Investigatory Powers (Amendment) Bill [HL]

Lord Coaker Excerpts

2nd reading
Monday 20th November 2023 Lords Chamber

[Lord Coaker (Lab)]

My Lords, I am sure the Minister was referring to me. But, seriously, I thank him for that helpful introduction and for the briefings that he and his officials have organised, including in buildings nearby later this week.

This is an important Bill, and we all need to ensure that it delivers effectively what we all wish for as we seek to defend our country and our freedoms against outside threats. I say to noble Lords including the Minister that we fully support the passage of the Bill, for the reasons that he outlined in his conclusions, and recognise the changed security environment that necessitates the need for this piece of legislation updating and improving the Investigatory Powers Act 2016.

There have clearly been significant changes to the threat picture, with developments that had perhaps not been fully foreseen over the last few years. Of course we have to remain vigilant against any terrorist threat, but even that has been overshadowed by other factors—in particular, the pace of geopolitical change and the extent of its impact on the UK and its people. The invasion of Ukraine, the weaponisation of energy and food supplies, artificial intelligence, the actions of Iran and the more aggressive stance with China in the South China Sea and beyond are just some of many examples. Importantly, this also manifests, as the Minister will know better than anyone, as threats such as economic espionage, the buying of influence, cyberattacks, disinformation and indeed, as we saw, the Salisbury poisoning. In the face of that hostile state activity, we have to change.

I join the Minister, and no doubt many others, in saying that we are very fortunate in having had the extremely helpful—and for me, I might add, understandable—report by the noble Lord, Lord Anderson, to guide us in this. It is also good to see other Members of your Lordships’ House who have extensive experience in this area to inform our debate. In congratulating the noble Lord, Lord Anderson, I shall raise some general points from his report and then deal with specifics as appropriate for a Second Reading debate.

It is of huge significance and importance that the noble Lord, Lord Anderson, did not produce a classified annex to his report. In an area of this importance and sensitivity, you obviously need secrecy and confidentiality, but there has to be as wide a public and parliamentary debate as possible. There are real issues of principle being discussed here, not least the right to privacy and the protection of an individual’s information or personal data. As I say, there is a need for the security services, law enforcement and others to act and to have the intelligence tools that they need, but the balance between national security, tackling serious crime and an individual’s privacy should and must, quite rightly, be a matter for public debate. When fundamental rights are at stake, that needs to be cautiously challenged, and this House will need to do that in Committee, while, as I say, fully supporting the overall passage of the Bill.

Chapter 10 of the report asks what comes next. Such is the pace of change and challenge, the noble Lord, Lord Anderson, recommends that, once this amending legislation is on the statute book, we need to move on very quickly to what comes next.

I shall turn to the Bill with some general comments, with the more specific questions coming in Committee. Bulk personal datasets are clearly important, and the Bill will allow a lighter-touch regulatory regime. The threshold will be where individuals have a low or no expectation of privacy in respect of that data. The Bill seeks to set out examples of the sorts of cases where such a regime would apply for the examination of material by the UK intelligence community. I believe there will need to be a careful debate about what such a threshold means. What does “low” mean? Would all such activity be subject to the approval of a judicial commissioner? Some have already expressed particular concern about new subsection (3A)(e), inserted into Section 11 by Clause 11(3), which says that communications data can be obtained

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

Does that mean it is available simply by having been published?

On a more general point, how does all this relate to the Data Protection Act, where personal data may be protected but is potentially not so by the new Bill? Big Brother Watch gives the example of the potential concern over Clearview, which has a mass of facial images—approaching 30 billion—harvested from social media. That could be considered a low-privacy database since the photos had been made public by the individuals, but the Information Commissioner’s Office found Clearview in breach of the Data Protection Act. This argument could therefore potentially be extended to many areas, such as Facebook posts, and will therefore need careful scrutiny, along with the more general point about the relationship between this Act and the Data Protection Act.

There are to be new proposals for internet connection records; they are clearly important, but changes are again being made. In particular, on the justification for target discovery—which, in essence, is a more generalised surveillance, if I have understood it correctly—is it the case therefore that there may not necessarily be a need for suspicion to lead to a particular form of surveillance? It is also interesting to note that, according to the report by the noble Lord, Lord Anderson, as I understand it, this extension or facilitation of target discovery for internet connection records should be limited to UK intelligence. So why have the Government extended this to the National Crime Agency as well as to the UK intelligence community? In other words, why has it gone beyond the recommendations of the noble Lord’s report?

The need for the communications of legislators to be secure and confidential—say, in discussing matters with constituents or other bodies—except in the most exceptional circumstances, is of real importance. Following the IPT case in 2015, there was legislation in the 2016 Act that tried to protect this principle by allowing any interception or obtaining of any communication to be allowed only with the so-called triple lock—in other words, after Prime Ministerial authority was given. The question this Bill seeks to answer is: what happens if the PM is, in the Minister’s words, “unavailable”? This seems to me to be a reasonable question to ask. We need to probe Clause 21 carefully and ask whether the inclusion of any Secretary of State is too broad a definition, what the involvement should be of senior officials, as laid out in the clause, and whether the proposed definition is correct. For example, would it not be better to specify the Secretaries of State as the Home Secretary or the Defence Secretary, or other senior Secretaries of State, rather than the broad blanket of any Secretary of State? The senior officials are explained, to an extent, but we need to explore in Committee whether we need to be more circumspect with what we mean by that.

We have also received a briefing from Apple, and it is important for us to reflect on its concerns. As I have made clear, we support the passage of the Bill, subject to proper scrutiny, which we and others will give in Committee, but Apple’s concerns need to be addressed by the Government in a public forum, to ensure trust and confidence in the new system we seek to introduce. Why is Apple wrong to have concerns about pre-clearance requirements?

