Clause 17 - Laying before Parliament

Telecommunications (Security) Bill – in a Public Bill Committee at 10:45 am on 26th January 2021.

Alert me about debates like this

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering 10:45 am, 26th January 2021

We now come to amendment 20 to clause 17. This is Christian Matheson’s big moment. I call him to move the amendment.

Photo of Chris Matheson Chris Matheson Shadow Minister (Digital, Culture, Media and Sport)

I beg to move amendment 20, in clause 17, page 29, line 31, at end insert—

“(4) Where the Secretary of State considers that laying a copy of the direction or notice (as the case may be) before Parliament would, under subsection (2), be contrary to the interests of national security, a copy of the direction or notice must be provided to the Intelligence and Security Committee of Parliament as soon as reasonably practicable.

(5) Any information excluded from what is laid before Parliament under the provision in subsection (3)(b) must be provided to the Intelligence and Security Committee of Parliament as soon as reasonably practicable.”

This amendment would ensure that the Intelligence and Security Committee of Parliament is provided with any information relating to a designated vendor direction or designation notice which on grounds of national security is not laid before Parliament, thereby enabling Parliamentary oversight of all directions and notices.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

With this, it will be convenient to discuss the following: amendment 22, in clause 20, page 35, line 30, at end insert—

“(9) The Secretary of State must provide the Intelligence and Security Committee of Parliament with a copy of any notification under this section relating to a designated vendor direction, designation notice, a notice of a variation or revocation of a designated vendor direction or a notice of a variation or revocation of a designation notice to which subsection (2) or (3)(b) of section 105Z11 applies.”

This amendment would require the Secretary of State to provide the Intelligence and Security Committee of Parliament with a copy of any notification under this section which relates to a direction or notice that has not been laid before Parliament on grounds of national security.

Amendment 23, in clause 20, page 37, line 41, at end insert—

“(10) The Secretary of State must provide the Intelligence and Security Committee of Parliament with a copy of any confirmation decision relating to a designated vendor direction, designation notice, a notice of a variation or revocation of a designated vendor direction or a notice of a variation or revocation of a designation notice to which subsection (2) or (3)(b) of section 105Z11 applies.”

This amendment would require the Secretary of State to provide the Intelligence and Security Committee of Parliament with a copy of any confirmation decision which relates to a direction or notice that has not been laid before Parliament on grounds of national security.

Amendment 24, in clause 21, page 39, line 9, at end insert—

“(6) The Secretary of State must provide the Intelligence and Security Committee of Parliament with a copy of any urgent enforcement direction relating to a designated vendor direction to which subsection (2) or (3)(b) of section 105Z11 applies.”

This amendment would require the Secretary of State to provide the Intelligence and Security Committee of Parliament with a copy of any urgent enforcement direction which relates to a direction that has not been laid before Parliament on grounds of national security.

Amendment 25, in clause 21, page 40, line 6, at end insert—

“(8) The Secretary of State must provide the Intelligence and Security Committee of Parliament with a copy of any confirmation of an urgent enforcement notification relating to a designated vendor direction to which subsection (2) or (3)(b) of section 105Z11 applies.”

This amendment would require the Secretary of State to provide the Intelligence and Security Committee of Parliament with a copy of any confirmation of an urgent enforcement notification which relates to a direction that has not been laid before Parliament on grounds of national security.

Photo of Chris Matheson Chris Matheson Shadow Minister (Digital, Culture, Media and Sport)

I am sure the Committee has been waiting with bated breath for my big moment all morning, Mr Hollobone. May I say what a great pleasure it is to serve under your chairmanship?

I had prepared some notes to help me present the amendments, but I need not have bothered; I could simply have taken the Hansard report from last week and quoted my right hon. Friend the Member for North Durham. He talked about being a stuck record, but he is not; he is being consistent. I like to think that Labour has been consistent throughout the detailed consideration of the Bill. My hon. Friend the Member for Newcastle upon Tyne Central talked about the three areas that we consistently think would improve the Bill, and the amendment falls into one of those areas: scrutiny and the role of the Intelligence and Security Committee.

