House of Lords
Wednesday 7 September 2016
Prayers—read by the Lord Bishop of Southwark.
Student Visas: Pilot Study
My Lords, the four universities chosen to participate in the tier 4 visa pilot—namely, Oxford, Cambridge, Bath and Imperial College London —were chosen on the basis of their consistently low visa refusal rates.
My Lords, when he was Home Secretary, my noble friend Lord Blunkett and I agreed the Fresh Talent scheme for Scotland in 2003, which introduced a post-study work visa for students graduating from Scottish universities. That scheme, which helped reverse population decline and increased economic activity in Scotland, was never abused. It was extended to the rest of the United Kingdom in 2008, when it was abused elsewhere, and the Government abolished it in 2012. This new pilot scheme directly discriminates against the Scottish university sector and is a slap in the face for Scottish higher education. I ask the Government first, to review the involvement of the Scottish higher education sector in the pilot project and, secondly, to set a threshold which gives universities a standard to meet—and, if they get above it, to include more than these four elite universities in this discriminatory scheme.
My Lords, the scheme may be expanded following the pilot; that has not been decided yet. On population decline in Scotland, I would say to the noble Lord that in fact it is projected that the population of Scotland will increase by 3.1% by 2024.
My Lords, does my noble friend not agree that given that, despite having no tuition fees, Scottish universities have failed to perform as well as English universities in attracting students from poorer backgrounds, they should concentrate on British students from poorer backgrounds in order to catch up with England?
My Lords, as this appears to be a Scottish day, I declare an interest as chancellor of the University of St Andrews. As has already been pointed out, tuition fees are not available to universities in Scotland. Higher education is devolved but, of course, the issuing of visas is not. For universities in Scotland such as St Andrews, therefore, a ready infusion of foreign students who pay enhanced fees is fundamental to their economies. May we have an assurance that when the results of the pilot scheme are available, account will be taken of the special position of Scottish universities?
My Lords, will student exchange schemes be at all affected by this? They are wonderful schemes—and I declare an interest in that one of my daughters went on an exchange to Monash from Warwick University. Will those people have any problem in future?
My Lords, would the Minister agree that what is really important in post-study work is that the students, or rather the graduates, are required by employers? Would she agree that the change that the Government have made focuses on that and creates a much more effective situation?
My Lords, looking at the location of the four universities involved, can I assume that Oxford and Cambridge are representing the north of England? Against what specific criteria will the outcome of the two-year pilot scheme be assessed, when will that assessment be completed and will the results be made public?
That will be determined in due course—and I shall let the noble Lord and the House know in due course. As for those universities being representative of the north, they may be in the sense that many students from the north of England attend those universities.
My Lords, two years ago the then Home Secretary cancelled the visas of around 46,000 students based on a false assessment of English language tests. The immigration upper tribunal court ruled earlier this year that Mrs May’s decision was based on “multiple frailties and shortcomings” and that investigators were unqualified to assess language levels. In the current guidance for the pilot, there is still a reliance on investigators. What assurance can the Minister give the House that investigators have now been trained properly?
I declare an interest in the University of York, one of the northern universities, where the Erasmus exchange programme has been invaluable in providing an understanding across Europeans and teaching languages to students who may not naturally be given to learning languages. We must consider benefits other than the immediate impact—and can we please include the northern universities?
Independent Schools: Teacher Training
My Lords, independent schools are a significant and valued part of the teacher training system, and we are committed to ensuring that they can help to raise standards of teacher training even further. Five independent schools are already designated as teaching schools. Furthermore, we are working with the Independent Schools Council to establish the first school-led training provider for modern foreign languages in Sheffield, with strong involvement from independent schools with expertise in the subject.
My Lords, that is immensely encouraging. Is not it the case that independent schools are particularly well placed to help to train specialist teachers in subjects such as foreign languages and sciences? Following what my noble friend said, will he give every possible encouragement to cross-sector partnership in teacher training, so that the skills and experience of the independent sector can be harnessed to the full for the benefit of the education system as a whole?
I agree with my noble friend’s comments. We very much welcome the sharing of expertise between schools across the sector. I am encouraged to see teacher training partnerships working, for instance, in the Crispin School Academy, which is working with a number of independent schools, such as King’s Bruton, Millfield and Taunton. The modern foreign languages project to which I referred will give trainees the opportunity to work in schools in both sectors that have outstanding modern languages departments. In addition to the five independent teaching schools to which I referred, more than 150 independent schools are members of teaching school alliances, including a number of special schools.
My Lords, can the Minister give an assurance that, in the Government’s policy on teacher training, they will ensure that all those unqualified teachers who are currently teaching children in this country are encouraged, and made, to become qualified? I declare an interest as somebody who, many years ago, was employed as an unqualified teacher. I can assure the noble Lord that all children deserve to be taught by teachers who are qualified.
I agree entirely with the noble Baroness that all teachers should be well qualified. One of the most important things that Sir Andrew Carter’s review pointed out was that the most important qualification is qualification in subject knowledge. It is acknowledged across the teaching sector that, of course, you do not become a fully expert teacher after nine months of training. That is not to say that the training is not extremely valuable or that many teachers do not find it valuable. But others—for instance those with PhDs in subjects or perhaps a drama teacher from RADA—may feel that they do not need to go through that training and that they already have some of those basic skills.
My Lords, my noble friend Lord Lexden is quite right to point out the role that independent schools are playing in teacher training. Another route through which they can get involved in education is that of free schools and academies. How many independent schools are involved in sponsoring free schools and academies?
I cannot give an accurate figure because that involvement is very varied, but we have many free schools that have been sponsored by independent schools. We have two London Academies of Excellence—one focusing on high-performing pupils in sixth form in the East End, sponsored by Brighton College, and another opening in Tottenham, sponsored by Highgate. We have Haileybury, which is sponsoring a school in Hertfordshire and we have Eton and Holyport College, of course. There are many other examples of independent schools engaged in the free school programme in one way or another.
My Lords, does the Minister agree that independent schools have a very good record of dealing with such things as special educational needs, probably because of the cost basis of the relationship? Would that be taken on board in any exercise that looks at teacher training generally? If 20% of your pupils have a special educational need, you should be able to teach them.
I agree with the noble Lord. Indeed, Andrew Carter’s review stated that there was some variability in the quality of course content in relation to SEND training in ITT. Following that review, the Secretary of State for Education commissioned Stephen Munday to take forward an independent expert group tasked with developing a framework of core initial teacher training.
My Lords, may I take the noble Lord back to the answer that he gave to my noble friend Lady Farrington? Does he agree with me that, just because one is good at doing something, one is not necessarily good at teaching it? That applies to physics as much as it applies to drama. Therefore, does he further agree that qualifications in teaching are about providing skills in teaching that produce at least a minimum standard that pupils could expect from people who may be very qualified in their subject but not necessarily very good teachers?
I entirely agree with the noble Baroness, and that is why we have focused teacher training on school-led training. After all, even for the PGCE, 65% of the nine months of training takes place in school. It is acknowledged that in school is the place to learn to teach. As I say, people acknowledge that it takes many years practising in school to become a fully expert teacher.
We have bursary schemes of up to £30,000 for recruits in maths and science and up to £25,000 in modern foreign languages. Since 2010, the number of teachers with a 2:1 or better has gone up from 63% to 75%. This year, we have the highest number of teachers entering ITT with a first than ever before, at 18%.
My Lords, there is no requirement for teachers in the independent sector to have a teaching qualification, although of course many do, often having come from the state sector. I feel that the independent sector would talk with more authority on the question of teacher training if more of them offered an induction year to newly qualified teachers. However, is not the issue here teacher shortages—an issue on which both the Government and the DfE remain in denial? How else can you square the circle whereby a number of teaching establishments have a cap applied to them—an arbitrary national figure—and when that is reached, teaching establishments are not allowed to take on any more trainees, even if they are only half full? Meanwhile the Government have instituted an international recruitment programme to try to attract teachers from abroad. When many head teachers are finding it difficult to fill vacancies, why should there be any cap on teacher training places at all?
As I have said many times before in this House, the teacher training recruitment situation is no different than it has been on many occasions over the last 20 years, including many years under the Labour Government. It has generally remained very stable. Since 2010, we have 15,000 more teachers and the number of teachers has kept up well with the number of students. We have 14,000 returners this year. To take the point about ITT, we have consulted with the sector and it has become clear that ITT providers would like to have more long-term visibility and stability in their places. That is something we intend to address.
Turkey: Judicial Personnel
My Lords, we strongly condemn the attempted coup on 15 July. Subsequently, the Turkish Government have suspended 3,688 judges and prosecutors, of whom 2,847 have been sacked. More than 600 are in pretrial detention. We have urged the Turkish Government to respect due process and the rule of law, including when the Minister for Europe and the Americas visited Turkey in July. The Turkish Government have assured us they recognise the importance of this.
I thank the noble Baroness for her Answer. I think we all accept that the judiciary and military in Turkey have played an important part in building the modern state. Having looked at the speed with which these lists were drawn up, many of us question whether they were not drawn up before the coup. Will the Government undertake to press the Turkish Government to justify in all these cases why it is so necessary to lock up such a large number of the middle class?
My Lords, we should recall that the attempted coup, which I expect noble Lords may have seen on television, was indeed an extremely dangerous security moment for Turkey and the region. We have, of course, maintained our conversation with the Turkish Government about the importance of having a proportionate response. We continue to call for due process to be followed and human rights respected. However, it was right that my right honourable friend the Minister for Europe and the Americas went as soon as possible after 15 July to offer what support the UK might give to the Turkish Government.
My Lords, do the Government think that we will have more effect in attempting to influence the Turkish Government independently or jointly with our European partners? Now that we have decided to leave the European Union, have the Government abandoned their long-term commitment that Turkey should move towards EU membership and should therefore meet criteria set on a European basis for good governance and separation of powers?
My Lords, as the noble Lord is aware more than most, we are still a member of the European Union. We also have bilateral relationships with Turkey, which is demonstrated by the way in which our Prime Minister, Foreign Secretary and Minister for Europe have engaged with Turkey in these difficult times. Our view on the accession of Turkey to the EU remains the same. We are committed to supporting security and prosperity across Europe. That means that anybody who wishes to gain access to the European Union has to demonstrate that they are able to meet all the demands of opening and closing the relevant chapters. While we remain a member of the European Union, we have a say in that process.
My Lords, obviously, maintaining a strong collective international response is vital in this situation, bearing in mind Turkey’s strategic position in the fight against ISIS and other extremists. Can the Minister tell the House exactly how we are maintaining a collective response, not just with our friends in the EU but particularly within NATO and with the US?
My Lords, the noble Lord is right to raise the point about the importance of Turkey within the security systems across the whole of Europe. It is a valued member of NATO, and I believe that it is the second largest contributor of troops to NATO forces. We maintain that relationship through our work from the Foreign and Commonwealth Office, and it is at as high a level as it ever has been. Turkey is a valued partner.
My Lords, it is true that there are discussions between Heads of State, which vary from time to time. I noted that there were discussions between President Erdogan and President Putin. On the other hand, our own Prime Minister has also met President Putin. One should not read too much into such meetings.
My Lords, I wonder whether the noble Baroness can tell the House what kind of work these judges were doing. I rather think that, following the French system, which I think the Turkish Government do, they are investigating judges rather than the kind of judges we are familiar with, which makes their seizure even more sinister. Do we know how many judges are left in their position, so that we can put it into some sort of proportion?
My Lords, I have with me only the figures on the number of judges and prosecutors who have been sacked out of those who were suspended, but I will look specifically to see whether we have those figures. The noble and learned Lord is absolutely right to point out the different, investigatory system that pertains in Turkey. We have represented throughout that any response must be proportionate and that the rule of law has to pertain, which includes having a proper, independent judicial system.
Calais: Refugee Children
My Lords, we are already working closely with the French to help to identify and transfer children who are eligible and are about to second another UK expert to France to support that work. Over 70 children have been accepted already this year and more arrive almost every week. Transfer requests are now generally processed within 10 days, and children are transferred within weeks.
My Lords, I thank the Minister for her reply, and I read carefully her reply to my noble friend yesterday. However, as she said, some 70 children have been accepted this year, which is about two a week, and yesterday she asserted that her department is working very quickly. Is she satisfied that that is quick enough? Given that the French intend to dismantle the camp by Christmas and that at least 370 children are eligible, that should be more like 20 a week. Further, does she realise that young people seeing the camp dismantled will take greater and greater risks in trying to get on to vehicles coming to the UK? Can the Minister assure the House that her department will be able to up the capacity to at least nearer 20 a week?
My Lords, on the question of whether we are doing things quickly enough, in an ideal world we would move all the children tomorrow. However, we cannot just take a child out of a country—I tried to make that clear yesterday and I make it clear today. Following due process is in the best interests of any child whom we are concerned about. We have to take account of the laws of the country in question—that is, France. When the child is in France, he or she is under its jurisdiction. We are working very closely with that country to make sure that children are transferred as quickly as possible. The welfare of the child is utmost.
My Lords, first, will the Minister confirm that under the terms of the Immigration Act not a single child has yet reached this country? The ones who have arrived have relatives here and have come under Dublin III. Secondly, will she comment on the news this morning that the Government are apparently advocating the building of a wall in Calais, for reasons which nobody can understand? Is that true and, if so, why?
My Lords, I do not have the exact figures since the introduction of the Immigration Act but I would certainly like to provide them to the noble Lord. He is an absolute expert in this area, so I am very reluctant to contradict him. It is the case that 120 children have come from France under the Dublin regulations. In the whole of last year, the figure was only 20. However, I will confirm that for the noble Lord in writing.
I know that the wall has received press attention. The measure is intended to further protect the rocade from migrant attempts to disrupt, delay or even attack vehicles approaching the port. I hope that that provides the clarification that the noble Lord seeks.
My Lords, when these unfortunate children come to this country and are given refuge, will they subsequently be joined by their parents, grandparents and wider family, or will we have some system for keeping their parents out? It seems to me that a very large number of people could be involved.
Certainly the children who are being prioritised have family in the UK. I do not think that I can give a blanket response on whether they will be joined by their parents or other relatives, other than to say that cases will be considered on a family-by-family basis.
My Lords, what financial and other support is being provided to the local authorities that receive these children? I declare an interest as patron of a charity working with these children in Calais and in other camps across Europe. Many of these children are profoundly traumatised and will need expert care and help for some time so that they can settle with their families. What help are they receiving and who is paying for it?
The noble Baroness makes a very valid point in saying that the children who arrive in this country will be the most traumatised children that we can imagine. The local authorities which are very kindly receiving them will be fully funded. I expect—and I am sure noble Lords will agree—that these children will need support beyond what is usually required.
My Lords, will the Minister accompany me on a day trip to Calais, because the remark she made yesterday about there being 130 reception centres available to people in the camp if only they would take them up is way off the mark? The fact is that the reception centres are full and, therefore, only two buses a week come to the camp. People queue all night to get on those buses, and women and children find that very dangerous. Will the Government accept the sad fact that people are desperate to leave the camp but cannot?
As to whether I will go with the noble Baroness to Calais, I think that I might have to consult the department first. However, if it is allowable, I will certainly accompany her. I fully expect that the information I have been given on the number of reception centres is correct but I will double-check that and, if it is any different, I will let her know. There is some accommodation specifically for women and children at the Jules ferry centre and heated containers have been provided for up to 1,500 people. I also understand that alternative accommodation has been taken up by 5,000 people. However, I will look into the specific points that the noble Baroness makes about people not being able to get on to buses and having to queue at night.
Private Notice Question
My Lords, the Government are committed to making sure that every child has the opportunity to attend a good or outstanding school that will allow them to go as far as their talents will take them. As such, we are looking at a range of options to deliver this. We are aware of media speculation on the future of education policy and grammar schools specifically. The Government expect to come forward with proposals in due course.
My Lords, that is a clear non-denial. Yesterday’s inadvertent leak—if indeed that is what it was—that the Government are seeking to create new grammar schools has caused widespread alarm. The Minister has not accepted that that is the case. However, something must be afoot. It is not normal for a Permanent Secretary to arrive at the door of No. 10 Downing Street for a Cabinet discussion on a controversial subject without that having been given some considerable consideration in advance. Will the Minister give an assurance that there will be no means, either legislative or non-legislative, to increase the number of grammar schools, so that we are not faced sometime in the not too distant future with further ruses such as the so-called annexe at Tonbridge?
To comment first on the noble Lord’s pun in his first statement, I can assure him that the leak did not originate from anybody in your Lordships’ House. I do not think I can add any further to what I have already said. However, we are not interested in any ruses and want the policy to be absolutely clear. The Prime Minister has made it quite clear that she wants a society that works for everyone and all children to have access to a good education. We are exploring our options for delivering this and we want all good schools to help us in this endeavour.
My Lords, as one who benefited from a grammar school education and who lives in a county, Lincolnshire, which has excellent grammar schools that do no damage to any children at all, I urge my noble friend to support our right honourable friend the Prime Minister if indeed she is inclined to increase the number of grammar schools in this country.
My job, of course, is to support the Prime Minister. I am fully aware that most grammar schools do an excellent job. However, this is a long-running argument and there are strong views on both sides. I assure the House that we will not do anything without detailed consideration and consultation.
My Lords, it is interesting to note that the Chief Inspector of Schools has said that the reintroduction of grammar schools would be disastrous and a retrograde step. Let us consider some facts. As the Minister knows, Kent retains the grammar school system. In Kent, the gap in attainment between free school meals pupils and non-free school meals pupils at key stage 4 is 34%. In inner London, where there are no grammar schools, the gap is only 14%. By those figures, grammar schools are socially divisive. Does the Minister agree?
The noble Lord referred to Sir Michael Wilshaw’s comments. I am a great fan of Sir Michael Wilshaw and he has done an excellent job as chief inspector. He is right to pinpoint the great transformation in London schools, started under a Labour Government through their London Challenge and academies programme, which we have sought to continue. In fact there is no clear evidence to support his views but, as I have said, we are keeping an open mind. We are aware of the strength of grammar schools and would like more free school meals pupils going to them.