On extraterritoriality, the noble Lord, Lord Anderson, says on page 57 of his report that he makes “no recommendation” on a policy issue for DRNs or the importance of end-to-end encryption. End-to-end encryption is a key security tool for us all, but it is also one that can be used, and is used, by malicious actors. We understand that, so how do we strike a balance between the necessity for the privacy and protection of an individual’s data and the need for security services and others to have potential access to that data to uncover serious crime or terrorist activity? In Committee, we need to discuss where that balance should be made and where that line should be drawn; it is an important area of discussion.

Throughout the report by the noble Lord, Lord Anderson, and the subsequent Bill before us, we see various adaptions of warrant processes, judicial oversight and the role of the commissioner, with many proposals. While we are generally supportive, we will need to examine these in more detail in Committee, but I have a few general points to raise now. For example, does the Bill help to sort out confusion in government? Incredibly, on page 28 of the noble Lord’s report, the MoD cannot, even when co-located in a hostile environment, transfer some data to the UKIC. Does the Bill sort that out? That is an important question that I put on the table for an answer—not necessarily now, but certainly in Committee.

Domestically, on the same page, we are told that it was a revelation to UK intelligence community officers to see how easily other government departments subject only to normal data protection requirements could access, retain and process bulk personal data. This Bill should not go through without the corresponding changes to policy and practice, highlighted by the above two apparent anomalies. No doubt there are many more. It would be a wasted opportunity were we not to address some of those examples which seem to draw attention to anomalies within the existing system which many of us would expect a Bill such as this to sort out.

Co-operating should not be as difficult as it seems to be. Openness and transparency are crucial so that we can be sure that, as far as possible, the number of various warrants applied for and refused is made public. More generally, what role is there for parliamentary oversight as well as the intelligence commissioner and so on? The Intelligence and Security Committee is our important eyes and ears on this matter. What part will it play in all this? Are its terms of reference, which I have said in other debates are in need of review, sufficient to allow the necessary level of scrutiny? If it is not appropriate for the committee to be involved, where is the parliamentary scrutiny? Where is the mechanism for reporting to Parliament? It would be interesting to hear that from the Minister. Yes, there are various commissioners and there is senior ministerial involvement, but what of Parliament? Parliament cannot be seen in areas as important as this as an afterthought or an irritant. It should be a proper custodian of our values in this difficult area.

I have laid out some of the key issues, although there are many more. I conclude by saying that, as the noble Lord, Lord Anderson, pointed out in his report, we cannot allow the debate to be characterised as being between those who stand up for security, for our country, and who understand what needs to be done, versus a privacy lobby that does not live in the real world. Of course, operational security cannot be compromised and changed threats require policy to be developed. We support the Government in this through the changes which are needed in this Bill. The challenge is to do so in a way that is consistent with our principles of democracy and human rights. Sensible debate and discussion surely will help us towards something that we all want—to build a consensus as far as possible over protecting our nation and allies against those who would do us harm, and not to undermine privacy or freedoms unless it is essential to do so.

Investigatory Powers (Amendment) Bill [HL]

Lord Coaker Excerpts

Committee stage
Monday 11th December 2023 Lords Chamber

Moved by

[Lord Coaker]

1: Clause 2, page 3, leave out lines 24 to 27 and insert—
“(b) the extent to which information contained within the personal data has been made public as a result of steps deliberately taken by the data subject;”Member’s explanatory statement
This amendment would ensure the definition of a low privacy bulk personal dataset is in line with the definition set out in Schedule 10 of the Data Protection Act 2018.

[Lord Coaker (Lab)]

My Lords, before I get to the specifics of my Amendment 1, I will make some general remarks. I thank the Minister and all his officials for their very helpful briefing and the collaborative way in which they have approached the Bill. As he knows, we support the Bill, but we will seek clarification and further information about a number of clauses and the details in them.

It is important for me to say that this is the Committee stage, so some significant details will be explored that will be helpful to us. Indeed, on my own part, there may be one or two misunderstandings as to the actual meaning of certain parts of the Bill. None the less, it is an important Bill and an important step forward for our country and its security; I think we all want to see it be as successful as it can be.

This group of amendments deals with bulk personal datasets. These include personal data where a large majority of people included will not necessarily be relevant to an intelligence investigation. Currently, all BPD warrants must go through a double-lock process of approval via the Secretary of State and then a judicial commissioner, and must be renewed every six months. Agency heads must also perform certain functions associated with the warrant.

As the importance of data-based intelligence grows, the Bill rightly includes several measures to make it easier and quicker to analyse various datasets. Individual BPDs considered to have a low or no expectation of privacy could be approved by intelligence agency heads if urgent or if they fall into a category approved by a judicial commissioner. For urgent cases, judicial commissioners have three days to review the warrant.

BPD warrants will need to be renewed only after 12 months, instead of six, which seems sensible. Some functions can be delegated from heads of agencies to an official while maintaining overall responsibility. The Bill also ensures that third-party BPDs—mostly commercially held data—are regulated similarly to other BPDs. The double lock of the Secretary of State and the judicial commissioner would remain for all BPDs, apart from ones considered urgent by the Secretary of State. For urgent cases, a judicial commissioner would have three days to review the warrant. Again, much of that is very sensible and improves the current situation.

I tabled my amendments in the spirit of probing what the Government mean, and I will ask some questions for clarity. Amendment 1 probes why the definition of low-privacy datasets differs from existing data protection legislation. Being the sort of person I am, yesterday I read the relevant section of the Data Protection Act 2018. It differs from Clause 2, where the Minister lays out:

“Low or no reasonable expectation of privacy”


for authorisations and the various factors to be taken into account. Given that the Data Protection Act also talks about access to data, about intelligence services having to have consent and about intelligence agencies having various conditions applied to them when seeking authorisations to access data, it would be helpful to the Committee to understand which applies to the authorisations and how the various pieces of legislation interact with each other. Otherwise, we have what is included in this Bill as well as what is included in the Data Protection Act 2018. Amendment 1 seeks to understand where and how the two relate to each other, whether one supersedes the other and whether the Data Protection Act is now irrelevant to the authorisations laid out in the Bill. It would be helpful for us to understand that.

