Amendment 1

Investigatory Powers (Amendment) Bill [HL] - Report – in the House of Lords at 3:39 pm on 23 January 2024.

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Lord Fox:

Moved by Lord Fox

1: Clause 2, page 6, line 7, after “must” insert “, as soon as possible and in any event within 24 hours,”Member’s explanatory statementThis amendment requires a person granting an authorisation in urgent cases to notify a Judicial Commissioner within, at most, 24 hours that they have done so.

Photo of Lord Fox Lord Fox Liberal Democrat Lords Spokesperson (Business)

My Lords, I will speak also to Amendment 7, which is in my name. These amendments require a person granting an authorisation in urgent cases to notify a judicial commissioner within, at most, 24 hours. This amendment would make it mandatory that, when the intelligence services use type 7A and 7B data for urgent operational purposes, they must report this to a judicial commissioner within 24 hours.

As your Lordships know, the current proposal in the Bill is three days. As it stands, the intelligence services can use those three days to interrogate a dataset that is ultimately ruled offside by the judicial council—three days to deploy AI models that work very quickly, in moments. The Minister responded, highlighting extra cost as a possible reason not to pursue this. Plainly, with all due respect, that is not true, because the data has to be reported anyway, and bringing it forward by a couple of days is not a relevant concern.

The spectre of weekends has also been raised. I assume that, given that this process is to facilitate urgent investigations, the intelligence services themselves will be working on Saturday and Sunday, and it is up to them to report their activity. Amendments 1 and 7 do not change the time duty for the judiciary to respond, so this would not affect the operation of the urgent inquiry. Should they not respond until Monday or otherwise, it is not the concern of the services. Clearly, it puts pressure on the judicial commission to some extent, but the intelligence services will have met their side of the obligation and can carry on with their important and urgent work until such time as the judicial commissioner makes a ruling. In any case, I am sure that there will be duty rosters and such things going on for this, so, again, I am not sure that the weekend is a concern.

Another argument that has been advanced and may yet return is that other legislation uses three days, so this should, too. The whole point of the Bill is to take advantage of new and innovative technology. It seeks to recognise the differences and change regulations accordingly. If the technology changes, as it does as a result of the Bill, so should reporting criteria. If there are other times that are different, perhaps we should be looking at those rather than at this amendment. In this case we are dealing with new technology, where artificial intelligence, once trained, can be deployed on data—which may or may not be allowed until such time as the judicial commissioner has ruled—and AI can produce its answers in minutes, perhaps hours.

In Committee I proposed that the use of this data for urgent operations should be reported immediately. I recognise that that was a very unreasonable suggestion, which is why these amendments specify within 24 hours, which is a fairer proposal.

In Committee, the Minister’s words on what happens to information retrospectively ruled unusable were helpful:

“The relevant information must be removed from the low/no dataset and either deleted or a Part 7 warrant sought”.—[Official Report, 11/12/23; col. 1743.]

However, additionally in Committee, various ex-services Peers confirmed what I knew, which is that once a fact is known by service personnel, it is not forgotten—it cannot be unknown. The noble Baroness, Lady Manningham- Buller, and other noble Lords were very clear on that.

This amendment is designed to limit the amount of unforgettable information that can be derived from inappropriate datasets. I will listen hard to the Minister’s words, but, unless he has found a different and more compelling argument than those already deployed, I will press Amendment 1.

I am pleased that the Government have agreed that, in the event of Amendment 1 being agreed, Amendment 7 will be treated as consequential. I beg to move.

Photo of Lord West of Spithead Lord West of Spithead Labour 3:45, 23 January 2024

My Lords, I rise to speak to Amendments 2, 3 and 6. As I made clear in Committee, the Intelligence and Security Committee broadly welcomes the introduction of this legislation as a means of addressing significant changes to the threat and technological landscapes that have the potential to undermine the ability of our intelligence agencies to detect threats and protect our country. There are, however, several areas in which the Bill must be improved and, in particular, safeguards strengthened.

The draft codes of practice published by the Government contain indicative safeguards. This is not a substitute, however, for putting such provisions on the face of the Bill, which is essential if we are to ensure that those safeguards cannot be changed or diluted by subsequent Administrations. This is particularly important when we are discussing necessary scrutiny and oversight. The ISC is still, therefore, seeking amendments to several sections of the Bill.

It is important to remember that the Bill seeks an expansion of the investigatory powers available to the intelligence services. We consider that this expansion is warranted. Any increase in those powers, however, must be accompanied by a proportional increase in oversight. Sadly, the Government have previously been reluctant to ensure that democratic oversight keeps track of intelligence powers—particularly where it is related to the remit and resources of the ISC. This House has made its views on this long-standing failure known during debates on several recent Bills, and yet again in Committee on this Bill. The Government have so far refused to update the remit of the ISC or provide the necessary resources for its effective functioning, such that it has

“oversight of substantively all of central Government’s intelligence and security activities to be realised now and in the future”— as was the commitment given by the then Security Minister during the passage of what became the Justice and Security Act.

