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House of Lords Hansard
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Investigatory Powers Bill
12 September 2016
Volume 774

Committee (6th 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 and 4th Reports from the Delegated Powers Committee; 3rd Report from the Constitution Committee

Clause 232: Review of operation of Act

Amendment 234A

Moved by

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234A: Clause 232, page 179, line 21, leave out “5” and insert “2”

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My Lords, Amendment 234A takes us to Clause 232, which provides for a review of the operation of the Act. A lot of concern has been expressed during the course of the Bill about the speed of change of technology. Most recently, David Anderson, in his report on the operation of bulk powers, said, encapsulating this very neatly,

“nothing in this field stays still forever, or even for long”.

He also quoted Matt Tait, who told the review that,

“for the overwhelming majority of the time that the IP Bill will be law, it will be interpreted in secret by HMG lawyers, when seeking to authorise as-yet unknown operations in support of not-yet decided policy objectives, needing to relate the provisions of the IP Bill to technologies that do not exist yet, where technological norms may be markedly different to how they are today”.

In most fields, five years would seem a reasonable time, even though quite ordinary products such as washing machines become obsolete—they are even made for obsolescence—within a shorter period than that. However, in this field five years is almost a generation. Devices manufactured five years ago are apparently now obsolete, as I have just discovered with the desktop PC which I have been using, and are not supported by the manufacturers. Enormous advances are made every year, and as all noble Lords who have spoken about this have acknowledged, it is essential that the Government and the authorities that will be acting under the powers that will be given by the Act keep abreast of those changes. I appreciate that a great many attempts have been made to future-proof the Bill, but this is not an easy project, and we may find the day after tomorrow that something new comes along to undermine that future-proofing.

We believe that five years and six months is too far into the future before the legislation is formally reviewed. Of course, the Secretary of State can arrange for a review without the formal provision in the Bill, but this is the requirement and it should itself be fit for purpose. We are not wedded to two and a half years, but five and half is too long. Two and a half would enable a report well before the end of this Parliament, assuming that the next election is in 2020. Although we are not wedded to two and a half years, we would be interested to hear the Government’s justification for the period of five and a half years and, I hope, an acknowledgment that a shorter period would be appropriate in this instance. I beg to move.

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The purpose of the Liberal Democrats’ amendment seems to be that there is a speedier review of the legislation than was agreed in the passage of the Bill in the other place and was actually in the Bill. During the proceedings of the Joint Committee, a number of witnesses, including the Information Commissioner, argued for a sunset clause to be put into the Bill. The committee considered that; it did not agree, but at the end of the day believed that there should be,

“some form of review after five years”,

and that it should be “detailed post-legislative scrutiny”. The proposal that the Joint Committee came up with, to which I believe the Government have agreed, is that a Joint Committee of both Houses should be established within six months of the end of the fifth year after the Bill is enacted.

The difficulty with the amendment is that it refers specifically to the Secretary of State reviewing the Bill, whereas the Joint Committee was arguing that both Houses of Parliament should review it. The argument that technological change can be swifter than was thought by those of us who believe that five years was the answer is what lies behind the amendment. However, this is not simply about technology; it is also about the impact of the Act, as it will then be, upon the liberties of the people and about the nature of the various powers that we are enacting in the course of our proceedings. We therefore need some clarification: is it about the Government reviewing, or is it about Parliament reviewing? What precisely are we reviewing? I think everyone agrees with the principle, but we have to look carefully at the way in which Parliament reviews. If the amendment is eventually accepted then, frankly, it has to be secondary to parliamentary scrutiny.

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My Lords, the questions that have been asked are interesting. Times are changing, as is the nature of the threats. Who would have thought 30 years ago that we would be sitting here worrying about online grooming, ISIS terrorism and kidnapping or sophisticated cybercrime and money laundering? Who would have known that they were the challenges that would face us? Who would have talked 30 years ago about apps, internal emails—which we can get on our phones, according to some of my friends—and similar matters?

We will come back to issues of encryption. Technology is changing all the time, as is the modus operandi of those who wish us harm. Added to that, as I think my noble friend was alluding to, are the new powers in the Bill and the very welcome safeguards—the privacy measures and the double lock. These are new measures and we will want to see whether they achieve what the Government hope for them.

There are therefore two issues: first, how are the Government themselves going to monitor whether the Bill is achieving what they want; and, secondly, as alluded to by my noble friend, how will we then have formal post-legislative scrutiny to see whether they are what Parliament wants, and what is the correct time for that? The issues raised about reviewing these important powers and about the rapid change both in the technology and in the threats are ones that we want to be assured will be monitored and reported back on.