--- Later in debate ---

I hope that my rather lengthy explanations—for which I apologise—have provided reassurance to noble Lords. There may be further conversations to be had on certain areas, but I hope that I have given a clear rationale to noble Lords for the Government’s position and that they will not seek to press their amendments.

[Lord Coaker (Lab)]

My Lords, that was an extremely helpful response from the Minister and shows the importance of tabling probing amendment sometimes: to get things read into Hansard that can be referred to.

With respect to the point around children, I would be grateful for the letter to be made available to other Members of the Committee. Again, that was a helpful point and helpful clarification, should it be needed. I also very much agree with him—to show my point about the importance of things being read into Hansard—about my Amendment 17, but it was helpful for the Minister to read into the record the definition of serious crime to be used throughout the Bill, so that there is no ambiguity with respect to that.

I totally agree with what the noble and learned Lord, Lord Hope, said about my Amendment 1. I think the wording in the Bill is better than that contained in Schedule 10 to the Data Protection Act 2018, but I wanted that to be read into the record so that we had it there. I agree with his criticism of my Amendment 1, but the reason I tabled it was exactly to get the point that he made in criticising my amendment, which the Minister reinforced—if the noble and learned Lord understands my logic.

The points made by the noble Lord, Lord Anderson, with respect to Amendment 3 raise an issue. The Minister’s response to that was, “Well, it’s a non-exhaustive list so it’s not necessary, but I’m happy to talk to the noble Lord about it”. One wonders where that will get to. It will be interesting for the Committee to see the outcome of that. I thought that Amendment 3, of all the various amendments, was particularly useful and again drew out whether the factors listed in Clause 2 are the right ones, or whether they need adding to. It was important that the Minister clarified that it is not an exhaustive list.

There is one area that I think may need to be looked at further, as mentioned by my noble friends Lord Murphy and Lord West, and the noble Lord, Lord Carlile, if I understood his remarks properly. We need to clarify the role of the Intelligence and Security Committee. I note the Minister’s reassurances, but what is its role? The clear point of difference between what I would say and what my noble friends Lord Murphy and Lord West and others would say is that we are talking here about parliamentary oversight. The Government have an annual report which goes to the Secretary of State. That is political oversight of a sort but it is not parliamentary oversight. The whole point of the ISC being set up was to give parliamentary oversight to all these sorts of matters. We have a Bill before us called the Investigatory Powers (Amendment) Bill, which deals with all sorts of issues of national security and the powers that the intelligence agencies and others should have on our behalf. It is only right and proper that the Intelligence and Security Committee should have a role that is properly defined within the legislation before us. That is one aspect that I need to reflect on and discuss with other Members of your Lordships’ House and with my noble friend Lord West, as our member of that committee.

That is the one area where, to be honest, I was not satisfied with what the Minister had to say. Notwithstanding Amendment 3, and all the other points made to the noble Lord, Lord Fox, and many others, the definitions the Minister has helped clarify and the various ways he has sought to ensure that people understand the Government’s intent have been extremely helpful to the Committee. With that, I seek leave to withdraw the amendment.

Amendment 1 withdrawn.

Investigatory Powers (Amendment) Bill [HL]

Lord Coaker Excerpts

Committee stage
Wednesday 13th December 2023 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I wish to speak to Amendments 44 and 51A, which are in the name of the noble Lord, Lord Anderson, and to which the noble Lord, Lord Fox, and I have added our names. They very neatly follow on from Amendment 43, which has just been moved by the noble Lord, Lord West of Spithead, and are based on a recommendation in the report by the noble Lord, Lord Anderson, in which he says at paragraph 8.20:

“I recommend the use of a deputy to be permitted for the purposes of the triple lock when the Prime Minister is unable”—


I stress the word “unable”—

“to approve a warrant to the required timescale (in particular through incapacity, conflict of interest or inability to communicate securely)”.

These amendments are prompted by the fact that, instead of the word “unable”, which was that chosen by the noble Lord, Lord Anderson, for the recommendation in his report, and which is also used in Amendment 43, the word that appears in Clause 21 for condition A in the new subsection (3) of Section 26 is “unavailable”. The same point arises with the wording of the triple lock in relation to equipment interference which Clause 22 seeks to introduce, under Section 111 of the 2016 Act. The word “unavailable” would be replaced with the word “unable” in both places by the amendments from the noble Lord, Lord Anderson.

This is all about the meaning of words. The aim must surely be to find the right word to use for describing the situation in which the Prime Minister’s function of giving the necessary approval must be passed to another individual, other than the Secretary of State who has applied for the warrant. This is, of course, a very sensitive matter, and that in itself indicates the importance of choosing the right word.

The question is whether the phrase

“unavailable to decide whether to give approval”

covers all possible situations. The word “unable” includes “unavailable”, but “unavailable” does not always mean the same as “unable”. The word “unavailable” sets too low a bar. The Prime Minister could be unavailable simply because he or she is doing something else—whatever it might be—that is occupying their mind or demanding their attention elsewhere.

On 11 December 2023, the Minister sent a letter to the noble Baroness, Lady Drake, in response to points raised on this Bill by the Constitution Committee, which gave examples of prime ministerial unavailability. Attached to that letter was a commentary on the proposed amendments to Sections 26 and 111, in which the point is made that the word “unavailable” should be understood to mean situations—of which two examples are given— in which the Prime Minister is “genuinely unavailable” to consider the application. The introduction of the word “genuinely” demonstrates the problem with the word “unavailable” on its own, to which the noble Lord, Lord Anderson, draws attention: it needs to be narrowed down and clarified. That is what the word “genuinely” does, but it is not in the Bill.