The House of Lords made its views on this long-standing failure known in debates over several recent national security Bills, including what became the National Security and Investment Act, the Telecommunications (Security) Act and the National Security Act. Despite these repeated attempts by this House to ensure effective oversight, this has been ignored by the Government. The Government cannot continually expand and reinforce the powers and responsibilities of national security teams across departments, and not expand and reinforce parliamentary oversight of those teams as well. The committee expects the Government to take this opportunity to bolster the effective oversight it purports to value. It is therefore imperative that Parliament ensures that, in relation to this Bill, the role of the ISC and other external oversight bodies, such as IPCO, is well defined and immovable from the outset. Fine words in a code of practice are, I am afraid, hardly worth the paper they are written on. They must be written into statute.

On the detail of Amendment 2, as I have noted in my previous speeches, Section 226DA of the current Bill requires that each intelligence service provide an annual report to the Secretary of State detailing the individual bulk personal datasets it retained and examined under either a category authorisation or an individual authorisation during the period in question. My amendment would ensure that there was independent oversight of this information, rather than just political oversight, as at present. It would achieve this by providing that the annual report be sent also to the Intelligence and Security Committee of Parliament and the Investigatory Powers Commissioner.

IPCO does have a degree of oversight included in the Bill already, alongside its existing powers of inspection, but it is not full oversight. Further, there is currently no parliamentary oversight of category authorisations at all. This is not appropriate. My amendment will, therefore, enshrine within legislation that IPCO and the ISC will have oversight of the overall operation of this regime.

At this point, I acknowledge the amendment tabled by the Government. I thank the Minister for his engagement with the ISC; we have had some useful dialogue and I thank him very much for that. It is reassuring that there may finally be some recognition of the strength of feeling in this House that was apparent through noble Lords’ interventions at Second Reading and in Committee that the ISC must have a role in scrutinising this new regime.

However, what is not clear is why the Government chose to table their own amendment rather than accept the ISC’s amendment. Both amendments would seemingly provide the ISC with information on category authorisations that are granted or renewed in the given period. Without wishing to sound suspicious, I think the House requires an explanation as to what the Government see as the difference.

The first difference appears to be that the government amendment is less specific on the information to be provided and does not include individual authorisations within its scope. It therefore does not give the same level of assurance to Parliament and the public that the ISC is fully sighted on the operation of the regime.

The second difference is that the government amendment would seem to create more work for the intelligence community, as rather than simply sending the existing annual report to the ISC, a separate report would have to be produced instead. The Minister has been very keen to emphasise the need to minimise the burden on the agencies—we agree entirely with him; they are very busy—when it comes to other elements of the Bill, so it is most peculiar that the Government are deliberately choosing to increase the burden.

The third point I would note is that if the intention of this proposal is to carefully curate the information provided to the ISC regarding the Part 7A regime, it is rather undermined by the fact that the committee would still be able and willing to request a full report be provided to the Secretary of State, under the existing powers in the Justice and Security Act.

My fourth and final point is that the government amendment excludes the Investigatory Powers Commissioner. It is not clear why. IPCO and the ISC are both essential to oversight.

I trust noble Lords can recognise that, despite what I am sure are the Government’s best intentions, the ISC amendment provides the most robust assurance to Parliament and the public regarding oversight of the new regime, and the most streamlined mechanism for delivering this. I therefore urge the Minister and noble Lords to support this amendment to ensure that the robust safeguards and oversight mechanisms so carefully considered by Parliament in respect of the original legislation are not watered down by changes under this Bill. If investigatory powers are to be enhanced, so must oversight. This is what the ISC seeks to achieve by this amendment and those others that I have tabled.

I will touch very briefly on my noble friend Lord Coaker’s Amendment 5. I support it fully and I have raised those issues to do with the ISC.

On Amendment 6, this Intelligence and Security Committee amendment is required in order to close a 12-month gap in oversight. This relates to the new Part 7A, to be introduced by this Bill, which provides for a lighter-touch regulatory regime for the retention and examination of bulk personal datasets by the intelligence services where the subject of the data is deemed to have low or no reasonable expectation of privacy. Approval to use such a dataset may be sought either under a category authorisation, which encompasses a number of individual datasets that may be used for similar purpose, or by an individual authorisation, where the authorisation covers a single dataset that does not fall neatly within a category authorisation or is subject to other complicating factors.

In the case of the category authorisation, a judicial commissioner will approve the overall description of any category authorisation before it can be used. A judicial commissioner will also approve any renewal of category authorisation after 12 months, and the relevant Secretary of State will receive a retrospective annual report on the use of all category and individual authorisations.