I refer to my right hon. Friend’s speech last week on amendment 9, when he talked about the desire to help the Bill. He also laid down a challenge. He commented on the fact that I thought that some parts of his speech were inspirational. They were, because they made me think quite a lot. There was one lightbulb moment when he used his experience of, I believe, 20 years in the House this year—on which I congratulate him—and said that the chances are that a similar amendment will be proposed in their lordships’ House and the Government may well agree to it.

My right hon. Friend also said that it is not necessarily a good thing for the Minister—not in this case, mind you—to be a tough guy who wants to get through the Bill without any amendments, when there is a genuine desire among the Opposition to get the Bill through. I remind the Minister and Government Members that we support the Bill. There have been occasions when an Opposition have tried to scupper, delay or make mischief with a Bill. I assure Government Members—I hope it is obvious to them—that there is no such skulduggery on this side of the House, not with this Bill and not ever, and certainly not when my hon. Friend the Member for Newcastle upon Tyne Central, my right hon. Friend the Member for North Durham and I on the Bill Committee. We are genuinely keen to improve the Bill during its passage.

The amendment again falls into one of the three areas my hon. Friend the Member for Newcastle upon Tyne Central has identified as necessary. As the Minister may have guessed, the chances are that we will not put it to the vote, but we do ask that he gives it careful consideration. I refer the Committee to the speech by my right hon. Friend the Member for North Durham last week about the role of the Intelligence and Security Committee. Amendments 20 to 25 relate to different clauses, but have the common aim of ensuring that there is correct parliamentary oversight of the process outlined in the Bill, specifically by referring all orders made under proposed new section 105Z11 of the Communications Act 2003 to the Intelligence and Security Committee.

It would normally be the Digital, Culture, Media and Sport Committee that would take on telecommunications matters. Additionally, the Secretary of State may lay orders before Parliament for general consideration and scrutiny. However, the Bill has our national security at its heart, and as a proud former member of the Culture, Media and Sport Committee, I am the first to admit that it would not be at all an appropriate forum for the consideration of such reporting to take place, nor would it be the normal procedure for laying orders before this House or the other place, either in general or on the specifics of the order.

As we touched on last week, the temptation is therefore the default position that no reporting at all would take place, which is clearly not desirable. I hope the Minister will confirm that that is not the Government’s intention. To be fair, I think he touched on that point last week, but it would be helpful if he could touch on it again.

The use of the ISC is therefore an elegant and obvious solution. The Committee, of which my right hon. Friend the Member for North Durham is such a distinguished member, has worked well and has the confidence of the House. It provides a secure and trusted forum for decisions of the Secretary of State that may have far-reaching commercial and technical implications, as well as security implications, to be scrutinised and considered by hon. Members who are able to receive the full facts and make a judgement based on them, while giving nothing away to those who wish us ill and would exploit our open democracy in doing so. I see no reason why our determination to protect our communications infrastructure should be used against us by our adversaries, but nor should that determination be traded off with a reduction in parliamentary scrutiny of the Executive and agencies that act on behalf of us all.

The ISC is there for a reason: it is precisely to cover situations such as this. If the Minister can propose an alternative solution that balances security with scrutiny, we would be pleased to hear it. I suspect this solution would also make commercial UK businesses more open to scrutiny themselves by offering a level of confidentiality, although I accept that that is not the primary role of the ISC.

It should also not be option for the Secretary of State to report. Such a chaotic patchwork would undermine the integrity of the Bill and the processes that we are setting up. Failing any alternative being proposed, we believe that these amendments, which involve the ISC acting on behalf of the whole House—indeed, the whole of Parliament—would fill a glaring hole and enhance the Bill. I commend them to the Committee.

Photo of Kevan Jones Kevan Jones Labour, North Durham 11:00 am, 26th January 2021

My hon. Friend the Member for City of Chester said that we were going over old ground, and to a certain extent we are because some of the amendments reflect those that I moved last week.

May I say at the outset, Mr Hollobone, that the Minister has been an exemplar in engaging with and briefing the ISC? He has set something of a precedent; usually we have only Cabinet Ministers or Prime Ministers before us to give evidence. He is one of the few junior Ministers to have appeared before us, so I congratulate him. He did it because he wanted to engage with the issues. He must therefore be commended on his commitment to ensure that there is scrutiny. However—this is not to wish his demise, but to argue for his promotion—he will not be there forever. I think he does not quite understand why the Government are not at least moving on this.