It is worth noting that, in each of the two examples given in the commentary, “unable” is used to describe situations Prime Ministers may find themselves in which they cannot perform the function to which the statute refers:

“5.1 The Prime Minister is overseas in a location where they are unable to receive the warrant application due to the security requirements and classification of the documents.


5.2. The Prime Minister is medically incapacitated and therefore unable to consider the warrant.”


The fact that “unable” is used here suggests that the word the noble Lord, Lord Anderson, used in his report really is the right one for the situations referred to in these two sections.

There is a further point that the noble Lord, Lord Anderson, would make: “unavailable” does not cover the situation in which there may be a conflict of interest. This surely is a reason why a Prime Minister, although available, should not exercise the power. Here especially, the greater clarity that the word “unable” brings to the situation really is needed.

I know that the Minister has discussed this issue of the wording with the noble Lord, Lord Anderson, perhaps several times and will, no doubt, refer to the position he and his Bill team have adopted so far during these discussions when he replies. But I hope he will feel able, especially in view of the points I have made about the commentary attached to his letter of 11 December, to agree to another meeting with the noble Lord, and possibly myself, before the Bill reaches Report. I hope that, when he comes to reply, he will be able to respond to that request.

[Lord Coaker (Lab)]

My Lords, I am pleased to follow my noble friend Lord West and, indeed, the noble and learned Lord, Lord Hope. They have raised some important questions for the Committee to consider and for the Minister to respond to.

It may be helpful to remind the Committee and others present that Clauses 21 and 22 amend the section of the IPA that deals with targeted interception and examination warrants regarding Members of both Houses of Parliament and the devolved legislatures. These are clearly very important pieces of legislation. The safeguard on such warrants is referred to as the triple lock. As with other warrants in the IPA, the Secretary of State and the judicial commissioner must approve the warrant. But with respect to this issue, the Prime Minister must also approve warrants for the communications of Members of UK Parliaments, hence the difficulty that my noble friend, the noble and learned Lord and others have referred to. What happens with the triple lock if the Prime Minister is not available to authorise that warrant with respect to the communications of parliamentarians, not only in Westminster but the devolved legislatures?

One can see the seriousness of this problem. The Government have rightly felt it necessary to bring this measure forward, given the unfortunate situation when the Prime Minister was dangerously ill in hospital with Covid; thankfully, he recovered. This is clearly a very important issue which we need to consider.

My noble friend Lord West outlined an issue, as did the noble and learned Lord, Lord Hope, that I will speak briefly to. I say respectfully to all noble Lords that the points the noble and learned Lord made are not dancing on the head of a pin: they are very real questions for the Minister about the difference between “unavailable” and “unable” and what that means. The Government need to clarify that for us. My noble friend Lord West’s amendment and my Amendment 47, on which Amendment 45 is consequential, question the wide scope the Government have within the legislation, whereby it almost seems as if any Secretary of State will be able to deputise for the Prime Minister. My noble friend Lord Murphy made the point at Second Reading, which my noble friend Lord West has just made again, that it would surely be better if that scope were narrowed to Secretaries of State with experience of dealing with warrants. My and my noble friend Lord West’s amendments seek to narrow that scope to Secretaries of State who have that experience.

I take the point of my noble friend Lord West. His amendment as it stands is probing. Maybe drafting improvements could be made. The thrust of what he and others said, however, is that we need to do something to deal with the issue.

I have just a couple of questions before I move on to Amendment 55A. Who decides whether the Prime Minister is available or unavailable, or if indeed we have the Bill amended? Who decides that the Prime Minister is unable to take the decision for that triple lock? What is the process by which the decision is made that this is the case?

On Amendment 45, it is unclear to me who the senior officials are that could also make the decision. We have other Secretaries of State who could take the decision if the Prime Minister is “unavailable” or “unable”—if an amendment is passed—to take the decision. Then we have senior officials who might be allowed to take this decision. It is not dancing on the head of pin to ask “What does a “senior official” mean?” and “Who are the officials?”, hence my probing Amendment 45 on who they are and in what circumstances they could take these permissions.

In preparing for Committee, I asked about what sorts of situations might arise. Of course we can think of different situations, and the Government, in the code of practice that they publish, outline a couple of scenarios that may require urgent warrants and the Prime Minister to be involved and so on. In 2011, the noble Lord, Lord Hennessy, apparently did a helpful piece of work on Prime Ministerial powers. He talked of what happens if the Prime Minister is unable to take a decision with respect to shooting down a hijacked aircraft or an unidentified civil aircraft. What happens in those circumstances? Is that the sort of circumstance that the Bill seeks to deal with as well? What we are discussing is obviously also really important because this may involve the authorisation of the use of nuclear weapons. The Minister will be limited in what he can say about that.

I do not want to create a TV drama-type situation, but these are really important questions and the Government are right to address the situation of a Prime Minister being unavailable or unable to take these decisions in some of these circumstances. Again, this gives us the opportunity to think about what areas of national security the Bill would cover.

As is said in the explanatory statement, Amendment 55A

“is designed to probe the extent to which powers in the Investigatory Powers Act 2016 have been used in relation to Members of Parliament”.

As I have mentioned, I was particularly disturbed that, under Section 230 of the Investigatory Powers Act, the Prime Minister can deal directly with the Investigatory Powers Commissioner to keep under review the discharge of the functions of the Armed Forces with regard to intelligence activities. Can the Minister say what the role of Defence Intelligence is in all this? The reason that I raise the matter in this debate on parliamentary communications is due to the report in the Mail on Sunday on 25 November, which spoke of Defence Intelligence being involved in in the Government’s response to Covid. It was involved in looking at communications—and, according to the report in the Mail on Sunday, some of the communications involved parliamentarians.

