New Clause 1 - Report on the Prime Minister’s engagement with the Intelligence and Security Committee

Investigatory Powers (Amendment)Bill [Lords] – in the House of Commons at 4:53 pm on 25 March 2024.

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“After section 240 of the Investigatory Powers Act 2016 insert—

“240A Report on the Prime Minister’s engagement with the Intelligence and Security Committee

(1) The Secretary of State must publish a report about the Prime Minister’s engagement with the Intelligence and Security Committee in relation to the investigatory powers regime and lay the report before Parliament.

(2) The report must be published within six months of the passage of the Investigatory Powers (Amendment) Act 2024, and annually thereafter.””—(Dan Jarvis.)

This new clause would require the Secretary of State to publish a report on the engagement between the Prime Minister and the Intelligence and Security Committee, including any meeting held, in relation to the investigatory powers regime.

Brought up, and read the First time.

Photo of Rosie Winterton Rosie Winterton Deputy Speaker (First Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“26A Interception notification for Members of Parliament etc.

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

(a) the conduct that has taken place, and

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Government amendments 3 to 6.

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

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

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

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

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

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

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

This amendment is consequential on amendment 19.

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

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

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

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

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

This amendment is consequential on NC4.

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

“has the necessary operational awareness to decide whether” and insert

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

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

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

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

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

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

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

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

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

This amendment is consequential on NC4.

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

“has the necessary operational awareness to decide whether” and insert

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

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

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

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

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

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

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

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

Photo of Dan Jarvis Dan Jarvis Shadow Minister (Home Office) (Security)

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

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

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

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

Photo of Angela Eagle Angela Eagle Labour, Wallasey

Does my hon. Friend agree that it is not above the Minister’s pay grade to be able to confirm that the conventions and arrangements that give the ISC a particular constitutional place in the way our system works ought to operate, even if they have not done so for the last 10 years? Does he, like me, look forward to being able to hear the Minister—rather than dismissing this important concern about the dereliction of a constitutional duty—give us an assurance that this will be the case in the future?

Photo of Dan Jarvis Dan Jarvis Shadow Minister (Home Office) (Security)

My hon. Friend has made an important point, and one with which I suspect the overwhelming majority of Members would agree.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

I was the Minister who took through the House the Bill that created the ISC. At the time, the intention was that it would evolve to become a very powerful Committee, but it did not absolve the entire House from some responsibility. Two elements are involved here. One has just been mentioned by the hon. Gentleman—the Prime Minister’s appearance before the Committee—and the other is minimal redaction of the reports that the Committee creates. One of the problems we have encountered in recent years is excessive redaction of those reports. Has the hon. Gentleman any views on that?

Photo of Dan Jarvis Dan Jarvis Shadow Minister (Home Office) (Security)

The right hon. Gentleman has made two important points, both of which I agree with, about redaction and about the attendance of the Prime Minister. I do not think it unreasonable to expect that once a year the Prime Minister should seek to meet what is a very important cross-party Committee of this House. I should be happy to give way to the Minister should he wish to add his own views on this matter, but given the basis of my sense of where the House is and given previous debates, I think most Members will agree that it is not unreasonable to ask the Prime Minister to turn up once a year.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

The hon. Gentleman’s point is made more potent by the fact that the matters the ISC considers are not typically—in fact, not at all—partisan. It operates on a non-partisan basis, although of course its members are drawn from both sides of the House, and the material that it studies is not seen through a party-political prism in any way; this Minister has engaged in sensible and meaningful discussion with members of the ISC in exactly that spirit during the passage of this legislation. Similarly, a meeting with the Prime Minister would be conducted in a way to which I think no Prime Minister could reasonably object .

Photo of Dan Jarvis Dan Jarvis Shadow Minister (Home Office) (Security)

The right hon. Gentleman speaks about these matters with a great deal of authority, not just as a member of the Committee but as a former Security Minister, and I think he has described the situation very well. I hope the Prime Minister is listening; I hope the Prime Minister accepts what I consider to be the reasonable and constructive invitation that has just been extended to him by the right hon. Gentleman; and I hope the Prime Minister does take the opportunity in the near future to sit down with the ISC and discuss what are, after all, very important matters.

New clause 2 would ensure that an annual report was published on measures in the Bill, and in the Investigatory Powers Act 2016, to defeat and disrupt technology-enabled serious organised crime and technology-enabled threats to our national security. We tabled the new clause because we must ensure that the law is always one step ahead of those who seek to harm us. The police and the security services are not best able to protect us today with the laws to counter the threats of yesterday, which is why we support this Bill to update the 2016 Act, which is now eight years old, but there is an opportunity to go further. The annual report proposed in the new clause would help to ensure that any changes required to primary legislation relating to investigatory powers were identified and implemented as quickly as possible. That would strengthen our legislative framework on national security, and weaken the capability and resolve of criminals and our adversaries.

I think that this is a genuine opportunity for the Government to work better with, and to constructively challenge, telecommunications operators and the wider communications technology industry on the requirements to use investigatory powers—a process that would be separate from the new notices regime included in part 4. A statutory requirement to produce an annual report on investigatory powers to counter threats to our security and safety would strengthen national security, as well as strengthening the oversight and safeguarding of measures to keep us safe. Those are two principles that guide this Bill and the 2016 Act, and that is why we will seek to push the new clause to a vote later this evening.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

I hope that this evening will end with a measure of agreement. On the subject of the tech companies, I understand from information I have received that Apple, techUK, the Information Technology Industry Council and the Computer & Communications Industry Association have expressed concerns. Is the shadow Minister aware of their concerns and what this means for their ability to administrate and do their work, and does he agree that what we have tonight is a consensus that protects not just them but ordinary members of society?

Photo of Dan Jarvis Dan Jarvis Shadow Minister (Home Office) (Security)

I know that the hon. Member takes these matters incredibly seriously, and he has raised an important point. To be absolutely fair to the Minister and to his Department, I know that this is a matter that the Government have considered very carefully, and that there has been an extensive process of consultation with a range of tech companies—I have met a number of them myself—but I think it only fair to conclude that while of course there are important contributions to be made by tech companies to this debate, these are ultimately matters for the Government and the House to determine. Having said that, new clause 2 would provide a helpful and constructive mechanism for the Government, and we have tabled it in a genuine attempt to be helpful and to monitor very closely the significant challenges that our national security faces from serious and organised crime as a consequence of rapid developments in technology.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

I thank the hon. Gentleman for the spirit in which he has addressed this issue, and he deserves a proper response. There is a valid concern that this is a process of engagement with tech companies, and there needs to be a partnership. I will be frank with him: I do not support new clause 2, for the very simple reason that the way in which this interaction takes place has evolved a lot, even in the two years that I have been in post. I suspect that during the four or five years that this House will supervise the Bill, under the next Government and in the five years beyond that, the interaction will evolve again.

What concerns me is that we could write into law a system of oversight and regulation that does not properly address the way in which tech companies are involved in this area. Therefore, the best answer is to have a more iterative process, which I have no doubt the fantastic civil servants with whom I have the privilege to work will adapt. Whoever takes over from me in 20 or 30 years’ time will no doubt want to iterate that as well.

Photo of Dan Jarvis Dan Jarvis Shadow Minister (Home Office) (Security)

I am grateful to the Minister for clarification on the response to new clause 2. He understands that we have tabled it because we genuinely think that it is a mechanism that—let us be honest about it—would not be particularly onerous for the Government, and would be helpful in focusing minds across Government. I completely agree with the point he made about his civil servants, who have been excellent throughout the passage of the Bill. We just happen to differ on this issue, because the Opposition think that the new clause would provide a useful forum for the Government to consider the challenges. He is absolutely right about the rapid evolution of technology, and we think it would be no bad thing to condense Government thinking into a report that would be issued on an annual basis.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

I thank the hon. Gentleman for giving way again. May I address the iterative issue that the Minister and he both raised? It is not just the development of technology that is important here; it is also about the development of other countries’ security systems. For example, the Germans are putting in place laws that require end-to-end encryption—the very thing that we were worried about—so we will have to manoeuvre over the course of the coming years to make sure that what we do fits not just with the technology companies, but with what our allies are doing.

Photo of Dan Jarvis Dan Jarvis Shadow Minister (Home Office) (Security)

That is a very important point, and I completely agree. These are complex and difficult matters of public policy, and I completely understand that none of this is easy from the Minister’s perspective. However, if the right hon. Gentleman does not mind my saying so, his point strengthens the case for new clause 2, because we think it would provide a useful mechanism for the Government to track the development of these important matters, but also provide a mechanism for Members of this House to hold the Government to account on them. I am very grateful for the points he has made.

Before turning to amendment 24 on BPDs, which stands in my name, I would be very grateful if the Minister could say whether any progress has been made on arrangements to notify the Investigatory Powers Commissioner when adding new BPDs to existing category authorisations. It might not be in the Bill, but we think that even a reference to it in the IPC’s annual inspection would be helpful progress on this matter. The Minister, my right hon. Friend the Member for North Durham and I have discussed that, and I would be grateful if the Minister could said something about it.

I acknowledge the amendments on BPDs that were tabled by Stuart C. McDonald. Both of our parties have concerns about the definition of “low or no expectation of privacy” for BPDs, which we debated in a pretty constructive fashion on Second Reading and in Committee. However, Labour does not oppose the concept of “low or no expectation of privacy” for BPDs, which is why we will not support amendment 7, which was tabled by the SNP spokesman. Instead, amendment 24, which stands in my name, seeks further clarification on how “low or no expectation of privacy” will be applied to BPDs, with the aim that the parameters must be as clear as possible for the House to understand.

