My Lords, I thank all noble Lords who have spoken in this debate, which was fascinating. I shall start by addressing the amendments and points raised on the circumstances in which the alternative approvals process would be used—that is, for urgent warrants when the Prime Minister is not available. First, it is worth reminding noble Lords that we have set out a non-exhaustive list of such circumstances in the draft excerpt of the relevant code of practice published last week. I shall come back to that in a moment.
I start with Amendments 44 and 51A, tabled by the noble Lord, Lord Anderson of Ipswich, and spoken to by the noble and learned Lord, Lord Hope of Craighead, which seek to widen the situations in which the alternative approvals process could be used to include situations where the Prime Minister is “unable” to consider a warrant—not only when they are “unavailable”. As the noble and learned Lord indicated, the amendments would extend the circumstances where the alternative approvals process could be utilised to expressly include instances where the Prime Minister has a conflict of interest in considering a warrant application.
I remind noble Lords that the Prime Minister, like all Ministers, is expected to maintain conduct in line with the Nolan principles in public life: selflessness, integrity, objectivity, accountability, openness, honesty, and leadership. When a Prime Minister has a conflict of interest in approving a warrant, due to any personal or professional connection to the subject of the warrant, they are expected to continue to act in the public interest. Therefore, in these situations, the Government consider that the alternative approvals process is not required.
When drafting the Bill, the Government considered at some length whether to make further provision for conflict of interest, along the lines of the noble Lord’s amendment, and concluded that they should not. The primary reason is that, in order for a conflict of interest provision to function, a Secretary of State or unelected official involved in the warrantry process would have to be granted the ability, in certain situations, to take from the Prime Minister a personal power given to them alone by Parliament. Unlike the provisions in Clause 21, which permit the Prime Minister to delegate their power to approve these warrants if they are unavailable, this would require a subjective decision to be made on whether the Prime Minister could, in theory, be judged able to approve the warrant. A conflict of interest provision would also have significant implications for Cabinet hierarchy and the constitution. This is because a Secretary of State or an unelected official would have to determine that the Prime Minister had a conflict in approving the warrant and was therefore “unable” to be made aware of the warrant request. It is for these reasons that the Government decided that a conflict of interest provision should not be included in the Bill.
I have referred to the draft code of practice, and the noble and learned Lord, Lord Hope of Craighead, referred to my letter. I can confirm that many of the words in that letter appear to have reappeared in the code. Paragraphs 5, 5.1 and 5.2 state that:
“Prime Ministerial unavailability should be understood to mean situations in which the Prime Minister is genuinely unavailable to consider the application. For example (non-exhaustive) … 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 … The Prime Minister is medically incapacitated and therefore unable to consider the warrant”.
I am very happy to share the code of practice further with all noble Lords, if they would like to see a copy.
I have noted that this conflict of interest provision is specifically not included in the similar Amendments 43 and 51, tabled by the noble Lord, Lord West, which seek to limit the circumstances in which the alternative approvals process can be used due to
“incapacity (ill-health) or lack of access to secure communications”.
As the code of practice sets out, these are two of the key scenarios for which the measure is required, but an amendment of this nature would not cater for unforeseeable events and would leave an unacceptable level of vulnerability in the system. Given that the aim is to increase the resilience of the process, these amendments feel opposite in intent. The moment that a circumstance arises in which the Prime Minister is unable, for a reason other than the two given, to
authorise an urgent warrant application, the system would provide a blocker to the intelligence agencies being able to conduct their vital work, which is of course keeping parliamentarians and the public at large safe and secure. I therefore ask noble Lords not to press their amendments. However, I note the views expressed today and am very happy to continue discussions and to meet the noble and learned Lord, Lord Hope, and the noble Lord, Lord Anderson, again to discuss this further.