I am fully aware that there is evidence to support the noble Lord’s case. There is also evidence to the contrary. We will look at this very carefully. Views are divided. It is obvious from today’s discussion that the issue is contentious. We are considering all our options and any decisions we make will be driven entirely by considerations of social mobility and that we have a schools system which works well for everyone.
Does the Minister agree that anyone who is concerned about the great lack of social mobility in recent years will be delighted at any possibility of the return of grammar schools? Their destruction was the major cause of the reduction in social mobility.
My Lords, like many in your Lordships’ House I went to a grammar school. My two sons went to local comprehensive schools. Does the Minister not accept that for every grammar school there are consequentially three secondary modern schools—in other words, that comprehensive schools become secondary modern schools—so that one child’s social mobility is bought at the expense of the destruction of opportunity for three other children?
We are keen that all our excellent schools, including grammar schools, help us to expand our school estates. We are committed to allowing all excellent schools to expand. There are many cases of grammar schools now sponsoring other schools. We are particularly interested in encouraging grammar schools to sponsor their feeder primary schools, as, for example, South-East Essex Academy Trust is doing with the Westcliff High School for Girls, an outstanding grammar school now sponsoring three primary schools, with one of which it has had the remarkable success of doubling its performance. In this way we hope that we can ensure that more pupils from less advantaged backgrounds will be able to achieve going to grammar schools.
My Lords, does my noble friend recollect that in the great Butler Education Act there was provision for a tripartite system—grammar schools, secondary moderns and technical schools? The failure of successive Governments has been to institute a suitable number of high-quality technical schools. That is one of the reasons why we have lagged behind our rivals in Germany in the provision of a skilled workforce for industry and commerce. Could we put that into the system as well, please?
My Lords, would the Minister agree that one of the most pernicious things about the way grammar schools work where they are still available is that the selection system allows an extraordinary industry in coaching and tutoring, which is available only to people who can afford to pay for it? Therefore, the social mobility that grammar schools allegedly provides is provided to a very small minority of people, not only in numbers of places but in types of people.
As always, the noble Baroness makes a very good point, relating to coaching for tests. We are working with the Grammar School Heads Association to see whether we can develop tests that are much less susceptible to coaching. Some 66 grammar schools now prioritise free school meals applications.
My Lords, would the Minister agree that the question of excellence in schools runs the risk of being diverted into the question of whether we have grammar schools? That applies to both sides of the argument. The question of quality in schools is much wider and broader than that. In fact, the advantages given by being able to coach students to go to grammar schools are equally to be found in the leafy suburbs, where the better schools in the comprehensive system have a similar intake because the parents can afford to live there.
I entirely agree. We are driven by ensuring that as many schools as possible are excellent. Since 2010 we now have nearly 1.5 million more pupils being educated in good and outstanding schools under a tougher inspection framework under Sir Michael Wilshaw. I pay tribute to the help he has given us in driving higher standards in schools.
My Lords, with the leave of the House, I will now repeat a Statement made by my right honourable friend the Prime Minister in another place. The Statement is as follows:
“With permission, Mr Speaker, I would like to make a Statement on the G20 summit in China. But before I turn to the G20, I would like to say something about the process of Brexit.
On 23 June the British people were asked to vote on whether we should stay in the EU or leave. The majority decided to leave. Our task now is to deliver the will of the British people and negotiate the best possible deal for our country. I know many people are keen to see rapid progress and to understand what post-Brexit Britain will look like. We are getting on with that vital work. But we must also think through the issues in a sober and considered way. As I have said, this is about getting the kind of deal that is ambitious and bold for Britain. It is not about the Norway model, or the Swiss model, or any other country’s model; it is about developing our own British model. So we will not take decisions until we are ready, we will not reveal our hand prematurely and we will not provide a running commentary on every twist and turn of the negotiation. I say that because it is not the best way to conduct a strong and mature negotiation that will deliver the best deal for the people of this country. As the Secretary of State for Exiting the European Union told the House on Monday, we will maximise and seize the opportunities that Brexit presents.
That is the approach I took to the G20 summit. This was the first time that the world’s leading economies had come together since the UK’s decision to leave the EU, and it demonstrated the leading role we will continue to play in the world as a bold, ambitious and outward-looking nation. Building on our strength as a great trading nation, we were clear that we had to resist a retreat to protectionism and we had conversations about how we could explore new bilateral trading arrangements with key partners around the world. We initiated important discussions on responding to rising anti-globalisation sentiment and ensuring that the world’s economies work for everyone, and we continued to play our part in working with our allies to confront the global challenges of terrorism and migration. Let me take each in turn.
Trading with partners all around the globe has been the foundation of our prosperity in the past and it will underpin our prosperity in the future. So, under my leadership, as we leave the EU, Britain will seek to become the global leader in free trade. At this summit we secured widespread agreement across the G20 to resist a retreat to protectionism, including a specific agreement to extend the rollback of protectionist measures until at least the end of 2018. The G20 also committed to ratify by the end of this year the WTO agreement to reduce the costs and burdens of moving goods across borders, and it agreed to do more to encourage firms of all sizes, in particular SMEs and female-led firms, to take full advantage of global supply chains.
Britain also continued to press for an ambitious EU trade agenda, including implementing the EU-Canada deal and forging agreements with Japan and America, and we will continue to make these arguments for as long as we are members of the EU. But as we leave the EU, we will also forge our own new trade deals. I am pleased to say that just as the UK is keen to seize the opportunities that leaving the EU presents, so too are many of our international partners, who recognise the attractiveness of doing business with the UK. The leaders from India, Mexico, South Korea and Singapore said that they would welcome talks on removing the barriers to trade between our countries. The Australian Trade Minister visited the UK yesterday to take part in exploratory discussions on the shape of a UK-Australia trade deal. In our bilateral at the end of the summit, President Xi also made it clear that China would welcome discussions on a bilateral trade arrangement with the UK.
As we do more to advance free trade around the world, so we must do more to ensure that working people really benefit from the opportunities it creates. Across the world today, many feel that these opportunities do not seem to come to them. They feel a lack of control over their lives. They have a job but no job security; they have a home but worry about paying the mortgage. They are just about managing but life is hard. It is not enough for Governments to take a hands-off approach. So at this summit I argued that we will need to deliver an economy that works for everyone, with bold action at home and co-operation abroad.
That is why, in Britain, we are developing a proper industrial strategy to improve productivity in every part of the country so that more people can share in our national prosperity through higher wages and greater opportunities for young people. To restore greater fairness, we will be consulting on new measures to tackle corporate irresponsibility. These will include cracking down on excessive corporate pay, poor corporate governance, short-termism and aggressive tax avoidance, and giving employees and customers representation on company boards.
At the G20, this mission of ensuring that the economy works for everyone was echoed by other leaders, and this is an agenda that Britain will continue to lead in the months and years ahead. Together, we agreed to continue efforts to fight corruption—building on the London summit—and do more to stop aggressive tax avoidance, including stopping companies avoiding tax by shifting profits from one jurisdiction to another. We also agreed to work together to address the causes of excess global production in heavy industries, including in the steel market. We will establish a new forum to discuss issues such as subsidies that contribute to market distortions. All these steps are important if we are to retain support for free trade and the open economies which are the bedrock of global growth.
Turning to global security, Britain remains at the heart of the fight against Daesh and at this summit we discussed the need for robust plans to manage the threat of foreign fighters dispersing from Syria, Iraq and Libya. We called for the proper enforcement of the UN sanctions regime to limit the financing of all terrorist organisations, and for more action to improve standards in aviation security, including through a UN Security Council resolution which the UK has been pursuing and which we hope will be adopted later this year. We also agreed on the need to confront the ideology that underpins this terrorism. That means addressing both violent and non-violent extremism, and working across borders to tackle radicalisation online.
Turning to the migration crisis, Britain will continue to meet our promises to the poorest in the world, including through humanitarian efforts to support refugees, and we will make further commitments at President Obama’s summit in New York later this month. At the G20, I argued that we cannot shy away from dealing with illegal migration, and I will be returning to this at the UN General Assembly. We need to improve the way we distinguish between refugees and economic migrants. This will enable our economies to benefit from controlled economic migration, and in doing so we will be able to get help to refugees who need it, and retain popular support for doing so. This does not just protect our own people. By reducing the scope for the mass population movements we see today, and at the same time investing to address the underlying drivers of mass migration at source, we can achieve better outcomes for the migrants themselves. As part of this approach, we also need a much more concerted effort to address modern slavery. This sickening trade, often using the same criminal networks that facilitate illegal migration, is an affront to our humanity and I want Britain leading a global effort to stamp it out.
When the British people voted to leave the European Union, they did not vote to leave Europe, to turn inwards or to walk away from the G20 or any of our international partners around the world. That has never been the British way. We have always understood that our success as a sovereign nation is inextricably bound up in our trade and co-operation with others. By building on existing partnerships, forging new relationships and shaping an ambitious global role, we will make a success of Brexit—for Britain and for all our partners—and continue to strengthen the prosperity and security of all our citizens for generations to come. I commend this Statement to the House”.
My Lords, I thank the noble Baroness for repeating the Statement today. It was always going to be difficult following the Brexit vote, but as the new Prime Minister, Theresa May appeared confident. She met with most of the other world leaders who were interested to meet her—partly, I think, because they are keen to understand what the post-EU era means for them and their relationship with us in the UK. So this was, by any standards, a crucial summit. We are all aware that the vote to leave the EU has created considerable uncertainty here in the UK, but in paragraph 42 of the communiqué the international uncertainty is also clear. Despite some promising recent manufacturing statistics, the long-term uncertainties remain.
What is clear is that the Government are still thinking through the implications, what our negotiating position is going to be and what outcomes we seek. It is now common knowledge that no advance preparation had been undertaken, which makes the job of the Prime Minister even harder. She had to attend this summit knowing that she would be expected to discuss with other world leaders how the decision would affect them and their relationship with the EU and the UK. Countries such as Japan were seeking some degree of predictability for their investments and businesses in the UK, but she was unable to provide reassurance or answers—not because she does not want to be helpful or make the best case for the British economy but because we are still in the “don’t know” zone. While I appreciate what lies behind the statement “Brexit means Brexit”, I have to admit that I do not know what it means—and neither, apparently, do other members of the G20.
Following the Prime Minister’s meeting with her old university friend, the Australian Prime Minister, Malcolm Turnbull, I think that we were all left with the impression—I certainly was—of exciting new trade and economic agreements. But the clarification from Mr Ciobo, the Australian Trade Minister, has dampened that excitement. It almost sounded like a “Yes, Prime Minister” sketch as we heard him say on the “Today” programme that a UK-Australia deal could happen only,
“when the time is right”.
Sir Humphrey might have added “in the fullness of time” or “in due course”.
We cannot sign deals with other countries while we are still in the EU and we do not know when we will be leaving it. Meanwhile, negotiations between Australia and the EU will be completed probably before we even start. To heap humiliation upon embarrassment, the Australian Minister added that because the UK has no trained negotiators of our own, he has offered to lend us Australian experts for the initial talks. Can the noble Baroness confirm that what is really on offer is talks about talks? Will we accept their kind and generous offer to use their experts for our discussions with them?
Is the noble Baroness also able to say anything more about the meeting with the Japanese Prime Minister, following his 15-page memo on Japan’s specific concerns, and whether they discussed car manufacturing remaining in the UK whatever the Brexit terms are?
We understand why our allies are uncertain. I fear that there is a danger of us becoming marginalised. Meetings took place without us that in the past we might have expected to be part of, such as President Obama’s meeting with Angela Merkel and Francois Hollande. What is encouraging, though, is that these countries are not hostile. I think that they genuinely want to make their economic relationship with us work—but we have to get moving to create the certainty and clarity that they need.
It is not just our international friends who are uncertain. So are we—even, it appears, members of the Cabinet. On Monday, the Secretary of State for Exiting the EU, David Davis, responded to a question from Anna Soubry MP about whether, in light of the concerns raised at the G20 about the impact on the economy,
“the Government are prepared to abandon that membership of the single market”.
He told the House of Commons that,
“the simple truth is that if a requirement of our membership is giving up control of our borders, then I think that makes it very improbable”.—[Official Report, Commons, 5/9/16; col. 54.]
Those were the Secretary of State’s words: “very improbable”.
Now, I am not clear how he defines,
“giving up control of our borders”,
but he was quickly slapped down by No. 10, which said that this was his “opinion” and not “policy”. Yet, in your Lordships’ House yesterday, the noble Lord, Lord Bridges, responded to my noble friend Lord Wood, that the Government,
“are not in a position to go into detail on this other than to say that we are not looking at an off-the-shelf response”.—[Official Report, 5/9/16; col. 889.]
I am confused, and I do not think I am the only one. I thought that the Secretary of State was articulating government policy from the Dispatch Box—but apparently not. Can the noble Baroness confirm whether, when Ministers make statements in either House, the statements should be regarded as government policy—or can we now expect to hear private opinion as well? How will we be able to tell the difference?
Finally, the summit also discussed other issues, included terrorism and refugees, as referenced in the Statement. Paragraph 44 of the communiqué deals with refugees. I welcome that the Government signed up to the communiqué quote:
“We call for strengthening humanitarian assistance for refugees and refugee resettlement”.
The noble Baroness will have heard the exchanges in your Lordships’ House yesterday and again today about the grave disappointment with the Government’s actions to date on resettling those unaccompanied children who qualify to come to the UK under family reunification laws yet remain in the camps in Calais—in the Jungle.
Is she aware of the report today from UNICEF, which is highly critical of the UK Government because of the danger that these children are in? They are often traumatised by both the journey from their home country and by what they witnessed or suffered there. As the author of the UN report states, they are,
“at risk of the worst forms of abuse and harm and can easily fall victim to traffickers and other criminals”.
What can be more important than ensuring that these children, who are legally as well as morally entitled to safety and refuge in the UK, have that refuge? Does the noble Baroness consider that the Government now need to take faster and more effective action to fulfil both the Dubs amendment on child refugees, passed by this House while Theresa May was Home Secretary, and the agreement reached at the G20 summit?
I hope that the noble Baroness will be able to address these questions and that the Government truly understand how important clarity is and that uncertainty is the enemy of good government.
My Lords, I too thank the noble Baroness the Leader of the House for repeating the Statement this afternoon. The Prime Minister’s Statement and the G20 leaders’ communiqué clearly set out the challenges facing the global economy at this time. As the noble Baroness, Lady Smith, quoted, it goes on to state clearly:
“The outcome of the referendum on the UK’s membership of the EU adds to the uncertainty in the global economy”.
One wonders whether any of that uncertainty was dispelled by the numerous meetings that the Prime Minister had. She says that “Brexit means Brexit”, but I rather suspect that none of the other G20 leaders knows what it means; and as the noble Baroness, Lady Smith, indicated, it appears that some members of the Cabinet do not know what it means either. When one hears that Downing Street spokespersons are dismissing a Secretary of State’s quotes as being personal rather than a statement of government policy, it suggests that the collective responsibility that we had in the coalition was a model that this Government ought to follow. Perhaps the noble Baroness the Leader of the House will take the opportunity now, and not rely on a No. 10 spokesperson, to make the position very clear with regard to the comments of the Secretary of State for Exiting the EU on Monday.
Since the result of the referendum in June, a number of Conservative Ministers have sought to give the impression that they could agree new trade deals in time for tea. The clear evidence from this summit is that that will simply not be the case. Although a number of world leaders have talked about maintaining good relations with the United Kingdom—which is very welcome—few gave the impression that a trade deal with the United Kingdom was a top priority for them. President Obama made it clear that a trade deal between the EU and the USA was a much greater priority. He was not the only world leader to take that position. The Japanese Government have released a detailed document setting out their concerns. Prime Minister Shinzo Abe has warned the Prime Minister that Japanese companies need more certainty in order to stay in the United Kingdom, and Japan’s ambassador to the United Kingdom has highlighted that Japanese companies could disinvest from our country.
The Prime Minister’s statement refers to the leaders of Mexico, South Korea, India and Singapore, who said that they would welcome talks on removing barriers to trade between our countries. That is very welcome, but can the Leader of the House give the House some context? What percentage of goods are exported from the UK to these four countries in total, compared with the percentage exported to one country, Germany, with which we would inevitably be raising trade barriers unless we enjoy full membership of the single market? Even Australia, the country from which the Prime Minister had the warmest welcome at the G20, has been clear that any post-Brexit deal with the UK would have to wait until Australia had completed parallel negotiations with the European Union, a process which will not even begin for another two and a half years at the earliest. I fear it is a long time since Britain has stood so alone on the world stage. Can the Leader of the House confirm that, at the summit, the Prime Minister did not hold a single bilateral meeting with any other Europe Union leader?
Will the noble Baroness take this opportunity to end the current uncertainty? Do we not owe it, globally and to companies here at home, to indicate what our position will be with regard to membership of the single market? Does she agree that securing such membership should be the Government’s priority rather than burdening British companies with additional red tape and compromising our position as a global economic nation?
We on these Benches are also deeply disappointed that the Prime Minister failed to raise the issue of steel exports with China during her bilateral meeting with President Xi Jinping. Thousands of jobs at Port Talbot, and across our steel industry, are facing an uncertain future because of dumping of steel on the EU market by China, but although it was raised in plenary, it does not appear that the Prime Minister took the opportunity to make the case in a bilateral meeting.
Although there has been much aspirational talk by Ministers of preferential trade deals, one is conscious that the only concrete, substantive trade deal that we have heard about since Parliament returned on Monday is the continuing supply of military equipment to Saudi Arabia. Can the noble Baroness tell the House what discussions the Prime Minister had with Saudi Ministers at the G20 regarding the position in Yemen and international humanitarian law? Will she clarify her Government’s definition of a “serious” breach of international humanitarian law?