The ISC’s remit is defined in the Justice and Security Act 2013. It sets out which Departments we cover, and the Department for Digital, Culture, Media and Sport is not one of them. However, as I said last week, security is increasingly being covered by other Departments, and this Bill is a good example. The National Security and Investment Bill is another one, where security decisions will be taken by the Secretary of State for Business, Energy and Industrial Strategy. Parliament must be able to scrutinise that.

If a high-risk vendor is designated as banned from the network by the Secretary of State for Digital, Culture, Media and Sport, there are perfectly good reasons why the intelligence behind that cannot be put into the public domain. The methods by which such information is acquired are of a highly sensitive nature, so it would not only expose our security services’ techniques, but in some cases would make vulnerable the individuals who have been the source of that information. I think most people would accept that that is a very good reason.

This sort of thing is happening increasingly. We have the two Bills that I have referred to, but we also have the Covert Human Intelligence Sources (Criminal Conduct) Bill, which will come back to the House tomorrow. Covert human intelligence and the ability to collect intelligence on behalf of our security services is very important. Most of that is covered by the Home Office, and covert human intelligence sources are covered by the ISC’s remit and can be scrutinised. However, there is a long list of other organisations that will be covered by tomorrow’s Bill, including—we never quite got to the bottom of this—the Food Standards Agency, for example. Again, how do we ensure that there is scrutiny of the decisions?

We also have—this has come out of the pandemic—the new biosecurity unit in the Department of Health. Again, there is no parliamentary scrutiny, because the Health and Social Care Committee will not be able to look at the intelligence that supports so much of that. An easy way out of this is in the Justice and Security Act 2013: the memorandum of understanding, which just means that, were our remit extended to look at this and other matters, the ISC could oversee and ask for the intelligence.

Having spoken to the Business Secretary and the Minister, who sympathises with us, I am not sure where the logjam is in Government. The point is that an amendment will be tabled in the Lords. Whether the provision is in the Bill or just in the memorandum of understanding between the Prime Minister and the ISC, it is easily done and would give confidence that the process at least had parliamentary oversight.

On many of these decisions, frankly, the oversight would not be onerous; we are asking only that we are informed of them. On some occasions, we might not even want to look at the intelligence. It might be so straightforward that, frankly, it is not necessary, so I do not think that it is an administrative burden. I cannot understand what the problem is. To reiterate what I said last week in Committee, it is not about the ISC wanting to have a veto or block over such things. It is, rightly, for the Government and the Secretary of State to make and defend those decisions.

It is also not about the ISC embarrassing the Government, because we cannot talk in public about a lot of the information that we receive. It is not as though we would publish a publicly available report, because of the highly classified nature of the information. However, the ISC can scrutinise decisions and, if it has concerns, write to the Prime Minister or produce a report for the Prime Minister raising them. That gives parliamentary scrutiny of the Executive’s decisions.

As I say, the report might not be made public. People might ask, “Would that be a new thing?” No—it happens all the time. For example, on the well-publicised Russia report this year, there was a public report with redactions in it and quite an extensive annex, which raised some issues that we were concerned about. That annex was seen only by individuals in Government, including the Prime Minister.

There is already a mechanism, so I fail to understand why the Government want to oppose this. From talking to Ministers privately, I think that there is a lot of sympathy with the position and I think that we will get there eventually. How we get there and in what format, I am not sure—whether the method is to put it in the Bill or to do it through the mechanism in the 2013 Act. That might be a way forward.

Photo of Chi Onwurah Chi Onwurah Shadow Minister (Business, Energy and Industrial Strategy), Shadow Minister (Digital, Culture, Media and Sport)

I rise to support the excellent comments made by my hon. Friend the Member for City of Chester and my right hon. Friend the Member for North Durham. I did well to delay my remarks till after my right hon. Friend had spoken, because he has set out very effectively, based on his considerable experience as a long-standing member of the Intelligence and Security Committee, both why it is important that that Committee should be consulted and receive the reports, and why it is hard to understand the Minister’s reluctance both in this Bill and in the National Security and Investment Bill to involve a source of such credible security expertise and, importantly, security clearance in key issues of national security.