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

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

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

[Lord Coaker (Lab)]

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

--- Later in debate ---

[Lord Sharpe of Epsom (Con)]

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

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

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

[Lord Coaker (Lab)]

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

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

Investigatory Powers (Amendment) Bill [HL]

Lord Coaker Excerpts

Report stage
Tuesday 23rd January 2024 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, I rise very briefly to support my noble friend Lord West in his excellent speech regarding the Intelligence and Security Committee, which I had the honour of chairing for two years some years ago. I hope that the Government take great heed of my noble friend’s words. The ISC is probably the most important oversight committee in the world, and it is certainly held in great respect by countries throughout the western world. I have never known the committee to be in any way partisan, and it consists of Members of both Houses of Parliament of great distinction. Therefore, I support what my noble friend said.

However, I also support the amendment tabled by my noble friend Lord Coaker regarding the Prime Minister. Something has gone wrong in the last few years in relations between the Government and the Intelligence and Security Committee. It would seem that the Prime Minister, whoever it might be, has not met with the ISC—as he should do—for years. Perhaps the Minister will tell us when the ISC last had a formal meeting in the Cabinet Room of No. 10 Downing Street with an incumbent Prime Minister. It is hugely important because, inevitably, the work of the ISC is secret but may need to be discussed with the Prime Minister of the day. My noble friend’s amendment puts that obligation for the Prime Minister to meet with the committee in statute. I have no doubt that the Minister will dismiss this as impractical. However, it shows the strength of feeling of Members of this House and, I am sure, of the other place, regarding the importance of the ISC, the importance of the agencies reporting to it—especially since, as a result of this Bill, the agencies will have more power—and for there being a direct link between the Prime Minister and the committee on a regular basis.

[Lord Coaker (Lab)]

My Lords, I thank the Minister for his continued engagement with us on all aspects of this important Bill. I would be grateful if he could pass that on to his officials as well. I wish the noble Baroness, Lady Manningham-Buller, well with her knee, and I hope she will soon be able to make do without the crutch.

I very much support what my noble friends Lord West and Lord Murphy said about the amendments moved by my noble friend Lord West regarding the ISC. I look forward to the Minister’s response. I will come to my amendments in a moment, but it goes to the heart of what many of us have been saying—that the Intelligence and Security Committee is extremely important. Part of the problem is that, when the Minister responds to us on these points, he often says, “Don’t worry: there’s ministerial oversight”. However, what my noble friends have talked about is that this is not the same as parliamentary oversight. There is an important distinction to be made. I hope that the Minister can respond to that.

I turn to the noble Lord, Lord Fox, and his amendments. Again, we thank the Government for the communication we have had regarding Amendments 1 and 7. As I have intimated before, we support the noble Lord, Lord Fox, on his Amendments 1 and 7. With the addition of the low/no datasets authorisation and third-party data warrants to the bulk personal datasets warrants regime, and the extension of powers that this represents, it seems appropriate that additional safeguards are put in place to ensure the judicial commissioner is informed as quickly as possible of the use of these urgent warrants. Importantly, that does not change how long the judicial commissioner has to consider the warrant, and to revoke access if necessary; it is just on the importance of notification as quickly as possible. If urgent powers, as the noble Baroness, Lady Manningham-Buller, has pointed to, need to be used, nobody is suggesting that they are not used; the suggestion is that the notification to the judicial commissioner should be made as soon as possible and, with respect to the amendment of the noble Lord, Lord Fox, within 24 hours.

I turn to my Amendment 47. This amendment aims to try to get the Minister to put some of this on the record, rather than to seek to divide the House on it. Amendment 47 seeks to ensure that the Government report on the potential impact of the Bill on the requirement to maintain data adequacy decisions from the EU. The adequacy agreement is dependent on the overall landscape of UK data protections. Although the UK protections are currently considered adequate, deviations from this under this legislation could put our current status at risk. Losing this designation would have serious consequences for digitally intensive sectors, such as telecommunications and financial services as well as tech services. In his response, could the Minister provide some reassurances on this particular aspect of the legislation and say whether any specific analysis has been done on the impacts of the Bill on the data adequacy agreement?

I turn to my Amendment 5, which, just for clarity, is a probing amendment but is extremely important. The Minister will know that I have raised this point again and again on various pieces of legislation over the last year or two. To be fair, the Minister has said that he will raise it with the appropriate people, and I am sure that he has done that—I am not questioning that at all. As the noble Lord, Lord Murphy, said, and the Intelligence and Security Committee said in its report of 5 December 2023—hence my Amendment 5 to probe this—no meeting between the Prime Minister of our country and the Intelligence and Security Committee has taken place since December 2014. I am pleased that we have the noble Lord, Lord Cameron, here—not present in the Chamber now, but here within your Lordships’ House—because he was the last Prime Minister that met with the committee. I find it absolutely astonishing that that is the case.

We are informed by the committee that many invitations have been made to various Prime Ministers to attend the Intelligence and Security Committee. I do not want to go on about this—well, I will to an extent—but it is incredibly important. I cannot believe—people say that it cannot be right, and I show them the report—that it has been 10 years since a Prime Minister has gone to the body, which has been set up by Parliament to ensure there is liaison between Parliament and the intelligence and security services. Obviously, matters can be discussed in that committee. Some of those cannot be discussed in the open, but that is one way in which it is held to account.

Can the Minister explain what on earth is going on? Why is it so difficult for the Prime Minister to meet the committee? I am not intending to push this amendment to a vote, as I say, and I am sure the Minister will try to explain again, but it is simply unacceptable that the Prime Minister of this country has not met the ISC for 10 years. For the first 20 years of its existence, and my noble friend Lord West will correct me if I am wrong, I think it was an annual occurrence that the Prime Minister met the ISC—my noble friend Lord Murphy is nodding—yet that has not happened since 2014. That is unacceptable, and my Amendment 5 seeks to ask the Minister what on earth we are going to do to try to get the Prime Minister to attend. I would not have thought that was too much to ask.