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My Lords, I am not sure how useful this intervention will be, but it occurs to me that when the Government consider the amendment and the proposed reduction of the period allowed for a review, they should also bear in mind the sole recommendation made by David Anderson in his review published in August, which we were all discussing last week, the Report of the Bulk Powers Review. I know that his amendment was not accepted then, but consideration will be given to it and I would expect amendment to the Bill along the lines that David Anderson recommended:

“The Bill should be amended to provide for a Technology Advisory Panel, appointed by and reporting to the IPC”—

that is, the commissioner,

“to advise the IPC and the Secretary of State 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”.

Assuming that some effect is given to that and some such advisory panel—an altogether more elaborate advisory panel was canvassed during the debate last week by the noble Lord, Lord Carlile—that will surely bear on the appropriate period within which an overall review should take place.

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My Lords, I had the privilege of sitting on the Joint Committee on the Bill and on the Joint Committee on its precursor, the Communications Data Bill, three years earlier. That puts me in a position to inform the House about one example of how technology has come to this area of law and the Government’s attitude to it. In the earlier Committee three years ago, the subject of the problems that encryption presented to the security services and law enforcement was raised several times with senior Home Office officials, the police and security agency officers. They dismissed it at the time. “It is not a problem”, they said—they were not concerned about it. In the proceedings of the Joint Committee and in this House on this Bill, the Government have repeatedly expressed their concern about the effect of encryption on their ability to protect us. That is a 180 degree change in the space of less than three years. I draw that to the House’s attention in support of the notion of substantially accelerating the review of the Bill.

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My Lords, as the noble Baroness, Lady Hamwee, explained, Amendment 234A deals with the review of the operation of this legislation. The amendment would reduce the length of time for which it has been in operation from five years and six months to two years and six months. It is of course good practice to conduct post-legislative scrutiny, particularly for legislation as significant as the Bill. That is what the Bill provides for. Notwithstanding any suggestion by virtue of the amendment that the House might be eager to revisit the issue within the scope of this Parliament, I suggest that reducing the time for which the legislation had been operating before the review takes place would be profoundly unhelpful in assessing its utility.

First, the timing of when the review should occur is precisely as the Joint Committee convened to scrutinise the draft Bill recommended. As the noble Lord, Lord Murphy, said, that committee considered that work on a review,

“should begin within six months of the end of the fifth year after which the Bill is enacted”.

We have followed that lead.

I was asked what kind of review this would involve. As I mentioned, the Bill attempts to give effect to the recommendation of the committee. We cannot, clearly, bind Parliament in the actions that it takes, so the Bill provides for consideration of any report by a committee of Parliament. I hope that again accords with the steer that the Joint Committee gave us.

Of course, we must ensure that before such a review takes place, all the Bill’s provisions have commenced and been in effect for a sufficient period so that a review is meaningful and effective. As the Joint Committee again concluded:

“The evidence of several years’ operation will inform the debate”.

A review after two and a half years runs the risk that processes and capabilities will not have had sufficient time to bed down before they are subject to a formal review. We need to bear in mind, in particular, that communication service providers will need to implement legislation. Surely the last thing we want is for them to turn round after a short time, if the noble Baroness’s proposal gains traction, and say that it is too soon. We do not wish to create uncertainty for them at this stage. They have to implement this, as has everybody else. The noble Lord, Lord Murphy, rightly said that it is important that the impact of the Act should be reviewed and the noble Baroness, Lady Hayter, also correctly spoke of the need to monitor how the Act was working. I do not disagree with either.

However, I would just point out that an urgent review of the Act is not necessary, given the strong oversight provided in the Bill by the Investigatory Powers Commissioner and the requirement that the commissioner should publish annual reports. The exercise of the powers provided for under the Bill will be subject to the ongoing oversight of the Investigatory Powers Commissioner, and his report will be laid before Parliament. I was grateful for the intervention of the noble and learned Lord, Lord Brown of Eaton-under-Heywood. He referred to David Anderson’s recommendation to establish a technical advisory panel. I am reserving judgment on that recommendation in the light of our debates last week. David Anderson said, in paragraph 9.3, that the point of the TAP would not be to provide an alternative oversight function, or to place new regulatory burdens on the SIAs. Rather it would serve to inform the Secretary of State and enhance the work of the Investigatory Powers Commissioner by ensuring that both are kept as up-to-date as possible with the fast-moving technologies whose use they are asked to approve. There is good sense in not overlaying the oversight that the Act will have too heavily. For all those reasons, I invite the noble Baroness to withdraw her amendment. I hope that what I have said convinces her that there is some logic to the Government’s position.