With regard to other matters, the communiqué states a clear commitment to,
“usher in a new era of global growth and sustainable development, taking into account … the Paris Agreement”.
Given the news that China and the USA have now ratified the Paris Agreement, will the noble Baroness commit to the UK ratifying that agreement in line with our international partners? Will she also confirm whether or not it will require parliamentary approval under Section 20 of the Constitutional Reform and Governance Act 2010 and, at the same time, whether the same parliamentary requirement applies to any Brexit agreement with the remaining EU?
The communiqué also states a clear commitment to,
“taking into account the 2030 Agenda for Sustainable Development”.
What action are this Government taking to ensure that the sustainable development goals are truly universal and that each government department is working towards these goals?
We on these Benches remain very concerned at the global refugee crisis. Given the attention given at the conference to the refugee crisis, will the noble Baroness be more specific about the Government’s objectives at the upcoming high-level meeting on refugees and migrants in New York later this month? Can she also answer the points raised by the noble Baroness, Lady Smith, in relation to the some 380 children eligible to come to the UK who are currently in Calais?
We have heard in recent weeks that Brexit is Brexit, but we seem to be no closer to knowing what it actually means. From the briefings given on the Prime Minister’s plane, we know that it does not mean a points-based immigration system or that £350 million a week will be given to the National Health Service—that promise, given by those who are now senior members of the Conservative Government, is no longer worth the bus it was written on. There is much confusion from the Conservative Government, and in the face of that confusion, we on these Benches will continue to fight to keep Britain open, tolerant and united.
I am grateful to the noble Baroness and the noble and learned Lord for their remarks. Before I address some of the specific points, I will touch on some of the key elements of last week’s summit. First, as I said, we saw that the UK has, and will continue to have, a leading role in the international community, whether in championing work on antimicrobial resistance or pushing to deliver an economy that works for everyone. The summit showed that we are shaping the global agenda on many of the important challenges facing the world, and we will continue to do so.
Secondly, we saw that world leaders want to work constructively with us to make a success of Brexit. The Prime Minister outlined her vision for the UK as a global leader on free trade, and it was clear that there is a shared desire to build and maintain strong relationships with our international partners. Our priority now has to be to work through the issues posed by Brexit to deliver on that vision, and to get the right deal for Britain.
The noble Baroness and the noble and learned Lord asked about the shape of this. We are looking at negotiating a new relationship with Britain. Noble Lords are right that the process will not be brief or straightforward, but we are looking to achieve the best deal. What the British people told us with their vote was that it must be a priority for us to regain more control over the numbers of people who come here from Europe, but also that we must allow British companies to trade with the single market in goods and services.
Both noble Lords asked about Japan’s approach. Of course we continue to listen to and engage with Japanese business and investors as we plan for our exit. In fact, since the G20 the Japanese ambassador has praised the,
“cautious and very patient”,
approach of the Prime Minister, and said that what is needed are,
“well-thought through considerations before you start any negotiations”.
That is exactly the approach that the Prime Minister has taken. The relationship between the UK and Japan has gone from strength to strength in recent years, and we believe it will continue to do so. The PM and the Prime Minister of Japan spoke and were both clear that they would work together to build our relationship. As was said in the Statement, as a member of the EU we will continue to support a swift conclusion to the EU-Japan free trade agreement, and co-operation on security with our European and global allies will be undiminished.
The noble Baroness and the noble and learned Lord asked about unaccompanied children. I assure noble Lords that we began to work to implement the Dubs amendment immediately after the Immigration Bill gained Royal Assent. Discussions are happening with local authorities because this is a UK matter rather than a G20 one, but of course we are working with Greece, France, Italy and NGO partners to speed up existing processes and implement new ones where necessary.
The noble and learned Lord commented that the Prime Minister did not meet other EU leaders. As he will be well aware, over the summer she visited France, Germany and some of the key leaders. This was her first opportunity to meet President Obama, for example, so she took such opportunities at the G20 and that was the right approach.
The noble and learned Lord questioned the fact that the Prime Minister did not specifically raise steel with China. In fact she raised it with everyone; this was a key concern of ours, and in fact we were delighted to have secured a commitment from the G20 steel-producing nations to bring forward a global response to address overcapacity, including through the OECD Steel Committee, which will meet next week. That will provide the first opportunity, following the summit, to take stock of response efforts and discuss the feasibility of forming a global forum for dialogue and information sharing on overcapacity.
The noble and learned Lord asked about the Paris agreement. We are fully committed to ratifying it, and of course we were very pleased to see the commitment from both the United States and China during the course of the summit. We are already playing our part in delivering this through our domestic climate framework and we will ratify it as soon as possible, but all necessary work to implement the agreement is under way. I am sure we will refer to some of the other issues that the noble Lords raised later in the debate, but if there is anything else I can add subsequently I will do so.
To conclude, I reinforce what the Prime Minister said in the other place: the best route to prosperity for this country is as a global leader in free trade, but to carry people along with us we must deliver and demonstrate the benefits of that approach for people right across the country. As a Government, that is exactly what we will do. We will act boldly at home so that our economy works for everyone, and we will work with our international partners abroad, shaping an ambitious global role for this country that will deliver prosperity for our citizens and those around the world in years to come.
My Lords, I thank the noble Baroness the Leader for repeating a very sensible Statement bringing us all up to date. I heard the Australian Trade Minister yesterday discussing his proposal that he should lend us a negotiator. The idea would be that there would be an Australian negotiator on both sides of the table. He described that as a joke—a quip. It is clearly not one that has gone down well with the Opposition.
The one thing I would say in response is that the Australian Trade Minister was setting out the legal position. We can certainly negotiate and discuss the arrangements that we wish to have with the Australians and other international global partners. The Prime Minister had an extremely useful and constructive dialogue with Prime Minister Turnbull, and we look forward to working with him to develop our relationship with Australia more fully.
My Lords, the noble Baroness the Leader of the House rightly said how important it is that we trade around the world, and she will know that 95% of that trade is carried by merchant shipping. Sadly, and for surprising reasons, the Conservative Party has never been very supportive of our merchant fleet. We have just completed the Maritime Growth Study. Will the Government implement its recommendations, which will help reinforce the strength of our merchant fleet with all the benefits that will have, particularly for global trade?
I will have to write to the noble Lord on the specifics of his question. What I can certainly say is that the UK is an outward-facing, global nation and we want to be a global leader in free trade. We set out our determination to achieve that; the Prime Minister reiterated it in her Statement and in response to questions in the other place; we are focused on making sure that we make the best of Brexit for this country and work constructively, as we do now, with other countries around the world.
A majority of those permitted to vote on 23 June voted to depart from the EU, but they were given no help whatever by the leave campaign to know what the destination thereafter would be and have been given no help since 23 June by the Government. We have heard the remarks about the Brexit Secretary being slapped down by the Prime Minister. In her response, the noble Baroness talked about trade with the single market, but that covers a multitude of possibilities. Can she be more specific about what that means? Does it mean membership of the single market or access to it, which is different? Where does it leave the customs union, for instance? Are the Government laying on a series of tutorials for Secretaries of State and Ministers on the difference between all those concepts, because many of them do not seem to understand them?
My Lords, as I think was clear from the Statement, we will not be providing a running commentary on what is happening. We want to get the best deal, and in order to get the best deal, as many noble Lords will know from their careers in business, you do not show your negotiating hand. What I have said is that the priority is to regain more control over the numbers of people coming here from Europe and, as the noble Baroness rightly said, to allow British companies to trade with the single market in goods and services.
My Lords, I do not think I heard the words “Hinkley Point C” mentioned in the Statement; perhaps I missed them. While I personally deplore some of the overhyped fears about Chinese security and threat—there is always a question, but it has been exaggerated—will my noble friend remind her Cabinet colleagues that there are ways forward with this particularly difficult project which will continue to combine the input of the Chinese, whose good will and technology we need, with the needs of the French and of EDF, which is a company in some difficulty, without saddling ourselves with the present prospect of a project of the wrong design at the wrong time that will load our industries and consumers for many years ahead with unnecessarily high energy costs?
My noble friend is right: there was no reference to Hinkley in the Statement but, as the Prime Minister has said, there is more to our relationship with China than Hinkley. She spoke to President Xi about the fact that we are reviewing the Hinkley deal because it is a complex, large-scale infrastructure project. It is only right that we look at the detail and consider all its component parts. The Prime Minister assured President Xi that a decision will be made in a timely manner.
My Lords, the noble Baroness will appreciate that the Prime Minister said nothing at all at the summit on the position of EU nationals who have settled in the United Kingdom. Many people from all shades of politics are deeply disappointed about that situation because they consider that the United Kingdom Government have given those people a clear undertaking that they could remain in perpetuity if they so wished. Does the Leader of the House, who is very greatly respected, agree that the one thing that you cannot use as a bargaining chip, however great the temptation, is your word of honour?
I assure the noble Lord that the Prime Minister has been clear that she is determined to protect the status of EU nationals already living here, and the only circumstances in which that would not be possible are if British citizens’ rights in European member states are not protected in return—and that is something that I find very hard to imagine.
My Lords, the noble Baroness said that the Government were not going to provide a running commentary, but in many ways that is precisely what we have had for two months. We have had the Secretary of State for leaving Europe saying something in the House the other day, only to be sharply slapped down—rightly, in my view—by the Prime Minister and No. 10. The problem is that, during the referendum, the alternative to Britain being in Europe was never actually discussed; it was not on the ballot paper. The real problem is that, unless and until this country, led by the Government, works out where it stands on issues such as the single market—or on immigration, if we are not going to have a points-based system—we are never going to get anywhere. I am not one for rushing into things when we do not need to, and I know that the process will be long and tortuous, but can the noble Baroness tell us when the Government intend to set out their stall either in a White Paper or in some other way so that we can have a proper debate in this country, which we rather missed out on two months ago?
The noble Lord is absolutely right: it will take time for negotiations for us to leave the EU. That is why the Prime Minister has been clear that we will not invoke Article 50 before the end of the year. We are focusing on establishing a UK approach and clear objectives for negotiations. As I said, we are well aware that negotiations will not be brief or straightforward and believe that it would be inappropriate to set out timelines for entering a negotiation. We want to get the best deal for Britain, not the quickest one. As noble Lords will be aware with the changes in government, we have a new Department for International Trade, but we also have the Department for Exiting the European Union, and they will remain in close contact with investors and businesses throughout the process to facilitate a stable and transparent process. We are already engaging widely, and your Lordships’ House will of course be involved with our thinking.
My Lords, does not this Statement, combined with a highly critical report from the Electoral Commission, demonstrate the very real dangers of holding referendums rather than relying on representative parliamentary democracy? Was there any discussion at the summit with regard to the enormous influx both of refugees and of economic migrants into the European Community area? Why are we continuing to encourage and facilitate traffickers by rescuing—quite rightly—people who are trying to cross the Mediterranean, at the same time aiding the traffickers, who can say, “Don’t worry if the boats don’t look safe—you’ll be rescued by the Royal Navy and arrive in Italy or Greece in due course”? It is highly dangerous, and we ought not to continue this practice, which simply exacerbates the immigration problem.
The G20 summit focused on the need to develop a sustainable framework for the global management of migration. By reducing the incentives to make dangerous secondary journeys and stopping organised immigration crime groups from exploiting the vulnerable, we can achieve better outcomes for migrants. As my noble friend will be aware, the UK is a major contributor to Operation Sophia. We are also looking ahead from the summit to two high-level migration events at the UN General Assembly later this month: the UN Secretary-General’s high-level meeting on large movements of refugees and migrants and President Obama’s leaders’ summit on refugees. They will build on the work that was undertaken at the London Syria conference in February.
My Lords, the Prime Minister’s Statement is a little perplexing. She says that,
“we will make a success of Brexit”,
but that follows:
“By building on existing partnerships”.
Surely the point of Brexit is that we are leaving our most important partnership—the European Union. Can the noble Baroness explain how we plan to become a global leader in trade when, at the moment, all our trade negotiation is done through that most important partnership of the European Union and we do not have our own trade negotiators?
My Lords, what will be the noble Baroness’s role in this? There are a number of European Union committees—I am a member of the Sub-Committee on Home Affairs—which are looking at legislation coming from Europe now. My view is that we will have to make some attempt to put into British law those things that are coming through and then change them later. How will the noble Baroness manage the House’s agenda on European legislation that is coming through now and will continue to come through? We cannot assume that we will not put it into effect, in particular on security, policing and terrorism, which is an immensely important area. Does she have any proposals for how we handle this?
The noble Lord is absolutely right: it is critical that the well-respected work of the EU committees should now reflect the new reality that we are in. Certainly, through the usual channels and discussions with other Members across the House, we will be looking to ensure that the way we work here allows us to involve ourselves in the most effective way. We are in early discussions—obviously we have only just come back from Recess—but I assure the noble Lord that it is at the forefront of my mind. I will, I am sure, be involved in a number of conversations with my opposite numbers over the coming weeks.
My Lords, does my noble friend accept that among those who are most disillusioned and disaffected following the vote on 23 June are the young people of this country, particularly in our universities? They are our future. What will the Government do to try to convince our university students and other young people, on whom we all depend, that there truly is—I believe it is perfectly possible—a bright future beckoning? They must be convinced that splendid isolation is not the answer and that real co-operation is. Will there be a concerted attempt by government Ministers to put the case across?
I hope my noble friend was reassured by the tone of the Statement I repeated today, because I think it was very clear that we are and want to remain an outward-facing country, and that we want to make the best of the opportunities that the vote has allowed us. There is a lot that we can do in this country ourselves. The Prime Minister has made very clear that the social justice agenda is extremely high in her priorities. That is why, as I have said, we are developing a proper industrial strategy at home so that more people can share in our national prosperity through higher real wages and greater opportunities for young people. We have a lot of initiatives, such as the apprenticeship levy, and we are looking at ways to ensure that, through a strong education system and ensuring that there are job opportunities and new opportunities for us globally, young people can see that this country has an extremely bright future.
My Lords, the Prime Minister, the Secretary of State for Exiting the European Union and other leading Cabinet Ministers have all said that they want to see an open border between the Republic of Ireland and the United Kingdom in Northern Ireland. I support that objective. They have also said that they want to see greater control on immigration from the European Union, which is also an objective I support. Does the noble Baroness not see a glaring inconsistency between those two laudable objectives? Has sufficient work been done to drill down into the detail to see precisely how these conflicting objectives are to be achieved in a way that does not result in the border between the United Kingdom and the European Union being moved to Stranraer?
I certainly assure the noble Lord that we are fully engaging with the Governments of Scotland, Wales and Northern Ireland to ensure a UK-wide approach to our negotiation. As my noble friend Lord Bridges made clear in his Statement on Monday, we have reiterated our determination that there will be no return to the hard borders of the past.
Certainly, we take this issue extremely seriously, which is why we have produced a new Hate Crime Action Plan. This is something of which we are extremely mindful. I believe the latest figures show that the situation is still unacceptable but the spike that was seen has now gone. However, I assure the noble Baroness that this matter is at the forefront of our mind and is certainly something that we all take very seriously in discussions with other colleagues globally. We will focus on it because, as I said, we want to ensure that we are seen to be, and remain, the outward-looking, global international country that we have always been.
My Lords, the country is about to embark on a momentous change of direction that will affect generations. Since, once Article 50 is triggered there is no going back, how does my noble friend the Minister expect the concept of the sovereignty of Parliament to be respected during the process?
Of course Parliament will have a role in making sure that we find the best way forward and the Department for Exiting the European Union will consider the detailed arrangements for that. The referendum result was a clear sign that the majority of the British people wish to see Parliament’s sovereignty strengthened, so throughout this process Parliament will be regularly informed, updated and engaged.
The noble Baroness the Leader of the House elided—inadvertently, I am sure—over the question asked by my noble friend Lord Darling. When can we expect to see a definitive statement from Her Majesty’s Government setting out their vision of what a post-EU future for this country will be like, and what they intend will be the prime objectives in their negotiations? When will Parliament see that in a White Paper and when will the British people see it?
As I have said on a number of occasions during these questions, our priority is to regain control of the number of people who come here from Europe but also to allow British companies to trade with a single market in goods and services. We will not give a running commentary on negotiations.
My Lords, I note that the Prime Minister said that we will not shy away from dealing with illegal immigrants. Do the Government now recognise that the rate of immigration into Europe has become wholly unsustainable and that the EU’s system of quotas is not working because it has been completely ignored, and that a new approach is needed? Will my noble friend encourage the Prime Minister to take to the UN in America my proposal for having an area of desert, probably in north Africa, designated for the reception of all immigrants, where they can be sorted out and dealt with?
My Lords, I have listened to the debate with great interest. A lot of noble Lords do not appear to know what Brexit means. Brexit means leave. That is precisely the question that the electorate answered. They were asked whether they wished to remain or whether they wished to leave. They decided that they wanted to leave. That was an instruction to the Government to get on with it. The great disgrace is that the Government and the Civil Service had not prepared for either alternative. That, of course, is the problem we are facing now.
But it is not all doom and gloom. There is a great future ahead, as there has been a great, historic past. We should take hold of that. We should not be supplicants; we are a great country and we should use our power for the good of this country and the rest of the world.
I found the second paragraph of page 3 very interesting. Does it mean that the Government are moving towards syndicalism?
I certainly endorse the noble Lord’s upbeat words. We are not turning our backs on the world. We are the same outward-looking, globally minded, big-thinking country we always have been. We remain open for business; we are negotiating a new relationship with Europe.
Investigatory Powers Bill
Committee (5th Day)
Relevant documents: Pre-legislative scrutiny by the Joint Committee on the Draft Investigatory Powers Bill, Session 2015–16; 1st Report from the Joint Committee on Human Rights; 2nd Report from the Delegated Powers Committee; 3rd Report from the Constitution Committee
194H: After Clause 220, insert the following new Clause—
“Technology Advisory Panel
(1) Within six months of the passing of this Act a Technology Advisory Panel shall be established.(2) The Panel shall be appointed by and report directly to the Investigatory Powers Commissioner.(3) The purpose of the Panel shall be to advise the Secretary of State and the Investigatory Powers Commissioner on—(a) the impact of changing technology on the exercise of investigatory powers; and(b) the availability and development of techniques to use investigatory powers while minimising interference with privacy.”