In Committee, the Minister used the Panama papers as an example of leaked and widely republished material being defined as a BPD with a low or no expectation of privacy. I understand why the Minister chose to use that example, but most other leaked documents containing personal information do not attract anywhere near the same level of media attention. Again, I would be grateful if the Minister took this opportunity to provide another example of information from a leak without widescale press coverage that would be suitable for the designation of a bulk personal data set with a low or no expectation of privacy.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

As always, the hon. Gentleman is quite right to highlight the areas I touched on. The important thing about the Panama papers was that they changed. They would have enjoyed a high level of privacy, but with republication they became “low/no”. It would not be right to say that any leaked document enjoys “low/no”, but the law should reflect the reality of the data that is currently being held. When data goes from being secret to being effectively public, it would be absurd to hold the intelligence services to a different standard from that which would apply to any of us, who would be able to access it on a website.

Photo of Dan Jarvis Dan Jarvis Shadow Minister (Home Office) (Security)

That is a very useful clarification, and I thank the Minister for it.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I accept what the Minister has just said, but where is the threshold for publicity? As he said, the Panama papers were widely distributed in the public domain, but somebody’s Facebook feed might be put into the public domain. If it gets into the national newspapers and on the internet, or it is shared by a certain number of people, do we then determine that it is in the public domain? We need to be very careful about this.

Photo of Dan Jarvis Dan Jarvis Shadow Minister (Home Office) (Security)

My right hon. Friend is undoubtedly right: we do need to be very careful. In the end, the Government have to take a view about where they draw the line. These are very difficult decisions that have to be made. We had really useful and constructive debates in Committee about where the line should be drawn, but the issue will no doubt continue to be debated in the future.

Before I draw my remarks to a close, I will briefly speak to other amendments on the Order Paper, including those tabled by my right hon. Friend the Member for North Durham, other members of the ISC, and Sir David Davis. We support amendment 23, which stands in the name of my right hon. Friend the Member for North Durham. It is very similar to the amendments we proposed in Committee regarding the Prime Minister’s delegation to a Secretary of State to issue a warrant to interfere with equipment relating to a Member. The amendment sets out that the Prime Minister must be informed of a decision taken by a designated Secretary of State on their behalf as soon as the circumstances that prevented the Prime Minister from approving a warrant in the first place have passed.

We believe that the Prime Minister’s overall involvement in those warrants must be retained, even if it is retrospective in designated cases, so it was a positive step that the Minister said he would look into including such a provision in the statutory guidance, in response to the very sensible points made by the right hon. Member for South Holland and The Deepings. However, we believe this does not go far enough, when this important notification arrangement should be on the face of the Bill.

This House should consider as many scenarios as possible when it comes to arrangements for prime ministerial power delegation on investigatory powers, even if scenarios of Cabinet members desperately trying to undermine the Prime Minister by any means possible perhaps belong more appropriately in “House of Cards” or “The Thick of It”. [Interruption.] I am sure that Conservative Members would have no idea about those kinds of activities; I am happy to take their word for that. But these are important matters, and we must seek to legislate carefully. The amendments tabled by the ISC are thoughtful and constructive, and I hope that, even at this late stage, the Government will consider accepting them.

I will move on briefly to new clause 3, which stands in the name of the right hon. Member for Haltemprice and Howden. I first want to take the opportunity to pay tribute to his long-standing work on these incredibly important matters. Some Members will know that I have occasionally worked with him on challenging the UK Government on the use of intelligence in foreign countries that has resulted in torture. Britain’s role in the world to lead by example is defined by our actions, and we therefore think that new clause 3 raises important issues of accountability when sharing intelligence with foreign Governments that could result in torture, not least in relation to the parameters of the decision-making process by Foreign Secretaries.

New clause 3 also raises important questions about the sufficiency of the Fulford principles to ensure that there is not merely a presumption that these decisions are taken in accordance with the Human Rights Act 1998 and the European convention on human rights. The Government will always need to carefully consider the nuances and the risk of inaction when there is a clear and credible threat to life. We hope that they will reflect carefully on the important principles put forward in new clause 3, and I hope that the Minister will consider coming back to the House with their conclusions.

To conclude, this important Bill has demanded strong and careful scrutiny through its journey in the other place and in this House. Our personal liberties and our national security depend on it. It is in the national interest to get it right and to ensure that legislation like this is both appropriate and proportionate in its scope. It must also be effective in maintaining the powers that our police and security services already have to disrupt and defeat criminals and malign actors who seek to harm us and undermine our way of life. I hope that the Minister will listen carefully to the points made by Opposition Members and to the other right hon. and hon. Members speaking after me, all of whom will be working in the national interest and wanting to ensure that the Bill protects both our safety and our liberty.

Photo of David Davis David Davis Conservative, Haltemprice and Howden 6:30, 25 March 2024

I start from the perspective that we are highly likely to regret some elements of this Bill within the next 10 years, and I will come back to that in a moment. I will also start by commending the Minister for Security, my right hon. Friend Tom Tugendhat, for his approach. It has not always been like this. The real precursor of this Bill was the Data Retention and Investigatory Powers Act 2014, all stages of which was taken in one day because the Government of the day claimed it as an emergency, even though they had spent three months thinking about it and even though they took nine months to implement it afterwards, such was the emergency. As a result, I challenged it in the High Court, and it was struck down. The Investigatory Powers Act 2016, which this Bill amends, was in effect the replacement for that. It was not a terrific improvement, but it was an improvement. As I say, the Minister’s approach to this Bill has been much more democratic, much more open and much more valuable.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I said that we are not going to be partisan in this debate, and the shadow Minister started in that vein, but my right hon. Friend has been highly contentious about the Bill that I took through the House. Bear in mind that it had pre-legislative scrutiny with a Committee of both Houses, it had at least three reports in advance of being considered by this House, and it was debated in this House at length, in the same spirit that I mentioned earlier, and many amendments were tabled, many of which were accepted by the Government. I have described the pretty full consideration and scrutiny that it received, which is why it is such an essential piece of legislation, as the Minister will confirm, and is used by the security services and the police every day.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

I will not go over it again, but the High Court and the Court of Appeal came to a different view from that of my right hon. Friend, I am afraid, and that is why the legislation was struck down.

Some of the elements of this Bill are not very wise. The Opposition have agreed that the pre-notification of tech companies will act to drive business away from our shores. That is, as I said earlier, the opposite of what the German Government are doing, and we are going to have to modify our approach to deal with some of our allies along the way.

I also have serious concerns about the bulk collection of data, which the Scottish National party has tabled an amendment on. I think it was Stalin who once said that, at a certain point, quantity has a quality all of its own. That is certainly true of information technology and bulk data. It was interesting to listen to the earlier brief debate on so-called “no expectation” and “low expectation of privacy”, by the way. Those are completely different things. They sound similar but they are completely different, as will become clear, I suspect, when the SNP spokesperson speaks to that amendment. Even today, “low expectation of privacy” data can tell a Government with quite primitive software vast amounts about our lives and about what we are doing every minute of every day, but with artificial intelligence that is going to be multiplied many times and become much more powerful than before.

To give colleagues a feel for how this might work, let us look back to the covid period, which in some senses was almost Orwellian. The Government had three different disinformation units of various sorts that looked at everybody’s comments. If someone commented on flaws in the modelling of the virus, questioned where the virus came from or quite properly stated that the vaccine did not stop transmission—it stopped deaths, but it did not stop transmission—this would lead to all their low or zero expectation of privacy documentation and all their online stuff being monitored by the Government. A number of Members of this House were monitored on that basis—in my view, entirely wrongly. That was all within the law as it stood then, so it was not massively important, but it nevertheless demonstrates the mindset of Whitehall when dealing with these things.

Today, however, nine out of 10 of us—if not more—carry a smartphone. That makes it easy to access our shopping habits, our purchase history, our bank records, our automatic number plate recognition records, and on and on and on. Do we really want the agencies of Government to be able to peer into all that data? It belongs to people who are, remember, entirely innocent of any crime. Our entire approach to law and order in this country has been to focus on people against whom there is a reasonable expectation or a reasonable suspicion, not to monitor everybody. It seems to me that this intrusive surveillance is a dangerous route to take and, as I say, I think we might regret it within 10 years, because the power of artificial intelligence will make this bulk data much more informative than we are conscious of today. I worry about it. I did not put an amendment down on it because others have done so, but it is something that we must concern ourselves with in the longer run.

One of my two principal concerns today is how the Bill relates to the expansion of powers around the surveillance of Members of this House. Until 2015, it was widely understood that the Wilson doctrine protected MPs’ communications from interception. This protection was repeated in unequivocal terms by successive Prime Ministers—even Tony Blair, who is not someone with a great reputation for worrying about Members’ civil liberties. Despite clear and unambiguous statements that MPs and peers would not be placed under surveillance, the Investigatory Powers Tribunal held in 2015 that the doctrine had been unilaterally rescinded by the Government.

In an attempt to ease concerns, the Investigatory Powers Act 2016 created a regime—the one we have now—whereby a Secretary of State must first secure the approval of the Prime Minister and a judicial commissioner before authorising the interception of an MP’s communications. Frankly, I have served under nine Prime Ministers as a Member of Parliament, and I cannot say I am happy that all of them would have taken a very responsible approach to exercising this power. This is an almost judicial power that is given to a person whom it is our job to challenge and hold to account every day.

