43: Clause 21, page 41, line 29, leave out “is unavailable to decide whether to give approval under subsection (2)” and insert with “is unable to decide whether to give approval under subsection (2), due to incapacity or inability to access secure communications”
Member’s explanatory statement
This amendment would specify that the only exceptional circumstances in which the Prime Minister would be permitted the use of a designate is when he or she is unable to make a decision due to incapacity (ill-health) or lack of access to secure communications.
My Lords, this is the first of three amendments I have tabled to Clause 21 relating to the so-called triple lock for targeted interception and targeted examination of communications relating to Members of the relevant legislatures. These changes are replicated in the three amendments which I have laid to Clause 22, which we will come to later, which relate to the triple lock around the targeted equipment interference warrants.
The communications of Members of the relevant legislatures, including noble Lords in this House, should not be intercepted and read unless it is absolutely essential to do so in the most serious of circumstances. That is why Parliament added a third layer of safeguards to approve of any such warrant in the IPA, ensuring that these warrants will not only be issued by a Secretary of State and reviewed by a judicial commissioner but approved by the Prime Minister personally. This is a robust and necessary oversight mechanism, and it is important that any changes as a result of this Bill do not undermine the central three layers of approval.
Nevertheless, the ISC recognises that, on occasion, the requirement that a warrant be approved by the Prime Minister personally may disproportionately affect the operation of the intelligence agencies, where they are seeking a targeted interference or equipment interference warrant that is very time sensitive. We therefore support the intention to provide some resilience, whereby in truly exceptional circumstances, an appropriately empowered Secretary of State may temporarily deputise for the Prime Minister on these matters. However, the clauses before us go too far.
My three amendments seek to ensure that decisions are delegated only in the most exceptional circumstances, that the decision may be designated only to a limited number of Secretaries of State who are already responsible for authorising relevant warrants, and that the Prime Minister retains oversight of all warrants which have been authorised in their name through a retrospective review of the decision.
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That amendment would provide reassurance that the Prime Minister has sight of and input into all warrantry concerning the communications of members of relevant legislatures, even if that warrant has been authorised by a nominated Secretary of State in the first instance. It therefore upholds the original three layers of the triple lock which was enshrined by Parliament in the original legislation.
Amendments 51 and 52 are consequential on the decisions on those two, so I shall say no more on those. I beg to move.
My Lords, I wish to speak to Amendments 44 and 51A, which are in the name of the noble Lord, Lord Anderson, and to which the noble Lord, Lord Fox, and I have added our names. They very neatly follow on from Amendment 43, which has just been moved by the noble Lord, Lord West of Spithead, and are based on a recommendation in the report by the noble Lord, Lord Anderson, in which he says at paragraph 8.20:
“I recommend the use of a deputy to be permitted for the purposes of the triple lock when the Prime Minister is unable”—
I stress the word “unable”—
“to approve a warrant to the required timescale (in particular through incapacity, conflict of interest or inability to communicate securely)”.
These amendments are prompted by the fact that, instead of the word “unable”, which was that chosen by the noble Lord, Lord Anderson, for the recommendation in his report, and which is also used in Amendment 43, the word that appears in Clause 21 for condition A in the new subsection (3) of Section 26 is “unavailable”. The same point arises with the wording of the triple lock in relation to equipment interference which Clause 22 seeks to introduce, under Section 111 of the 2016 Act. The word “unavailable” would be replaced with the word “unable” in both places by the amendments from the noble Lord, Lord Anderson.
This is all about the meaning of words. The aim must surely be to find the right word to use for describing the situation in which the Prime Minister’s function of giving the necessary approval must be passed to another individual, other than the Secretary of State who has applied for the warrant. This is, of course, a very sensitive matter, and that in itself indicates the importance of choosing the right word.
My Lords, I am pleased to follow my noble friend Lord West and, indeed, the noble and learned Lord, Lord Hope. They have raised some important questions for the Committee to consider and for the Minister to respond to.
It may be helpful to remind the Committee and others present that Clauses 21 and 22 amend the section of the IPA that deals with targeted interception and examination warrants regarding Members of both Houses of Parliament and the devolved legislatures. These are clearly very important pieces of legislation. The safeguard on such warrants is referred to as the triple lock. As with other warrants in the IPA, the Secretary of State and the judicial commissioner must approve the warrant. But with respect to this issue, the Prime Minister must also approve warrants for the communications of Members of UK Parliaments, hence the difficulty that my noble friend, the noble and learned Lord and others have referred to. What happens with the triple lock if the Prime Minister is not available to authorise that warrant with respect to the communications of parliamentarians, not only in Westminster but the devolved legislatures?
