the Regulation of Investigatory Powers Act 2000.

There are three key points to discuss. First, there are the amendments to the covert human intelligence sources code of practice, which I will refer to as the CHIS code—a lovely phrase. The regulations will update the CHIS code in light of the amendments made to the Regulation of Investigatory Powers Act, henceforth known as RIPA, by the Covert Human Intelligence Sources (Criminal Conduct) Act 2021. The amendments to part 2 of RIPA sought to ensure that there is a clear and consistent statutory basis to authorise CHIS to engage in conduct that could otherwise be criminal where it is necessary and proportionate to do so, having regard to the UK’s obligations under the European convention on human rights and the Human Rights Act 1998. The CHIS code sets out the processes and safeguards governing the use of CHIS by public authorities, and provides detail on how CHIS powers should be exercised and duties performed, including examples of best practice. The draft revised CHIS code also sets out enhanced protections for children and vulnerable adults where they are to be authorised as CHIS in exceptional circumstances. There has been extensive, valuable consultation with charities and interest groups to inform these changes.

This instrument will also make necessary changes to the interception of communications code of practice, which I will refer to as the draft revised interception code. The draft revised interception code provides further guidance on the use of interception by public authorities that exercise such powers, which are also known as intercepting authorities. The changes to the draft revised interception code will reflect the Government’s long-standing position on serving intercept warrants on cloud service providers and the enterprise service that they provide to customers. These limited changes will bring much-needed clarity for relevant UK and US companies that are impacted by enterprise service issues.

A public consultation on the proposed changes was carried out between July and October. After further cross-governmental engagement on the draft revised interception code, there are three additional changes to the proposed revisions, to reflect that an intercepting authority may opt not to serve a warrant on the enterprise if doing so would compromise national security. These changes are intended to provide further examples of the circumstances under which a warrant may be served on a cloud service provider instead of an enterprise customer, and outlines the obligations imposed by the Investigatory Powers Act regarding unauthorised disclosure to help protect national security.

Finally, I turn to the changes to the investigatory powers commissioner’s oversight functions. I will refer to the investigatory powers commissioner as the IPC. These regulations place two areas on a statutory footing: first, the IPC’s oversight of the GCHQ equities process, and secondly compliance by members and civilian staff of SO15 at the Metropolitan Police Service and members of the National Crime Agency with the guidance referred to as “The Principles relating to the detention and interviewing of detainees overseas”. These areas have previously been overseen by the IPC and his office on a non-statutory basis.

The changes will provide greater public accountability and enable the effective discharge of the IPC’s responsibilities. As a statutory authority, the parameters of the IPC’s remit are set by Parliament and the IPC has made it clear, and the Government agree, that he considers formalising his oversight responsibilities as being in the best interests of transparency and robust oversight. In summary, the regulations provide clarity and transparency around the use of oversight powers that are vital for keeping the public safe. I commend the regulations to the Committee.

--- Later in debate ---

[Tom Tugendhat]

I thank both Opposition parties for their co-operation. Both codes are very important, and the commissioner is an important addition, so I am extremely grateful that they have given their consent.

Sadly, tracking not only individuals but state-based threats around our country requires powers that many of us wish we did not have to exercise or use, but it would be irresponsible of the state not to have them. Governments in the past have always supported this, so I am glad that we have done so.

It is worth noting that the IPC only has the powers to oversee the process and report, not to intervene or act in any other way, so that has not changed; it has just been extended. Chapter 2 of the CHIS code makes clear that criminal conduct authorisation must be set out clearly for each CHIS. The hon. Member for Halifax is right to ask about the use of children. Of course, children would always be extremely cautiously used in any Government activity and only in the most appropriate circumstances, when no other way could be found to achieve the same result. I assure her that no authorisation would be given unless it was absolutely necessary and the interests of the child were fully taken into account. It is such commitments that have allowed us to get through the consultation process with many groups that are rightly entirely focused on the interests of the child.

I thank the Committee for considering these regulations. Thank you, Sir Robert, for your chairmanship; it is always a pleasure to see you. I thank the Opposition parties for supporting these important SIs.

Question put and agreed to.

DRAFT INVESTIGATORY POWERS (COVERT HUMAN INTELLIGENCE SOURCES AND INTERCEPTION: CODE OF PRACTICE) REGULATIONS 2022

Resolved,

That the Committee has considered the draft Investigatory Powers (Covert Human Intelligence Sources and Interception: Codes of Practice) Regulations 2022 .—(Tom Tugendhat.)