The Bill seeks to expand the list of people who can sign off on the surveillance of MPs way beyond that, from the Prime Minister to effectively five Secretaries of State. There was a long argument in the Lords and in Committee about introducing words such as “unable” or “unavailable.” I think they had in mind that Boris Johnson was sick and laid up for a month or so and perhaps could not act in that capacity. Even by that logic, we do not need five Secretaries of State to be able to deputise, unless we are imagining a mass-casualty event in the Cabinet. Frankly, this seems far more like a precursor to a general loosening of the policy than a serious and sensible protection of the ability to sign this off. I worry about that, and I do not like it at all.

I do not like the idea of the surveillance of MPs except under incredibly strict circumstances. I am not casually asking for MPs to be somehow above the law, not at all. This protection is vital to safeguarding what we do. We are here to hold the Government to account, not the other way round. The relationship between constituents and their elected representatives is sacrosanct. It is the bedrock upon which our representative democracy stands, and constituents expect that, as they should. But it is not just constituents who rely on the sanctity of their communications with Members.

It is truer and more obvious today than at almost any time in my 30-odd years in this House that, in doing our job, we deal with campaigners—think of the sub-postmasters—journalists, whistleblowers, victims of injustice who may be terrified of being identified and, of course, other Members of Parliament, and that is just a few. They all trust us to keep what they tell us absolutely rock solid, private and confidential.

This Bill will do nothing but further undermine people’s trust in bringing serious matters to our attention. The Horizon scandal, Mid Staffs, sweetheart tax deals with large companies, the mistreatment of prisoners by the British Army, involvement in rendition and torture, and dishonest briefings for immoral wars—every single one of them was brought to our attention by a whistleblower who, in many cases, faced criminal prosecution if they were discovered. Are people likely to continue blowing the whistle with a loosening of the Wilson doctrine? I do not think so.

If I had my way, I would amend the Investigatory Powers Act to prevent communications to and from Members of Parliament from being intercepted at all. At the very least, I would change this proposal to require that the Prime Minister secures the approval of a Supreme Court judge before signing off on any warrant permitting the interception of a Member’s communications. That would take the process completely outside the normal approach under which the Investigatory Powers Tribunal and all the machinery around it routinely says yes to requests, day in and day out. Calling for, allowing or permitting the interception of the communications of a Member of this House or the other place ought to be something clearly extraordinary in the life of a Prime Minister. A Supreme Court judge is far more likely also to have the authority required to face down poorly justified demands, which has not always happened in the past. The Executive should not wield the power to order the surveillance of Members of this House at their sole discretion. The very senior judiciary should provide a vital check on that power.

Dan Jarvis highlighted another concern, which is torture. Successive British Governments—this is evidenced, so it is not an assertion—have acquiesced in the abuse of political detainees by foreign regimes. This must stop. It has been asserted that Jagtar Singh Johal was recently detained and tortured by Indian authorities as a result of British intelligence, which, if true, is harrowing, but the story is depressingly similar to stories that we know are true. During the so-called war on terror, countless prisoners were tortured by foreign Governments after the British Government provided them with information. The 2018 ISC report on detainee mistreatment and rendition found:

“The Agencies also suggested, planned or agreed to rendition operations proposed by others in 28 cases. We have seen a further 22 cases where SIS or MI5 provided intelligence to enable a rendition operation to take place;
and 23 cases where they failed to take action to prevent a rendition”.

I suspect this includes the Binyam Mohamed case, the Rangzieb Ahmed case and the Abdel Hakim Belhaj case, for which the Prime Minister had to apologise. We should be ashamed of all these things. I am afraid that, each year, we are seeing more cases in which the UK seeks to share intelligence despite a real risk of torture.

There is no doubt that our intelligence agencies do a difficult and sometimes dangerous job, but getting mixed up in torture does nothing to keep us safe. It undermines the civilised values that we stand for, and we are in a battle of values in the so-called war on terror. It is incredibly important that we maintain the high values that we expect.

My new clause 3 would prevent the repeat of such travesties, as no public authority would be able to hand over information to an overseas authority where, as a result, there is a possibility of

“torture or cruel, inhuman or degrading treatment or punishment”.

The Conservative party has a proud legacy of standing up against torture, going back to Margaret Thatcher. Under her, we passed the Criminal Justice Act 1988, which made torture, anywhere in the world, an offence under the law.

The Minister has a difficult job; there are no two ways about it. The task faced by the Home Office, and indeed the agencies, in dealing with the threats to this country is incredibly difficult but, from time to time, we have historically slipped from the standards we view as essential to our national character—a proper understanding and belief in the rule of law, and abiding by that rule of law almost irrespective of the circumstances in which we find ourselves. The first test—the first criterion—when considering a Bill such as this should be, “Do we always obey the rule of law? Does the Bill encourage Governments always to obey the rule of law, whether they are dealing with suspects abroad or with subjects at home?”

Photo of Kevan Jones Kevan Jones Labour, North Durham 6:45, 25 March 2024

First, let me put on record the apologies of Sir Julian Lewis, who chairs the Intelligence and Security Committee. Unfortunately, he is attending Lord Cormack’s funeral, and I thought it was important to put the reason why he is not here on the record.

First, let me refer to new clause 1, which stands in the name of my hon. Friend Dan Jarvis, and say that it is disappointing that we have to have this debate. I am the longest serving member of the ISC, having been on it for nearly eight years. It is a serious Committee; its members take its work seriously and work collegiately. We work on the basis that we support the work of our security services, recognising the difficult job they sometimes have and the dangerous work they do, but that we are also there to provide scrutiny and oversight. If anyone cares to look at our reports over the years, they will see that they are not only thorough, but forensic in their approach. So it is disappointing that the current Government and the previous few have downplayed the Committee’s role.

On Second Reading, I referred to the scrutiny of our intelligence services being a bit like a three-legged stool, as we have the Investigatory Powers Commissioner, the tribunal and the ISC. Together, we should be an effective mechanism to reassure the public that there is oversight of our security services. This is important because the work they do cannot be discussed in open session, and that mechanism gives the confidence that in a parliamentary democracy, where we take freedom of speech and democracy seriously, we have that oversight. The problem with the Government is that, for whatever reason, they have set out their course to undermine our work—I put that on the record.

The new clause will say that the Prime Minister should attend our meetings. It should not be necessary to include such a provision—I believe you served on the ISC at one stage, Madam Deputy Speaker, and so you understand the work we do—but we have a situation where it seems this is seen as not important. The only one in recent times who offered a meeting was Elizabeth Truss, but that was because she was looking for friends in the last dying days of her Administration, so I do not think it counts. Again, I do not understand the reason behind this. The walls on the way into our office have various photographs of the Committee—you are on one of them, Madam Deputy Speaker—with various Prime Ministers of the day. But this is not about that; it is about the Prime Minister of the day knowing exactly what we are doing and our being able to raise things directly in our secure setting, which we do. That is important, but there is also a wider point to be made about how we scrutinise our security services and give the public that opportunity.

The amendments I have tabled also stand in the names of five other members of the Committee, and we support this Bill. Will we be back in a few years’ time with another Bill? Yes, we will, because, as was said by my hon. Friend the Member for Barnsley Central, technology is changing very fast and we will have to react to it. When the original Bill was taken through by Sir John Hayes, he recognised that it would not be set in tablets of stone and that this new Bill would be required. Sir David Davis is right to say that AI will set some other tests that we have not perhaps thought about yet and those might have to be covered by future legislation. Are we reactive as a Parliament? We always are reactive, but this Bill is important because it will give our security services the abilities to react to the ever-changing world that we face.

I wish to refer to two pairs of amendments that relate to clauses 22 and 23, which go to the issue associated with the triple lock and the authorisations—

Photo of David Davis David Davis Conservative, Haltemprice and Howden

Before the right hon. Gentleman moves on, I wish to pick up on his point about the need for continually keeping up with the changing technology. One thing that was expected when the ISC was created was that it would become, if not quite a grandees Committee, a Committee of people who knew exactly what they were doing and took very seriously the issues before them, including the confidentiality of what they do. At least one of the Chairmen of the ISC has complained in the past about the level of redaction of ISC reports. That matters in the context of keeping up with the times because the only way the House of Commons has of understanding the ISC’s opinions is by reading its reports, and if Members are reading a lot of blank or black lines, they will not learn very much.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I understand the right hon. Gentleman’s frustration, but, as Madam Deputy Speaker knows, there are good reasons for those redactions. The Committee does not just agree to everything being redacted; a thorough process takes place and we have some long arguments with the agencies. I would not want anyone to go away thinking that the members of the ISC are a pushover on redacting information. A lot of attention was given to why certain things were redacted from the Russia report. I am comfortable in the knowledge that the things redacted in that report could not have been put in the public domain. The main reason for this is not to save embarrassment for government or any of the individuals; it is about the ability to protect the tradecraft of our services. If we did put certain things in the public domain, our adversaries who want to do us harm would be able to work certain things out. I assure the House that we push back hard and some redactions that have been put forward over the years have been silly, as other ISC members in the Chamber tonight will recognise.

