New Forest East



Sir Julian Lewis: It is a pleasure to follow the hon. Member for Wallasey (Dame Angela Eagle). As she mentioned, she is the newest member of the Intelligence and Security Committee, but that has not prevented her, as we have seen this evening, from already making a valuable contribution to our work. As Chairman of the ISC, I will set out the Committee’s view of the Bill as a whole, based on the engagement that we have had with the intelligence community, and with the Government more broadly, on the legislation. In doing so, I pay particular tribute to our member in the other place, the noble Lord West of Spithead, who has already clearly set out our Committee’s position there, and had success, in at least one respect, in obtaining an improvement to the Bill. In looking at the Bill as a whole, I will also touch on one other specific matter in addition to those that my colleagues have tackled individually.

As right hon. and hon. Members on both sides of the House will be aware, the original Investigatory Powers Act was introduced as a result of the Intelligence and Security Committee’s 2015 report on privacy and security. The report recommended the creation of a new Act to set out clearly: the intrusive powers that are available to intelligence agencies; the purposes for which they may be used; and the authorisations and, crucially, the oversight that should be required. There have, however, been a number of developments since the Act was introduced. As the Home Secretary said in opening the debate, we now face a different threat picture, with greater danger from state actors, a significant rise in internet-enabled crime, and an ever-accelerating pace of technological change.

The ISC has therefore made time to consider and scrutinise the case for change put forward by the intelligence agencies and the Government, and to take classified evidence on the Bill. I can tell the House that, broadly, the Committee welcomes the Bill as a means of addressing those developments that have the potential to undermine the ability of the intelligence agencies to detect threats and protect our country. However, as we have heard, there are several areas in which the Committee considers that the Bill goes too far. In particular, it does not yet provide the safeguards and oversight that are so essential when it comes to secretive actions that have the potential to intrude on a great many people.

The Bill seeks an expansion of the investigatory powers available to various public bodies. The Committee is in agreement that, at least in the case of the intelligence services, that is justified, but we are still sceptical – this was eloquently presented in more detail by my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes), who took the original legislation through when he was Security Minister – of the broad way in which some powers have been restored to an unknown number of as yet unidentified public bodies through clause 14. Any increase in investigatory powers ought to – indeed, must – be accompanied by a concomitant increase in oversight. That is a very basic principle that Parliament has always expected to be followed. By oversight, I do not just mean parliamentary oversight as exercised by my Committee, but robust ministerial, judicial and regulatory oversight too. During the passage of the Bill, Members of the Intelligence and Security Committee will seek to ensure the inclusion of necessary safeguards and sufficient detail on those safeguards.

The Bill deals with a number of technical areas, where it is right that the necessary guidance is provided in codes of practice. However, matters that deal with procedural safeguards or external oversight must be on the face of the Bill to ensure that they are adhered to and cannot be changed or watered down without Parliament being consulted.

I am sorry to say that in recent years the Government have been reluctant to ensure that democratic oversight keeps pace with intelligence powers, particularly where it is related to the remit and resources of the ISC, which have been increasingly undermined in a way that I believe Parliament never intended. It is therefore imperative that Parliament ensures that the safeguards and scrutiny provided by the ISC and other external oversight bodies, such as the Investigatory Powers Commissioner, are clearly set out and cannot be discarded on a political whim. That means putting them in the legislation itself. Fine words in a code of practice are, I am afraid, not worth the paper they are written on; the statute must include everything that is needed to provide Parliament and the public with the necessary assurance that investigatory powers are tightly drawn and robustly scrutinised.

The Committee therefore expects the Government to take this opportunity to bolster the effective oversight that they keep saying they value. Actions speak louder than words, as is often said, so I look forward to hearing the Minister’s assurances in his response to our interventions. I hope that he will be able to find a solution both to the individual aspects of the Bill that continue to be raised, and to our overarching concern about the diminution of parliamentary powers in respect of national security.

I would like to highlight one particular issue, which concerns my colleagues on the ISC and myself, relating to the oversight requirements for the retention and examination of bulk personal datasets. The Bill will insert new section 226DA into the Investigatory Powers Act 2016 to require each intelligence service to provide the Secretary of State with an annual report detailing the individual bulk personal datasets that they retained and examined under either a “category authorisation” or an “individual authorisation” during the period in question.

In the upper House, Lord West, on behalf of the Committee, tabled an amendment that was designed to ensure that there is independent parliamentary and judicial scrutiny, too – I emphasise that – of this information, rather than just political oversight. The amendment would have achieved that by providing that the annual report that the Government propose be sent to the Secretary of State should also be sent both to the ISC and the Investigatory Powers Commissioner. One would think that that was a pretty reasonable request. Such a measure would rectify the current gap in parliamentary oversight of these authorisations and complement the commissioner’s existing powers of inspection to provide oversight at all levels.

Unfortunately, the Government did not accept the amendment. However, they did at least acknowledge that the gap existed and that some level of parliamentary oversight of the new regime was needed. The Government therefore introduced their own amendment, which, rather than providing the ISC with the same report that they are providing to the Secretary of State, places an additional duty on the Secretary of State to provide a separate report to the ISC. Notably, even this secondary report would not be provided to IPCO. That Government amendment is now proposed new section 226DB.

Although we are reassured that the Committee’s strength of feeling, which was matched by the feeling of noble Lords in the upper House, has been recognised by the Government, what concerns the Committee is why the Government have chosen to craft a separate amendment requiring a separate report to be drawn up.

There are three key differences of which the House will wish to be aware between the proposals of the Committee and those of the Government. The first is that the Government’s proposal will actually create more work for the intelligence community because, instead of simply sending the existing annual report to the ISC, it will have to produce an additional report. That seems entirely at odds with the Government’s general approach to the Bill. The Minister in the upper House was keen to emphasise the need to minimise the burden on the agencies when it came to other elements in the Bill, so it is most peculiar that the Government are deliberately choosing to increase the burden unnecessarily.

The second difference is that the Government proposal excludes the Investigatory Powers Commissioner completely, and it is not clear why. Oversight by the commissioner should be regarded as essential, because that is what it is.

The third and most important difference is that the Government amendment is less specific on the information to be provided to the Intelligence and Security Committee, and does not include individual authorisations within its scope, only category authorisations. It therefore does not provide the same level of assurance to Parliament and the public that the ISC will be fully sighted on the operation of this new regime. It is that final point that is causing us most concern. I therefore seek assurance from the Minister that the Government proposal will not limit the information received by the ISC to category authorisations, and that all the information contained in the report to the Minister will be contained in the report to the ISC, unless it is material that falls strictly within the definition of current operations at the time at which the report is provided, which we accept is the one thing that we do not generally see. That definition should be strictly as set out in the Justice and Security Act 2013. Any excisions beyond that would undermine what we presume is the intent to provide assurance to Parliament and the public that the regime has robust democratic oversight.

Finally, I simply reiterate the key point: the Bill seeks an expansion in the investigatory powers available to the intelligence services. Although that expansion may be justified, any increase in investigatory powers must be accompanied by a concomitant increase in oversight, and the Government have not yet fulfilled that requirement.