[The Parliamentary Under-Secretary of State, Home Office (Lord Sharpe of Epsom) (Con)]

My Lords, I have listened with interest to the points made in this debate. As noble Lords will be aware, we have considered carefully the amendments that have been debated. I place on record my thanks to the noble Lords, Lord West, Lord Coaker and Lord Fox, for their constructive engagement in the run-up to today’s debate on these issues and various others that will be debated later today.

I turn first to the topic of oversight of the new Part 7A regime containing bulk personal datasets, BPDs, where there is low or no expectation of privacy. Alongside the proportionate set of safeguards set out in Part 7A, the Bill currently provides for executive political oversight and accountability by requiring the heads of the intelligence services to provide an annual report to the Secretary of State about Part 7A datasets. The intention of the report is to ensure that there is a statutory mechanism for political oversight, given that the Secretary of State will not have a role in Part 7A authorisations. That is set out in new Section 226DA in Clause 2 of the Bill.

The Investigatory Powers Commissioner will continue to provide full, independent and robust oversight of the investigatory powers regime, including this new part. Nevertheless, the Government have listened to the points made by noble Lords and colleagues in the other place, and we understand their concerns about increasing parliamentary oversight. Government Amendment 4 therefore recognises the important role of the ISC in providing parliamentary oversight of the intelligence services. It places a statutory obligation on the Secretary of State to provide the ISC with an annual report containing information about category authorisations granted under the Act during the year. The amendment will ensure that the ISC is proactively provided with information about the operation of Part 7A on an annual basis. That will support the ISC in continuing to fulfil its scrutiny role and will enhance the valuable parliamentary oversight the committee provides.

It is appropriate for the ISC to be privy to certain information relating to Part 7A in the exercise of its functions, and that a statutory obligation be placed on the Secretary of State to provide it. This obligation is intended to be consistent with the provisions set out in the Justice and Security Act, and due regard will be had to the memorandum of understanding between the Prime Minister and the ISC when meeting it. It is likely that Amendments 2 and 3, tabled by the noble Lord, Lord West of Spithead, which would require that the report provided to the Secretary of State be also shared with the ISC, would not be in step with that. The information required by the Secretary of State to fulfil their responsibilities in respect of the intelligence services will not necessarily be the same as that which would assist the ISC in performing its functions. The report will almost certainly contain information about live operations, which is outside the scope of the ISC’s remit, as well as other information that it may not be appropriate to share with the ISC and which the Secretary of State could properly withhold from the ISC were the ISC to request it.

For that reason, we think it more appropriate that a report be written to meet the ISC’s functions that the Secretary of State will send to the ISC. This will provide the additional parliamentary oversight the committee is seeking and would be akin to the existing arrangements in place for operational purposes.

--- Later in debate ---

The Government welcome the ISC’s views on how the memorandum of understanding may be updated to reflect any changes arising from the National Security Act and will formally reach out in the coming weeks. The Government are clear that the MoU review is the correct forum to discuss relevant potential changes to the agreement between the Prime Minister and the ISC.

[Lord Coaker (Lab)]

I thank the Minister for giving way, because this is an extremely important point. He mentioned with respect to my Amendment 5 that somebody will formally reach out. Does that mean that the Prime Minister will formally reach out to the ISC and meet with it, so that we get a resolution to this non-meeting?

[Lord Sharpe of Epsom (Con)]

I cannot say whether or not that someone will be the Prime Minister at the moment.

As I said, the Government are clear that the MoU review is the correct forum to discuss relevant potential changes to the agreement between the Prime Minister and the ISC. But the Government do not believe a report of this kind is appropriate or necessary and do not support the amendment. The noble Lord, Lord Coaker, has already answered the question from the noble Lord, Lord Murphy, and all I can say from the Dispatch Box is that I will try again.

I turn to the second of the amendments from the noble Lord, Lord Coaker, Amendment 47, which would require the Government to publish a report assessing the potential impact of this legislation on the EU’s data adequacy decision. The Government are committed to maintaining their data adequacy decisions from the EU, which play a pivotal role in enabling trade and fighting crime. The Home Office worked closely with the Department for Science, Innovation and Technology when developing the proposals within this Bill to ensure that they would not adversely impact on the UK’s EU data adequacy decisions. As the European Commission has made clear, a third country is not required to have the same rules as the EU to be considered adequate. We maintain regular engagement with the European Commission on the Bill to ensure that our reforms are understood. Ultimately, the EU adequacy assessment of the UK is for the EU to decide, so the Government cannot support this amendment.

I turn to the amendments retabled by the noble Lord, Lord Fox, on urgency provisions for individual authorisations under Part 7A and third party dataset warrants under Part 7B. The Government remain opposed to these iterations of the amendments for the following reasons. Urgency provisions are found throughout the IPA and the Government’s approach is to mirror those provisions in the regimes in new Part 7A and new Part 7B. Making the proposed amendment solely for these parts would reduce consistency—as the noble Lord, Lord Fox, predicted—and ultimately risk operational confusion where there is no good reason to do so.

It will always be in the interests of the relevant intelligence service—as the noble Baroness, Lady Manningham- Buller, said; I add my comments to those of the noble Lord, Lord Coaker, about a speedy recovery—to notify a judicial commissioner of the granting of an urgent authorisation or the issuing of an urgent warrant as soon as is reasonably practicable. These urgent instruments are valid only for five working days. A judicial commissioner must review and decide whether to approve the decision to issue or grant the instrument within three working days. If the judicial commissioner refuses to approve the decision within that time, then the instrument will cease to have effect. It would be counter- intuitive for an intelligence service to make untimely notifications, as this increases the risk of the urgent authorisation or warrant timing out because the judicial commissioner is left without sufficient time to make a decision.