One can see the seriousness of this problem. The Government have rightly felt it necessary to bring this measure forward, given the unfortunate situation when the Prime Minister was dangerously ill in hospital with Covid; thankfully, he recovered. This is clearly a very important issue which we need to consider.
My noble friend Lord West outlined an issue, as did the noble and learned Lord, Lord Hope, that I will speak briefly to. I say respectfully to all noble Lords that the points the noble and learned Lord made are not dancing on the head of a pin: they are very real questions for the Minister about the difference between “unavailable” and “unable” and what that means. The Government need to clarify that for us. My noble friend Lord West’s amendment and my Amendment 47, on which Amendment 45 is consequential, question the wide scope the Government have within the legislation, whereby it almost seems as if any Secretary of State will be able to deputise for the Prime Minister. My noble friend Lord Murphy made the point at Second Reading, which my noble friend Lord West has just made again, that it would surely be better if that scope were narrowed to Secretaries of State with experience of dealing with warrants. My and my noble friend Lord West’s amendments seek to narrow that scope to Secretaries of State who have that experience.
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I found that quite surprising—that is one word for it. The Mail on Sunday quotes the government spokes- person as saying:
“Online disinformation is a serious threat to the UK, which is why during the pandemic we brought together expertise from across government to monitor disinformation about Covid. These units used publicly available data, including material shared on social media platforms, to assess UK disinformation trends and narratives”.
The Bill would get over that because it would say that these individuals have a low or no expectation of privacy, but how on earth is Defence Intelligence involved in this? As far as I am aware, Defence Intelligence is not referred to in the Bill, although MI5, GCHQ et cetera are. Can the Minister explain the report in the Mail on Sunday of Defence Intelligence being used to look at activities around Covid and disinformation? According to the report, it appears that certain information submitted by parliamentarians was looked at by Defence Intelligence, hence my probing Amendment 55A.
I repeat: we support the Bill. As the noble and learned Lord, Lord Hope, the noble Lord, Lord West, and I have said—I am sure that the noble Lord, Lord Fox, and others will say the same—we are seeking some clarification and certainty on some of its provisions so that it is fit for purpose and delivers what we all want it to.
My Lords, I rise to speak to the amendments in my name in this group. First, I shall make some brief and broadly supportive comments regarding the amendments proposed by the noble and learned Lord, Lord Hope, and the noble Lords, Lord West and Lord Coaker.
As we have heard, all these amendments are designed to tighten up or clarify the triple lock and the changes introduced in the Bill. As your Lordships know, the triple lock relates to circumstances where UKIC and law enforcement may obtain and read the communications of MPs, et cetera; we will talk about the “et cetera” in a minute. Currently, the usual double lock is supplemented by an unqualified requirement that the Secretary of State may not issue the warrant without the Prime Minister’s approval.
As we heard from the noble and learned Lord, Lord Hope, the report from the noble Lord, Lord Anderson, explores the circumstances in 2020 when the Prime Minister was hospitalised and the triple lock was therefore rendered unavailable. The noble Lord recommends the use of a deputy for the purposes of the triple lock when the Prime Minister in unable to approve a warrant in the required timescale, particularly through incapacity, conflict of interest or an inability to communicate securely. As we heard from the noble and learned Lord, “unable” has been substituted with “unavailable” in the Bill. I really am not sure why—perhaps the Minister can explain why—but that is a different context. In his normal, forensic way, the noble and learned Lord explained the difference between those words; that is why I was happy to sign Amendment 51A, which reverts back to the originally recommended “unable”.
The amendments in the name of the noble Lord, Lord West, are more probing but interesting. We will be interested to hear how the Minister responds to them; I look forward to that.
Amendment 47 in the name of the noble Lord, Lord Coaker, seeks to limit the number of Secretaries of State who can be designated in that deputy role. This seems a reasonable suggestion. Others may want to change the list, but a senior group of Ministers should be listed; surely having three or four of them on that list should be sufficient to deal with the issue.
My Lords, the noble Lord, Lord Fox, is quite safe; I am not going to come and hit him, but I am going to try to demolish a few of his arguments.
I will start with the word “transparency”, which appears again in some of the amendments in the name of the noble Lord, Lord Coaker. The work of the security and intelligence agencies can never be transparent. It is in the interests of those agencies that as much as can safely be known of what is done in their name is known, which is why my organisation sought law in the 1980s. But there will always be things that cannot be made public because, if they are, we might as well pack up and go home.