My Lords, first, I express our thanks to David Anderson QC, the Independent Reviewer of Terrorism Legislation, for his independent review of the operational case for the bulk investigatory powers contained in Parts 6 and 7 of the Bill, including the Operational Case for Bulk Powers document published with the Bill. The review came about as a result of pressure from the shadow Home Office team during the passage of the Bill in the Commons and is intended to assist in our consideration of the need for the bulk powers in the Bill.
While there had been three preparatory studies, pre-legislative and legislative scrutiny by a number of parliamentary committees, and the Government’s presentation in March of the operational case, consideration of the Bill had not included an authoritative, independent analysis of the operational case for the bulk investigatory powers in Parts 6 and 7. This is now the first opportunity we have had to discuss Mr Anderson’s report as it was not available either at Second Reading or the days spent in Committee prior to the Summer Recess.
The review by David Anderson, which became available last month, considered the operational case—whether there was one, and the strength or otherwise of any such case—for four of the powers in the Bill, namely: bulk interception, bulk equipment interference, bulk acquisition of communications data and bulk personal datasets. These powers can be used only by MI5, MI6 and GCHQ. It seems that the UK is one of five EU member states, the others being Germany, France, the Netherlands and Sweden, which have detailed laws that authorise the conduct of activities similar to at least some of the powers that Mr Anderson was asked to review.
In chapter 4 of his report Mr Anderson sets out the methodology by which he sought to evaluate the operational case for the powers under review. In paragraph 4.5 on page 72 he states that:
“A frame of reference is needed for the purposes of evaluating the utility or otherwise of the powers under review”.
Mr Anderson says that such a framework is not provided by the Government’s operational case, to which I have already referred, since it,
“categorises the purposes served by the powers under review in ways which lack coherence and consistency”.
He says that he had to ask the security and intelligence agencies to agree a classification against which their claims of utility could be evaluated. Perhaps the Minister can give us the Government’s response to Mr Anderson’s views on the operational case for the bulk powers he was asked to review.
Each member of the review team was in agreement with the conclusions of Mr Anderson’s report and with the single recommendation that he made. The report’s conclusion is that there is,
“a proven operational case for three of the bulk powers, and that there is a distinct (though not yet proven) operational case for bulk equipment interference”.
Equipment interference in bulk as opposed to a targeted equipment interference warrant is a new power. The report also found that:
“The bulk powers play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield. Where alternative methods exist, they are often less effective, more dangerous, more resource-intensive, more intrusive or slower”.
Mr Anderson was not asked to reach conclusions as to the proportionality or desirability of the bulk powers, as opposed to the operational case for them, on the grounds that these are matters for Parliament.
David Anderson’s report makes a single recommendation, which is covered by this amendment. That recommendation is that a technology advisory panel of independent academics and industry experts should be appointed by the Investigatory Powers Commission to advise on the impact of changing technology and on how MI5, MI6 and GCHQ can reduce the privacy footprint of their activities.
While the report finds that the bulk powers in question have a clear operational purpose, it accepts that technological changes will lead to new questions being raised and that adoption of the recommendation for a technology advisory panel will enable such questions to be asked and answered on a properly informed basis. I hope that, when he responds, the Minister will indicate where the Government stand in relation to the single recommendation in the report. We fully support the recommendation and the case that Anderson has made for the panel, which we believe should be established as soon as practicably possible.
While there is only a single recommendation in the report—and this is our first opportunity to discuss it—other points and issues are addressed. I should like to take the opportunity to raise some of them with the Government and to seek a response on the record prior to making any decisions about what and what not to raise on Report.
Paragraph 2.84 on page 45 of the Anderson report states:
“It has come to my attention that some”,
bulk personal datasets,
“may contain material that is comparable to the content of communications, and in rare cases even material subject to”,
legal professional privilege.
“In the light of these facts I have already recommended to the Home Office that consideration be given to the introduction of additional safeguards to the Bill and Code of Practice”.
Can the Minister say what action the Government have taken or intend to take in the light of what David Anderson has said in the paragraph to which I have just referred?
In paragraph 2.53 on page 36 of his report, Mr Anderson states:
“The Government has expressly acknowledged that targeted thematic EI”—
“operations, like their bulk counterparts, can take place ‘at scale’, and that they may cover a large geographic area or involve the collection of a large volume of data”.
He goes on to say that nevertheless the thematic equipment interference power is subject to fewer limitations. He says that, in particular, targeted thematic equipment interference operations,
“can be conducted by a wider range of authorities (including the police) … need not be connected with national security, and … need not be overseas-focused”.
In paragraphs 2.56 and 2.57 on page 37 of his report, David Anderson says that he has previously commented that the widely drawn provision for targeted thematic equipment interference in practice introduces an alternative means of performing bulk equipment interference but with fewer safeguards, and that it should be possible to reduce the scope of targeted thematic warrants,
“so as to permit only such warrants as could safely be issued without the extra safeguards associated with bulk”.
He goes on to say that that comment relates to the desirable scope of targeted warrants under Part 5 of the Bill and not to the powers that he was tasked to review. Consequently, he says that he has not pursued the matter in his report, apart from noting that it would be particularly important for those authorising and approving warrants to ensure that the thematic powers are kept within strict bounds and not used as a means of avoiding or circumventing the restrictions that are quite properly being placed on the authorisation of bulk warrants.
David Anderson concludes his report by saying:
“I hope and expect that the IPC will keep a particularly close eye on this”.
I do not think it is unrealistic to suggest that if this issue had come within Part 6 or Part 7 of the Investigatory Powers Bill, which he was asked to review, rather than in Part 5, and in the light of the comments he has made in his report, David Anderson might have made some sort of recommendation on the point about the use of targeted thematic equipment interference, rather than simply expressing the hope that the Investigatory Powers Commissioner will keep a particularly close eye on this. Since this is also a matter that Mr Anderson has raised previously with the Government, and in the light of his rejoinder in paragraph 2.56 which shows that he does not appear to have been convinced by the Government’s response, what action do the Government intend to take on Mr Anderson’s view that excessive weight is being placed by the Government on the discretion of decision-makers and that it should be possible to reduce the scope of targeted thematic warrants so as to permit only such warrants as could safely be issued without the extra safeguards associated with bulk?
The Bill and the terms of reference of the Anderson review are based on a narrow definition of “bulk powers” and are limited to those powers that provide for data in bulk to be acquired by the Government themselves. Powers to require providers of telephone and internet services to collect and retain their customers’ data in bulk do not qualify as bulk powers, even when intelligence or law enforcement agencies have the power to acquire those data. Referring to bulk personal datasets in paragraph 2.74 on page 43 of his report, David Anderson says that the power to retain and use bulk personal datasets,
“differs from the other powers under review”,
for though, like them, the power in the Bill is exercisable only by the security and intelligence agencies, the reality is that the National Crime Agency, police forces and other bodies also obtain, retain and use bulk personal datasets outside the scope of the Bill, and will continue to do so.
David Anderson goes on to say that,
“it is well known that the analysis of bulk data is already conducted at a high degree of sophistication both within Government and, especially, in the private sector”.
Continuing, he says that the searching of bulk personal datasets by the security and intelligence agencies is performed in a way that is analogous to commercial techniques. However, far from claiming to employ searching techniques any more advanced than those available commercially, Anderson says that the security and intelligence agencies see themselves as “catching up” with the commercial sector. It seems that the examples Mr Anderson and his team were shown appeared relatively straightforward and were not indicative of the use of bulk personal datasets to predict in the highly sophisticated manner attributed to some private sector operatives.
The 2015 Intelligence and Security Committee of Parliament report criticised the absence of,
“restrictions on the acquisition, storage, retention, sharing and destruction of bulk personal datasets”.
This Bill sets out to address those concerns. But how and when are those concerns about the obtaining, retaining and use of bulk personal datasets by all those outside the security and intelligence agencies, including the private sector, going to be addressed? I would be obliged if the Minister could respond to that question in his reply.
David Anderson refers in paragraph 1.20 on page 8 of his report to the principal safeguards applicable to the powers under review. He goes on to say that it remains to be seen whether further safeguards will be needed in relation to certain capabilities, such as accessing communications data as a consequence of EU law. A footnote at the bottom of page 8 refers to the opinion of the Advocate-General in the case of the Home Secretary v Tom Watson MP, involving a legal challenge to the Data Retention and Investigatory Powers Act 2014 and the principal safeguards pressed by the Advocate-General, including prior independent approval and a ban on use for the investigation of ordinary or non-serious crime. Although the opinion of the Advocate-General does not represent a decision by the court, do the Government take the view that the safeguards pressed by the Advocate-General are already incorporated in all relevant sections of the Bill? I raise this point also in light of the fact that Mr Anderson’s terms of reference did not provide for his review to cover the whole range of powers that could be described as bulk powers.
The powers in this Bill which are liable to result in the collection or retention of large quantities of data not relating to current targets but which fall outside the scope of his review include, of course, the proposed new power to require the retention of internet connection records and the power to target equipment interference on equipment in a particular location, for example, which will be covered by the thematic emergency interference power.
In paragraph 2.41(b) on page 33 of his report, David Anderson states that it is not currently envisaged that the bulk acquisition power in the Bill will be used to obtain internet connection records. In a footnote at the bottom of that page, though, Mr Anderson states that he has been told that this is no more than a statement of present practice and intention and that neither the Bill nor the draft code of practice rules out the future use of the bulk acquisition power in relation to internet connection records. Can the Minister say in what circumstances the Government might wish in future to see the bulk acquisition power used in relation to internet connection records, and whether going down this road would necessitate further legislation or a change in the code of practice to which the agreement of Parliament would have to be obtained?
Finally, I come back to the single recommendation in the report for the setting up of a technology advisory panel, appointed by and reporting to the independent Investigatory Powers Commission, to support both the IPC and the Secretary of State by advising them on the impact of changing technology on the exercise of investigatory powers, and on the availability and development of techniques to use those powers while minimising interference with privacy.
Mr Anderson says in paragraph 9.30 of his report on page 128 that he was strengthened in his resolve to make this recommendation by learning of the existence, not publicly disclosed until now, of the scientific advisory committees, or SACs, that give external advice to, respectively, MI5, MI6 and GCHQ. This is not the only matter that has emerged into the public domain in recent months relating to our security and intelligence services and the way in which they function. One only hopes that in future there will be rather harder challenges made about the need to keep information secret which if made public would not constitute a threat to national security or the effectiveness of our security and intelligence services, but which might, if made public, enhance trust over the necessity for the powers that they have, the way in which they are exercised and the safeguards and checks that apply. I move Amendment 194H.
I hope I am right in thinking that the Government did not table an amendment to this effect at this stage because of time constraints and that they will bring forward their own version. In case I am wrong about that, I will ask the Minister a question which I asked him privately a couple of days ago: what do we have to do to persuade the Government to accept Mr Anderson’s recommendation? I can hear the response to a different hypothetical amendment, but David Anderson did not recommend that. So we have the converse being the situation we have now. There is so much confidence in him. We are all aware of the care that he has taken with this report and to stay within the terms of reference, which we, too, would have liked to have been rather wider. His recommendation should be accepted. None of us will be surprised to be told, “Yes, in principle, but not quite this drafting”. Nor is it surprising that the answer to the question about the operational case is, “Yes, there is a utility in these powers”, even though, as I say, the question is narrower than we would have liked to have seen.
Mr Anderson identified the difficulties of buying in expertise to perform the functions that he has talked about. He said that the experts involved should be “capable of probing” the agencies,
“explaining difficult concepts to lay decision-makers, and generally contributing to the culture of robust challenge that will be essential to the effective operation of the IPC”.
“a mixture of independent academics and individuals with substantial, current experience of industry”.
He does not discount moral philosophers. I am sorry that the noble Baroness, Lady O’Neill, just left, because there are Members of this House who could make the case for moral philosophers in this arrangement and who, by their own contributions over a range of issues, continually make the case.
Mr Anderson also quoted a point about the importance of the IPC proactively seeking out and bringing to public attention,
“material legal interpretations on the basis of which powers are exercised or asserted”.
I have struggled—as will have been clear enough to other noble Lords—to understand the subject matter of the Bill to get beyond the answer to Polonius’s question:
“What do you read, my lord?”,
which for me is also, “Words, words, words”. Graham Smith, the lawyer who made this point and who is quoted by David Anderson, in evidence to the Joint Committee wrote about the importance of bringing,
“a legal interpretation … to the attention of the oversight body which would have to bring it to public attention”.
He said that such mechanisms—bringing legal interpretations into the arena—would enable them to be,
“publicly debated and if appropriate challenged”.
He talked about providing,
“not only oversight but insight”.
I like that phrase.
These issues of the legal interpretation are inseparable from what is conventionally thought of as technical. I mention them now as it seems useful to try to cover the ground a little. I will try not to repeat the points made by the noble Lord, Lord Rosser, with which, by and large, these Benches completely agree.
David Anderson gave us one example of the technological issues affecting the future use of bulk powers: the continuing trend towards anonymisation. I thought I would share with the Committee an experience I had recently that brought home to me of what general and overwhelming public importance these issues are. I was very startled to find that a play I went to at the Edinburgh Fringe a couple of weeks ago was about RIPA—not perhaps what you want at nine o’clock in the morning of a holiday. It was also primarily about how easily information about each of us is accessed, used or misused. I hope that Tim Price, the writer, will forgive my quoting him alongside Shakespeare, but I was taken by this. I will not read the whole script. He said that,
“if you believe in freedom of association, if you believe in freedom to protest, if you believe in privacy, then the only way to exercise those freedoms is to be anonymous … If a Government cannot identify you, it cannot surveil you”.
From these Benches, we support the amendment.
My Lords, I support my noble friend’s amendment, which he very ably moved. As he said, it is the only amendment recommended by David Anderson QC with regard to his latest report.
The issue of bulk powers is enormously important and this is the first time that the Committee has had an opportunity to discuss the report on the whole question. It was discussed at some length by the Joint Committee, which I was privileged to chair. The committee took both oral and written evidence and finally came to and made 23 conclusions and recommendations on bulk powers in its report to both Houses of Parliament. We asked the Government to give a fuller justification for bulk powers, which they did. We were worried about the need to ensure that Article 8 of the European convention would be complied with. We said that the Investigatory Powers Commissioner should report within two years on proper safeguards around these powers, that a proper code of practice on equipment interference and indeed on bulk personal databases should be established, and that the ISC should look at the issue of bulk personal databases.
I think that the other place took a wise decision in asking the distinguished Mr Anderson to look in enormous detail at bulk powers, and it seems that he has made an overwhelming case for bulk interception, bulk acquisition and bulk personal databases. The case for bulk equipment interference was less strong, but nevertheless still there. As I say, the operational case for bulk powers was impressive and the report sets out the need for these powers to deal with terrorists, child abuse, cyberattacks on companies, rescuing hostages in Afghanistan and organised crime. What particularly impressed me is the importance of speed in these operations and of the powers to deal with all these problems being used quickly to ensure that proper information can be given to the appropriate agencies.
Mr Anderson inevitably looked at the alternatives to bulk powers, but said that they,
“would often be less effective, more dangerous, more resource-intensive, more intrusive or slower”.
Having said all that, there still needs to be a proper regime of safeguards if Parliament finally agrees with the Government about the bulk powers provided for in the Bill. We should look at those proper safeguards. Clearly the use of both a judge and the Secretary of State is important. I believe too that the Intelligence and Security Committee of Parliament should look very carefully indeed at the use of bulk powers in the months and years ahead.
Finally, my noble friend referred specifically to the single recommendation for the setting up of a technical advisory panel. It is worth reflecting on the fact that in his report, David Anderson said that the panel would deal not only with technological changes but with how MI5, MI6 and GCHQ could reduce the privacy footprint of their activities. That is why I support the recommendations and the conclusions of the Anderson report and I urge the Government to ensure that in implementing it there are proper safeguards as we go forward in these hugely changeable technological times.
My Lords, other noble Lords have taken the opportunity in addressing this amendment to make some general comments about David Anderson’s excellent report on bulk powers, so I shall do the same in what I hope will be just a few words. In my view, Mr Anderson has made a powerful case for the need for the bulk powers that he describes. They are very much a part of the fight against terrorism. Similar powers have been used well by the security services and authorities in this country and—touching wood and crossing fingers—that is the reason why we have not experienced, for example, what happened in Nice. I agree entirely with what has just been said by the noble Lord, Lord Murphy, who as we know has considerable experience in dealing with and judging these matters, and I share his view that the safeguards should be as strong in every way as has been recommended by Mr Anderson.
Turning to the question of the technology advisory panel, I have complete sympathy with Mr Anderson’s menu but not necessarily with the recipe. With respect to him, I think that we might do rather better than his suggestion of the way in which a technology advisory panel is established. I suspect that he would be the first to agree that what he is concerned with is not the form of the panel, nor to whom it is accountable, but the substance: what it does and what it sets out to achieve.
My suggestion to the Government is that we could broaden the technology advisory panel’s scope and make it more acceptably accountable. The suggestion by Mr Anderson is an unusual one, in that the panel should be appointed by, and be accountable and report directly to, the Investigatory Powers Commissioner. That suggests that it has a pretty narrow scope. In my view—obviously, I use my now rather historical experience as the previous Independent Reviewer of Terrorism Legislation—a technology advisory panel would indeed be valuable, but not just to the Investigatory Powers Commissioner. My suggestion is therefore that this panel should exist but that it should be appointed by the Secretary of State and, through them, should be accountable to Parliament, at least in a general sense.