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My Lords, before I respond, I wonder whether the Minister can tell the Committee when it is expected that the provisions of the Bill will commence. Does he have that information?

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I do not have that information. It is of course possible that different parts of the Bill will commence at different times, but I shall come back to the noble Baroness in writing and send a copy to all noble Lords who have taken part in the debate.

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I am grateful to the Minister for his response, and I am sure he will understand the importance of the question of the extent to which the Government have decided when the provision should commence. I imagine they must have a programme in mind. He says that the timing is precisely as the Joint Committee proposed, but it is not, as we have heard, the type of review proposed by the committee, as I understand the report. Yes, of course we want to avoid uncertainty, but we would argue that a shorter period would give greater confidence to the communication service providers and others that changes in technology and the operation of the Bill will be made as soon as they reasonably should, to assist them as well as everyone else.

The Minister mentioned the IPC’s report under Clause 210, but I believe the Secretary of State does not have to act on it. The Minister mentioned that the technology advisory panel is primarily about technology, although David Anderson argued forcefully that it should comprise more than technicians. I do not want that word to sound pejorative—I am searching for a more respectful term—but I am sure the Committee will understand.

This is an important issue, and I cannot promise that we shall not return to it on Report.

Amendment 234A withdrawn

Clause 232 agreed.

Clause 233: Telecommunications definitions

Amendment 235 not moved.

Clause 233 agreed.

Clause 234 agreed.

Clause 235: General definitions

Amendment 236 not moved.

Amendment 236A

Moved by

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236A: Clause 235, page 184, line 36, at end insert—

““national security” means the protection of the existence of the nation and its territorial integrity, or political independence against force or the threat of force,”

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My Lords, the amendment seeks to put right a government oversight: there is no definition of national security under general definitions throughout the Bill. A principal statutory ground for authorising surveillance is,

“in the interests of national security”.

Another is “economic well-being” as far as it relates to national security. Left undefined, national security is unnecessarily open, broad and vague and, I suggest, likely to be abused. As the decision will continue to lie with the Secretary of State, the test will be met by whatever she or he subjectively decides is in the interests of national security or the economic well-being of the UK, so that individuals cannot foresee when surveillance powers might be used, granting the Secretary of State a discretion so broad as to be arbitrary. In the past, domestic courts have responded with considerable deference to government claims of national security—and not just domestic courts but other political parties at times. They have viewed them not as a matter of law but as Executive-led policy judgments. National security as a legal test is absolutely meaningless if left without a statutory definition.

The Joint Committee on the draft Bill recommended that the Bill should include definitions of national security and economic well-being. It is confusing even to use the measure of economic well-being, which should be subsumed, as recommended by the ISC, which found it “unnecessarily confusing and complicated”, saying that the agencies and Home Office had not “provided any sensible explanation” for including the term. I look forward to the Minister supplying that sensible explanation. Therefore, the core purposes for which extraordinary powers may be used remain undefined and dangerously flexible. The undefined tests of national security and economic well-being risk interference with political and other lawful activity that ought to be unimpeded in a democratic society. In an era when parliamentarians from both Houses have been subjected to inappropriate surveillance by security services and the police, the continued undefined use of these terms in enabling legislation is not appropriate or sustainable. I beg to move.

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My Lords, we have a great deal of sympathy with the amendment moved by the noble Baroness, Lady Jones of Moulsecoomb. Indeed, it is a recommendation of some committees that there be a definition of “national security”. However, we believe that the definition in the amendment is too narrow. For example, it refers to,

“force or the threat of force”,

being necessary, but sedition can take many forms, such as propaganda and the sort of activity we have seen ISIS participate in. The phrase,

“the protection of the existence of the nation”,

also seems too narrow. It would be helpful if the Government produced their own definition of “national security”, rather than leaving it completely open. Although we agree in principle with the amendment, we do not agree with its substance.