Appealing as the amendments in the name of the noble Lord, Lord Fox, might be on the surface, for a start, telling people that they have been subject to interception would require us to alter earlier parts of the IPA because it would be illegal. To do so would also risk sources and methods. Of course, they would not be itemised, but let us consider a speculative case of a Member of the other House who has a relationship with a young Chinese lady. Let me emphasise strongly that this is not based on any knowledge of anything. Indeed, when I was director-general of MI5, we still operated the Wilson doctrine. Somebody in that MP’s office approaches my former colleagues and raises concerns with them. A warrant is obtained, signed by the Prime Minister, and subsequently it becomes clear that the concerns of the individual in the office—the source of the information—were absolutely justified. Now, we cannot tell that individual at any stage whether he or she is acquitted of any wrongdoing or ends up care of His Majesty’s jails. We cannot at any stage tell him because it risks sources and methods.
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The first of those relates to the circumstances in which a decision may be delegated by the Prime Minister to a Secretary of State. This should be clearly defined and limited only to situations where the Prime Minister is genuinely unable to take a decision. My amendment specifies that the Prime Minister must be “unable”, rather than simply “unavailable”—which is a rather subjective test—to decide whether to give the necessary approvals. It sets out that the only situations in which this applies are due to incapacity or inability to access secure communications—for example, if the Prime Minister is extremely ill or is abroad and unable to securely access the relevant classified documentation. This provides what the agencies require, but, when combined with the requirement that there is an urgent need for the decision, also provides the necessary assurance to Parliament that the Prime Minister’s responsibility will be deputised only in specified exceptional circumstances, and ensures that the use of a delegate does not become routine.
My second amendment to Clause 21 is to specify those Secretaries of State who can act as a designate for the Prime Minister in these circumstances. As currently drafted, the Bill includes all Secretaries of State as potential designates for the Prime Minister in relation to triple-lock warrantry. However, only a limited number of Secretaries of State have any statutory responsibility for warrantry for investigatory powers: for example, the Secretaries of State for the Home Office, the Ministry of Defence, and the Foreign, Commonwealth and Development Office. Given that the authorising of a warrant that relates to a Member of the relevant legislature must be taken seriously, it is both sensible and desirable that any Secretary of State deputising for the Prime Minister on these matters should already be familiar with the process and framework for targeted interception and targeted equipment interference warrants as part of their routine responsibilities, as those are the warrants we are talking about.
This amendment therefore limits the Prime Minister to up to two designated Secretaries of State and specifies that they should be Secretaries of State who are already required in their routine duty to issue warrants under Sections 19 or 102 of the IPA. I note that my noble friend Lord Coaker has tabled a similar amendment, which would list a number of specific Secretaries of State who could be designated as deputies to the Prime Minister. We wholeheartedly support the intention behind this amendment, and our amendment seeks to achieve a similar outcome. However, I note the possible scenario whereby the evolution of departmental names, seen relatively recently with the renaming and restructuring of the Foreign, Commonwealth and Development Office, may sow confusion as to which Secretaries of State are included under Clause 21. My amendment seeks to avoid any such confusion by linking the role to existing statutory responsibilities for warrantry in the original Investigatory Powers Act. In this way, it should achieve a very similar outcome to that which was wisely proposed by my noble friend Lord Coaker.
My third amendment to Clause 21 would ensure that the Prime Minister retains ultimate responsibility for any targeted interception and targeted examination warrants which involve communications to or from Members of the relevant legislature. As I outlined earlier, the Intelligence and Security Committee considers it essential that the three planks of the triple lock not be weakened by any changes made by the Bill. Therefore, we must ensure that the Prime Minister’s overall oversight of and involvement in these warrants is retained, even if, in designated cases, it could be retrospective. I have therefore tabled an amendment to provide that the Prime Minister review the decision taken by a designated Secretary of State on their behalf as soon as the circumstances have passed which prevented the Prime Minister approving the warrantry in the first place.
“unavailable to decide whether to give approval”
covers all possible situations. The word “unable” includes “unavailable”, but “unavailable” does not always mean the same as “unable”. The word “unavailable” sets too low a bar. The Prime Minister could be unavailable simply because he or she is doing something else—whatever it might be—that is occupying their mind or demanding their attention elsewhere.