The advice given by the technology advisory panel would of course be available to the Investigatory Powers Commissioner, but he is not the only commissioner. It would also be available, if appointed by the Secretary of State and accountable in that normal way, to parliamentary committees and other commissioners, to which it could give advice. Indeed, my hope is that a technology advisory panel, or something with a similar name and that intent, should, like the Independent Reviewer of Terrorism Legislation, publish not only annual reports but tasked reports on specific issues raised —of which the Anderson report we are discussing is a very good example.
The technology advisory panel, if appointed on a broader basis with that greater accountability, would help considerably without placing undue burdens on the security services, the police or GCHQ. Indeed, they, too, would be able to turn to it if they wished to; it would be a matter for their chiefs. We have some experience present in this House as we speak.
I hope that we can adopt the spirit of this part of Mr Anderson’s remarkable report, but perhaps look at ways of making it even more useful than he had in mind, and with forms of accountability that we in this House and the other place understand more readily.
This is a very limited amendment in one sense, but this has become something of a Second Reading debate on the Anderson report, and I congratulate the noble Lord, Lord Rosser, on the way he introduced it. He made it clear that there is a considerable degree of common ground on the importance of these powers, which have been so carefully scrutinised by Mr Anderson. The whole House will recognise the great debt that we owe him. People not just in this country but in many others will read this report with great interest. As we have said before, there is no doubt that the threat is severe and very real, and we need to ensure that we have all reasonable methods of combating it. We will go further into this issue. I listened with great interest to the comments of the noble Lord, Lord Carlile. I will also be interested to hear what my noble friend the Minister has to say about the panel and the noble Lord’s recommendation. Even if it is not identical to what he recommends, something along these lines may well have considerable merit.
My Lords, if this was another forum, I might well say that I concur with the opinion of my noble friend Lord Carlile and say nothing more, but I, too, would like to add a few comments about this remarkable report. It has attracted some controversy. There was a sense at one stage, I think, that Mr Anderson was going up to the mountain and was expected to come down with tablets of stone, and to some extent he has done that.
The point I will direct my brief remarks to is where Mr Anderson says that the review does not,
“reach conclusions as to the proportionality or desirability of the bulk powers … As the terms of reference for the Review made clear, these are matters for Parliament”.
My judgment—I do not suggest that my judgment is any better or worse than any other noble Lord’s—is that from the point of view of proportionality and desirability, these powers meet those two criteria. I offer in support of that the fact that the continuing threat level in this country is severe, as well as the experience in France and other parts of Europe. In that sense, if we are to reach a judgment about proportionality and desirability, I most certainly am on the side of those who say that those two elements are more than satisfied by the requirements now placed on us all in relation to the security of this country.
My Lords, I would like to put three questions to the Government, which arise from Mr Anderson’s latest report. There are not many surprises in the report but one of them—certainly to me and most other people who follow these matters—was the revelation that bulk personal datasets are used by agencies beyond the intelligence agencies. Perhaps the Minister could give us some information about which other bodies use bulk personal datasets.
I also ask the Minister to put on the record the difference between bulk equipment interference and thematic targeted equipment interference. I got the impression from Mr Anderson’s report that he was struggling to spot the dividing line, apart from that bulk equipment interference is likely to be required where,
“the Secretary of State and the Judicial Commissioner is not ... able to assess the necessity and proportionality to a sufficient degree at the time of issuing the warrant”.
Necessity and proportionality are the golden rules throughout the Bill and their apparent demise in respect of bulk equipment interference seems to alter the relationship between the citizen and the state. My third question is to ask the Minister to comment on this apparent relinquishing of the golden rules of proportionality and necessity in the case of bulk equipment interference.
My Lords, although I acknowledge that this power may be necessary to try to track down and deal with certain terrorist threats at certain points, the huge danger is that although we may regard the people currently in control of the state as being benign, we do not know that they will always be so. The real problem is privacy and that is why this amendment is particularly important. The moment no threat is urgent, we must get back to a state where privacy is the most important issue, because this power can also be used by organs of the state to protect themselves when they may have done something wrong or there may be someone not so benign within them.
This is a two-edged sword. On the one hand, the data collected may be very useful and may prevent some incidents, although some people challenge that; on the other, this could also mean a great weakness in the system whereby someone could get inside the system and then protect themselves. I would be very careful about assuming that it is always good and the state will always behave in a benign way. Just because I am paranoid, that does not mean they are not out to get me—that is the great saying. I do not think I am being paranoid but at some point in the future we will need to get back to a position where the state does not have the same ability to acquire data about its citizens as totalitarian states did in the recent past.
My Lords, I am very grateful to all noble Lords who have commented on David Anderson QC’s review. I take this opportunity to thank Mr Anderson for undertaking that review and I welcome his comprehensive report. The history of events leading up to the commissioning of that report was well rehearsed by the noble Lord, Lord Rosser. Mr Anderson was supported by an expert, security-cleared team of his own choosing. The Government, and in particular the security and intelligence agencies, provided Mr Anderson and his team with all necessary information, access and assistance for them to undertake the review effectively. As the report itself makes plain, almost 250 members of the security and intelligence agencies have been involved in the review, dedicating over 2,000 man-hours to support it. This has ensured that Mr Anderson has had the necessary resources to undertake a detailed assessment of the operational case for bulk powers in sufficient time to inform today’s debate.
As has been said today, the report sets out in extensive detail the review’s working methods and the sources of evidence that have been used to determine whether the operational case for bulk powers has been made. As noble Lords will have observed, these sources of evidence include: 60 detailed and highly classified case studies; internal security and intelligence agency documents considering the utility of bulk powers, which address shortcomings and failures as well as successes; statistical information on the extent of the use of bulk powers; allegations made by Edward Snowden; and a number of previous reviews, including in the UK and overseas. In fact, David Anderson found that previous reviews were either supportive of the need for the bulk powers or that they were in some cases not relevant to the UK context.
In their consideration of all this evidence, the review team critically appraised the need for bulk capabilities, including considering whether the same result could have been achieved through alternative investigative methods. This question has not just been taken on trust. The expertise of the review team has meant that, in the words of Mr Anderson, the security and intelligence agencies have been put,
“to strict proof of what they assert”.
In relation to the scope of the review, David Anderson was specifically asked to consider the operational case for bulk powers. The sensitive nature of those powers means that this task rightly had to be conducted by a security-cleared review team. But the safeguards that apply to those powers are, rightly, a matter for Parliament to consider as part of our ongoing scrutiny of the Bill’s provisions. The Government are clear that the Bill ensures that robust safeguards and world-leading oversight will apply to the exercise of bulk powers. For example, every bulk warrant will be subject to the double lock; any subsequent examination of material collected must be considered necessary and proportionate for an operational purpose approved by the Secretary of State and a judicial commissioner; and before issuing a bulk warrant, the Secretary of State must consider whether the same result could be achieved through less intrusive means.
The noble Lord, Lord Campbell, pointed out that the review did not specifically consider whether the use of bulk powers is proportionate. That is true; but it is also true that the question of whether alternative methods could achieve the same result was examined in detail. This question is equally important to the consideration of whether these powers are proportionate and necessary. The review has concluded that in the great majority of cases, there will be no effective alternative to the use of bulk powers and that where alternatives exist,
“they were likely to produce less comprehensive intelligence and were often more dangerous … more resource-intensive, more intrusive or—crucially—slower”.
I turn now to the conclusions of the review in a bit more detail. Taken together, they show that bulk powers are crucial. The report concludes that these powers,
“have a clear operational purpose”,
“play an important part in identifying, understanding and averting threats in Great Britain, Northern Ireland and further afield”,
and that the contributions made by bulk powers could not be replicated by other means. The review also concludes that bulk powers are vital across the full range of security and intelligence agency activity, including counterterrorism, cyberdefence, child sexual exploitation, organised crime and the support of military operations, and that they have been used to disrupt terrorist activity, prevent bomb attacks, facilitate the rescue of hostages, thwart cyberattacks and save lives.
This is a vital point. Mr Anderson is clear that questions of necessity cannot be entirely divorced from questions of proportionality. The noble Baroness, Lady Hamwee, rather neatly brought us into the domain of moral philosophy. The review concludes beyond all doubt that, were it not for the bulk powers, there would be more successful terrorist attacks, more successful cyberattacks, more dead hostages and military personnel, and more abused and exploited children. It is now for Parliament to decide whether the powers that have prevented such atrocities are proportionate, given the threats faced by the UK and our European and other allies around the world, given the extensive safeguards and oversight provided in this Bill, and given the review’s conclusions that there are no effective alternatives. The Government firmly believe that they are.
Turning briefly to the individual powers under review, the report concludes that there is a,
“proven operational case for three of the bulk powers”,
with reference to bulk interception, bulk acquisition of communications data and bulk personal datasets.
In relation to bulk interception, the report concludes that it is of “vital utility” to the security and intelligence agencies and that alternative methods, alone or in combination, fall short of providing the same results.
The review finds that the bulk acquisition of communications data is,
“crucial in a variety of fields, including counter-terrorism, counter-espionage and counter proliferation”.
In addition, the review states that case studies provided to the review team demonstrated that,
“bulk acquisition has contributed significantly to the disruption of terrorist operations and, through that disruption, almost certainly the saving of lives”.
On bulk personal datasets, Mr Anderson states:
“I have no hesitation in concluding that BPDs are of great utility to the SIAs. The case studies that I examined provided unequivocal evidence of their value”.
He goes on to conclude that in “vital” areas of work, such as pattern analysis and anomaly detection, there is “no practicable alternative”.
Mr Anderson’s conclusion in relation to bulk equipment interference, which I will come to in more detail in a second, is differentiated from the other powers under review in that he finds that there is a,
“distinct (though not yet proven) operational case”,
for its use. The reason for this difference is that bulk equipment interference has not yet been exercised. That is not to say that bulk equipment interference is a new power. While it has not yet been deployed, activity that would be classed as bulk equipment interference under the Bill could be authorised under existing legislation but, to date, GCHQ has carried out only equipment interference operations which would have been authorised under a targeted equipment interference warrant under the Bill. While acknowledging that bulk equipment interference has not yet been used, the review still concludes that,
“an operational case for bulk EI has been made out in principle”,
and that there are likely to be cases where,
“no effective alternative is available”.
In summary, the conclusions of this detailed and thorough independent review mean that there can now be absolutely no question that the operational case for the bulk powers in the Bill has been comprehensively made out. It now falls to us to decide whether to continue to provide our security and intelligence agencies with these vital powers to counter the threats we face.
Let me turn to some of the specific questions and points that noble Lords have raised. First, I turn to the issue of bulk personal datasets, which a number of noble Lords referred to. A bulk personal dataset is a dataset containing information about a range of people, most of whom are not of interest to the security and intelligence agencies, for example a telephone directory. A list of people who have a passport is another good example of such a dataset. It includes personal information about a large number of individuals, the majority of which will relate to people who are not of security or intelligence interest. Analysis of bulk personal datasets is an essential way for the security and intelligence agencies to focus their efforts on individuals who threaten our national security. The use of bulk personal datasets is not new, and the Bill does not provide new powers for acquiring them; rather, it provides robust transparent safeguards around bulk personal datasets, including a requirement for warrants to authorise the retention and use of them. The safeguards are comparable to those provided in relation to other powers in the Bill, including the double lock, for example.
The noble Lord, Lord Rosser, pursued these issues, and in particular raised the point in the review where Mr Anderson says that some bulk personal datasets may contain,
“material that is comparable to the content of communications”,
and, in rare cases, even material subject to legal professional privilege. He went on to say it is imperative that,
“consideration be given to the introduction of additional safeguards to the Bill and Code of Practice”.
We are carefully considering whether changes should be made to the Bill and code of practice to address the rare occasions when a bulk personal dataset may contain material comparable to the content of communications or subject to legal professional privilege, and discussions on that are going on at the moment. As David Anderson’s report also makes clear, in considering the sources of evidence, the review team specifically questioned whether similar results could have been achieved by other, less intrusive methods, I do not believe that anyone who has read this detailed and comprehensive report in full could come away with the impression that it did not consider hard evidence on that point.
The noble Lord, Lord Rosser, also flagged David Anderson’s comment that the Government’s operational case for bulk powers,
“categorises the purposes served by the powers under review in ways which lack coherence and consistency”.
The Government’s operational case for bulk powers was published in response to the recommendation of the Joint Committee that scrutinised the draft Bill, but we acknowledged that there was a need for the operational case to be subjected to independent scrutiny. That is why we commissioned David Anderson’s review, and the conclusions of the review are clear that,
“bulk powers have a clear operational purpose”.
The question was raised about bulk powers as distinct from targeted thematic powers. As noble Lords will remember, this issue was looked at by the Intelligence and Security Committee, and I will just quote a short passage from the speech of my right honourable friend Dominic Grieve MP, who is chair of the ISC, because it helps to inform this question. He said:
“The second issue concerns the agencies’ use of equipment interference. Our concerns focused on the way in which the use of this capability is authorised, rather than on the need for it, which is clear to us. In particular, we were not initially provided with evidence that explained the need for a bulk power, as opposed to a targeted thematic one. That is why we reported in the way we did. Following publication of our report, we received additional evidence from the agencies as to why they need bulk equipment interference warrants to remain in the Bill and they actually made a persuasive case. More importantly, the Committee was reassured that information obtained by such means will be treated in exactly the same way, with exactly the same controls, as data acquired under a bulk interception warrant. The Committee is therefore broadly content that there is a valid case for the power to remain in the Bill, but, just as with bulk interception warrants, we want to see the safeguards and controls in detail and hope to do so in the near future”.—[Official Report, Commons, 15/3/16; col. 838.]
I hope noble Lords will appreciate that we have been around this course before. There is a need for both powers, as I hope will now be accepted.
However, I was asked about the difference between big data used by the security and intelligence agencies and data that other parts of government hold, or indeed data collected by business. Data sets compiled or used by different parts of government are used in a huge variety of ways, but they are primarily designed to help to deliver services as effectively and efficiently as possible. In an intelligence context, bulk personal data sets are held expressly for the purpose of helping the intelligence agencies in protecting national security and counterterrorism, combating proliferation and serious organised crime and safeguarding the UK’s economic well-being.
As outlined in David Anderson’s report, A Question of Trust, commercial companies hold a vast amount of data about individuals, including many that can be bought and sold by data brokers. He states:
“It may be legitimately be asked, if activity of a particular kind is widespread in the private sector, why it should not also be permitted (subject to proper supervision) to public authorities”.
I think that is the right way of looking at it. We should remember that the Information Commissioner provides oversight of how other parts of government and business hold and use data under the authority of the Data Protection Act and other legislation but, to state the obvious, the use of data by the private sector is outside the scope of the Bill. Of course it is an important issue but it is not one for us to deal with today.
The noble Lord, Lord Strasburger, asked about bulk equipment interference. It is unique among the powers reviewed by David Anderson in that, while permissible under the existing statutory framework, as I have explained, it has not yet been deployed; however, it is not a new power. Equipment interference operations have always been designed and delivered in line with the legal framework in force at the time. The existing legal framework does not have bulk equipment interference as a bespoke concept. However, all agency operations have been conducted in ways, and with safeguards, that have ensured that they are necessary and proportionate and that they comply with the current legislative framework. The new Bill creates a new bespoke statutory framework for bulk equipment interference that ensures the same strong safeguards across the piece.
The value of bulk interception to find threats overseas, while still enormously important, is of declining value as there is a greater use of encryption. Bulk equipment interference will help the security and intelligence agencies to maintain their ability to understand what is happening in, for example, Syria. A bulk equipment interference warrant will be required when the material that is expected to be acquired needs careful sorting after acquisition to filter out and destroy excess information, whereas thematic equipment interference will be used when the subjects can be more clearly targeted.
I was asked about internet connection records and legislating to acquire ICRs in bulk now. There are no plans to acquire ICRs in bulk at present. To be clear, the safeguards that apply when acquiring communications data in bulk would apply equally to all types of communications data. It would not be right to differentiate between different types of communications data, given the strong safeguards in place for the bulk powers. The point here is that we are seeking to legislate not just for the technologies of today. We have quite purposefully sought to make the Bill technology-neutral.
To seek to legislate for the power to acquire ICRs in bulk in future would highlight a change in the intelligence agencies’ requirements. Obviously, highlighting gaps in capabilities and indicating when the powers in the Bill may be used in certain ways can give criminals and terrorists an advantage. It goes without saying that that could endanger national security. It would not be sensible to broadcast to terrorists and serious criminals that we intend to implement a new capability from a certain date, which is exactly what we would be doing if we required the agencies to come back to Parliament every time they needed to update the technologies.
Speaking of technologies, I want to address the contents of the amendment. The Government absolutely agree with Mr Anderson’s assessment that those authorising, approving and overseeing the exercise of bulk powers must be alert to the impact of technological change on their utility and impact. I am sympathetic to the amendment, and we are giving very careful consideration to Mr Anderson’s recommendation. The noble Baroness, Lady Hamwee, asked what more the Government need. My answer is that what we need and hoped for are the views expressed by the Committee. I listened with particular care to the noble Lord, Lord Carlile, who gave us his views on Mr Anderson’s recommendations. I am grateful to him and we will consider very carefully what he said. It is precisely because we did not want to pre-empt today’s discussion that we have remained silent on the issue. The review was specifically commissioned to inform our debates. We will listen carefully and respond shortly, when we are in a position to consider in the round both the findings of the review and the subsequent debate in the Committee.
The noble Lord, Lord Carlile, made the case for going a bit wider than the narrow wording of the recommendation. Will the Government have a look at recommendation 6 of the RUSI report? We recommended an advisory council for digital technology and engineering to cover some of these exact points. The recommendation goes somewhat wider—it is probably too wide for the purposes of the Bill—but it met the point about providing research on engineering technology and being answerable to the Secretary of State, so the process is open and we keep abreast of technical measures. Advancing public education is what we get from David Anderson’s reports from time to time; that is what they are about. I ask for recommendation 6 of the RUSI report to be considered in conjunction with David Anderson’s recommendation to see whether consensus can emerge.