I want to add two points to those made by my right hon. and hon. Friends. The first is to reiterate a point made previously: our security threats are changing, evolving and, unfortunately, diversifying. We see that in changes to our defence spending, in changes in the national review of our defence capabilities, and in changes in the evolution of the geopolitical landscape—the potential source of threats. However, the Minister does not seem able to support reflecting that by ensuring that, rather than keeping to our existing modes of parliamentary scrutiny, we enable parliamentary scrutiny of issues of national security by those who are best placed to carry out such scrutiny—undoubtedly members of the Intelligence and Security Committee.

I want to point briefly to a discussion in the evidence sessions. Ofcom made it clear that it does not consider itself in a position to make national security decisions, which is understandable, and that some of the decisions and considerations about national security with regards to telecommunications networks would require people who have STRAP clearance. Ofcom’s group director for networks and communications pointed to the fact that she had had STRAP clearance previously, and she said that if the NCSC

“feels that that is needed for the type of information that we may need to handle, we would make sure that happened.”––[Official Report, Telecommunications (Security) Public Bill Committee, 14 January 2021; c. 90, Q115.]

To my knowledge, Digital, Culture, Media and Sport Committee members do not have STRAP clearance. I would like the Minister to comment specifically on the level of security clearance required for members of the Committee that he has identified as being the location for scrutiny of important issues of national security. What level of security clearance do its members have? Would that enable the scrutiny that we all agree is in the best interests of the Bill?

I would like the Minister to respond to a specific example. Amendments 20, 22, 23, 24 and 25 are designed to require that the Intelligence and Security Committee has access to the appropriate information. There is a requirement for the Secretary of State to lay before Parliament a copy of a designated vendor direction, as set out in clause 15, which inserts new section 105Z11 into the Communications Act 2003. The new section states:

The Secretary of State must lay before Parliament a copy of—

(a) a designated vendor direction;

(b) a designation notice;

(c) a notice of a variation or revocation of a designated vendor direction; and

(d) a notice of a variation or revocation of a designation notice.”

So far, so good—we have that scrutiny. However, the new section also says:

“The requirement in subsection (1) does not apply if the Secretary of State considers that laying a copy of the direction or notice (as the case may be) before Parliament would be contrary to the interests of national security.”

My right hon. Friend the Member for North Durham alluded to occasions when, we can see, that would be the case. I should like the Minister to respond specifically. Imagine, for example, that through the work of our excellent security services we became aware that a telecoms start-up in this country or abroad was under the undue influence of someone hostile to our national interest, and its integrity was compromised, and that those who had come by the information did not want to share with the wider world how they had done so. Indeed, as my right hon. Friend said, sharing that information might compromise the means by which it was acquired. It might also have a significant impact on the stock market price of the company, and perhaps of other companies or British institutions that were invested in it. That information could not be shared publicly. Yet there could not be an understanding of the reason for the designation notice or effective scrutiny of it by Parliament unless the information was shared in some secure way. Surely that secure way would be sharing it with the ISC.

To take another example, what would happen if the security services became aware that the billionaire owner of one of our major suppliers for, say, cloud services was compromised in some way or that it was going to be bought by a hostile actor? I have previously suggested that I want to understand how the Bill would address the potential for, say, Amazon Web Services to be bought by a hostile actor, and the influence that that would have on our security.

That information would be incredibly security-sensitive, but it would also be market-sensitive. My hon. Friend the Member for City of Chester said that market sensitivity is not the primary reason for the amendments. We prioritise national security. However, let us recognise that questions of national security have a huge impact on our markets as well, and our markets are influential on national security.

Under the clause the Secretary of State would not need to lay a copy of the direction or notice before Parliament if it would be contrary to the interests of national security. Revealing the way we obtain security information through our excellent security services would clearly be contrary to the interests of national security. How would the Minister ensure that there would be an appropriate level of scrutiny for a notice of that kind, which would not be laid before Parliament for reasons of national security? How would scrutiny be maintained?

I look forward to the Minister’s response. I emphasise that we support clause 18—[Interruption.] I am sorry. We are discussing clause 17.