On 11 December 2023, the Minister sent a letter to the noble Baroness, Lady Drake, in response to points raised on this Bill by the Constitution Committee, which gave examples of prime ministerial unavailability. Attached to that letter was a commentary on the proposed amendments to Sections 26 and 111, in which the point is made that the word “unavailable” should be understood to mean situations—of which two examples are given— in which the Prime Minister is “genuinely unavailable” to consider the application. The introduction of the word “genuinely” demonstrates the problem with the word “unavailable” on its own, to which the noble Lord, Lord Anderson, draws attention: it needs to be narrowed down and clarified. That is what the word “genuinely” does, but it is not in the Bill.
It is worth noting that, in each of the two examples given in the commentary, “unable” is used to describe situations Prime Ministers may find themselves in which they cannot perform the function to which the statute refers:
“5.1 The Prime Minister is overseas in a location where they are unable to receive the warrant application due to the security requirements and classification of the documents.
5.2. The Prime Minister is medically incapacitated and therefore unable to consider the warrant.”
The fact that “unable” is used here suggests that the word the noble Lord, Lord Anderson, used in his report really is the right one for the situations referred to in these two sections.
There is a further point that the noble Lord, Lord Anderson, would make: “unavailable” does not cover the situation in which there may be a conflict of interest. This surely is a reason why a Prime Minister, although available, should not exercise the power. Here especially, the greater clarity that the word “unable” brings to the situation really is needed.
I know that the Minister has discussed this issue of the wording with the noble Lord, Lord Anderson, perhaps several times and will, no doubt, refer to the position he and his Bill team have adopted so far during these discussions when he replies. But I hope he will feel able, especially in view of the points I have made about the commentary attached to his letter of 11 December, to agree to another meeting with the noble Lord, and possibly myself, before the Bill reaches Report. I hope that, when he comes to reply, he will be able to respond to that request.
I take the point of my noble friend Lord West. His amendment as it stands is probing. Maybe drafting improvements could be made. The thrust of what he and others said, however, is that we need to do something to deal with the issue.
I have just a couple of questions before I move on to Amendment 55A. Who decides whether the Prime Minister is available or unavailable, or if indeed we have the Bill amended? Who decides that the Prime Minister is unable to take the decision for that triple lock? What is the process by which the decision is made that this is the case?
On Amendment 45, it is unclear to me who the senior officials are that could also make the decision. We have other Secretaries of State who could take the decision if the Prime Minister is “unavailable” or “unable”—if an amendment is passed—to take the decision. Then we have senior officials who might be allowed to take this decision. It is not dancing on the head of pin to ask “What does a “senior official” mean?” and “Who are the officials?”, hence my probing Amendment 45 on who they are and in what circumstances they could take these permissions.
In preparing for Committee, I asked about what sorts of situations might arise. Of course we can think of different situations, and the Government, in the code of practice that they publish, outline a couple of scenarios that may require urgent warrants and the Prime Minister to be involved and so on. In 2011, the noble Lord, Lord Hennessy, apparently did a helpful piece of work on Prime Ministerial powers. He talked of what happens if the Prime Minister is unable to take a decision with respect to shooting down a hijacked aircraft or an unidentified civil aircraft. What happens in those circumstances? Is that the sort of circumstance that the Bill seeks to deal with as well? What we are discussing is obviously also really important because this may involve the authorisation of the use of nuclear weapons. The Minister will be limited in what he can say about that.
I do not want to create a TV drama-type situation, but these are really important questions and the Government are right to address the situation of a Prime Minister being unavailable or unable to take these decisions in some of these circumstances. Again, this gives us the opportunity to think about what areas of national security the Bill would cover.
As is said in the explanatory statement, Amendment 55A
“is designed to probe the extent to which powers in the Investigatory Powers Act 2016 have been used in relation to Members of Parliament”.
As I have mentioned, I was particularly disturbed that, under Section 230 of the Investigatory Powers Act, the Prime Minister can deal directly with the Investigatory Powers Commissioner to keep under review the discharge of the functions of the Armed Forces with regard to intelligence activities. Can the Minister say what the role of Defence Intelligence is in all this? The reason that I raise the matter in this debate on parliamentary communications is due to the report in the Mail on Sunday on 25 November, which spoke of Defence Intelligence being involved in in the Government’s response to Covid. It was involved in looking at communications—and, according to the report in the Mail on Sunday, some of the communications involved parliamentarians.
The noble Lord, Lord Coaker, spoke to Amendment 55A. There are elements of reporting there that are reflected in my Amendment 55, which I will come to shortly.
I will now speak to Amendments 50, 54 and 55 in my name. Amendments 50 and 54
“would require that members of a relevant legislation who are targets of interception are notified after the fact, as long as it does not compromise any ongoing investigation”.