The noble Earl spoke at some length about the utility of bulk personal datasets to the intelligence agencies, but he did not answer my question, which was generated by the revelation in Mr Anderson’s report that bodies other than the intelligence agencies have access to bulk personal datasets. Which other bodies have access to bulk personal datasets?
Almost anyone has access to bulk personal datasets. Many of us have a telephone directory. A very wide range of public bodies and commercial organisations have access to bulk personal datasets, because that expression describes a wide range. I cannot be specific to the noble Lord, but if I am able, on advice, I will write to him to elucidate further.
I thank the Minister for his detailed response and thank all noble Lords who have participated in this debate, as well as thanking the Committee for its indulgence in allowing us to have a general debate on the Anderson report, even though my amendment related only to one specific part of it. It is very useful to have had the debate that we have had. I am sure that other noble Lords will do so, but I shall certainly want to read again in Hansard the full details of the Minister’s response and the replies that he has given to the questions that have been raised. Once again, I thank him for his detailed response and beg leave to withdraw the amendment.
Amendment 194H withdrawn.
Clauses 127 and 128 agreed.
Clause 129: Power to issue bulk interception warrants
194J: Clause 129, page 103, line 2, leave out from “security” to end of line 4
My Lords, in moving Amendment 194J in my name and that of my noble friend Lady Hamwee, I shall speak to a cornucopia of amendments—Amendments 194K and 194L, Amendments 201B and 201C, Amendments 210B and 210C and Amendment 223B. These amendments deal with the power to issue bulk interception warrants. The draconian nature of these powers is acknowledged by the fact that the Bill proposes that only the intelligence services can apply for such a warrant and that the warrant gives power only to intercept overseas-related communication and secondary data from such communications.
Clause 129(1)(b) states that the Secretary of State must be satisfied that,
“the warrant is necessary … in the interests of national security, or … on that ground and on any other grounds falling within subsection (2)”.
The essence of the first amendment is to probe why subsection (2) is also required, as it states that the,
“warrant is necessary … if it is necessary … for the purpose of preventing or detecting serious crime, or … in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”.
Amendment 194J deletes subsection (1)(b)(ii) so as to restrict the issuing of bulk interception warrants to cases of national security only. It is relatively easy to envisage a scenario where terrorists are plotting attacks in the UK from a hostile foreign country where the co-operation of the telecommunications operators in that country to target individuals is not possible, and the communications of all individuals in a certain geographic area may be the only option. Can the Minister explain what would happen in a scenario where the prevention or detection of serious crime which is not a national security issue would require bulk interception of overseas data?
Amendment 201B makes similar arguments applying to Clause 146 and the power to issue bulk data acquisition warrants—for example, in Clause 146(1)(a)(i), the power to retain and store telecommunications data about every telephone call made in the UK. It is the same point applied to the other power. Amendment 210B applies the same arguments to Clause 164 and the power to issue bulk equipment interference warrants, and specifically to Clause 164(1)(b)(i), the power to hack into every mobile phone within a geographic area.
Can the Minister also explain what the difference is between the “interests of national security” and,
“the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security”?
If a warrant is necessary in the interests of national security, why is it necessary to state separately that those national interests have their origins in the economic well-being of the UK? The Intelligence and Security Committee found that the distinction was unnecessarily confusing and complicated. The committee had, as far as it was concerned, failed to get a satisfactory response to its question from the intelligence agencies or the Home Office. Perhaps the Minister can have a go.
As far as Amendment 194K is concerned, bulk interception involves the acquisition of potentially vast amounts of data—mainly innocent communications. Clause 129(1)(d)(i) refers to the “specified operational purposes” that form the basis for the examination of the bulk content or secondary data, basically to concentrate the examination solely on the bad guys. The Secretary of State must be satisfied that each of the operational purposes is—or as the Bill states, “may be”—necessary. We believe that this phrase “may be” is too loose and that “is likely to be” should replace the wider “may be” necessary.
Amendment 201C makes exactly the same argument and applies it to Clause 146, on the power to issue bulk acquisition warrants, specifically subsection (1)(c)(i). Amendment 210C makes similar arguments in relation to Clause 164, on the power to issue bulk equipment interference warrants, specifically subsection (1)(d)(i).
Amendment 194L relates to Clause 129(4), which states:
“A warrant may not be considered necessary … if it is considered necessary only for the purpose of gathering evidence for use in any legal proceedings”.
We suggest that the warrant cannot be considered necessary if the purpose is “primarily” rather than “only” for the purpose of gathering evidence. It can otherwise easily be maintained that there is some minor, collateral intelligence gain that means that the warrant is necessary as it is not only for the purpose of evidence gathering. Can the Minister explain why this sub-paragraph is necessary at all? If intercept evidence is not admissible as evidence in UK courts, whether it be from targeted or bulk interception, why would a warrant solely for the purpose of gathering evidence for use in legal proceedings be applied for in the first place?
Amendment 223B relates to Clause 187, on additional safeguards for health records as a subset of bulk personal datasets. Subsection (3) states that:
“The Secretary of State may only issue a warrant if the Secretary of States considers that there are exceptional and compelling circumstances that make it necessary to authorise … retention”.
Our Amendment 223B suggests that health records are so sensitive that the exceptional and compelling circumstances should relate only to national security and not, for example, serious crime. I beg to move.
My Lords, my noble friend has very helpfully referred to the qualification of economic well-being as a justification by reference to national security and he rightly probed why it appears in that form. It gave me some satisfaction, in a sense, that it was qualified in this way because, in my years on the Intelligence and Security Committee, I occasionally thought that the concept of economic well-being was capable of extraordinarily wide interpretation. If it was being interpreted very widely in order to support actions which might in some way touch upon economic well-being, it is appropriate that it should be qualified if the powers engaged are sufficiently wide as potentially to affect the rights and liberties of other people. In this legislation we are talking about powers which can impinge upon the lives and liberties of other people unintentionally or not as part of the purpose but as a necessary consequence of being able to use things such as bulk datasets or equipment interference. Therefore, I hope that the reason that economic well-being is qualified by reference to national security is a recognition that some of the powers given in this Bill require particularly stringent qualification to be permissive and used. If that is so, I welcome it.
My Lords, I am obliged to the noble Lord, Lord Paddick, for making it clear that these are essentially probing amendments and I respond to them in that light. These amendments relate to the issuing, approval and modification of warrants under Parts 6 and 7 of the Bill.
Amendments 194J, 201B and 210B would remove from the Bill an important safeguard which requires that a bulk interception, acquisition or equipment interference warrant may be issued only if doing so is in the interest of national security. The Bill provides for a warrant under Part 6 to be issued where it is necessary on three statutory grounds: in the interests of national security; for the prevention and detection of serious crime; or in the interests of the economic well-being of the United Kingdom where those interests are also relevant to national security.
Clause 129(1)(b)(ii), Clause 146(1)(a)(ii) and Clause 164(1)(b)(ii), which these amendments seek to remove, ensure that one of those statutory grounds must always be national security. This is clearly an important safeguard which recognises the particular sensitivity of bulk powers and therefore limits their use to the most tightly drawn circumstances. In other words, the Bill says that a bulk warrant provided for in Part 6 of the Bill must have,
“in the interests of national security”,
as one of the statutory purposes to authorise collection. However, collection can also be authorised to prevent serious crime and to protect the economic well-being of the United Kingdom in addition to being authorised to protect national security.
The inclusion of the additional statutory grounds relating to serious crime and economic well-being remains vital. There will be circumstances where it is necessary and proportionate to select for examination data collected under a bulk warrant in order to, for example, prevent and detect serious crime, such as to detect and disrupt child sexual exploitation. However, the Bill ensures that the initial collection of data could be authorised only if doing so is necessary to protect national security, albeit that it may be necessary for one of the other two purposes that I have already described. In other words, there is a relationship between the statutory requirements for the bulk warrant and the operational purposes which will be specified in the same warrant application, some of which may relate to the prevention of serious crime or economic interest.
On that last point of economic interest, it has been asked how that can be distinguished from national security. In a sense, it is a matter of emphasis at the end of the day. The ISC looked at this in detail, and at the need to retain it as a statutory purpose in its own right. It took extensive evidence from the agencies and, indeed, from the Foreign Secretary. I believe that Dominic Grieve was the chair at that time. He made it clear during Report in the Commons that the ISC had been persuaded that there remained a need for safeguarding the UK’s economic well-being to continue to exist as a statutory purpose for the use of the investigatory powers in the Bill in their own right. Therefore, I accept that it is linked to national security but it is a matter of underlining the need to have in mind the cases in which economic well-being will be the prevailing factor.
I recall that with the noble Lord, Lord Beith, we went round this course a number of times in the ISC trying to work out where the economic well-being issue could be distinguished from national security. Will my noble and learned friend give a few illustrations now or at a later stage of the Bill to show exactly why this is the case? I think we were persuaded on this. My noble and learned friend said that the current ISC and the current chairman are persuaded. However, will he illustrate why they were persuaded?
If I had those illustrations to hand, I would, of course, deliver them this very moment. I regret that I do not have them to hand. However, I will undertake to consider the illustrations that were given previously and write to the noble Lord. If it is necessary, I will elaborate on the examples already given by giving further examples. However, I regret that I am not in a position to cite those earlier examples.
I underline that the reference to national security in the context of the clauses to which I referred—that is, Clauses 129, 146 and 164—operates as an important safeguard. That is what has to be emphasised. In these circumstances I invite the noble Lord, Lord Paddick, not to press these amendments.
I turn to bulk personal datasets and health records and Amendment 223B. This amendment would limit the circumstances in which the intelligence agencies can retain and examine a bulk personal dataset which contains health records under a specific BPD warrant. The Bill already requires the Secretary of State and a judicial commissioner to consider whether the retention and examination of a bulk personal dataset is necessary and proportionate for certain defined operational purposes. Following consideration in the other place, the Bill was amended, limiting the test for granting a warrant for the retention and examination of a bulk personal dataset containing health records to cases where there are “exceptional and compelling” circumstances. These are already extremely high tests.
Amendment 223B would limit the Bill even further so that retention and examination is permitted only in exceptional and compelling circumstances related to national security. By their very nature, exceptional and compelling circumstances are very rare. Restricting the use of such datasets to circumstances where national security concerns are engaged would rule out their use for any other statutory purpose, including the prevention and detection of serious and organised crime. If we were to agree to this amendment, we would be signalling, in effect, that in no circumstances do we believe that it could ever be appropriate that such data should be used for serious and organised crime investigations even when the Secretary of State and a judicial commissioner consider this is necessary and proportionate and that there are exceptional and compelling circumstances. We do not consider that this is appropriate. It is long-standing government policy not to comment on intelligence matters. However, as the then Security Minister explained in the other place, in that specific instance only he was willing to confirm that the security and intelligence agencies did not hold a bulk personal dataset of medical records, which illustrates that there would need to be exceptional circumstances for an agency to do so.
However, the Minister and the Solicitor-General rightly emphasised that we would not want to rule out the possibility of there ever being such a scenario. They gave a hypothetical example in which a group of terrorists are involved in an explosion and sustain burns. Medical evidence about where they attended—the fact that they had attended a local A&E, for example—could be relevant to that particular operation and provide the only lead to find the individuals concerned. The same circumstances could arise if criminals were similarly injured in an explosion at, for example, an illegal drugs laboratory. This would not be a matter of national security but would relate to the prevention and detection of serious crime. I therefore emphasise that no Secretary of State or judicial commissioner, who would both have to approve a specific BPD warrant to retain medical records, would underestimate the seriousness of their duty in this regard. “Exceptional and compelling” is a high test to be met; restricting this further is not regarded as necessary. Therefore, again I invite the noble Lord to withdraw this amendment.
On operational purposes, Amendments 194K, 201C and 210C seek to limit the circumstances in which the Secretary of State may approve the addition of operational purposes to bulk interception, acquisition or equipment interference warrants. Currently, the Bill requires that an operational purpose may be included on a bulk interception, acquisition or equipment interference warrant only if the Secretary of State considers that it is a purpose for which the examination of material is or may be necessary. These amendments would change this test to a consideration that the purpose is or is likely to be necessary.
We submit that these amendments would have a detrimental operational impact. A bulk interception warrant will normally provide for the interception of communications from the physical cables that carry internet traffic. This will result in the collection of large volumes of communications. This reflects the fact that bulk interception is an intelligence-gathering capability and is essential to enable communications relating to subjects of interest to be identified and subsequently pieced together in the course of an investigation. The nature of these capabilities and the global nature of internet communications means that there will be circumstances where it will not be possible for the Secretary of State to foresee, and therefore to assess, the degree of likelihood that a particular operational purpose will be needed.
For example, if a new terrorist threat was developing overseas with implications for the United Kingdom’s national security, it may be necessary to select for examination material collected under a bulk interception, acquisition or equipment interference warrant relating to that threat. However, it could not necessarily be foreseen whether material collected under an individual warrant would be relevant to the threat. This would depend on prior knowledge of, for example, the identities and location of targets or even what cables their communications would pass over. Therefore it is vital that the Secretary of State is able to approve the inclusion of a particular operational purpose on a warrant if they consider that the examination of material may be necessary for that purpose. If this was not possible, bulk warrants would have to omit potentially vital operational purposes.
The Bill already ensures that the use of operational purposes is stringently controlled. As well as considering that each purpose is or may be necessary, the Secretary of State must also be satisfied that every operational purpose on the warrant is necessary on one of the grounds for which the warrant is issued, such as in the interests of national security. In addition, we have now proposed government amendments that will strengthen further the Bill’s provisions in relation to operational purposes. These amendments would provide that: the heads of the intelligences services must maintain a central list of all operational purposes; the inclusion of any purpose to that list must be agreed by the Secretary of State; no operational purpose can be added to a warrant unless it is included on the central list; the list must be shared on a quarterly basis with the Intelligence and Security Committee of Parliament; and the list must be reviewed on an annual basis by the Prime Minister. Therefore these amendments would result in a degradation of operational capabilities and, in any case, we submit that they are unnecessary. Again, therefore, I invite the noble Lord, Lord Paddick, not to press these amendments.
Amendment 194L is concerned with bulk interception in the context of legal proceedings and would change the test the Secretary of State must apply when considering whether a warrant for the purpose of gathering evidence for use in any legal proceedings may be necessary. Currently, the Bill makes clear that the Secretary of State may not consider a bulk interception warrant necessary on any statutory ground—including in the interests of national security—where the warrant’s only purpose is to gather evidence. This reflects the prohibition in Clause 53 on using intercepted material in legal proceedings. This amendment would alter this test and preclude a warrant from being issued with the primary purpose of gathering evidence.
The Bill maintains the general rule that neither the possibility of interception nor intercepted material itself play any part in legal proceedings. This preserves the requirement for “equality of arms” under Article 6 of the European Convention on Human Rights. That is why Clause 53 makes clear that a warrant could not be obtained simply to circumvent this principle. However, to answer the point made by the noble Lord, Lord Paddick, the Bill sets out in Schedule 3 a number of important and tightly drawn exceptions to the prohibition on using intercepted material in legal proceedings. These exceptions include closed material proceedings, terrorist prevention and investigation measures proceedings and terrorist asset-freezing proceedings. There will clearly be circumstances in which it is vital that an interception warrant can be issued for the purpose of gathering evidence in such proceedings on a statutory ground, including in the interests of national security. In many circumstances, this amendment would prevent such warrants being issued and could therefore have a direct impact on the security and intelligence agencies’ ability to protect the public. Therefore, it is because of the existence of the exceptions in Schedule 3 that the clause is framed in the manner it is and the prohibition is expressed in these terms. Again, I invite the noble Lord not to press this last amendment.
I am grateful to the noble and learned Lord for his explanations. On Amendments 194J, 201B and 210B, I accept what he said. I am grateful for the intervention of the noble Lord, Lord King of Bridgwater, and I look forward to the illustrations. While the Minister has his artistic streak going, perhaps he could also provide an example with regard to some of the other amendments, where, again, an illustration would be helpful.
Yes, for example, with regard to the health records in Amendment 223B, I did not find the example of criminals engaged in manufacturing drugs an exceptional and compelling circumstance. Perhaps there is a better example than that. The absolutely intrusive nature of health records and the acknowledgement of that by way of the exceptional notification that the intelligence services do not hold any bulk personal datasets of health records tend to reinforce the argument that access to them should be restricted to national security grounds. I would be grateful if a more compelling example could be thought of, although obviously not at the moment.
I am grateful. On Amendment 194L and a warrant issued only for the purpose of gathering evidence for use in legal proceedings, I will have to read carefully what the Minister said, as I came to completely the opposite conclusion to the one he gave. However, at this time I beg leave to withdraw the amendment.
Amendment 194J withdrawn.
Amendments 194K and 194L not moved.
Clause 129 agreed.
Clause 130: Additional requirements in respect of warrants affecting overseas operators
194M: Clause 130, page 104, line 11, after “requirement,” insert—
“( ) the domestic law of the operator’s place of business,”
My Lords, Amendment 194M stands in my name and that of my noble friend Lady Hamwee. I shall also speak to our Amendment 194N in this group.
Clause 130 relates to the additional requirements in respect of warrants affecting overseas operators giving assistance to UK intelligence agencies to enable bulk interception. Subsection (3) lists matters that the Secretary of State must take into account before issuing a warrant that requires an overseas operator to give assistance. We believe that an important omission to this list is,
“the domestic law of the operator’s place of business”—
that is, that the Secretary of State should not require overseas operators to break the law in the country where the request for assistance is being made.
As far as Amendment 194N is concerned, Clause 131 refers to the approval of bulk interception warrants by judicial commissioners. Subsection (1) states that a judicial commissioner must review the Secretary of State’s conclusions as to the granting of the warrant. Our amendment suggests that this should go further and that both the Secretary of State’s reasoning and their conclusions should be considered.