Let me get back to the issue about the triple lock, which is important. The issue is sensitive because it relates to intrusion into the communications of Members of this House and of devolved Administrations. We are talking about what is commonly known as the Wilson doctrine, but, it is like a lot of things in this age; it was announced in 1966, when it was about telecommunications and picking phones up, but we are in a different world now, as the right hon. Member for Haltemprice and Howden said. We now have smartphones, and God knows what is going to be invented in the next few years in terms of how we communicate. As with a lot of things, the convention was thought to be the way forward, but clearly in 2015 it was found that the devolved Administrations were not covered by it and neither were MEPs. The Investigatory Powers Tribunal found that it had no legal enforcement at all, so it was credit to the right hon. Member for South Holland and The Deepings and the Investigatory Powers Act 2016 that a formal process was put in place for it—that is important.

Currently, the 2016 Act has three layers of safeguards: the Secretary of State who asks for the warrant; a judicial commissioner who examines the communication that is the target of interception and the type of equipment involved, if it relates to a member of a relevant legislature; and, thirdly, the Prime Minister, who, as the final stop, has to agree this.

The Bill will allow the Prime Minister to designate “up to five” Secretaries of State who can approve the warrants in the event that he or she is unable to be available. As has been raised, the obvious example was when Boris Johnson was incapacitated through covid. When we think about the issue, this measure makes sense. The ISC recognised other unique situations when a Prime Minister may not be available, for example if they were abroad and secure communications were not possible. The ISC was keen that the circumstances needed to be exceptional, but we accept that there is a need for the requirement.

The ISC seeks to ensure that the measures do not undermine any safeguards. As the right hon. Member for Haltemprice and Howden outlined, those safeguards are important. It is not being pompous or saying that we want to be outside the law, but the ISC receives information and discusses sensitive issues that can have an impact on people, especially those who may have been done a disservice by the state or by others. The original Bill was quite loose and any Secretary of State could have approved the warrants, so it was important that Admiral Lord West’s ISC amendment was accepted. I was in the House of Lords on the night it was accepted, and he had to get the smelling salts because it was the first time he had ever had an amendment accepted.

The circumstances in which the Secretary of State may approve a warrant on behalf of the Prime Minister—if the Prime Minister is incapacitated or does not have access to secure communications—are now in the Bill. Importantly, there is also a limit on the number of Secretaries of State who may be appointed for the purpose. Only five Secretaries of State may be designated, and only those who have a responsibility for authorising equipment interference or target interceptions. However, amendments 20 and 22 have been proposed because the Bill as drafted says that a Secretary of State who has “the necessary operational awareness” can be designated to make such decisions on behalf of the Prime Minister. What is “operational awareness”? Does it relate to somebody who has had a briefing? Do they know what they are doing? I am sure a lot of Secretaries of State, as well as junior Ministers, know about and are aware of the warrants.

It was disappointing that it took some time to get the draft code of practice. For the benefit of civil servants, let me put on the record that it is important that any codes of practice attached to a Bill are laid before Parliament with the Bill. We cannot have a situation where Bills are discussed and we are then told later that certain measures will be in the code of practice and thought of later. I am sorry, but the Bill and any codes of practice need to be laid together, so that this House and the other place have an opportunity to look at the codes of practice in detail.

The ISC finally received the draft code of practice last Tuesday, following the meeting I had on Monday with the Minister for Security. That code of practice defines those who had “the necessary operational awareness” as people who had received briefings on operational matters and of warrantry process and legal requirements. We in the ISC think that definition is entirely inadequate, because it does not prevent completely unrelated and inappropriate Secretaries of State from fulfilling such a serious role.

Amendments 20 and 22 in my name and fellow members of the ISC ensure that only those Secretaries of State with the necessary operational experience, such as those required to issue warrants as part of their routine duties under the relevant sections of the Act are permitted to be designated by the Prime Minister under the triple lock. That is important, because it ensures that they are people who not only understand the system but have experience of it. That would provide the flexibility the Government require and ensure that this important power is given to Secretaries of State who have experience of warrantry.

I and the ISC have danced around the head of a pin on this issue with the Minister and civil servants, and hon. Members may ask why it is so important. As the right hon. Member for Haltemprice and Howden has said, the situation in which this provision is used is unique. I cannot speak about any examples in open session, but credit to the agencies that have told us how the measure is used. As a member of the ISC, am I reassured that it is being used appropriately in the cases we saw? I am. However, not to downgrade that fact, the amendments provide reassurance to Members of this House, Members of devolved Parliaments and Assemblies, and others that the measure is being used proportionately and in the correct way.

Amendments 21 and 23 get to one of those points that irritates me. It is like a war of attrition with this Government—they cannot be seen to back down on anything or allow anyone else any victory, no matter how small. The code of practice says that once the designated Secretary of State has authorised something, the Prime Minister “should” be informed of any decision made under the alternative approval process as soon as reasonably practicable. It does not say “will” be.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security) 7:00, 25 March 2024

I very much hope the right hon. Gentleman has brought Lord West’s smelling salts with him, because I would like to clarify the concession that Lord West got in the Lords here in the Commons. I can happily commit to strengthening the language on notification requirements in the code of practice, when it is formally brought forward in due course, to require that the Prime Minister “will” be notified of any decisions under the alternative process, rather than “should” be.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I welcome that, but can I hear it again and pin the Minister down a little more? I am sure it is a massive victory, but is he giving a solemn pledge to the House that the code of practice will remove the word “should” and insert the word “will”? Is that what he is agreeing to?

Photo of Kevan Jones Kevan Jones Labour, North Durham

Victory at last—there is such power in changing one word. The Minister has given a solemn undertaking on the Floor of the House that the code of practice will change the word “should” to “will”. A small victory for the ISC, but I am sure my colleagues will take it in the spirit in which it is offered. I say to the Minister gently that we could have agreed that the other day when we met, but no doubt the issue that we will be voting on tonight was concentrating his mind.

With that great victory under my belt and those of the members of the ISC, I turn to other amendments. New clause 3, in the name of the right hon. Member for Haltemprice and Howden, deals with

“cruel, inhuman or degrading treatment”.

I understand why he has proposed the new clause. It is always worthwhile debating the issues, which run through the entire Bill. Am I assured that there are processes in place that protect our civil liberties? Yes, I am. However, there are occasions when things can go wrong or people ignore them. I think they have been strengthened greatly, but the right hon. Gentleman refers to an important point. I was on the Committee in 2017 when we did the inquiry into detention and rendition. That took a long time, but it was a good report given where it got to. It unearthed things that were not pleasant but had been done in our names as a democracy.

One conclusion the Committee came to was that in its view the UK tolerated actions and took others that were regarded as inexcusable. Well, they were inexcusable, because as the report outlined, we passed on information to allies who then used it. I think things have changed, and to give Members an example of how the ISC can improve things, we called for a review of the consolidated guidance surrounding the way that security operatives should operate regarding issues of rendition or torture. That led to the Fulford principles, which I think have moved on and tightened up the rules and guidance for members of our security services. That was a big movement forward.

I do not think the right hon. Member for Haltemprice and Howden will push the new clause to a vote, but it reinforces the point that if we have a situation whereby, again, we get information that is passed to one of our allies, we must ensure that those principles are upheld. Am I confident that they are upheld now? I think I am, but how did we get to that pretty damning report in 2017? We got there because those principles and the guidance in place were not followed. We must be vigilant about that, and over the years the right hon. Gentleman has done not only this House but the country a service through his tenacity on these subjects.

Photo of David Davis David Davis Conservative, Haltemprice and Howden

I will not press new clause 3 to a vote, but I tabled it because in 2010-11 David Cameron, the then Prime Minister, made a promise that there would be a review and that the issue would be investigated properly, but that never happened. The implicit undertaking was that we would not do it again, and we did it again—over and over again. That is why at some point we needed to put our foot down. The problem is that whenever we put our foot down and make an absolute requirement, somebody says, for example “What about the Russians, with the terrorist attack in the last few days?” I am afraid there comes a point where we say, “We are not going to provide information if you torture people.” If we are clear about that, it helps the country and probably also helps the international battle with terrorism.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I agree totally with the right hon. Gentleman, and I think that is where we are as a Government. Certainly those are the Fulford principles—that we do not share information. Again, some of the people who perhaps do not understand what our security services do, and those who want to malign their great work on our behalf sometimes say, “They are doing x, y and z.” Well as I know from seeing some examples, there are occasions where we deliberately do not pass on information to our allies because of the fear that the right hon. Gentleman set out. The detention and rendition report raised that issue, and the Fulford principles now give us strong guidance. Those principles have been put into being and sewn into the DNA of all new officers. As a result of a huge training programme, not just for existing officers but for new entrants into the service, officers now see that as an important part of their work. That is how it must be done, but it is always important to have this debate.

New clause 5 would

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

I understand where the right hon. Member for Haltemprice and Howden is coming from but—I must be careful what I say—I do not agree, because this is not about the security services wanting to see what someone has ordered on Amazon Prime or put in their Tesco basket this weekend. There are occasions when Members of Parliament will be brought into investigations not because they have done anything wrong, but because they have been targeted. For example, we had a statement today about MPs being targets. Should they know about it? In the right circumstances, yes, so that they can take reactive measures against it.

There may be situations regarding Members of Parliament and warranting powers in which they are not the main target, but they may be a target themselves, so such a measure would be difficult. Again, I will not say too much, but I think this provision is used more often than we think for those reasons. It is not because Members of Parliament, or Members of the Scottish Parliament or the Welsh or Northern Ireland Assemblies are doing things wrong, but because increasingly those who want to harm us are targeting our communications.