In an operational scenario where the urgency provisions are required, such as a threat to life or risk of serious harm, or an urgent intelligence-gathering opportunity, it may not be practical or possible for the intelligence services to ensure completion of paperwork within a 24-hour period, as the noble Baroness, Lady Manningham- Buller, explained rather more eloquently than I have done.

The intelligence services work closely with the Investigatory Powers Commissioner’s Office to ensure that the processes for reviewing decisions are timely and work for judicial commissioners. For those reasons, I ask that the noble Lord, Lord Fox, does not press his amendments.

This group also includes the two modest but worthwhile government amendments, Amendments 8 and 9. These make it clear beyond doubt that the new third party BPD regime will fall under the oversight of the Investigatory Powers Commissioner. The robust oversight that IPCO brings will ensure compliance, ensuring that robust safeguards are in place when information is examined by the intelligence services on third parties’ systems. I hope that noble Lords will welcome these amendments and support them.

--- Later in debate ---

[Lord Hope of Craighead (CB)]

My Lords, I spoke in Committee about the difference between “unavailable” and “unable”. I am greatly encouraged by Amendments 39 and 43 proposed by the noble Lord, Lord West. The one point of difference between us is that he narrows the meaning of “inability”, for reasons he has explained. If it came to a vote, I think I would support his amendments—but, like the noble Lord, Lord Anderson, I think that further thought needs to be given to whether that narrowing of “inability” or “unable” is really appropriate, considering the effect that it has, particularly in situations of conflicts of interest.

[Lord Coaker (Lab)]

My Lords, I do not have much to add to the debate. From these Benches, we fully support the amendments proposed by the noble Lord, Lord West, and the excellent way in which he presented them. They have the support of the whole ISC, which in this respect has done a great service to us all in taking forward the discussion. These amendments certainly improve the Bill.

The point that the noble Lord, Lord West, made is exceptionally important—the fact that this has to be in the Bill, and that we need it to guide us in how we take this forward. For those who read our proceedings, it is important to repeat that what we are discussing here is the interception of communications of parliamentarians, and the fact that the triple lock was introduced to give additional protection to that. The role of the Prime Minister becomes crucial in that, for obvious reasons.

I join others in thanking the noble Lord, Lord Anderson, for the way in which he has presented his arguments, and the discussions and debates that have gone on in this Chamber and outside it. He has done a great service to all of us by tabling what seems on the face of it a simple amendment—simply changing one word, from “unavailable” to “unable”—but is actually of huge significance. We have concerns about it, which we have expressed in this Chamber and elsewhere— indeed, the noble Lord, Lord West, explained them. Notwithstanding the remarks of the noble Lord, Lord Carlile, and others, we are worried about where it takes us with respect to conflicts of interest, and who decides that there is a conflict of interest for the Prime Minister in circumstances in which the Prime Minister themself does not recognise that there is a conflict of interest. I agree with the noble Lord, Lord Anderson, and others, that there may be a need for this discussion to continue—but who decides whether the Prime Minister has a conflict of interest, if the Prime Minister themself does not recognise that, is an important discussion to have. In the end, the system rests on the integrity of the Prime Minister.

The way in which the ISC has tried to bring forward some conditions to what “unavailable” means is extremely important, and we support that, as indeed we support the amendments that try to ensure that those who take decisions are those various Secretaries of State who may be designated under the Bill to take decisions, should the Prime Minister be unavailable. It is extremely important for those Secretaries of State to have experience of the use of those warrants. Again, the amendments proposed by the noble Lord, Lord West, deal with that, and we are very happy to support them.

[Lord Sharpe of Epsom (Con)]

My Lords, I offer my thanks to the noble Lords, Lord Anderson of Ipswich, Lord Fox, and Lord West of Spithead, and the noble and learned Lord, Lord Hope of Craighead, for their amendments and for the points that they have raised during this debate. I also thank the noble Lord, Lord Evans, for his perspective, and the noble Lord, Lord Carlile, for supporting the Government, which obviously I hope becomes a habit.

I have discussed the triple lock at length with noble Lords and many others in Parliament and across government. We are all in agreement that this is a matter of the utmost importance, and it is imperative that we ensure that the triple lock operates correctly. That means that the triple-lock process, when needed urgently, has the resilience to continue in the most exceptional circumstances, when the Prime Minister is genuinely unavailable, while ensuring that the alternative approvals process is tightly and appropriately defined.

On Amendment 40, I thank the noble Lord, Lord Anderson, for the valuable engagement he has taken part in with my ministerial colleagues, Home Office officials and me regarding this amendment. I take this opportunity to explain why the Government do not support this amendment. The expressed intention of the noble Lord’s amendment is twofold: first to tighten the requirement in the current clauses, which use the word “unavailable”; and, secondly, to introduce a potential provision for dealing with a conflict of interest, as one of the circumstances in which the alternative approvals process could be used.

There is certainly merit in limiting the circumstances in which the alternative approvals process may be used. However, the noble Lord’s amendment introduces the requirement for a judgment to be made on the Prime Minister’s ability to consider a warrant application, for any number of reasons, including conflict of interest. This raises a number of challenges.

The first challenge is that “unable” draws into the legislation the principle of ministerial conflict of interest. This poses a constitutional tension and a challenge to Cabinet hierarchy. The inclusion of “unable” would allow for someone other than the Prime Minister to decide whether the Prime Minister is subject to a conflict of interest in a particular scenario, which goes against clear constitutional principles regarding the Prime Minister’s powers. This would be a subjective decision on the Prime Minister’s ability, rather than an objective decision on his availability.