However, as I highlighted in Committee, this oversight is all retrospective. What is currently missing from the regime is any form of real-time oversight. Under the current regime, once a category authorisation has been approved, the intelligence services then have the ability to add any individual datasets to that authorisation through internal processes alone, without any political or judicial oversight. They will be able to use those datasets for potentially up to a year without anyone being the wiser. This would mean relying on the good intentions of a particular intelligence service to spot and rectify any mission creep up until the 12-month marker for renewal. Although we have every faith in the good intentions of the intelligence services, no legislation should be dependent on the good will of its subjects to prevent misuse of the powers granted therein, particularly where those powers concern national security.

It is important that we fill that 12-month gap in oversight, and my amendment does so very simply by providing a new Section 226DAA in Clause 2, which would ensure that IPCO is notified whenever a new, individual bulk personal dataset is added by the agencies to an existing category authorisation. The Government’s primary argument against this proposal appears to be that it would be too onerous for the intelligence community and would impair its operational agility. I do not believe this is the case.

Notification would entail the agency sending a one-line email to the Investigatory Powers Commissioner containing the name and description of the specific bulk personal dataset as soon as reasonably practicable after the dataset was approved internally for retention and examination by that intelligence service. The amendment would not require that the use of the dataset be approved by the Investigatory Powers Commissioner, merely that the commissioner be notified that it had been included under the authorisation. It does not, therefore, create extra bureaucracy or process—certainly not in comparison with an entire new annual report, as the Government were proposing in relation to my previous amendment.

Crucially, this will provide for IPCO to have real-time information to enable it to identify any concerning activity or trends in advance of the 12-month renewal point. Any such activity could then be investigated by the commissioners as part of their usual inspections. Aside from the supposedly onerous burdens that these one-line emails will place on the agencies, the Government are also seeking to argue that the safeguards of the Bill are currently calibrated to the lowest level of intrusion associated with low or no expectation of privacy datasets and that it would therefore be inconsistent for the agencies to provide notification regarding category authorisations, given that they do not provide notification for datasets under the current Part 7 class warrant regime.

This argument is similarly unpersuasive. In the first instance, the light-touch nature of our amendment, requiring simple notification rather than approval, is already calibrated to the lower level of intrusion. However, the key point is that the agencies do not have the same powers under Part 7 and Part 7A. This new regime gives the agencies greater powers specifically to internally add individual datasets to those categories without external approval. This is not a power given under the current Part 7 regime. The ISC agrees that the agencies should have this power in relation to low or no reasonable expectation of privacy datasets. However, to rehearse this argument yet again, we should not be creating greater intrusive powers without data oversight. This is a new power that should not be available without some form of real-time external oversight, which is what my amendment provides.

This combination of real-time oversight through the notification stipulated in this amendment and retrospective oversight through the involvement of judicial and political oversight bodies, as set out in my previous amendment, is necessary to provide Parliament and the public the reassurance that data is being stored and examined in an appropriate manner by the intelligence services. The ISC believes that this amendment strikes the right balance between protecting the operational agility of the intelligence services, which remains very important to us, and safeguarding personal data. I therefore urge noble Lords to support my amendment.

Photo of Baroness Manningham-Buller Baroness Manningham-Buller Chair, Conduct Committee, Chair, Conduct Committee

My Lords, first, I apologise. Like the noble Lord, Lord West, who during Committee had a bionic knee, I may not last, because I had a new one installed a couple of weeks ago. My eyes turned to the noble Lord, Lord Fox, as he possibly expected, but I am out of reach today and I cannot hit him with my crutch.

It might help the House if I described the circumstances in which an emergency warrant is sought. There is a very long-standing system for this. In the days before we had judicial commissioners, it was if a Minister was unavailable, and now it is if the Minister and, of course, the judicial overseers decide that a warrant sought is wrong or inappropriate, all the material is destroyed.

At the earlier stage, I said that you cannot legislate to forget, but the noble Lord, Lord Fox, has slightly twisted what I was trying to say then. Of course, if the material is destroyed because the warrant was not approved, some people will remember what they read, but it cannot be used in any way.

These occasions occur nearly always at times when people are unavailable—in the middle of the night or at weekends—when there is a brief window of opportunity where it is a matter of life and death. I can see that, on the surface, it is appealing to bring the notification time down to 24 hours, but this is not rational or consistent with the rest of the legislation that we have. For far more intrusive techniques such as planting a microphone or intercepting a communication, it is three days. That said, I know that my former colleagues will endeavour to do it as soon as possible, but over the weekend the Investigatory Powers Commissioner’s Office is not open. People are not available. They will try to do it as soon as possible, but it does not make sense to reduce the time needed in these cases of low intrusion, with datasets of no or low expectation of privacy, to require a stricter regime than for very much more intrusive techniques such as the planting of a microphone in your house.