Photo of David Davis David Davis Conservative, Haltemprice and Howden 7:15, 25 March 2024

Again I do not intend to press the matter, but if the ISC discusses this issue in the future, I point the right hon. Gentleman to the German model. They look at something and do not always release information if it is operationally sensitive.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I agree, but that then places an unnecessary burden on the system. The current process with the Secretary of State, the judicial commissioner and the Prime Minister is robust enough to ensure that people are not doing this to find out what someone ordered on Amazon Prime this weekend or to look at their Tesco account, so I think those assurances are fine.

New clause 4 would

“remove the ability of the Secretary of State to authorise the interception of the communications of, or the obtaining of communications intended for, or private information belonging to, Members of Parliament.”

Again, it is good to have this debate, but I would support such a measure for the reasons I have outlined.

The other change in the Bill concerns bulk data. The right hon. Member for South Holland and The Deepings covered the original investigatory powers in detail, but there are now big data sets held not only by public authorities but by others, and that has made it more important that our security services are able to access them. Whenever we do this, however, it means more intrusion, so let me deal with the issue of oversight in the Bill, and with the broader, more intrusive powers to obtain internet connection records for the discovery of targets.

Again, that is something that I and other ISC members totally support, but the authorisation process is internal. One stance that the ISC has taken throughout all this is that if we are to give more powers to our security services, there must be a balance. There will not be a situation whereby what people have seen can be identified, but this power will drag in a lot of people who, as the right hon. Gentleman said earlier, are completely innocent. As I said, there is a need for such a power, but we thought there should be more oversight from the Investigatory Powers Commissioner. Therefore, the points I made about amendment 15 are important.

The Investigatory Powers Commissioner’s Office does a great job of ensuring public support for what we do, but, again, there is an issue around bulk datasets. Some of the examples that were given to ISC members—thanks must go to the Minister, who arranged a meeting for the Committee to be briefed on this—make sense when it comes to the issue of low or no reasonable expectation of privacy. It is burdensome, for example, to access the electoral register, but today the Government have said that somehow that is a secret document. Well, that is not the case under this Bill, in which case it is important that the security services should be able to use it, rather than having to go through the warrantry process. That goes to the point, which my hon. Friend the Member for Barnsley Central raised earlier on, about the definition of “low expectation”.

Another perfectly legitimate reason that the security services need these measures is related to testing new AI models of learning. They need access to these new big datasets, which are out there and which companies use, and the Bill will allow them to have it without going through the warrantry system. If intelligence is going to be on the front foot when it comes to AI, we will have to have these big datasets that will teach the systems how to do it.

The problem comes back my hon. Friend’s question of what is deemed a low or no reasonable expectation of privacy. That is something we have considered throughout this process. One thing the ISC has considered is adding to the existing categories. One suggestion we put forward was that, when the agencies do this, they should have to email the Investigatory Powers Commissioner to notify them that they have done it.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I hope the Minister is not going to intervene again. My legs might get wobbly if I have to sit down again. I might even need some smelling salts. He has explained the internal system, which I am quite satisfied with, but as I said to him and his civil servants—I think other members of the ISC have also said this—it is not us that he has to convince, but the public.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

I thank the right hon. Member for giving way. I just want to assure him that I have taken on board his points. I went back to the agencies and assured myself of the challenge that he had raised and found what I think is a better answer than the one we looked at when we were chatting. I wrote to Sir Brian Leveson and I am delighted to say that he responded, confirming that he will pay specific oversight to this regime in the early years until he is content that it operates in the way that the ISC, the Government and the British public would expect. IPCO has taken on this responsibility, which, I think, answers the question more succinctly than it would be if it were included in the Bill.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Well, I shall take that as half a victory.

Photo of Kevan Jones Kevan Jones Labour, North Durham

May I just get some clarity? That is a perfectly legitimate way of doing it, and it will mean not interfering with the existing system, which was the concern of both the services and the Minister. I understand that this not as simple as an email being sent. Will that mean that there will be a section looking at this issue in the first annual report? If that is the case, we could at least say to the public that it is actually being considered and the promise is being followed up.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

The right hon. Member will understand that IPCO is operationally independent, so I will not instruct the office or speak for Sir Brian, who has been unbelievably rapid and helpful in his response today. I am sure that he will have heard the comments that the right hon. Member made and, no doubt, will want to draw attention to any areas where he has any doubts at all.

Photo of Kevan Jones Kevan Jones Labour, North Durham

That would be helpful. That would give reassurance to the public and provide a test of how the system works. As I have said, I am comfortable with the process of authorisation, but the public must be comfortable with it as well.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I note the right hon. Gentleman’s proper consideration of the balance between privacy and security, which lies at the heart of the Bill, but I also recognise the Minister’s concern that we must not make the process too unwieldy and bureaucratic. I wonder whether the right hon. Gentleman might invite the Minister to commit to a regular report going to IPCO as authorisations are made. That might be monthly, but it would at least mean that there was some iterative process of a kind that might reassure the right hon. Gentleman, me and others about that balance.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I understand where the right hon. Gentleman is coming from. Our original idea about having an email was explained when I met the Minister and his civil servants. I think that that would really cut across some of the processes that we have in place. The suggestion that has been made would be one way of doing it, but IPCO already has the powers to look at such things. The only problem with doing that is that we would then have to set up someone in the agencies to produce another report. I do not want to do anything that holds up their work, and I think that that might do it.

Possibly the Minister’s suggestion of how Sir Brian Leveson is going to do it will give the public some reassurance. Let us not forget that Sir Brian has the power to take action if things are not being done correctly. If we read his reports, we can see that he is not fearful of doing these things. A fair compromise has been put forward. I think we have one and a half victories so far—

Photo of Kevan Jones Kevan Jones Labour, North Durham

No, I would not quite say it is two. Hopefully, I might get another one on my other amendment, and then we can all go home happy.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

Is this an example of my being more hardline than the right hon. Gentleman? It seems like it to me, but perhaps not.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I would not have thought that the right hon. Gentleman could be seen as hardline on anything, pussycat that he normally is. He portrays himself as hardline, but I know from working with him very closely on the ISC that he cares about this information. He has referred to the Investigatory Powers Act as his baby. It has grown up a little bit and is now being brought into the modern age. I should put on the record again his dedication and work as a Minister to bring in the original Act, which was groundbreaking for this country. It has stood the test of time. We know that we will be back here, so the measures will change. I have no problem with that. It is just that, as technology changes, things will change.

May I finish by thanking the members of our security services for the work that they do? I also thank them for the way that they have engaged with the ISC on the Bill. Hopefully, with the changes that have been brought forward, we can reach agreement on the Bill and our security services will have the ability to face up to the challenge that is coming forward: the ever growing use of larger datasets, and the more sophisticated way in which state actors and non-state actors have access to technology. That will enable the security services to do what we all want to do, which is to keep individual citizens and, just as importantly, our democracy safe.

Photo of Jeremy Wright Jeremy Wright Conservative, Kenilworth and Southam

It is a pleasure to follow Mr Jones, who is a fellow member of the Intelligence and Security Committee. As he mentioned, we work collegiately, and one of the many advantages of that collegiate approach is that I do not need to repeat everything that he has just said; I need only say that I agree with him. I realise that that is a radical approach in this place, but I will not say it all again. I will simply say that I agree with him; he is absolutely right. His point is that, when it comes to the consideration of warrants to authorise the interception of, or interference with, the communications of Members of Parliament, there is huge significance to such a decision. That is the reason the Prime Minister has had to be involved in it, and it is the reason we should not widen too far the pool of deputies who, for sensible and understandable reasons, as the right hon. Member explained, we now need to provide for.

That is why I hope that the next concession that the Minister will make will relate to the pool of deputies, and that in the language the ISC suggests that he adopts we ensure that it is a controlled group, based on either current responsibilities or previous experience. I am sure that we can discuss with him any changes to the wording that he thinks are necessary, but as the right hon. Member for North Durham explained, the current provisions allow for only one restriction: that the member of the Cabinet in question should receive a briefing on how to conduct their warrantry responsibilities. We do not think that that is restrictive enough, given the significance of this decision-making process. I am grateful to the Minister for what he has already said about notification of the Prime Minister in the process. That is a sensible change, which I welcome.

I will say a few words about part 4 of the Bill, which has not yet been mentioned. I know that Stuart C. McDonald, who speaks for the Scottish National party, will want to say something about that part of the Bill, which deals specifically with product notification notices and product suspension pending the review of those notices in clauses 21 and 18. There is a balance to be struck here. We of course need to avoid product changes that undermine security protections. It would therefore be wrong to remove the provisions altogether, as I know the hon. Gentleman will shortly advocate, but I invite the Minister to think very carefully about those clauses. They have had relatively little discussion in the consideration of the Bill, but there is some danger that we overstep the mark in these parts of the Bill.

I invite the Minister to consider that if the powers contained in part 4 are to be used, they are very significant restrictions on commercial freedoms. If we are going to use them, it seems to me we should require three things. First, there should be a materiality threshold in the use of those powers, so that any change would not be sufficient to cause these significant infringements on commercial freedom. It should be a material change only. Secondly, there should be no indefinite hold on product development because, as I say, that is a significant infringement on commercial freedom. Thirdly, there should be a way to appeal a decision to prevent the development or roll-out of a new product.

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.

Photo of Stuart McDonald Stuart McDonald Scottish National Party, Cumbernauld, Kilsyth and Kirkintilloch East 7:30, 25 March 2024

It is a pleasure to follow 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 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.

Photo of Jeremy Wright Jeremy Wright Conservative, Kenilworth and Southam

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.

