Dr Julian Lewis: The shadow Minister [Chi Onwurah] is a considerable specialist in this field; I particularly endorse what she says about the importance of a non-partisan approach to national security in this and other legislation. As noted on Second Reading, the Intelligence and Security Committee of Parliament has long been concerned about the security of the UK’s telecommunications networks. Our 2013 report Foreign Involvement in the Critical National Infrastructure identified serious failings in the way that successive Governments had managed the entry of foreign telecommunications companies into the UK market – Huawei especially – and we urged the Government not to sacrifice security in the pursuit of investment when it came to our critical national infrastructure.
The Committee therefore welcomes this Bill, and the additional safeguards it provides. In presenting it on Second Reading, the Secretary of State assured the House:
“We are clear-eyed about putting national security first. If national security and economic interests are in conflict with each other, national security comes first.” – [Official Report, 30 November 2020; Vol. 685, c. 74.]
That was a considerable advance on the coalition’s complacent response to our CNI report, which committed the then Government to do no more than “balance” economic prosperity with national security considerations. This change of approach and the Bill itself are thoroughly good news from the perspective of the ISC. Both the Secretary of State and the Minister, my hon. Friend the Member for Boston and Skegness (Matt Warman), have been exemplary in reaching out to the ISC, and what I am about to say in no way reflects on them.
The problem with this legislation lies not in what has been included in the Bill, but in what has been left out of it in terms of scrutiny. The Bill grants significant new powers to the Secretary of State to designate certain vendors as high risk, and to direct telecoms providers to abide by certain requirements about the use of equipment from such designated vendors. When the Secretary of State issues, varies or revokes a designation notice or a designated vendor direction, he will lay it before Parliament, except when this would be contrary to national security. That is entirely reasonable. None of us would want the Government to publish information that would damage national security; that would not be in the national interest. However, as in the case of the recent National Security and Investment Act 2021, it does mean that there is a significant gap in Parliament’s oversight of these new powers. That should concern Members on both sides of the House.
The logical solution would be for any designation notices or designated vendor directions that cannot be laid before Parliament for security reasons to be provided to the ISC, the body that was expressly created by Parliament to scrutinise national security issues that cannot be laid before Parliament. As Members will know, the ISC is the only Committee of Parliament that has regular access to protectively marked information that is highly classified for national security reasons. Amendments to provide for such scrutiny were tabled in Committee, but sadly, the Government did not support the principle behind them for reasons that are – I am sorry to say – entirely unpersuasive.
It is both puzzling and exasperating that the Government are yet again refusing to use the Intelligence and Security Committee for the purpose for which it was created. As I reminded the House on 26 April during consideration of Lords amendments to the National Security and Investment Bill, paragraph 8 of the memorandum of understanding between the Government and the ISC categorically asserts:
“The ISC is the only committee of Parliament that has regular access to protectively marked information that is sensitive for national security reasons: this means that only the ISC is in a position to scrutinise effectively the work of the Agencies and of those parts of Departments”,
such as the Department for Digital, Culture, Media and Sport,
“whose work is directly concerned with intelligence and security matters.”
New clause 2, tabled by the Opposition, would fix the problem in this instance, but there is no sign of the Government’s being willing to accept it. I regret that: we should not be knowingly passing legislation that has holes in it. The Government should not be creating new powers, or new units within Departments – as in the case of the National Security and Investment Act – without providing for effective parliamentary oversight of them. As previously explained in considerable detail on 26 April, it is a physical impossibility for departmental Select Committees to fulfil that role, lacking as they do STRAP-indoctrinated and cleared staff and secure facilities, even if individual members may – very occasionally – be shown something classified.
Neither do assurances by the Government that the ISC is welcome to ask for information related to its remit from non-traditional national security Departments, such as BEIS, or in this case DCMS, offer any comfort. During the passage of the National Security and Investment Bill, Ministers repeatedly emphasised that
“there are no restrictions on the ISC requesting further information from the unit",
in that case the BEIS investment and security unit,
“or the Secretary of State where it falls under the remit of that Committee.” – [Official Report, National Security and Investment Public Bill Committee, 26 April 2021; c. 166.]
However, when we recently did precisely that and asked BEIS for information related directly to our remit, we received a response that was so dismissive as to border on the contemptuous.
The ISC was created by Parliament to oversee national security matters on its behalf. It should not be for the Government to deny Parliament’s intent. Paragraph 8 of our memorandum of understanding with the Prime Minister explicitly confirmed that that oversight extends to
“those parts of Departments whose work is directly concerned with intelligence and security matters.”