Photo of Lord Murphy of Torfaen Lord Murphy of Torfaen Labour 4:00, 23 January 2024

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

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

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords)

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

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

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

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

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

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

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

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

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

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

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

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

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

The noble Lord’s amendments would require the intelligence services to provide the same report to the Investigatory Powers Commissioner. There is no need for a requirement to share a report with the IPC. The IPC and anyone acting on his behalf already have access to all locations, documents and information necessary to carry out a thorough inspection regime.

The intelligence services are legally obliged to provide all necessary assistance to the IPC, who is required to report publicly on the findings of his inspections. It is my firm belief that the Government’s amendment offers the ISC an appropriate mechanism through which the committee will be able to understand how the regime is working, and that the insights garnered by this reporting will support the ISC in continuing to carry out its oversight functions. I hope this provides the assurance that the noble Lord, Lord West, and his fellow committee members are seeking and that they will feel able to support the Government’s alternative to his amendment.

Amendment 6, tabled by the noble Lord, Lord West, would require that the intelligence services notify the IPC that an individual dataset has been authorised in reliance on an existing category authorisation under Part 7A. This obligation would be more onerous than the requirements under the existing BPD provisions. Not only is this unnecessary, but it would also impose additional burdens on the intelligence services and IPCO, while achieving only a negligible and unnecessary increase in oversight.

The IPC already has extensive oversight of Part 7A. His judicial commissioners have a role in the authorisation process and his inspectors will carry out regular inspections of the intelligence services’ use of it. Judicial commissioners will approve every category authorisation and the authorisation of every dataset that does not fall within an existing category authorisation. Category authorisations will expire at 12 months and will then need to be renewed. That decision will also require the approval of a judicial commissioner.

On inspection, IPCO will be entitled to see all authorisations granted under Part 7A and can review the datasets retained in reliance on a category authorisation. Any irregularities or errors may be reported by the IPC in his annual report. This is the approach taken in inspections of the existing Part 7, whereby datasets authorised under class warrants are reviewed by IPCO inspectors. We consider that the overall package of safeguards in Part 7A is appropriate and proportionate to the nature of the datasets with which it is concerned. We do not see the case for adding a new, more onerous, dataset by dataset requirement here, which would not meaningfully improve oversight. I therefore respectfully ask that the noble Lord does not move his amendment today.

Amendment 5, tabled by the noble Lord, Lord Coaker, would require the Secretary of State to publish a report on the Prime Minister’s engagement with the ISC relating to investigatory powers. As I said earlier, the ISC plays an important role and the Government value the independent and robust oversight of the intelligence services and the wider intelligence community that the committee provides. The amendment we have tabled today demonstrates that. The Government keep the formal working agreement with the ISC under review. Section 93 of the National Security Act 2023, which came into force on 20 December 2023, places a requirement on the Government to consider whether the ISC’s memorandum of understanding with the Prime Minister should be altered to reflect any changes arising out of that Act.

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

Photo of Lord Coaker Lord Coaker Shadow Spokesperson (Defence), Shadow Spokesperson (Home Affairs), Opposition Whip (Lords) 4:15, 23 January 2024

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

Photo of Lord Sharpe of Epsom Lord Sharpe of Epsom The Parliamentary Under-Secretary of State for the Home Department

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

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

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

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

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

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

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

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

Photo of Lord Butler of Brockwell Lord Butler of Brockwell Crossbench

My Lords, as a former member of the Intelligence and Security Committee, perhaps I may say how much I endorse what has been said by the noble Lords, Lord West and Lord Murphy, and welcome many elements in the—

Photo of Lord Fox Lord Fox Liberal Democrat Lords Spokesperson (Business)

We have had the speeches on this group and are moving to a vote. I am sorry to interrupt the noble Lord.

I thank the Minister for his comments and, indeed, the noble Baroness, Lady Manningham-Buller. My interpretation—perhaps I am wrong—of the nature of this Bill was that it was to introduce a new class of data and to deal with it. It was not to reach back into existing law and change it. The noble Baroness raised some important points about why I should have been concerned about the other data, which I did not reach back into. I am happy to advise my colleagues in the Commons and perhaps they can do that, too. However, taking on face value the nature of what we were seeking to achieve today, we looked at this data and came up with this conclusion. We have heard the arguments, but I am afraid that I am not persuaded by them and I would like to test the will of the House.

Ayes 201, Noes 227.

Division number 1 Investigatory Powers (Amendment) Bill [HL] - Report — Amendment 1

Aye: 199 Members of the House of Lords

No: 225 Members of the House of Lords

Aye: A-Z by last name

Tellers

No: A-Z by last name

Tellers

Amendment 1 disagreed.

Amendments 2 and 3 not moved.