Photo of Stuart McDonald Stuart McDonald Scottish National Party, Cumbernauld, Kilsyth and Kirkintilloch East

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 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.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

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, 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.

What they face is extraordinary, both in its degree and its character. It is the kind of evil that none of us is likely to encounter head-on in the way in which they are bound to do because of their job, but we could, we might, and, indeed, our former colleagues Jo Cox and David Amess did face that kind of evil. Tolerance of evil is evil itself—I think Thomas Mann said that—because if we were to, in any sense, give quarter to those who seek to do us harm, in the interests of being fair minded and open, as we are in our society, and if consequently we undermine the forces of law, we do no service to the British people because we jeopardise their safety.

I welcome the spirit in which the provisions that we are considering have been debated so far by both sides of the House and by members of the ISC. Like my right hon. and learned Friend Sir Jeremy Wright, I do not wish to add unduly to that consideration, except to say two or three things. The first is that the Minister has engaged with the ISC formally and with members of the ISC informally in an effort to improve the legislation. It is right that he should do that—it has always been the spirit in which these kinds of measures have been considered—and I did so myself when in his shoes, I worked closely with my then shadow, who now, as Leader of the Opposition, aspires to be Prime Minister, and built a relationship with him accordingly, based on trust and a shared determination to do right by the right intelligence and security services and the police, because we wanted to do right by the British people.

The second thing is that I must press the Minister to go further in five particular ways. Well, actually, four, because he has already satisfied one of my requirements in response to Mr Jones, whom I thank for his contribution and his generous remarks. [Interruption.] He has come back into the Chamber to hear my appreciation I see. We work closely together on the Committee, on which we both serve. It is serious, and sometimes onerous, work, but it is enjoyable because we know that it is important. In this place, what could be better than that?

So, there are perhaps four matters on which I would like to press the Minister. I am hopeful that, given what I just said about him, we may be able to make progress. The first is the matter of the extension of what has become known as the triple lock. The right hon. Member for North Durham referred to it, as did the former Attorney General, my right hon. and learned Friend the Member for Kenilworth and Southam.

In considering delegating prime ministerial authority to other Ministers, we have had discussion at length. It seemed sensible to me that, in doing so, we might say that other Ministers could perform the role of Prime Minister in respect of authorisations if they had operational experience or responsibility. That would be a reasonable way of narrowing the number of Ministers involved to people who had salient understanding and experience. That marriage of either being responsible or having been responsible would perhaps be the best way forward, although I appreciate that the Minister has made a case that the number of Ministers involved needs to be broadened because the Prime Minister may be incapacitated in some way or another. There is a case for what the Government are trying to do, with the caveat I have introduced.

Turning to communications data and the way that will be dealt with, and the additional bodies that will have access to some powers that have previously only been in the hands of a very few, could the Minister clarify that in respect of local authorities, this will not be a permissive power? There are times when local government in its regulatory role will be working with the police, dealing with very serious and organised crime—I am thinking of licensing, trading standards and so on, for example. Where serious criminals can be involved in matters that pertain to the functions of local authorities, I accept that there are some cases in which they should have those quite extensive powers, but one would not want to think that every parish council in the land would enjoy the same legal powers as the SIS or MI5.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

The Minister is going to satisfy me immediately, it seems.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

I will satisfy my right hon. Friend immediately and, I hope, save him time in his speech. Local authority trading standards teams are responsible for a range of legislation where enforcement requires investigation and may need to draw on communications data. The idea is that the powers in this Bill will be in keeping with those powers, not for them to be expansive, so my right hon. Friend is right: it is for serious crimes, as has already been set out.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

That is excellent—it helps, because the schedule associated with that part of the Bill does not make that explicit. I hope that the Minister, having given that binding assurance to the House, will reinforce it in the explanatory notes associated with the Act and in the code attached to it.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I am seeing the Minister nodding. He might want to say a word or two more when he sums up.

Photo of Kevan Jones Kevan Jones Labour, North Durham

May I gently suggest that the right hon. Gentleman goes back to the Minister now, just to pin down exactly what he is agreeing to? We on the ISC have no problem with the idea of our security services having these powers, and I do not think the public would either. They would be less comfortable, as I and the right hon. Gentleman are, with other organisations having them.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

The Minister may want to intervene on me again to do exactly what the right hon. Gentleman has suggested.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

On the grounds that it will save me time when I wrap up at the end of the debate, I will make it clear now. His Majesty’s Treasury is responsible for civil enforcement of financial sanctions regulations, and some information that is essential to carrying out its civil enforcement functions is now communications data, such as the timestamp on online banking transactions. His Majesty’s Treasury cannot currently use its information powers to compel that information to be provided by a telecoms operator, so to go back to the statement I made earlier, local authority trading standards teams are responsible for a range for legislation where enforcement requires investigation and may need to draw on communications data.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

That is very helpful and, I think, goes a fair way towards what I want to achieve. The Minister has therefore made clear that the power will not be permissive. If he uses those very words—forgive me for putting them into his mouth, Madam Deputy Speaker—that would also help. These are going to be rarely used, particular powers associated with regulatory or legal functions of local authorities, not permissively available to those local authorities at their whim. That is clear as crystal, is it not?

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

If my right hon. Friend will forgive me, I will use the words I am using. Those powers will be used as infrequently as we all hope they will be, but they will be used in keeping with the law as described. If the frequency increases, it will be because of the need to act; I am very cautious about saying that these crimes will disappear, and therefore the frequency will change. I am not willing to predict that criminality now.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I entirely understand. I used the example myself of trading standards: in Lincolnshire, we have an issue with the sale of illegal cigarettes that has become not a trivial matter, but one of organised crime. It is not restricted to my county or locality: it is a national problem, and it is of course an example of where a local authority, working closely with the police, might well need to use those powers. By the way, those local authorities will be working with other agencies too: because money laundering is involved, His Majesty’s Revenue and Customs might be involved, and so on and so forth. That is a good example of where those powers might be useful in catching very serious criminals indeed, but the word I wanted the Minister to use is that these powers are not permissive. He will understand what I mean by that, and I cannot see why that would present any problem at all, given the reasonable, sensible man he is.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

I apologise to my right hon. Friend. These powers are not permissive in the sense that they are expansive: they are permissive only in the sense applied to them by this law, with the restriction of the powers that local authorities already have. They are not to be used in any way other than as set out very clearly in the Bill.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I think that is helpful. The Minister will remember that when we debated the original Bill that became the Investigatory Powers Act, one or two newspapers used the term “the snoopers’ charter”, and images were used of local authorities using those powers to investigate people’s rubbish to make sure they were recycling properly, for example. I do not want to add unnecessary levity to our consideration tonight, because we are dealing with very serious matters indeed, but the Minister will understand how that kind of misunderstanding—indeed, misinformation—could do far more harm than good.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

Again, just to clarify for my right hon. Friend, this Bill offers no greater expansion than his own Bill did in 2016. In the same way he ensured that Bill was no snoopers’ charter, I assure him that this one is not either.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I was going to say that I have done this matter to death, but I can see that the right hon. Gentleman wants to intervene.

Photo of Kevan Jones Kevan Jones Labour, North Durham

I think the Minister is getting another “dancing on the head of a pin” award for his explanation. What I think the right hon. Gentleman is trying to get on the record—perhaps not for the benefit of people in this House who understand this Bill, but for the wider public—is that the way the Bill will be used is that it will include, for example, a local authority when an investigation is being driven by a security issue, such as in his example of organised crime in cigarette smuggling.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

Yes, exactly. The right hon. Gentleman has put it very clearly, and the sense of what the Minister has said has reassured me that it is not the Government’s intention to extend those powers beyond the very strict legal limits associated with the kind of organised crime that he and I have both cited. For me, that is considerable progress. The right hon. Gentleman spoke earlier about half a win; I think that is three quarters of a win, at least. For that reason, I feel that I can move on to my next request of the Minister.

We spoke earlier about IPCO, and its role and association with Government. As the Minister will know and as the right hon. Member for North Durham referred to, this legislation provides for a report to be made available to the ISC on an annual basis. There has been some concern that that report might be rather different from the one that is made available to Ministers and others, and my anxiety is that it should not be different. All that it should exclude is current operational matters; nothing else should be excluded from what my Committee considers, and clearly, it needs to be the same as what IPCO gets. We cannot have three or four different reports.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

I can give my right hon. Friend that assurance.

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

That is a 100% win. It is not half a win or three quarters of a win; it is just a win. So we are making huge progress tonight, partly due to the diligence of the members of the ISC and other Members of this House, including the official Opposition, but largely due to the reasonableness of the Minister. He is a listening figure, and he is growing in stature and reputation as a result. I am delighted that the Minister has agreed to the fourth of my requirements.

I did have a fifth request, however, and I was inspired to make it by none other than the shadow Minister. That will come as a surprise, perhaps including to the shadow Minister himself, but he made a very strong point when moving his new clause 1 about finding some way of formalising the expectation that this legislation would be regularly reviewed and, when necessary, updated. I do not imagine that the Minister will rush to accept such an amendment in the name of the official Opposition—it would certainly be unconventional were he so to do—but it is worthy of further consideration by the Government.

This is going to be a challenging business for whoever the Security Minister is, but recognising the dynamism of the threat we face and therefore the necessity of an equally dynamic response is of great significance and value. I hope the Minister, when he sums up, might find some words that will allow him to recognise the sensible suggestion made by the shadow Minister, and the spirit in which it was made. That would be further evidence of the Minister’s stature, of which I am an advocate at the moment, but I am seeking further adherents to my cause.