I turn to Amendments 48 and 53, also tabled by the noble Lord, Lord West. These would introduce a review by the Prime Minister of warrants authorised via the alternative approvals process for interception and equipment interference. Clauses 21 and 22 are set up in such a way that the Prime Minister’s power is afforded to the Secretary of State for the purposes of triple-locked warrantry in specific circumstances; in effect, they are acting as the Prime Minister for the purposes of the Act, not as a deputy. As such, including a requirement for the Prime Minister to review the decision after the fact would not provide additional meaningful oversight beyond that which is provided by the alternative approver on their behalf. The decisions made by the initial Secretary of State and the alternative approver would still be subject to review by the judicial commissioner, so would have already been subject to significant scrutiny. The Government therefore cannot support these amendments.
I turn to the issue of to whom the Prime Minister can delegate this process. Amendments 47 and 49, tabled by the noble Lord, Lord Coaker, and Amendments 46 and 52, tabled by the noble Lord, Lord West, all seek to limit the Secretaries of State whom the Prime Minister can designate as alternative approvers. Directing the actions of the current and any future Prime Minister by limiting the Secretaries of State to only those mentioned in statute is short-sighted, in that it does not consider potential changes to the machinery of government, as the noble Lord, Lord West, noted.
Furthermore, I invite noble Lords to consider the scenario where, for example, the Home Secretary has provided the initial approval for the application before it is considered as part of the alternative approvals process. The Home Secretary should not then consider the application on behalf of the Prime Minister; this is because it would remove a stage of scrutiny in the triple lock process. Additionally, given the potential for there to be concurrent overseas travel of the Prime Minister and at least one other relevant Secretary of State, limiting the process in this way could fail to provide the necessary resilience. While there should not be an unlimited number of designates, it is important that there are enough alternative approvers to be prepared for these scenarios.
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There may also be a compelling reason for another Secretary of State to be considered as an appropriate designate outside of those proposed by the amendment of the noble Lord, Lord Coaker. For example, they may have previously acted, as the noble Lord, Lord Murphy, did, as the Secretary of State for Northern Ireland but been moved to another Secretary of State post as a result of a reshuffle. They would therefore have a good
understanding of the warrantry process but might not currently be a Secretary of State for a warrant-granting department.
The code of practice is also quite clear on designation, and I will read paragraph 6.1:
“When designating Secretaries of State, the Prime Minister should have due regard to whether a designee would have the necessary operational awareness of the warrantry process in order to carry out the role. There should also be consideration given to the number of Secretaries of State designated to ensure that there would be enough individuals to allow for a Secretary of State unavailability. This is because the Secretary of State who provided the initial authorisation could not also act on behalf of the Prime Minister as the alternative approver”.
The code of practice is statutory guidance to which the Prime Minister would need to have due regard. I hope that my explanation and the information set out in the draft code provide reassurance on these various issues.
Amendment 45, tabled by the noble Lord, Lord Coaker, seeks to restrict the senior officials in the determination of the urgency of an application. We do not believe that this would be appropriate or effective. Due to unavailability of the relevant Secretary of State, a separate Secretary of State to the one associated with the warrantry team in the warrant-granting government department may occasionally need to authorise an application. For example, a warrant which would ordinarily be handled by the Home Secretary may be handled by the Secretary of State for Defence in the absence of the Home Secretary. However, it would still be Home Office officials who would brief the Defence Secretary and provide the information necessary for them to consider the application. The same is true of applications going through the triple lock process.
Furthermore, senior officials in more than one department are likely to be involved in administering the process of the warrant, including within the warrant-requesting agency, the warrant-granting department and the Cabinet Office, which is responsible for obtaining Prime Ministerial approval for triple-locked warrants. It is therefore impractical to specify that the senior official must be serving in the same department as the authorising Secretary of State. The wording at Section 30(4) of the Investigatory Powers Act 2016 provides for the signing of a warrant by a senior official and is not specific as to which department the senior official must be serving in, only that they must be designated by the Secretary of State for that purpose. The same applies to these clauses, because there is no reason to adopt a different position here.