If information relating to the use of the powers in the Bill cannot be laid before Parliament for reasons of national security, that information must surely be given to the ISC to scrutinise. Nevertheless, because the Bill is good legislation for which we have consistently called, the Committee will certainly not seek to impede its progress.
The National Security and Investment Act would have been lost entirely at the end of the last Session if the upper House had insisted once again on our amendments providing for proper ISC scrutiny. We were not then, and we are not now, in the business of seeking to scupper legislation that helps to safeguard our national security, but that does not mean that this serious scrutiny gap can be left unresolved. In our forthcoming Annual Report, we shall therefore ask the Prime Minister to agree an update to the ISC’s memorandum of understanding, in order for it explicitly to include oversight of these matters. I trust that by the time we lay our Report before the House, we shall finally be able to announce a positive outcome.
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Jamie Stone: ... Essentially, this debate has been an example of Parliament changing the mind of a Government. The point that has been made about the Intelligence and Security Committee is absolutely correct. Parliament does have a role to play and I very much hope that the right hon. Member for New Forest East (Dr Lewis) and his Committee will have a role to play in future.
[ ... ]
Dr Lewis rose –
Sir John Hayes: I give way to the Chairman of the ISC.
Dr Lewis: In support of what my right hon. Friend says, he will recall that one of the main reasons why the Government felt it so difficult to rid themselves of Huawei was that there would then be only two remaining possible suppliers, and if one of them got into difficulty, we would have total dependence on a single supplier. If we do not diversify, it really has knock-on effects: we sometimes have to improperly consider using suppliers that are really a risk to our security.
Sir John Hayes: As my right hon. Friend knows, it is not only the Committee on which he and I serve that has highlighted that point; other Committees of this House have, too, and the Government themselves have acknowledged it. We really need to look at how, having accepted the thrust of his argument, the Government intend to respond. What is the action plan? I know that the Minister will have much to say about this, but my right hon. Friend is absolutely right. ...
[ ... ]
James Sunderland ... New clause 2 would ensure that the Intelligence and Security Committee of Parliament is provided with information relating to a designated vendor direction. I am sympathetic to this, but the Government know what they are doing. As the Minister said, the ISC’s primary focus is to oversee the work of the security and intelligence agencies. Its remit is clearly defined in the Justice and Security Act 2013, so the Bill is not the appropriate place to achieve an overall enhanced role for the ISC.
Dr Lewis: I am sorry to have to reiterate this point. There are other ways in which our concerns could be addressed, such as by adjusting our memorandum of understanding, rather than putting it on the face of the Bill, so I am with my hon. Friend as far as that is concerned. However, it is very clearly within our remit to oversee not only the agencies but those parts of other Departments where highly classified information is concerned. That is just a matter of fact – it is in the agreement between us and the Prime Minister.
James Sunderland: I empathise with my right hon. Friend’s view, and I agree that he has a point. My position is the same as the Government’s: I do not think that this Bill is necessarily the vehicle through which we should look at the future of how the ISC operates. I am a keen follower of the ISC and its output. Its work is eminent, and my right hon. Friend’s point is well made.
[ ... ]
The Parliamentary Under-Secretary of State for Digital, Culture, Media and Sport (Matt Warman): ... New clause 2 has been the subject of the majority of this debate, and rightly so. One of the phrases used about the ISC was that it adds value; this Government do not dispute for a second that it adds huge value, and I welcome the tone with which the Chairman of the ISC, my right hon. Friend the Member for New Forest East (Dr Lewis), has approached this. I appeared before the ISC with some trepidation, as is probably appropriate for all Government Ministers, but it was a hugely productive part of this process and something that I am more than happy to do again. I do not think that my right hon. Friend necessarily thinks that piecemeal changes to the ISC’s role are the way to pursue what he seeks, but the Annual Report that he has mentioned will certainly be looked at closely by the Government.
Dr Lewis: I am very happy to agree with what the Minister has just said. It would not be necessary to keep trying to put these provisions on the face of each individual Bill every time a new unit is set up in a different Department, or a new duty laid on a different Department, if it could be agreed with the Government that the memorandum of understanding would be adjusted as it is meant to be adjusted when these changes occur. However, sadly, no Front Bencher has yet been able to give us an assurance that that is going to happen, and I know that the Minister will not be able to do so, either.
Matt Warman: As I say, I am sure that my right hon. Friend will make that point in the Annual Report, and the Government will look closely at it. However, Members can take some comfort from the fact that much of the advice in relation to the more sensitive technical and national security matters within the scope of this Bill will be provided by the National Cyber Security Centre, and its activities already fall within the scope of the ISC, as my right hon. Friend knows. However, I welcome his approach to this, and I hope that his mechanism, rather than that of new clause 2, will be the one he will support today. ...