With those few remarks and endorsing much of what has already been said, I will draw my speech to a conclusion with this thought. I spoke earlier about Thomas Mann and his description of tolerance and evil, but perhaps Chesterton put this most succinctly when he said:

“Unless a man becomes the enemy of an evil, he will not even become its slave but rather its champion.”

Every time we have doubt and fear when facing the wicked people who seek to do us harm and who took the lives of our dear colleagues, we give them solace. Every time we stand firm, and do what is necessary to defend our nation and its people, we do what is right. The Minister has the great privilege of leading that effort tonight, and in doing so he should have the support of all men and women of good will across this House.

Photo of Angela Eagle Angela Eagle Labour, Wallasey 8:00, 25 March 2024

It is a pleasure to follow Sir John Hayes, and indeed all the fellow members of the ISC who have spoken on both sides of the House in our debate on seeking to improve this important piece of legislation. I must say that it is very rare, when one is called towards the end of a debate, for there to have been concessions on most of the areas at issue, leaving very little else to say. It makes me happy that I did not write my speech in advance, since I would have had to rip most of it up following the Security Minister’s very welcome concessions on a range of issues during our debate. They are on the record, and they are indeed extremely welcome.

However, there is one area of detail that I want to comment on, which is about the triple lock amendment—amendment 22—on the qualifications and experience of the Secretaries of State who, under the widening of the triple lock, could if the Prime Minister of the day is incapacitated for some reason, be drawn into making a warrant to intercept the communications of a Member of this Parliament, or indeed a Member of any of the devolved legislatures in the UK. Sir David Davis was very explicit about why that particular protection should be in existence, and I completely agree with his analysis. One of the ways we defend our democracy is by allowing Members of Parliament to do their unique jobs without interference unless it is for an exceptional and a very good reason, and has been authorised at the highest level.

There has been a lot of to-ing and fro-ing while the Bill has been going through its parliamentary stages about precisely how this widening of the power to make such a warrant away from the Prime Minister, if he or she is indisposed or unable to be near secure communications, should actually be defined. We have got down to the stage where everybody agrees that to make the system robust there should be an expansion, and we have even come up with a number of Secretaries of State—five—who should be authorised in such exceptional circumstances to make that warrant.

We are now down to the last piece of disagreement between the ISC and the Minister, which is about what the qualifications of those Secretaries of State should be. In seeking to try to draw out precisely what the Government mean, we have asked as a Committee that the relevant Secretaries of State who may be down to do this duty ought already to be responsible for warrantry, or have had previous responsibility for it. Thus far, however, the Government and the Minister have been unwilling to be that deliberate in the arrangements they have made.

As Sir Jeremy Wright said in his contribution to the debate, the only qualification apart from being a Secretary of State that the Government appear to have admitted is that the person standing in for the Prime Minister ought to have had a 20-minute security briefing about warrantry.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Does my hon. Friend agree with me that this is so important, because the Secretary of State will be acting as the Prime Minister at that time? Once that decision has been taken—even though we now have the commitment from the Minister that the Prime Minister will be told, not should be told—they will not be able to overturn or review it in any way, so that person is acting as the Prime Minister at that stage.

Photo of Angela Eagle Angela Eagle Labour, Wallasey

Yes, and it is clearly important that there is a reassurance that the Secretary of State who is picked to do that job in these exceptional circumstances will either have previous experience of being responsible for warrantry and issuing warrants, or have current experience. I do not see why the Security Minister cannot concede that that is where we should be. I do not understand why, over all of the parliamentary time spent on this Bill, the Government have not been able to give us that assurance, which just shores up the important nature of the commitment to widening the triple lock.

Clearly, the Minister’s very welcome decision to make the concession on amendment 23, as my right hon. Friend Mr Jones has just pointed out, strengthens the situation, because that means the Prime Minister will have to be notified of such a warrant. However, my right hon. Friend is also correct in pointing out that the warrant cannot be rescinded if it has already been granted. I therefore gently ask the Security Minister whether he will not take the opportunity, in responding to the debate, to give the ISC members and the public we all represent the reassurance that the Secretaries of State who may have this power delegated to them either will already be responsible for warranting, or will have previously had responsibility for warranting. I do not understand why he cannot just get up and give us that final assurance. If he does, I think we will have done extremely well on Report and in Committee. I am rather disappointed that the Minister is not leaping to his feet, since he has been leaping to his feet a lot while my colleagues have been making their speeches. I see no such flicker in him as I am making mine. I suspect and hope that that is because he is just thinking about how he will wind up the debate and give us that final assurance that we need.

Photo of Kevan Jones Kevan Jones Labour, North Durham

The measure is doable, because we are not asking for something in the Bill; it could be done in the guidance. The Minister has already agreed on changing the “should” to “will”, so this measure could be reflected in the guidance that goes alongside the Bill.

Photo of Angela Eagle Angela Eagle Labour, Wallasey

I can see that the Minister is looking pensive, so I hope that means he is thinking of some way to reassure us on this final, important point with respect to the triple lock and the widening of those powers to other Ministers who are not the Prime Minister.

The whole debate around the Investigatory Powers (Amendment) Bill demonstrates that when threats evolve, the requirement to meet them also has to evolve. We know that this area is rapidly developing, and we know also that we will probably be back in the not-too-distant future to see how these powers can be changed again to defend our democracy and meet some of the threats of serious organised crime and terrorism, which our security forces help us deal with day in, day out. We also know that if our citizens are to give us effective permission and consent to take some of these powers, any increase in powers has to be accompanied by an increase in proper oversight, to reassure them that democracy is being defended, not undermined. That includes oversight by the ISC, which is why I am a big supporter of new clause 1 as tabled by my hon. Friend Dan Jarvis. It is important that that can be an ongoing reassurance.

I do not want to repeat a lot of the arguments made by colleagues, and it is important now to listen to what the Minister has to say. I thank him for the concessions he has made, and I hope he can make just a slight move towards us on the warrantry issue in the instance of the triple lock, so that we can be even more content than we are now.

Photo of Theresa Villiers Theresa Villiers Conservative, Chipping Barnet

I rise to speak to amendments 15, 20 and 22, and Government amendments 3 and 6. I highlight that the investments declared in my entry in the Register of Members’ Financial Interests include a data company.

The intelligence services carry out vital work in keeping us safe in a dangerous world, as we have heard from many colleagues this evening. The secrecy that surrounds what the agencies do inevitably means that the majority of people who work for them will never receive public praise or recognition, so I take this opportunity to thank them for their brave and dedicated efforts on our behalf. This Bill provides important updates to the law to enable them to operate effectively and to adapt to fast-moving technological change and innovation. This kind of update to legislation will be essential again and again in years to come to enable our intelligence services to keep ahead of those who would seek to do us harm. For example—this is at the heart of what we are doing today—it makes no sense to require, as the current law does, that the intelligence services undertake the full range of actions designed for holding sensitive, confidential and private information when dealing with datasets that are readily available to the public or to commercial users and over which there is little or no expectation of privacy.

I welcome the Bill, and my purpose this evening is just to seek to ensure that the extension of powers that the Government propose to give to the intelligence services is accompanied by the appropriate extension of scrutiny. We have one of the most rigorous and comprehensive legal frameworks in the world to provide democratic control and oversight of intelligence work, including, as we have heard, a significant role for the ISC, of which I am a member. That Committee has expressed a number of concerns about the Bill, and I welcome the changes that have been made in the other place and this evening by the Minister to respond to the concerns expressed by members of the ISC.

For instance, it is good to see that Government amendments 3 and 6 provide additional certainty on which organisations will be able to use new intrusive powers and how they will be constrained in their use. Controversial examples of past local authority deployment of such powers were debated at length in relation to the Investigatory Powers Act 2016. It would have been worrying for this Bill to reach the statute book without further clarity on that point.

I welcome the tightening up of the provisions in the Bill on the triple lock, which determines the very rare circumstances when the communications of a legislator can be intercepted. That includes amendments in the other place specifying that only five designated Secretaries of State may sign off on these warrants in place of the Prime Minister, and only when the Prime Minister is unable to do so because of incapacity or an inability to access secure communications.

Like others, including Dame Angela Eagle, whom I am privileged to follow in this debate, I think the Government still have some work to do on the matters raised in amendments 21 and 22, which were tabled by my colleagues on the ISC, to provide confidence that this highly sensitive task will be carried out responsibly and lawfully. We need to ensure that the designated Secretary of State is someone whose routine duties include signing warrants or who has relevant operational experience of doing so. As someone who scrutinised and signed intercept warrants for nearly four years as Northern Ireland Secretary, I know how important that practical understanding and awareness is. Having said that, I very much welcome the statements that have been made on how the code of practice will operate in this area and on ensuring that the Prime Minister is notified of any warrants agreed on his behalf.

Lastly, I want to consider amendment 15 on internet connection records. The current rules mean that to lawfully access an internet connection record, the intelligence services must know the precise service accessed and the time it was accessed. Clause 16 would extend that power to identify individuals using one or more specified internet services for a specified period. In the Bill, there is simply no limit on the number of services or the length of period specified. There is nothing in clause 15 to confine the new power to sites that are inherently suspicious. The intelligence services, for example, might reasonably want to collect information on access to uncontroversial, widely used sites by people who are of concern to them, but the disadvantage of that is that it means routine online activity by many entirely innocent people could also be scooped up.