Turning to Amendments 50 and 54, tabled by the noble Lord, Lord Fox, I must join the noble Baroness, Lady Manningham-Buller—I thank her for a very eloquent speech on this—and the noble Lord, Lord Hogan-Howe, in setting out the serious challenges that these amendments would pose to the effective work of the intelligence agencies, which is of course to keep us all safe. On the specific cases the noble Lord mentioned under Article 8, I am not familiar with them, so I will look them up and endeavour to write. I would of course note that Article 8 is a qualified article, as the noble Lord has acknowledged.
These amendments would mean that the intelligence agencies could not operate secretly, impacting on their ability to carry out their statutory functions in this area. I understand that the noble Lord has suggested
that the notification would take place once the investigation has been concluded, or once a judicial commissioner concludes that it is acceptable to do so, but these suggestions in and of themselves are inherently problematic.
The Investigatory Powers Act 2016 sets out the extent to which certain investigatory powers may be used to interfere with privacy. These powers are exercised covertly, and it is for this reason that warrants for interception and equipment interference can be issued only by a Secretary of State, with the approval of a judicial commissioner. The triple lock provides an extra level of political accountability by ensuring that the Prime Minister, or, subject to the successful passage of this Bill, their designated deputies, have additionally approved the warrant. There is a duty not to make unauthorised disclosures at Section 57 of the IPA, and Section 58 sets out the limited circumstances in which an excepted disclosure can be made.
Informing an individual that their communications have been intercepted would up-end this principle and cause potential risks to live and future operations, even if the initial investigation had concluded. The noble Lord has suggested that, to avoid potential risks to ongoing operations, the judicial commissioner could decide to postpone the notification until they judge that the risks of revealing the existence of the warrant have been mitigated against. This would inappropriately afford the judicial commissioners an operational decision-making power.
There are existing accountability routes that allow any individual, whether or not they are a Member of a relevant legislature, to challenge the activities of the intelligence services. Foremost among these is the Investigatory Powers Tribunal, which provides a cost-free right of redress to anyone who believes that they have been the victim of unlawful action by a public authority using covert investigative techniques. I therefore hope that the noble Lord will not pursue these amendments.
I turn to Amendment 55, proposed by the noble Lord, Lord Fox, which would require information on surveillance of parliamentarians to be included in the Investigatory Powers Commissioner’s annual report. Including information about the use of the triple lock in the IPC’s annual report would risk exposing some of the most sensitive operations and damage the work of the intelligence agencies in protecting democracy and those who engage with the UK’s democratic institutions. Given the limited number of Members of relevant legislatures—which is defined in Section 26 of the current Act, and covers Members of both Houses of Parliament and Members of the devolved legislatures, including the Scottish Parliament—providing statistics on the use of the triple lock may lead to uninformed accusations against Members, and also allow inferences to be drawn on the identity of those who have been subject to such measures. This could impact on ongoing or future investigations, and it would simply not be appropriate to include this type of highly sensitive information in the annual report.
The noble Lord, Lord Coaker, has also proposed Amendment 55A, which seeks a dedicated report on the use of interception and equipment interference powers in respect of communications of Members of Parliament since the passage of the original Act. As we
have discussed, to provide further detail which reveals how the powers have been used would risk revealing sensitive information about investigations and could jeopardise important national security or serious crime operations. The law applies equally to everybody, and this includes Members of Parliament. However, in light of the Wilson doctrine, to which the noble Lord, Lord Fox, referred, the triple lock provides the necessary additional safeguards for when these powers are used in relation to Members of Parliament. Furthermore, the already produces an annual report on the use of investigatory powers, which he sends to the Prime Minister. The Government therefore cannot accept this amendment, because it is unnecessary and potentially detrimental to national security and serious crime operations.
Before I conclude, the noble Lord, Lord Coaker, asked me a specific question about a Mail on Sunday story about the Defence Intelligence situation. The Ministry of Defence did provide some analytical capability to augment capacity in government departments during the pandemic. This was done through established government processes: military aid to the civilian authorities—MACA—which allows for military support to government departments in exceptional circumstances, such as the pandemic. My noble friends in both DSIT and the MoD would be happy to follow up on any further questions on that.