As such, rather than strengthening the current drafting, the amendment as proposed could be considered to constitute a watering down of the triple lock, in that it was always designed to be exercised by the Prime Minister. Someone else making a decision about whether the Prime Minister is able to make a decision, given they can be said to be available and therefore technically able to consider an application, risks the intention of the triple lock. As drafted, the original clauses require a binary decision to be made about whether the Prime Minister is available or not, whereas, in deciding whether the Prime Minister may have a conflict of interest, a judgment must be made which is not binary and therefore has much less legal clarity.

The noble Lord, Lord Anderson, asked me if it is right that the Government believe that it is proper for the Prime Minister to consider a warrant application relating to the Prime Minister’s own communications. The best answer I can give is that the Bill is intended not to tackle issues relating to Prime Ministerial conflicts of interest, but rather to improve the resilience of the warrantry process. Conflict of interest provisions and considerations relating to propriety and ethics are therefore not properly for consideration under this Bill. The Prime Minister is expected, as are all Ministers, to uphold the Nolan principles in public life. For these reasons, the Government cannot support this amendment.

The Government have, however, recognised the concerns expressed by Members of both Houses, and the seeming consensus that a more specific, higher bar should be set with relation to the circumstances in which the alternative approvals process may be used. This high bar is of particular importance because of the seriousness of using these capabilities against Members of relevant legislatures. We accept that we are not above the law and it is appropriate for it to be possible for us to be subject to properly authorised investigatory powers. However, it is right that the significance that this issue was given in the original drafting of the Investigatory Powers Act is respected, and the communications of our fellow representatives are properly safeguarded.

I therefore thank the noble Lord, Lord West of Spithead, for his amendments, and for the close engagement on this Bill which I, the Security Minister and my officials have had with the members and secretariat of the Intelligence and Security Committee. Following engagement with Members of both Houses on these amendments, it is clear that there is good consensus for these measures, and the Government will not be opposing them today. While they will reduce the flexibility of the current drafting somewhat, the Government agree that these amendments strike an important and delicate balance between providing the flexibility and resilience that the triple-lock process requires, while providing the legal clarity and specificity to allow for its effective use. The amendments will also provide further confidence to members of relevant legislatures, including those of this House, that the protection and safeguarding of their communications is of paramount importance.

I should note that the Government do not quite agree with the precise drafting of these amendments, and we expect to make some clarifications and improvements in the other place, particularly to the references to routine duties under Sections 19 and 102 of the Investigatory Powers Act 2016, but I am happy that we seem to have reached broad agreement today.

Investigatory Powers (Amendment) Bill [HL]

Lord Coaker Excerpts

3rd reading
Tuesday 30th January 2024 Lords Chamber

[Lord Coaker (Lab)]

My Lords, we welcome the Bill and see it as an important step forward for our country. I thank the Minister and his colleagues very much for their constructive engagement all the way through; we very much appreciate that. I join the Minister in thanking his officials, all of whom have been helpful in ensuring that we understand the Government’s proposals. I wish him well with the Scottish Government and sorting out the various legislative consents; I hope that happens as soon as possible.

I thank my noble friend Lord Ponsonby for his support and help, and Clare Scally of our Whips Office, who has done an amazing job. I also thank the noble Lord, Lord Fox, the representative of the Liberal Democrats, who have engaged with us and others constructively on the Bill. I also single out the noble Lord, Lord Anderson of Ipswich, whose report gave us a hugely beneficial platform through which to move forward. When an expert puts a report together and the Government engage constructively with it, it helps enormously. Similarly, I thank my noble friends Lord West and Lord Murphy, the ISC for its work and the intelligence services, some of whose representatives are here, for their input. It would be remiss of us not to join the Minister in thanking them again, particularly when we read on the front pages of our newspapers the threat to so-called Iranian dissidents in this country from Iranian criminal gangs. It shows yet again the importance of the work they do.

The Bill is an important step forward because it maintains the powers that our police and other services need to stay ahead of the criminals and those who would organise against us. There are still one or two issues to be looked at, but the Bill leaves us in a good place. As the noble Lord, Lord Fox, said, there will be continuing debate about the triple lock and whether the wording used is completely right, but it is a significant step forward. As my noble friend Lord West mentioned, it shows the Government in a good light when they listen to the arguments and accept amendments because they are the right thing to do. I hope that we can do that in other areas as well.

There are still issues with the oversight the ISC has more generally of government business, and how large companies’ security measures and the work they do will continue under the Bill. However, the Minister is to be congratulated on the open way he has led the legislation through the House. As others have said, it is a case study in how to do it, and we are very grateful for it.

Bill passed.

Investigatory Powers (Amendment) Bill [HL]

Lord Coaker Excerpts

Consideration of Commons amendments
Tuesday 23rd April 2024 Lords Chamber

[Lord Fox (LD)]

My Lords, when I heard that the Government were bringing forward amendments to this Bill in the Commons, I was somewhat suspicious, but I am pleased to say that it seems, after yesterday, the Minister has migrated to a slightly calmer situation today, as the amendments in front of us are all amendments that we can pass without too much ado. Amendments 3 to 6 are useful clarifications of where we should be; the Commons has done a good job in clarifying that area and that should be noted. I am sure that Amendments 15 and 16 will be an understandable change to the original amendment of the noble Lord, Lord West. I would like again to thank the Minister and the Bill team for their openness and their help in working through these amendments and, of course, the previous Bill. With that, we on these Benches are happy to accept these amendments.

[Lord Coaker (Lab)]

My Lords, once again, I thank those in the intelligence community who defend our country. I thank all MPs and Peers from both Houses for their dedicated scrutiny of the Bill, which we fully support. As the noble Lord outlined, it is a good Bill that has been improved by your Lordships’ scrutiny, and it benefited from starting in your Lordships’ House before it went to the other place. I thank—as did the noble Lord, Lord Fox—the Bill team for their work and for their genuine engagement with us as the Bill progressed. I thank the noble Lord, Lord Anderson, for the detailed report that he did, which led to much of what we see in the Bill, and it is good to see the noble Lord in his place.