Amendment 55 seeks to ensure that the Investigatory Powers Commissioner reports annually on the operation of surveillance warrants and safeguards in relation to parliamentarians. This should include records in the annual report of the number of warrants authorised each year to permit surveillance of the Members of relevant domestic legislatures. This would ensure transparency, at least over the rate at which the power is being used.
Before talking a little more about this, it is worth recapping the history of political wiretap legislation. I am sure there are others who know it better than I, but it was helpful for me to understand the context. As we have heard, the IPA permits the interception or hacking of parliamentarians or the Members of other domestic legislative bodies via this triple-lock system, whereby the Secretary of State can issue a warrant with the approval of the Prime Minister, as per Sections 26(2) and 111(3). Until October 2015, it was widely understood that the communications of MPs were protected from interception by the so-called Wilson doctrine. This protection extended to Members of the House of Lords in 1966, and was repeated in unequivocal terms by successive Prime Ministers. Tony Blair clarified in 1997 that the policy
“applies in relation to telephone interception and to the use of electronic surveillance by any of the three security and intelligence agencies”.—[Official Report, Commons, 4/12/1997; col. 321W.]
Despite this clear and unambiguous statement that MPs and Peers would not be placed under electronic surveillance, an October 2015 decision by the Investigatory Powers Tribunal held that the doctrine had been unilaterally rescinded by the Executive. We pick up from there, so it is an interesting evolving power and we are part of that evolution in this Bill.
This evolution has also coincided with the meteoric rise in electronic communication that now offers the possibility of vastly more information being unearthed than was the case with a simple wiretap back in the Wilson days. First, there are clearly times when this sort of interception is necessary, and that is why the triple lock is such an important safeguard. But I have a couple of modest suggestions contained in these amendments. I must say now that I am in a state of deep trepidation, as not only has the noble Baroness, Lady Manningham-Buller, given me notice that she is on my case but she has actually moved five Benches closer than she was on Monday, so my boots are shaking.
These amendments would introduce a post-notification procedure to inform parliamentarians where they have been affected by targeted surveillance powers, but only if it does not compromise any ongoing investigation. Clearly, they would have to be deemed innocent or beyond suspicion for that notification to happen. I agree that it would be unfortunate, to say the least, if, for example, the announcement of any investigation revealed confidential sources that led to the initial investigation. I had hoped that my wording implied that, but I will be very happy to work with the noble Baroness on improving the wording on Report if she deems it necessary.
We got to the fourth group of amendments to the Bill without my raising the European Convention on Human Rights. Now is the time. Happily, I am sure that the Minister has been reading up on this for other reasons, and he will no doubt be familiar with this important bastion of freedom. I refer in particular, in this case, to Article 8: the right to respect for private and family life, home and correspondence. I feel sure that most surveillance interventions would meet the terms of Article 8, which are summarised as:
“There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”.
As I say, it is unlikely that the activities we have been describing will break that.
In the unlikely event that they do and there is a misstep, in order to bring a case under the Article 8 right it is necessary for a person to know that their privacy was breached in the first place, hence Amendments 50 and 54. I refer the Minister to two Article 8 rights cases heard by the European Court of Human Rights: Klass v Germany in 1978, which was reiterated in Weber and Saravia v Germany in 2006.
Amendment 55 is a bit simpler. It would ensure that the Investigatory Powers Commissioner’s annual report provides information about the operation of safeguards in relation to surveillance of Members of Parliament et cetera, as is already required for journalists. It would mandate that
“information in particular about warrants … considered or approved”
that are targeted at MPs et cetera is included, further to the requirement to provide information on general targeted interception and hacking warrants. I believe that is not a controversial ask, and I hope the Minister agrees.
I would like to use these amendments to do some probing as well as changing words, by confirming the “et cetera” part of MPs et cetera. My understanding, which I am sure is correct, is that as things stand that includes Lords and elected Members of the devolved authorities. But our democratic system is changing and evolving as we go. We now have very powerful elected mayors with very large electorates—much larger than any MP’s. I wonder whether there is an argument that they too should be included within the triple-lock umbrella going forward. I have one additional question in this vein. Once out of office, do all these individuals no longer attract triple-lock protection? Are ex-First Ministers, ex-MPs and ex-Prime Ministers all no longer subject to the triple-lock safeguards?
This sort of legislation breeds suspicion. The two measures I propose here are sincere attempts to help tackle some of these suspicions and create sufficient transparency to allay the fears that there is widespread and extensive activity of this type—assuming, of course, that this activity is indeed a rare occurrence.