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My Lords, without boring the Committee with too much about human rights, I will explain my problem with the amendment, or anything like it. The noble Earl has rightly said on the face of the Bill that he considers it to be compatible with the European Convention on Human Rights, under Section 19 of the Human Rights Act. The problem is that the Human Rights Act says—I am glad to say—that this statute, like any other, must be read and given effect, where possible, in accordance with the convention rights. Article 8 of the convention refers to national security as one of the matters to be weighed in the balance where privacy is being threatened. It is therefore very hard for Parliament to seek to give a definition that puts a gloss upon Article 8 unless it is fairly sure that it would not be struck down as being incompatible with the convention itself. As my noble friend has said, this amendment is too narrow and it would actually be better to leave the matter to be decided under the Human Rights Act—provided that the Government retreat from their foolish position of tearing up that Act and putting something else in its place. Provided they abandon that march of folly, we should leave well alone.

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My Lords, I very strongly support what has just been said by the noble Lord, Lord Lester. I respectfully suggest that this is not, as the noble Baroness suggested when she moved the amendment, a government oversight. This is a well-recognised term which, as the noble Lord has pointed out, is enshrined in the European convention. It was the term used, undefined and unrestricted by definition, in RIPA, which this law will effectively replace. It has a necessarily somewhat flexible meaning to cater for a great many situations. The proposal embodied within the amendment as to how it should be defined took me straight back to the celebrated case of A v the Secretary of State 10 years ago. That spelled the end of the Belmarsh internment system, which was then replaced by the control order regime. There were nine judges sitting in the appeal committee of this House. The noble and learned Lord, Lord Hoffmann, was the only one who questioned whether it was permissible, under the convention, to do what was done there. The internment was actually struck down by the great majority of the court—eight members—on grounds of irrationality and discrimination. However, the noble and learned Lord pointed out that what was under consideration was a really draconian power to detain people indefinitely without charge or trial. The great question, as he saw it, was whether, within Article 15 of the European convention, there existed a war or other public emergency threatening the life of the nation. He asked what was meant by threatening the life of the nation, and he suggested it was things like the Armada or, indeed, Nazi Germany in the Second World War; but the existence even of a threat of serious terrorist outrages did not, in his view, constitute such a threat.

The very narrow and restricted definition proposed in this amendment is reminiscent of that. As I say, only the noble and learned Lord, Lord Hoffmann, went down that road to say that the life of the nation was not in fact put at peril even by terrorism. However, that was a draconian power. Of course, I do not seek to devalue the right to privacy, but a right to privacy is not, I respectfully suggest, equivalent to a right not to be, as there, detained indefinitely without charge. An altogether wider view of national security is, I suggest, not merely permissible but imperative within this area of legislation. I oppose this amendment.

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My Lords, what if we were to leave out the last part of the amendment,

“against force or the threat of force”?

I wonder about cybersecurity—which is new to most of us. You do not need weapons to threaten a nation today: it can all be done in the ether. I think that this amendment might be a lot better if those last few words were deleted.

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My Lords, I have not spoken often on this Bill but felt impelled to say that what the noble Lord, Lord Lester, and the noble and learned Lord, Lord Brown, have said is extremely good sense and the Government should follow it.

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My Lords, given what has been said, I have little to add. I was born in Germany after the war, when it was so easy to define national security. It was about people coming over our border. Today, it is about our streets and about keeping people safe at home and abroad. I look forward to the noble Earl’s response. I do not think it is wise to try to define national security in the Bill, not simply because of the complications but because the definition changes. I know that it is a long time since I was born, but even over the next five years the definition will change again. We look forward to hearing the Government’s comments.

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My Lords, the arguments for and against a definition of national security have been considered at length both here and in the other place over the years, including in the Bill’s Committee stage in the other place. Neither House has been persuaded of the necessity of such a definition.

If the Committee will forgive me, I do not intend to rehearse previous discussions in full, but suffice it to say that it has been the policy of successive Governments not to define national security in statute. National security is one of the statutory purposes of the security and intelligence agencies. Threats to national security are, as we have heard, constantly evolving and difficult to predict, and it is vital that legislation does not constrain the security and intelligence agencies in their ability to protect the public from new and emerging threats.

The noble Lord, Lord Lester, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, made a very important point about the European convention. However, I think the key point is that to define national security in statute could have the unintended effect of constraining the ability of the security and intelligence agencies to respond to new and emerging threats to our national security.

My noble friend Lord Swinfen made an important point which was echoed by the Solicitor-General in the other place. Who could have imagined a few years ago cyberattacks of the nature and scale that now threaten us?