In previous sessions of this Committee, we heard the view that the judiciary should not make decisions on the issuing of warrants—that is for politicians to decide—but simply review the decisions. But if the judicial commissioner has to decide whether to “approve a decision” and indeed decides not to approve a decision of the Secretary of State, surely the judicial commissioner has made a decision on the issuing of a warrant. Surely a judicial commissioner should review the reasoning behind the Secretary of State’s decision and not simply the conclusion. Without knowing the reasons why the Secretary of State came to their conclusion, how can a judicial commissioner decide whether the conclusion is valid? I beg to move.
My Lords, these amendments relate to a judicial commissioner’s consideration of a bulk warrant that is to be served on an overseas provider and what the commissioner is required to take into account when considering the Secretary of State’s decision to issue a bulk warrant. There is also a government amendment in this group which is technical in nature, and I shall address that in a moment.
Amendment 194M seeks to insert a requirement that, where an overseas telecommunications operator is likely to be required to provide assistance in giving effect to a bulk interception warrant, the Secretary of State must—before the warrant is issued—take into account the domestic law of the operator’s place of business.
I suggest that this amendment is not necessary. The Bill already provides, at Clause 139(5), that Clause 41, which deals with the duty of operators to assist with implementation, applies in relation to a bulk interception warrant in the same way as it applies to a targeted warrant. Clause 41 makes it absolutely clear that a telecommunications operator may be required only to take “reasonably practicable” steps to give effect to a warrant. It also makes clear, at subsection (5), that for an overseas operator consideration must be given to the law of the relevant country and the extent to which it is reasonably practicable to give effect to the warrant without breaching it. So I suggest that this amendment is not necessary and, in these circumstances, I invite the noble Lord to withdraw it.
Amendment 194N seeks to alter the test that a judicial commissioner applies when considering whether to approve a decision to issue a bulk interception warrant. This topic has been the subject of intense scrutiny by three committees, the other House and, in the context of the targeted powers within the Bill, this House. As a result of that debate, the Government have already made considerable amendments to the Bill.
This amendment would require the judicial commissioner to consider the reasons given for the decision to issue a bulk interception warrant. The amendment is, I think, based on a misunderstanding of how warrants operate. The Secretary of State will receive a detailed application setting out the necessity and proportionality considerations. If he or she agrees, the Secretary of State will issue the warrant. He or she does not have to give reasons for that decision beyond confirming that he or she personally considers that the warrant is necessary and proportionate.
The judicial commissioner will then review the Secretary of State’s decision based on the evidence that was provided to the Secretary of State in the application. If the commissioner thinks that the evidence in the application is not a sufficient basis for the decision that has been made, he or she will refuse to approve the decision. In these circumstances, there are no reasons per se to be reviewed by the judicial commissioner. Given that, and given the progress that has already been made on this issue, I invite the noble Lord not to press this amendment.
Government Amendment 201 is a minor and technical amendment. It simply clarifies the considerations that must be made by a judicial commissioner when deciding whether to approve a decision by the Secretary of State to renew a bulk interception warrant. Currently, the Bill provides that the judicial commissioner must consider the same factors in relation to a renewal as are considered when deciding whether to approve a decision to issue a bulk interception warrant.
While the amendment does not change the position, it introduces one minor exception—that is, the judicial commissioner is not required to consider, in relation to a renewal, any matters taken into account by the Secretary of State in relation to additional requirements for warrants affecting overseas operators. Such matters include the technical feasibility of the relevant operator providing assistance in giving effect to the warrant, and the likely cost.
These matters will have been taken into account by the Secretary of State at the point when the decision was taken to issue the warrant in the first instance. They are not matters that are relevant in the case of a renewal, where the operator concerned will already have been providing assistance in giving effect to the relevant warrant. They are therefore not matters that the Bill requires the Secretary of State to take into account when deciding whether to renew a bulk interception warrant. The amendment simply makes it clear that a judicial commissioner is therefore also not required to consider them when deciding whether to approve the decision about renewal.
Again, I am very grateful to the noble and learned Lord for his explanation and for joining the dots, if I may describe it like that, of the relevant parts of the legislation regarding targeted interception warrants. I accept the explanation and indeed the safeguards regarding overseas operators and their need to comply with domestic law, in addition to the assistance being practicable.
I am genuinely grateful for the explanation regarding Amendment 194N. I now understand that reasons would not be given by the Secretary of State; it is more a re-examination of the case made by the security services, for example, and the judgment by the judicial commissioner as to whether the issuing of a warrant is necessary and proportionate. On that basis, I beg leave to withdraw the amendment.
Amendment 194M withdrawn.
Clause 130 agreed.
Clause 131: Approval of warrants by Judicial Commissioners
Amendment 194N not moved.
Amendment 194P had been withdrawn from the Marshalled List.
Amendments 195 and 196
195: Clause 131, page 104, line 30, after “must” insert “—
196: Clause 131, page 104, line 31, at end insert “, and
( ) consider the matters referred to in subsection (1) with a sufficient degree of care as to ensure that the Judicial Commissioner complies with the duties imposed by section 2 (general duties in relation to privacy).”
Amendments 195 and 196 agreed.
Clause 131, as amended, agreed.
Clause 132 agreed.
Clause 133: Requirements that must be met by warrants
197: Clause 133, page 105, line 10, leave out subsection (4) and insert—
“(4) The operational purposes specified in the warrant must be ones specified, in a list maintained by the heads of the intelligence services (“the list of operational purposes”), as purposes which they consider are operational purposes for which intercepted content or secondary data obtained under bulk interception warrants may be selected for examination.”
My Lords, I shall speak also to Amendments 198, 207, 208, 213, 214, 227, 228 and 223, all of which relate to operational purposes on bulk warrants.
The amendments tabled by the Government add significant detail to the provisions in the Bill on operational purposes—that is, the purposes for which data collected under a bulk warrant may be selected for examination. Operational purposes are an important new safeguard and we are committed to ensuring that the Bill includes as much detail as possible about how they will operate in practice. These amendments respond to amendments tabled in the House of Commons by the Intelligence and Security Committee, and they address concerns raised during the Committee stage in the Commons that operational purposes could be “general”.
The amendments would do a number of key things. They would create a requirement that the heads of the intelligence services must maintain a list of all operational purposes. The maintenance of this list would ensure that the security and intelligence agencies are able to assess and review all the operational purposes that are, or could be, specified across the full range of their bulk warrants at a particular time. This would ensure that these purposes remain up to date and relevant to the current threat picture, better enabling the agencies to identify warrants that need to be modified, adding or removing operational purposes. The maintenance of the central list would also make sure that the Investigatory Powers Commissioner is able to oversee, in one place, the full range of purposes for which a bulk warrant could authorise the examination of material.
The amendments would apply robust controls to the addition of an operational purpose to the central list, requiring that any such addition must be approved by the Secretary of State. They make clear that the Secretary of State may approve the addition of an operational purpose to that list only if satisfied that it contains more detail than the statutory grounds on which the warrant was issued, such as in the interests of national security.
The amendments would also enhance the oversight and transparency of the use of operational purposes. As well as the rigorous independent oversight that the Investigatory Powers Commissioner will apply to the exercise of bulk powers, these amendments would also require the following: that the list of operational purposes must be reviewed annually by the Prime Minister; that the list must be provided to the Intelligence and Security Committee every three months; and that the Investigatory Powers Commissioner must publish a summary of the use of operational purposes in each of his or her annual reports.
The amendments would also take out references in the Bill to operational purposes being able to be “general purposes”. This provision was inserted in the Bill to ensure that operational purposes do not have to be drawn so tightly that they are operationally unworkable. While it has never been the case that this language meant operational purposes could be vague or lacking in detail, the Government have listened to concerns that this language could be misinterpreted and that is why these amendments would remove it.
These amendments would significantly enhance the Bill’s provisions on operational purposes, adding absolute clarity as to how this important safeguard will operate in practice. I hope that the Committee will approve them. I beg to move.
My Lords, I am very grateful to the Minister for those amendments. They bring a significant improvement to the Bill and are extremely welcome. We were faced previously with the situation in which operational purposes were to be part of the Bill but we would never know what those operational purposes were. I appreciate that they are not going to become public knowledge, but at least we will now have a review by the Intelligence and Security Committee every three months and the annual review by the Prime Minister as well. Removal of the term “general” is greatly reassuring and we wholeheartedly support these amendments.
My Lords, we hold a similar view to that which has just been expressed by the noble Lord, Lord Paddick. These amendments seek to pursue a matter that has been raised by the ISC and accordingly raised during the Commons stages of this Bill. I think that these amendments address the concerns raised by the ISC—I certainly have not heard anything to the contrary—and we share the view that, in doing so, they enhance the Bill.
Amendment 197 agreed.
Amendments 197A and 197B had been withdrawn from the Marshalled List.
198: Clause 133, page 105, line 14, leave out from “issued,” to end of line 16 and insert “are specified in the list of operational purposes.
(5A) An operational purpose may be specified in the list of operational purposes only with the approval of the Secretary of State.(5B) The Secretary of State may give such approval only if satisfied that the operational purpose is specified in a greater level of detail than the descriptions contained in section 129(1)(b) or (2).(5C) At the end of each relevant three-month period the Secretary of State must give a copy of the list of operational purposes to the Intelligence and Security Committee of Parliament.(5D) In subsection (5C) “relevant three-month period” means—(a) the period of three months beginning with the day on which this section comes into force, and(b) each successive period of three months.(5E) The Prime Minister must review the list of operational purposes at least once a year.”
Amendment 198 agreed.
Clause 133, as amended, agreed.
Clause 134 agreed.
Clause 135: Renewal of warrants
Amendments 199 to 201
199: Clause 135, page 105, line 31, leave out “before it would otherwise cease to have effect” and insert “during the renewal period”
200: Clause 135, page 106, line 10, at end insert—
“( ) “The renewal period” means the period of 30 days ending with the day at the end of which the warrant would otherwise cease to have effect.”
201: Clause 135, page 106, line 16, at end insert “, but with the omission of paragraph (d) of subsection (1)”
Amendments 199 to 201 agreed.
Clause 135, as amended, agreed.
Clause 136: Modification of warrants
201ZA: Clause 136, page 107, line 21, at end insert—
“( ) The persons mentioned in subsection (7) must keep under review whether any operational purpose specified in a warrant remains a purpose for which the examination of intercepted or secondary data obtained under the warrant is or may be necessary.”
My Lords, I beg to move Amendment 201ZA and to speak, I am afraid, to another cornucopia of amendments in this group: Amendments 201ZB, 201ZC, 201ZJ, 210ZB, 210ZC, 217A, 217B, 217C, 231ZA and 231ZB.
Clause 136(9) requires the Secretary of State, or the senior official acting on the Secretary of State’s behalf, to modify the warrant if an operational purpose,
“is no longer a purpose for which the examination of intercepted content or secondary data obtained under the warrant is or may be necessary”.
The question is: how will the Secretary of State or the official know that there has been such a change requiring the warrant to be modified unless the situation is kept under review? Our Amendment 201ZA requires the Secretary of State, or a senior official acting on behalf of the Secretary of State, to,
“keep under review whether any operational purpose specified in a warrant remains a purpose for which the examination of intercepted or secondary data obtained under the warrant is or may be necessary”.
Amendment 217A makes the same point in relation to bulk equipment interference warrants, as dealt with in Clause 172. Amendment 210ZB makes the same point in relation to bulk acquisition warrants, as dealt with in Clause 152. Amendment 231ZA makes the same point in relation to bulk personal dataset warrants, as dealt with in Clause 192.
I turn now to Amendment 201ZB. Clause 138(3) allows the Secretary of State, or a senior official acting on behalf of the Secretary of State, to cancel a warrant if, for example, the examination of the content or secondary data obtained under the warrant is no longer necessary for any of the specified operational purposes. Clause 136(9) requires the modification of a warrant by the Secretary of State, or a senior official, if they consider that,
“any operational purpose … is no longer a purpose for which the examination of intercepted content or secondary data obtained under the warrant is or may be necessary”.
But how will the Secretary of State know that, and, therefore, how will the Secretary of State know that the warrant should be cancelled?
Amendment 201ZB seeks to add the removal of an operational purpose to the list of modifications that should be considered major modifications in order to probe this issue. Amendment 210ZC makes a similar point in relation to bulk acquisition warrants under Clause 149. Amendment 217B makes the same point in relation to bulk equipment interference warrants under Clause 172. Amendment 231ZB makes a similar point in relation to bulk personal dataset warrants, as covered by Clause 195.
On Amendment 201ZC, Clause 136(13) states that despite the main purpose of a bulk interception warrant being the interception of overseas-related content and secondary data, the modification of a bulk interception warrant so that the warrant no longer authorises or requires the interception of communications in the course of their transmission or obtaining secondary data from such interception, does not prevent the bulk interception warrant being a bulk interception warrant. If I understand this correctly—which would be amazing —a bulk interception warrant that no longer allows bulk interception is still a bulk interception warrant. I would be grateful if the Minister could help me with that. Is it that the analysis of the content and secondary data may continue, even if the pool of content and data is not being added to? Can the Minister explain? The amendment seeks to delete subsection (13) to probe these issues. Amendment 217C makes the same points in relation to bulk equipment interference warrants that no longer authorise or require the securing of interference with any equipment under Clause 172(14).
On Amendment 201ZJ, bulk interception warrants are aimed at overseas-focused communications and subsections (3) and (4) of Clause 142 together prohibit the selection of intercepted content for examination that is referable to an individual known to be in the British Isles at the time. Amendment 201ZJ envisages a situation where a known terrorist based overseas, for example, whose communications have been selected for examination, as allowed by the Bill as drafted because he is overseas, then travels to the UK to lead a terrorist attack. Our interpretation of the prohibitions in Clause 142(3) and (4) is that his communications could then no longer be selected for examination once he arrives in the UK, at least not under the powers of this provision. Perhaps a separate warrant would then need to be applied for.
There should be an exemption from the prohibition from selecting intercepted content for someone known to be in the UK in such circumstances. Our amendment therefore seeks to add,
“unless the individual is believed to have arrived in the British Islands within the previous 28 days”,
to cover the situation where overseas terrorists arrive in the UK.
I am somewhat disappointed that more noble Lords are not in the Chamber to hear this but, if any noble Lord is puzzled, this amendment seeks to increase the surveillance powers in the Bill and to assist the security services in their work. However, perhaps our interpretation of the Bill as it stands is wrong and the Minister will explain. I beg to move Amendment 201ZA.
My Lords, Amendments 201ZA, 210ZB, 217A and 231ZA seek to insert a provision into the clauses that enable the modification of bulk interception, acquisition, equipment interference or bulk personal dataset warrants. The amendments would require that persons who can make a minor modification to remove an operational purpose from a warrant must keep under review the operational purposes on each bulk warrant. The intended effect of these amendments, as I understand it, is that such persons will be aware when one of those purposes is no longer necessary and can remove it from the warrant.
These amendments are not necessary because the relevant draft codes of practice, which were published when the Bill was introduced to Parliament, already make clear that the security and intelligence agencies must keep bulk warrants under ongoing review. In addition, the draft codes set out specific requirements in relation to operational purposes. This includes a requirement that the security and intelligence agencies will need to ensure that bulk warrants are relevant to the current threat picture and will therefore need to identify operational purposes that need to be added to or removed from bulk warrants.
Further to the requirements in the draft codes, the government amendments, as I explained earlier, would create a requirement in the Bill that the heads of the intelligence services must maintain a list of all operational purposes. I set out the rationale and utility of that list in the preceding group of amendments. The provisions in the Bill and the detailed requirements set out in the draft codes of practice already make clear that the operational purposes on any bulk warrant will be kept under review. This will ensure that where an operational purpose is no longer necessary on a particular warrant it can be identified and removed. I hope the noble Lord will feel able to withdraw these amendments.
Amendments 201ZB, 210ZC, 217B and 231ZB make a modification to remove an operational purpose from a bulk warrant a major modification. Currently, a modification removing an operational purpose is a minor modification, meaning that it may be made by a Secretary of State or a senior official acting on their behalf. This amendment intends that such a modification would instead be subject to the double lock and must therefore be made by a Secretary of State and approved by a judicial commissioner before taking effect. That would be entirely unnecessary. A modification removing an operational purpose from a bulk warrant reduces the scope of the conduct that the warrant authorises, conduct that will already have been approved by the Secretary of State and a judicial commissioner. Subjecting such a modification to the double lock is superfluous. Accordingly, I invite the noble Lord to withdraw these amendments.
Amendments 201ZC and 217C relate to the modification of bulk warrants for the purpose of allowing examination of material after acquisition has ceased. These amendments would remove important technical provisions from the Bill. The Bill enables a bulk interception or bulk equipment interference warrant to be modified such that it no longer authorises the acquisition of any material but continues to authorise the selection of material for examination. This provision caters for limited circumstances where it may no longer be necessary or possible to continue the collection of data, such as where a communications service provider who is providing assistance in giving effect to the warrant goes out of business but where the data collected up to that point remain pertinent. In such circumstances, it may continue to be necessary and proportionate to examine data that have already been collected under the warrant.
The subsections that these amendments would remove simply clarify that a warrant that has been modified in this way remains a valid bulk warrant in spite of the provisions in Clauses 127(2) and 162(1). This is necessary because these clauses state that one of the conditions of the warrant is that its main purpose is to acquire data, but, of course, a warrant that has been modified in the manner I have described will no longer meet this condition, given that it will no longer authorise the collection of data. I hope the noble Lord will agree that these provisions are necessary and recognise that they serve only to reduce the activity that would have been authorised by the original unmodified warrant.
