Clause 1 - Requirement for authorisation

Part of Investigatory Powers (Amendment) Bill [Lords] – in a Public Bill Committee at 11:30 am on 7 March 2024.

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Photo of John Hayes John Hayes Conservative, South Holland and The Deepings 11:30, 7 March 2024

I will not detain the Committee unduly, my Whip will be pleased to know. However, I feel it is important at this juncture—in part because, as the right hon. Member for North Durham says, I was responsible for taking the 2016 legislation through the House, and in part because of my current role on the ISC—to make some comment on the first part of this Bill, which deals with bulk powers. There are misassumptions about bulk powers. The Minister will be aware of how vital they are to the security and intelligence services and to the police. These powers are used in almost all investigations —95% of them—and they are critical if we are to deal with the changing character of the threat we face.

Contextually it is important to note that when the 2016 Act was passed, the nature of the threat was metamorphosising, and that is even more the case now. The scale and character of the threats are altering all the time, so the legal powers available to those we mission to keep us safe need to be fit for purpose and up to date. We knew that when we passed the 2016 Act; we knew that the legislation was dynamic and that it would be supplemented over time to take account of that metamorphosis, which takes two forms. First, the threat now is probably greater from state actors, and secondly, it is greater from those inspired to do harm via the internet in particular. That situation makes an implicit case for the kind of measures the Minister has brought before us today.

Furthermore, there is a paradoxical change in the methodology used by those who seek to do us harm. Because of the nature of technology, those people are now able to do things that they were not able to do when we debated the original Act that this Bill amends. I describe the change as paradoxical because those people have simultaneously learned that they can do immense harm with a vehicle and crude weapon; we know that from some tragic cases in recent years. Those inspired people do not need a sophisticated organisation with all kinds of capabilities; they simply need the perverse, indeed perverted, will to do damage. All of those factors legitimise the case for the measures in the Bill, which we will consider over the coming hours and days—but not weeks I am pleased to say, unless something goes badly wrong.

I agree entirely with those who say that there is general good will towards measures that are necessary to keep us safe, but with the Committee’s indulgence I will say something about the detail of clause 1 and part 1. Bulk powers are misunderstood by people who do not study such matters closely. The right hon. Member for North Durham made that point when he said that fears are sometimes exaggerated because people fail to grasp quite what the safeguards look like and the circumstances in which bulk powers are used.

I have some letters that I exchanged with my then shadow—now the Leader of the Opposition, no less— when we debated the 2016 Act. We put in place a set of reviews that examined the operational case for bulk powers. The Opposition insisted on that, and as Minister I was pleased to agree with their proposal. Lord Anderson examined the Investigatory Powers Bill then and has since reviewed it. He has made it clear that there is a solid case for the powers, subject to the proper safeguards and oversight, and that there is a case for the powers to be reconsidered in the way that the this amending Bill does.

Some 95% of the cyber-attacks on people and businesses in the UK discovered by the security and intelligence agencies were identified as a result of the powers in part 1. They are used to deal not only with terrorists, but with serious and organised criminals. It is important to understand the National Crime Agency’s role in that, and no doubt the Minister will speak about that in more detail. Much of the crime and terrorism that is identified and countered could not have been thwarted by more conventional means. This is the point that needs to be heard publicly: we simply would not be safe if such additional resources, facilities and legal authority were not available to our counter-terrorism police, the NCA and the agencies.

People sometimes assume that the agencies are searching for a needle in a haystack; actually, they are choosing the haystacks. To do so, they must have legal safeguards, because otherwise they will be subject to challenge. Those challenges will come not from people of good will, such as the people from across the House who are on this Committee. The people who will challenge the agencies are far from people of good will; they are people of ill will, who seek to do us harm.

None the less, I say to the Minister—as he would expect me to—that there are ways in which the Bill could be improved. Let me suggest just one; I will then sit down, before I test the Committee’s indulgence to its very limits, so that we can make some progress. The category authorisations that are associated with part 1 mean that, in the case of bulk personal datasets, an agency will want the power to retain and examine material over a considerable period. They will assess whether it can be handled and approved under the part 7A regime, and if the authorisation is approved by the judicial commissioner, the agency can then internally approve any individual personal dataset to be added to that category.

That is contentious and requires explanation. I am not against it, but the fear is that a category authorisation will be obtained and the internal process will then allow all kinds of other things to be added to it. It is important that we rectify that by ensuring that the Investigatory Powers Commissioner’s Office is notified whenever a new individual dataset is added to an existing valid category authorisation. As the Minister knows, this point has been made by the Committee on which the right hon. Member for North Durham and I serve. It seems to me to be reasonable. I do not think it is unhelpful to the agencies or the Minister, and it may provide the additional reassurance we all seek that the powers are subject to appropriate scrutiny and oversight.