As I understand it, the noble Baroness, Lady Jones, is concerned with the purpose of national security being subject to too broad an interpretation in the Bill. I hope, however, that she will be reassured by the role of the judicial commissioners. They will oversee the use of these powers and will ensure that they are used only when it is necessary and proportionate to do so. The commissioners are the ultimate check against abuse. We need to remember that all the most intrusive powers in this Bill that may be used for the purpose of national security are subject to the double lock. That means that the Secretary of State and a judicial commissioner must consider whether their use is necessary and proportionate. The activities of the security and intelligence agencies will be subject to retrospective oversight by the Investigatory Powers Commissioner and, of course, the Intelligence and Security Committee of Parliament. Should the Government ever treat national security as a kind of blank cheque, I have no doubt that the ISC and the IPC would make clear their position in their reports.

In view of the considerable time that Parliament has spent considering this question in the past, the conclusion it reached and the arguments advanced during this debate, I invite the noble Baroness to reconsider and not to press her amendment.

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Why was the phrase “economic well-being” included as a rather loose term?

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I do not think I would characterise it as a loose term. The meaning of “economic well-being” is well understood. Therefore, I am not sure what the noble Baroness’s worry is in this context.

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I hope that I am not out of order in suggesting that the words “economic well-being” are in Article 8 of the convention. That is where they come from. They were put in by British negotiators. They are very wide and do not help very much, but that is where they come from.

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My point is simply that there was a recommendation that it was unnecessarily confusing. Therefore, there must be a reason for putting it in, and I would like to know the reason; that is all.

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It was to make it clear that economic well-being is a very distinct facet of national security.

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I thank the Minister very much for those answers. I also thank noble Lords, who obviously did not agree with me, for their comments. This definition was meant to be a prompt, guidance, not something to be set in stone. Without a definition, I find it difficult to understand how we can describe anything that is necessary for the future well-being of the country. The whole Bill is based on a definition. However, if you have not described it, how can you be sure that you are doing the right thing? Nevertheless, given the explanation provided, I beg leave to withdraw the amendment.

Amendment 236A withdrawn.

Amendment 237 not moved.

Clause 235 agreed.

Clause 236: Index of defined expressions

Amendment 238

Moved by

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238: Clause 236, page 187, line 33, at end insert “(and paragraph 4A of Schedule 9)”

Amendment 238 agreed.

Clause 236, as amended, agreed.

Clause 237 agreed.

Clause 238: Regulations

Amendments 238A to 240B not moved.

Amendment 241

Moved by

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241: Clause 238, page 189, line 26, at end insert—

“( ) regulations under section 50(3),”

Amendment 241 agreed.

Clause 238, as amended, agreed.

Clauses 239 to 241 agreed.

Schedule 9: Transitional, transitory and saving provision

Amendment 242

Moved by

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242: Schedule 9, page 236, line 29, at end insert—

“Definitions of “other relevant crime” and “serious crime”

4A_(1) The definitions of—(a) “other relevant crime” in section (Restrictions in relation to internet connection records)(6), and(b) “serious crime” in section 235(1),are to be read, until the appointed day, as if for the words “the age of 18 (or, in relation to Scotland or Northern Ireland, 21)” there were substituted “the age of 21”._(2) In sub-paragraph (1), “the appointed day” means the day on which the amendment made to section 81(3)(a) of the Regulation of Investigatory Powers Act 2000 by paragraph 211 of Schedule 7 to the Criminal Justice and Court Services Act 2000 comes into force.”

Amendment 242 agreed.

Schedule 9, as amended, agreed.

Clause 242: Minor and consequential provision

Amendment 242A not moved.

Clause 242 agreed.

Schedule 10: Minor and consequential provision

Amendment 243

Moved by

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243: Schedule 10, page 243, line 5, at end insert—

“Immigration Act 2016

In section 7(2)(b) of the Immigration Act 2016 (information gateways: supplementary) for “Part 1 of the Regulation of Investigatory Powers Act 2000” substitute “any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016”.”

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My Lords, this is a minor consequential amendment to the Immigration Act 2016 regarding information gateways. The Act currently sets out that disclosures that can be made for the purposes of any exercise of any function of the director cannot authorise a disclosure that would be prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000. This amendment simply substitutes “Part 1 of RIPA” with,

“any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016”,

in the Immigration Act 2016 so that prohibited disclosures under these sections are not authorised by the Immigration Act. I beg to move.

Amendment 243 agreed.

Schedule 10, as amended, agreed.

Clause 243: Commencement, extent and short title

Amendments 244 to 246 not moved.

Clause 243 agreed.

House resumed.

Bill reported with amendments.

Sitting suspended.