On Amendment 201ZJ, Clause 142 prohibits the selection for examination of intercepted content using criteria referable to an individual known to be in the British Islands, except where a targeted examination warrant—subject to the double lock—has been issued. I hope it is helpful if I draw the noble Lord’s attention to Clause 142(5), because there is one additional exception to this prohibition. That subsection addresses cases where there is a change of circumstances such that a person whose content is being selected for examination enters, or is discovered to be in, the British Islands. The subsection provides that selection for examination may continue in these circumstances for five working days with the approval of a senior official. This is vital to cater for circumstances such as where a member of an organised crime group travels into the British Islands. Any selection for examination after the five-day period will require the issuing of a targeted examination warrant.
I hope and believe that that explanation addresses the query the noble Lord, Lord Paddick, put to me. I understand his amendment as intended to capture the set of circumstances I just outlined, but it would also lead to a diminution in safeguards, given that it would enable selection for examination to continue for what I would judge to be an unnecessarily long period—in the absence of a targeted examination warrant—where there is a change of circumstances and someone has entered or is discovered to be in the UK. I hope that explanation will allow the noble Lord to feel comfortable in not pressing this amendment.
I am very grateful to the noble Earl for those explanations. Regarding Amendments 201ZA and that group, I am still concerned that the Minister or senior official is reliant on the security services flagging up to them that they need to withdraw operational purpose or even cancel a warrant. It is trusting the head of the intelligence services to flag that up. I will read very carefully what the noble Earl said about that.
I am grateful for his confirmation of when a bulk interception warrant is not a bulk interception warrant but still is. The only difference between us was that I asked whether it was right that analysis needs to continue after content is not being added to, whereas the correct term was “examination” continues. I think we are on all fours as far as that is concerned.
On Amendment 201ZJ, I accept that if there is a change in circumstances, whether a foreign terrorist or a foreign criminal arrives in the UK, the switch is not immediately flipped in that a five-day grace period is provided by Clause 142(5) for that content to continue to be allowed to be selected, even though the person is in the British Islands. However, it seems an unnecessary hurdle for the security services to have to apply for a targeted examination warrant in those circumstances, if it is a known terrorist coming into the UK. Presumably the five days are simply to allow enough time for a targeted examination warrant to be applied for, but I illiberally suggest that that is unnecessary bureaucracy for the security and intelligence services to go through. However, if the Government, the Home Office and others are content for the intelligence and security services to jump through that particular hoop, who am I to argue? On that basis, I beg leave to withdraw the amendment.
Amendment 201ZA withdrawn.
Amendments 201ZB and 201ZC not moved.
Clause 136 agreed.
Clause 137: Approval of major modifications made in urgent cases
201ZD: Clause 137, page 108, line 12, leave out “fifth” and insert “third”
My Lords, I apologise; it is me again. In moving Amendment 201ZD in my name and that of my noble friend Lady Hamwee I shall speak to our Amendments 210ZD, 217D and 231ZC.
Clause 137 is about the approval of major modifications made in urgent cases to bulk interception warrants. These urgent requests for modification will be made by the Secretary of State alone. The judicial commissioner must approve any urgent change within a period ending with the fifth working day after the day on which the modification is made. Elsewhere in the Bill, the relevant period within which an urgent request for a warrant that has, for example, been granted by the Secretary of State alone and has then to be approved by a judicial commissioner—for example, in the case of the approval of interception warrants in urgent cases under Clause 24(3)—is the period ending with the third working day after the day on which the warrant was issued.
Our Amendment 201ZD would restore consistency to post-event approval of decisions by the Secretary of State in urgent cases by changing the relevant period within which judicial commissioner approval is needed in urgent cases of modification from five days to three days. Our Amendment 210ZD makes the same point relating to the urgent modification of bulk acquisition warrants in Clause 153; Amendment 217D to the urgent modification of bulk equipment interference warrants in Clause 173; and Amendment 231ZC to the urgent modification of bulk personal dataset warrants in Clause 196.
Will the Minister explain why, in the case of urgent major modifications of bulk interception warrants, the relevant period for judicial commissioner approval is five days and everywhere else in the Bill approval of urgent decisions is three days? I beg to move.
My Lords, while we must ensure that judicial commissioners have sufficient time to scrutinise effectively the decisions of the Secretary of State, I am sympathetic to these amendments. Indeed, the Government have already amended the Bill such that when an urgent targeted warrant is issued the judicial commissioner must approve the decision to issue it within three working days, as opposed to five. On this basis, I am happy to commit to take away the amendment for further consideration and accordingly I invite the noble Lord to withdraw it.
Amendment 201ZD withdrawn.
Amendments 201ZE to 201ZH had been withdrawn from the Marshalled List.
Clause 137 agreed.
Clauses 138 to 141 agreed.
Clause 142: Safeguards relating to examination of material
Amendment 201ZJ not moved.
Clause 142 agreed.
201A: After Clause 142, insert the following new Clause—
“Offence of unauthorised examination of material
(1) A relevant person who, without lawful authority, knowingly or recklessly fails to comply with the safeguards referred to in section 142 is guilty of an offence.(2) In this section “relevant person” means a member of the intelligence services.(3) Subsection (1) does not apply to a relevant person who shows that he or she acted in the reasonable belief that he or she had lawful authority to engage in the activity to which subsection (1) relates.(4) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003),(ii) to a fine, or(iii) to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months,(ii) to a fine not exceeding the statutory maximum, or(iii) to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months,(ii) to a fine not exceeding the statutory maximum, or(iii) to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.”
My Lords, in moving Amendment 201A I shall speak at the same time to the other proposed new clauses tabled in my name in the group, which have a similar purpose. These proposed new clauses would implement a recommendation of the Intelligence and Security Committee that misuse of the intrusive powers in the Bill should be subject to an adequate penalty. I think that that is a concern that is generally agreed with in the House.
I am aware that before the Summer Recess my noble friend Lord Janvrin moved Amendment 15, which sought to achieve this purpose. It would have done that by creating a single, overarching criminal offence for the misuse of any of the powers in the Bill. In response the noble and learned Lord, Lord Keen, speaking for the Government, argued against that proposed new clause on the grounds that a single overarching offence for the misuse of any of the powers covered by the Bill would not be appropriate since it would be a case of one size fits all.
Of course certain of the activities covered by the Bill have an appropriate offence for their misuse, such as the misuse of the powers of interception and access to communications data. Other activities such as equipment interference are already covered by offences in other legislation such as the Computer Misuse Act 1990. But it is a curious fact that there is a gap in relation to bulk powers, which is the subject we are debating today. Given that these bulk powers have been the cause of such concern in themselves, it is anomalous that the misuse of those powers should not constitute a serious offence and carry a suitably robust penalty. As the Bill stands, the misuse of these bulk powers merely constitutes a relatively minor offence under the Data Protection Act or in some cases it is only an internal disciplinary matter. Neither of those penalties would appear to be appropriate in the case of the misuse of these bulk powers.
It may be argued against these three proposed new clauses that they would have a chilling effect on members of the intelligence agencies, but I draw attention to the drafting, which states that the offence would apply only if:
“A relevant person … without lawful authority, knowingly or recklessly failed to comply with the safeguards”,
set out in the Bill, so this is not something that a member of the intelligence services would stumble into accidentally. In those circumstances, this is not something which need deter or prevent the satisfactory operation of the activities of members of the intelligence services. This would apply where there has been serious, knowing and deliberate misuse of the bulk powers in the Bill. It seems appropriate that in those cases a serious penalty should be applied. With that intention, I beg to move.
My Lords, I rise briefly to support the noble Lord, Lord Butler, in these proposed new clauses. As a member of the Intelligence and Security Committee I can confirm that we felt very strongly that there was a gap here which needed to be filled. I am conscious of the fact that the major consideration behind this Bill was to create a balance between privacy on the one side and security on the other. The way we did that was by ensuring that the security aspects were well and properly covered, as indeed they are in terms of the bulk powers in this Bill, but equally that confidence on the privacy side was sufficient for people to accept that where they were misused there would be an adequate penalty against that. But looking at the Bill and the other offences that can be committed and the penalties available for them, in the case of bulk powers, which is what most of the public in the evidence we took in the ISC were concerned about, there seems to be a gap that is covered only by minor results of a criminal offence.
I suggest to the Government and to my noble and learned friend that whether or not he agrees completely with the precise criminal penalties suggested in the amendments, the principle of having a stronger set of criminal provisions relating to these powers should be considered very seriously.
Perhaps I may put a strictly non-lawyer’s question to the noble Lord, Lord Butler. Who decides where the court action takes place? Bearing in mind that these are slightly different circumstances and given that, as I understand it, a conviction takes place in a court, who decides where the person who has been charged should stand trial? I am not clear on that point. They might say, “I would rather go to Northern Ireland, please, because I would get only six months there”.
My Lords, I always believe that these debates should not be carried out only between those who spend their lives discussing whatever the subject is, and this is one of them; it is extremely dangerous to leave it to those for whom security is their bread and butter. I mean that in the most polite way. However, this particular Bill has been the subject of very considerable concern among members of the general public. I was pleased to hear earlier how the Government’s amendments, tabled by my noble friend, showed just how carefully the Government have considered people’s concerns about the sorts of decisions that we have to make in the circumstances of today.
Also of concern are the remarks of the noble Lord who talked about the desire he always has to make sure that when times are not as they are now, the draconian decisions we have to make today do not automatically continue but are seen always as decisions made in circumstances that we have never faced before.
The amendments put down by the noble Lord, Lord Butler, are also worthy of careful consideration. The reason I suggest that is that they are immediately comprehensible to the public at large. The public want to know that, having struck the sort of balance which they understand has to be reached, we are also concerned that that balance shall be maintained and will not be an excuse for a constant erosion of what people feel to be very precious things. Freedom and privacy are too precious to allow what one might call mission creep. The only way to stop it is by having a clear definition of a crime—of something that has been done which is punishable. I am concerned about this gap in the legislation which I suspect the Government did not intend to be there.
All I want to say to my noble and learned friend is that, for the public as a whole, what the noble Lord, Lord Butler, has proposed will be very attractive. If the Government do not like the wording or if we cannot answer questions such as where a court case might be heard, no doubt it can be rewritten—but I hope that it will not be ignored.
My Lords, I should like to add just a few words in support of the amendment proposed by the noble Lord, Lord Butler of Brockwell, drawing attention to the phrase “knowingly or recklessly”, which he emphasised in his short speech.
One should perhaps bear in mind that the prosecutor has to prove the case to the criminal standard—that is, to the standard of “beyond reasonable doubt”. At one time in my career, I was a prosecutor and I am aware of the significance of the burden of proof on the prosecutor in proving the offence to that standard. So the words “knowingly and recklessly” set a very significant standard that requires looking into the mind of the alleged offender. It would surely be unthinkable for a prosecutor to bring a case before a single judge or a jury without convincing evidence that the standard could be met.
As for the very interesting question of who decides, I believe—the Minister will correct me if I am wrong—that the decision is made by the prosecutor, having regard to the anticipated length of sentence and the gravity of the offence. I would have thought that the structure of the proposed amendment is right: that there ought to be a choice between the two, because some offences could justify only a minor penalty, in which case the summary process would be appropriate, but there could be other, very serious ones where prosecution on indictment would be appropriate. However, the judgment would be that of the prosecutor, having regard to what the sentence would be likely to be at the end of the day.
I, too, rise to support the three amendments tabled by my noble friend Lord Butler. The point here is that he has drawn attention to this gap in offences for the misuse of bulk powers. I moved Amendment 15 earlier in Committee to take account of the fact that there was a gap, suggesting that there was a case for tidying up the misuse of these powers and the offences relating to them in one bundle. However, a better approach may well be to look at my noble friend Lord Butler’s suggestion regarding the specific area of bulk powers.
I echo the points made about the nature of these amendments. They are not about an inadvertent mistake in the heat of a fast-moving situation; they refer to someone who, without lawful authority,
“knowingly or recklessly fails to comply with the safeguards”.
The argument has been used that we should beware the chilling effect, but I am not sure that I can understand that in the context of the words “knowingly or recklessly”.
Secondly, on bulk powers, throughout the Bill we have considered the balance of trust—between the need to reassure the public about the work of our intelligence agencies, and the need to enable the agencies to use investigatory powers with confidence and at pace. It is part of that delicate balance to reassure the public that there is effective deterrence against a rogue operator, a cowboy—someone who misuses these powers “knowingly or recklessly”. That is why the Intelligence and Security Committee has been keen to debate this issue and the nature of the criminal offences, and why I welcome these three amendments as perhaps a compromise between the catch-all offence and doing nothing. Far from inducing a chilling effect, in my view, the public reassurance given by these amendments would strengthen the hand of the intelligence agencies, which are entitled to the public support they so richly deserve.
We are rather assuming that the Government will oppose the amendments, just as we— wrongly—assumed they would oppose the previous group. If they oppose them, we will certainly want to listen to the strength, or otherwise, of their argument, unless they are going to indicate that, in view of the pressure from around the Committee, they will take this issue away and reflect further on it.
A fairly strong argument has been made for being able to take the kind of action envisaged in the amendments. I do not know whether the Government want to argue that getting a conviction might well have to involve the disclosure of, or some information about, sensitive material that is not in the public domain. However, we certainly wish to hear the strength or otherwise of the Government’s objection to these amendments.
I want briefly to add our support for the amendments tabled by the noble Lord, Lord Butler of Brockwell, and for his compelling arguments. I have never previously had contact with the security services but, in preparation for this Bill, I visited various places where they operate, and I am convinced that it is not simply a question of the high esteem in which James Bond is held: the perceived integrity of the people who work in the security services is a function of reality. These offences are of far more benefit to the public in reassuring them that, in the extraordinary circumstance that they were committed, such offences do indeed exist, rather than their being demonstrably necessary based on experience because the security services operate in this criminal way.
However, as the noble Lord, Lord Butler of Brockwell, has said, it is something of an anomaly that there is no serious criminal sanction for an abuse of the bulk powers provided by the Bill, yet there are significant criminal sanctions in relation to all the other powers. On that basis, I very much support these amendments.
My Lords, I am conscious of the strength of feeling that has been expressed about this matter, but let me make it clear that we do not accept that there is what was termed “a gap” in the criminal sanctions with respect to bulk powers. This matter was discussed during earlier Committee sittings, as the noble Lord, Lord Butler of Brockwell, observed, under reference to Amendment 15, which proposed a new offence of unlawful use of investigatory powers. I understand the development that has taken place and the context of the amendments that have now been spoken to. On that earlier occasion, I referred to the civil penalties and criminal offences that apply in respect of the misuse of the powers in the Bill. In particular, I pointed out that a whole series of statutory offences is listed under Clause 1. But over and above that, it is important to bear in mind the availability of the offence of misconduct in public office, which is also referred to. I underline that because that offence would apply to instances of misuse of bulk powers in appropriate circumstances, and would certainly embrace circumstances in which there was a knowing or reckless misuse of such powers.
I also note in passing that, only two days ago, the Law Commission issued a consultation document entitled Reforming Misconduct in Public Office so that the matter could go out for further consideration. The Law Commission highlighted that the problem is that, often, there are overlapping offences which obscure the use of the offence of misconduct in public office. I rather fear that the introduction of a further statutory offence would simply create a further overlap with regard to such offences. We are at an early stage. The Law Commission has only just introduced that consultation document, but we will take account of it in this context. Although I quite understand the point that was raised by the noble Lord, Lord Butler, and indeed the ISC, in this context, we consider that misconduct in public office is available to deal with the instances that have been referred to.
Before the summer, in response to Amendment 15, we referred to the “inadvertent operational impact” that the creation of further statutory offences could have. The officers working within our intelligence agencies are entirely committed to the mission of keeping the country safe. They are professional and ethical in the way they conduct their work. We recognise the concerns raised about the potential misuse of investigatory powers but, as I say, the creation of new offences may unnecessarily inhibit agency staff and limit their ability to operate with confidence. We do not disagree that intelligence officers who are exercising these most sensitive and, indeed, intrusive powers should consider their actions carefully before using them, but we have seen no evidence that the dedicated men and women of our security and intelligence agencies give such matters anything less than the most careful consideration.
While deliberate misuse of these data can already incur criminal liability—indeed, we suggest that reckless misuse would be sufficient—the creation of a new offence would send a powerful and potentially damaging message to the men and women of our intelligence services. It may be taken to imply that more is required of them than is already the case and that innocent mistakes will in future result in criminal prosecution; for example, if they are construed as the product of reckless behaviour. I appreciate that it is not the noble Lord’s intention that this should occur but we must consider not just the letter of the law but what it will be taken to mean by those on the front line. There is a real risk that this amendment, if accepted, would suggest that they are not trusted to do their jobs, and that it could foster a culture of risk aversion in the agencies at a time when they are dealing with complex and evolving threats. That is certainly the concern expressed by the heads of the intelligence agencies, which I know they have communicated directly to members of the Intelligence and Security Committee.
The Government are clear that if anyone in a public authority were to act contrary to their obligations under the Bill, the matter would be taken extremely seriously. The current commissioners already ensure that they investigate and report publicly on the very infrequent cases of errors that involve serious misuse. These matters are brought into the public domain. In appropriate cases disciplinary action may be taken, up to and including dismissal, or civil or criminal liability incurred. The extent of that criminal liability will be determined by the prosecution deciding what form of offence should be prosecuted, at what level and, indeed, at what level of court for the purposes of penalty. Although misuse is exceedingly rare, intelligence agency staff are conscious of their obligations; indeed, from time to time they have been dismissed for misusing systems.
When these points are considered together, I hope noble Lords will agree that this puts beyond doubt the severe penalties that would apply in the event of deliberate wrongdoing by a member of a public authority—or, indeed, reckless behaviour. We therefore suggest that new criminal offences are unnecessary and potentially confusing, and, on the face of it, would adversely affect the operation of the agencies. In these circumstances, I invite the noble Lord to withdraw his amendment.
If the Government are concerned about overlapping criminal offences, particularly the overlap with misconduct in a public office, why in Clause 56 have they created a new offence of making unauthorised disclosures? That seems to completely contradict the argument that the Minister has just offered the Committee.