New Clause 1 - Report on the Prime Minister’s engagement with the Intelligence and Security Committee

Part of Investigatory Powers (Amendment)Bill [Lords] – in the House of Commons am 6:45 pm ar 25 Mawrth 2024.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Kevan Jones Kevan Jones Llafur, North Durham 6:45, 25 Mawrth 2024

I understand the right hon. Gentleman’s frustration, but, as Madam Deputy Speaker knows, there are good reasons for those redactions. The Committee does not just agree to everything being redacted; a thorough process takes place and we have some long arguments with the agencies. I would not want anyone to go away thinking that the members of the ISC are a pushover on redacting information. A lot of attention was given to why certain things were redacted from the Russia report. I am comfortable in the knowledge that the things redacted in that report could not have been put in the public domain. The main reason for this is not to save embarrassment for government or any of the individuals; it is about the ability to protect the tradecraft of our services. If we did put certain things in the public domain, our adversaries who want to do us harm would be able to work certain things out. I assure the House that we push back hard and some redactions that have been put forward over the years have been silly, as other ISC members in the Chamber tonight will recognise.

Let me get back to the issue about the triple lock, which is important. The issue is sensitive because it relates to intrusion into the communications of Members of this House and of devolved Administrations. We are talking about what is commonly known as the Wilson doctrine, but, it is like a lot of things in this age; it was announced in 1966, when it was about telecommunications and picking phones up, but we are in a different world now, as the right hon. Member for Haltemprice and Howden said. We now have smartphones, and God knows what is going to be invented in the next few years in terms of how we communicate. As with a lot of things, the convention was thought to be the way forward, but clearly in 2015 it was found that the devolved Administrations were not covered by it and neither were MEPs. The Investigatory Powers Tribunal found that it had no legal enforcement at all, so it was credit to the right hon. Member for South Holland and The Deepings and the Investigatory Powers Act 2016 that a formal process was put in place for it—that is important.

Currently, the 2016 Act has three layers of safeguards: the Secretary of State who asks for the warrant; a judicial commissioner who examines the communication that is the target of interception and the type of equipment involved, if it relates to a member of a relevant legislature; and, thirdly, the Prime Minister, who, as the final stop, has to agree this.

The Bill will allow the Prime Minister to designate “up to five” Secretaries of State who can approve the warrants in the event that he or she is unable to be available. As has been raised, the obvious example was when Boris Johnson was incapacitated through covid. When we think about the issue, this measure makes sense. The ISC recognised other unique situations when a Prime Minister may not be available, for example if they were abroad and secure communications were not possible. The ISC was keen that the circumstances needed to be exceptional, but we accept that there is a need for the requirement.

The ISC seeks to ensure that the measures do not undermine any safeguards. As the right hon. Member for Haltemprice and Howden outlined, those safeguards are important. It is not being pompous or saying that we want to be outside the law, but the ISC receives information and discusses sensitive issues that can have an impact on people, especially those who may have been done a disservice by the state or by others. The original Bill was quite loose and any Secretary of State could have approved the warrants, so it was important that Admiral Lord West’s ISC amendment was accepted. I was in the House of Lords on the night it was accepted, and he had to get the smelling salts because it was the first time he had ever had an amendment accepted.

The circumstances in which the Secretary of State may approve a warrant on behalf of the Prime Minister—if the Prime Minister is incapacitated or does not have access to secure communications—are now in the Bill. Importantly, there is also a limit on the number of Secretaries of State who may be appointed for the purpose. Only five Secretaries of State may be designated, and only those who have a responsibility for authorising equipment interference or target interceptions. However, amendments 20 and 22 have been proposed because the Bill as drafted says that a Secretary of State who has “the necessary operational awareness” can be designated to make such decisions on behalf of the Prime Minister. What is “operational awareness”? Does it relate to somebody who has had a briefing? Do they know what they are doing? I am sure a lot of Secretaries of State, as well as junior Ministers, know about and are aware of the warrants.

It was disappointing that it took some time to get the draft code of practice. For the benefit of civil servants, let me put on the record that it is important that any codes of practice attached to a Bill are laid before Parliament with the Bill. We cannot have a situation where Bills are discussed and we are then told later that certain measures will be in the code of practice and thought of later. I am sorry, but the Bill and any codes of practice need to be laid together, so that this House and the other place have an opportunity to look at the codes of practice in detail.

The ISC finally received the draft code of practice last Tuesday, following the meeting I had on Monday with the Minister for Security. That code of practice defines those who had “the necessary operational awareness” as people who had received briefings on operational matters and of warrantry process and legal requirements. We in the ISC think that definition is entirely inadequate, because it does not prevent completely unrelated and inappropriate Secretaries of State from fulfilling such a serious role.

Amendments 20 and 22 in my name and fellow members of the ISC ensure that only those Secretaries of State with the necessary operational experience, such as those required to issue warrants as part of their routine duties under the relevant sections of the Act are permitted to be designated by the Prime Minister under the triple lock. That is important, because it ensures that they are people who not only understand the system but have experience of it. That would provide the flexibility the Government require and ensure that this important power is given to Secretaries of State who have experience of warrantry.

I and the ISC have danced around the head of a pin on this issue with the Minister and civil servants, and hon. Members may ask why it is so important. As the right hon. Member for Haltemprice and Howden has said, the situation in which this provision is used is unique. I cannot speak about any examples in open session, but credit to the agencies that have told us how the measure is used. As a member of the ISC, am I reassured that it is being used appropriately in the cases we saw? I am. However, not to downgrade that fact, the amendments provide reassurance to Members of this House, Members of devolved Parliaments and Assemblies, and others that the measure is being used proportionately and in the correct way.

Amendments 21 and 23 get to one of those points that irritates me. It is like a war of attrition with this Government—they cannot be seen to back down on anything or allow anyone else any victory, no matter how small. The code of practice says that once the designated Secretary of State has authorised something, the Prime Minister “should” be informed of any decision made under the alternative approval process as soon as reasonably practicable. It does not say “will” be.