I acknowledge that we are talking about only communications data—that is, the who, when, where of online activity—and not the content of the communication. I also concede that the general needs on necessity and proportionality provide an important constraint, as will the commitment to delete data collected relating to people not of interest to the security services. However, as my right hon. and learned Friend Sir Jeremy Wright said on Second Reading, the fact that data is not retained does not mean that it is not intrusive to collect it. I think that there is a credible case for inserting a requirement to seek the permission of a judicial commissioner, rather than letting decisions be made internally by the intelligence agencies.

This is an important Bill, which I very much hope the House will pass this evening, but there remain real concerns about clause 15 and the width of intrusion that it would involve. I therefore urge the Minister once more to consider additional safeguards to govern the exercise of these new powers to access internet connection records, so that we guarantee proper scrutiny and public confidence and ensure that the regulation of our intelligence services continues to be world leading.

Hon. Members::

Hear, hear!

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

You are most kind, Madam Deputy Speaker. When you get to my age, you do not count the years, but you make the years count.

It is an absolute honour and pleasure to follow Theresa Villiers. May I put on the record my thanks to her for her time as Secretary of State for Northern Ireland? We appreciate her commitment and efforts over those years. Her intelligence about and interest in Northern Ireland have not dissipated because she is no longer the Secretary of State for Northern Ireland; indeed, they have added to the occasion.

It is a pleasure to speak on the Bill, which, as the Minister will know, I have done on numerous occasions. I am aware of the complexity of the issue and of the need to give privacy its rightful place in our national security. As others have done, I put on the record my thanks to all the security and intelligence services for all that they have done and still do. We owe them a great debt.

During the previous debate, I asked the Minister for his assurances regarding whether the right balance had been struck, yet I have still been contacted by constituents who continue to express their concerns. I will not detain the House for long—about five minutes—but will highlight again the concern that my constituents continue to express, to give them one last chance to receive assurances on the Floor of the House.

My constituents’ remaining concerns relate to something that we in this place have much cognisance of and that we treasure: the freedom within a democratic society to live our lives in peace as long as we are not adversely affecting the lives of others. That is a precious right, and one that none of us in the House wants to remove. I will refer to clauses 1 and 2 and highlight four companies that have expressed concerns to get the Minister’s response. My constituents have highlighted the following:

“In addition to the concerns of civil society, I would like to draw your attention to some of the comments submitted in evidence to the Bill’s Committee from the tech industry.

Apple: ‘In addition to impacting the safety of billions of users around the world who rely on security technologies developed by Apple and other companies, the Bill in its current form would undermine fundamental human rights. In fact, just this year, the European Court of Human Rights held that requiring a company to provide a means to decrypt all encrypted communications on its platform violated the right of privacy in Article 8 of the European Convention on Human Rights.’

TechUK: ‘This could impede the ability of TechUK members to modify products and services over time to protect users from active security threats, to innovate, and enhance their services for their users.’

Information Technology Industry Council: ‘We strongly encourage greater scrutiny of these implications so that the Bill will not have a chilling effect on a company’s ability to conduct business or in current or future innovations, and that it will serve to further international efforts on shared goals around trust and security.’

Computer and Communications Industry Association: ‘Over time, this will push tech firms to refocus product development away from addressing the priorities of UK consumers, towards Government demands for access. The obstacles the new regime creates will be a drag on innovation and therefore undermine the quality of digital services on offer.’”

Photo of John Hayes John Hayes Conservative, South Holland and The Deepings

I am listening carefully to the hon. Gentleman’s speech, not least because it is his birthday. Let me put it to him in this fashion. I think that the public have as much to fear from those corporate organisations as they do from any democratically elected Government. I am much more concerned about the way that they gather and sell data, and, dealing with the matter of expectation, the vast majority of people do not know that they are doing it. Rather than more a more permissive attitude towards those organisations, I want to see a less permissive one.

Photo of Jim Shannon Jim Shannon Shadow DUP Spokesperson (Human Rights), Shadow DUP Spokesperson (Health)

I thank the right hon. Gentleman for his intervention. I share those concerns, but I wish to put on the record my concern for my constituents in relation to how the changes are interpreted and how they will affect people.

I will give the last sentence of the quotation from the Computer & Communications Industry Association:

“They could risk deterring investment in improving service for UK consumers and contribute to a sense that the UK is not a safe market in which to invest.”

Those are the four tech companies, and the questions are on the record—I put them in Hansard—so that perhaps the Minister can give me an answer. Will he outline what mitigations are in place for the matters affecting those four companies in order to secure the tech industry’s place in the fabric of our lives in the United Kingdom?

I am pleased that the Minister has accepted amendment 23, which was tabled by Mr Jones. The Democratic Unionist party was minded to support that amendment, but, because it has been accepted, we will not need to do so.

While I am aware of valid concerns, I am also aware of the need for this Bill, which the gallant Minister will know about better than most in the House. He served in Northern Ireland, so he understands the implications for us in Northern Ireland and the lives that we have led for some years. I was a part-time soldier in the Ulster Defence Regiment and in the Territorial Army for 14 and a half years. I have been a recipient of security intelligence and know how it can save lives. I am here today because of intelligence, which found out what the IRA’s intentions were. That is a fact. That has affected not just me; over the years, the intelligence services have saved the lives of other hon. and gallant Members. I have many friends who served and who are alive today because of the intelligence service or the Security Service. I had many other friends who unfortunately are not alive today; I remember them as well, so I do.

We must remember that the whole objective of the Bill is to keep us safe, to keep us secure and to ensure that our lives with our families can continue. I do hope that a balance has been struck, as the Minister outlined, because freedom is a prize worthy of getting it right. I know that the Minister wants to get it right, and I want it to be right. Madam Deputy Speaker, you want it to be right as well. Let us do it and get it right tonight.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

Right hon. and hon. Members will be delighted to hear that, having answered colleagues as we went along, I have only a few short words to conclude. [Hon. Members: “Hear, hear!”] I know how to keep them happy.

Amendments 3 to 6 to clause 14 concern the restoration of specified public authorities’ general information powers to secure the disclosure of communications data from a telecommunications operator by compulsion. I pay tribute and thanks to my right hon. Friend Sir John Hayes. I hope that Members will have noticed that I have listened carefully to Members across the House, and I believe that this Bill has been pulled together carefully alongside the Intelligence and Security Committee. It is a slight shame I cannot thank Sir Julian Lewis in person, who is sadly at a funeral today. He has played an important role in contributing to and leading the engagement of which I have had the advantage in preparing this Bill.

Let me quickly touch on one or two points. My right hon. and learned Friend Sir Jeremy Wright spoke about notices. It is important to note that the notices do not block innovation. They do not stop a technical patch or infringe on companies’ ability to update their systems. All they do is make sure that the existing level of access remains while that is being looked at. That is a reasonable element to ensure that the British people are kept safe by the British law enforcement authorities.

Photo of Jeremy Wright Jeremy Wright Conservative, Kenilworth and Southam

I understand what my right hon. Friend is saying, but the practical consequence of issuing such a notice is that the development of the product about which concern has been expressed has to stop. Therefore, the infringement on commercial liberty, in practice, is exactly what I have described, is it not?

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

If my right hon. and learned Friend will forgive me, I will be able discuss that in a more secure environment, but I can only say, “Not necessarily.” I will be able to describe why that is in a different environment, but I cannot do it here.

The reason for not accepting amendments 22 and 23 —I understand the points made by right hon. and hon. Friends and Members across the House—is that we are talking about a very limited number of people. One Secretary of State is already used to do the initial request. The second person on the triple lock is a judicial commissioner—a judge. The third therefore has to be one of the four Secretaries of State left. Therefore, it is important that we make sure that it is somebody in whom the Prime Minister has confidence. Given that we are about to have a new Government—I hope the new Conservative Government, but still a new one—it is entirely possible that there will be a new Cabinet and that the routine explanation will not be satisfactory. As routine duties do not have legal clarity, we will not use them.

Photo of Kevan Jones Kevan Jones Labour, North Durham

The Minister has used that argument before about new Secretaries of State, and it is complete nonsense, is it not? It would not happen on day one unless the Prime Minister suddenly got covid or was indisposed. By the time this came in, those three people would be there anyway. His argument is pretty weak.

Photo of Thomas Tugendhat Thomas Tugendhat Minister of State (Home Office) (Security)

The right hon. Member has made his point and I have made mine; I am afraid I will leave it there rather than continue. The ways in which we have been able to engage on the Bill has been incredibly supportive and helpful.

The removal of clause 15 from the Bill would prevent the intelligence agencies and the National Crime Agency from detecting some national security and serious crime threats, and those intent on committing child sexual exportation and abuse. Given the robust oversight of the regime in general, and the internet connection records in particular, we simply do not believe that this is in the best interests of the British public. Removal would benefit only those who threaten our safety and serve to make the work of the intelligence services and the NCA significantly harder as they seek to protect us and bring paedophiles to justice. The Investigatory Powers Commissioner already has the necessary powers to inspect and report on all parts of the CD regime. If the Investigatory Powers Commissioner wishes is to focus attention on condition D of the internet connection record, they have the power to do so. With those clarifications, I commend the Bill to the House.

Question put, That the clause be read a Second time.

Division number 113 Investigatory Powers (Amendment) Bill [Lords] Report Stage: NC1

Aye: 170 MPs

No: 265 MPs

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

The House divided: Ayes 171, Noes 265.

Question accordingly negatived.