Photo of Chi Onwurah Chi Onwurah Shadow Minister (Business, Energy and Industrial Strategy), Shadow Minister (Digital, Culture, Media and Sport)

We support clause 17 and our amendments are intended to make it more accountable to Parliament and therefore more successful and effective in securing our national security.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

Order. I misled the hon. Lady. We are now discussing amendments 20 and 22 to 25. When we finish the debate on those amendments, we will debate clause 17 stand part. The hon. Lady may want to save this part of her remarks until the next debate.

Photo of Chi Onwurah Chi Onwurah Shadow Minister (Business, Energy and Industrial Strategy), Shadow Minister (Digital, Culture, Media and Sport)

Thank you, Mr Hollobone. It is sometimes confusing to know exactly what is being discussed at what point. With that, I ask the Minister to respond to our concerns about the scrutiny of the powers in the clause.

Photo of Matt Warman Matt Warman The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

I welcome the second salvo in the campaign to address this matter by the right hon. Member for North Durham. He said it would be an ongoing campaign.

This group of amendments would require the Secretary of State to provide information relating to a designated vendor direction or designation notice to the ISC. The amendments would require the Secretary of State to do this only where directions and designation notices had not been laid before Parliament, whether in full or in part, as a result of the national security exemptions in clause 17. It will not surprise the right hon. Member for North Durham or other Opposition Members that some of these short remarks will overlap with the conversation that we had earlier on a similar matter.

Amendment 20 would require designated vendor directions or designation notices to be provided to the ISC. Amendments 22 to 25 would require the Secretary of State also to provide the ISC with copies of any notifications of contraventions, confirmation decisions and so on. Although I recognise some Members’ desire for the ISC to play a greater role in the oversight of national security decision making across government, including in relation to this Bill, the amendments would, as the right hon. Member for North Durham knows, extend the ISC’s role in an unprecedented way. None the less, I thank his welcome for my unprecedented appearance.

As I said in the debate on amendment 9, the ISC’s primary focus is to oversee the work of the security and intelligence agencies. Its remit is clearly defined in the Justice and Security Act 2013, and the accompanying statutory memorandum of understanding, to which the right hon. Gentleman referred. I do not think he thinks it is my place to take a view on that role, and I do not think this Bill is the place to have that debate.

Photo of Kevan Jones Kevan Jones Labour, North Durham

Yes, but I would ask the Minister’s civil servants to read the Act before they write this stuff for him. The Act refers to “intelligence”. Our remit is not fixed by a Department. I know the Minister sympathises with this and that we will get there eventually, but I say to his civil servants, please read the Act.

Photo of Matt Warman Matt Warman The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

I will come on to that. Accepting any of these unilateral amendments to this Bill is not the appropriate place to achieve an overall enhanced role for the ISC

Photo of Kevan Jones Kevan Jones Labour, North Durham

I am sorry to say to the Minister that it is not looking for an enhanced role at all. It is actually doing what it says in the Justice and Security Act 2013. It is about scrutinising intelligence. A lot of the information, which will be used by him and others in these orders, will be derived from the same decisions that we oversee .

Photo of Matt Warman Matt Warman The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport

Absolutely. Members of the Committee should note that in exercising the powers created by this Bill, the Secretary of State will be advised by the NCSC on relevant technical and national security matters. The NCSC’s work already falls within the Intelligence and Security Committee’s remit, so the right hon. Gentleman has found his own salvation.

In that context, the amendment seems to duplicate that existing power, while also seeking to do something that is better done in reform of a different Act, if that is what the right hon. Gentleman seeks. I am sorry to disappoint him again. I think he knew already that I would do that, but I look forward to his third, fourth and fifth salvos in his ongoing campaign.

Photo of Chris Matheson Chris Matheson Shadow Minister (Digital, Culture, Media and Sport)

I hear the Minister’s explanation, which we have been over before when considering other amendments. He talks about other salvos by my right hon. Friend the Member for North Durham. I go back to the statement that my right hon. Friend made last week, which is that he expects that at some point something will happen and we will move forward.

Photo of Philip Hollobone Philip Hollobone Conservative, Kettering

Order. If the hon. Gentleman would like to chair this afternoon’s sitting, I am sure we could arrange for him to do that. I know Members will be disappointed, but I am instructed to say that as it is 11.25 am, the Committee is now adjourned.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.