My Lords, I thank the noble Lords, Lord Ponsonby and Lord Fox, for their remarks in this debate. I reassure the noble Lord, Lord Fox, that any cheek-blowing he witnessed was more a reflection of the previous marathon speech than a reflection on his amendments.
Amendment 21, moved by the noble Lord, Lord Fox, would require that the enforcement of data retention notices—DRNs—would apply only to UK recipients of those notices. DRNs and technical capability notices—TCNs—can be given to a person overseas, but only TCNs are currently enforceable overseas. Clause 16 seeks to amend Sections 95 and 97 of the IPA to allow the extraterritorial enforcement of DRNs in order to strengthen operational agility when addressing emerging technology, bringing them in line with TCNs. It is vital to have this further legal lever, if needed, to maintain the capabilities that the intelligence agencies need to access the communications data they need to, in the interests of national security and to tackle serious crime.
The Government therefore oppose Amendment 21 as it goes fundamentally against what the Government are seeking to achieve through Clause 16 and would not provide any additional clarity to telecommunications operators. As DRNs are already enforceable against UK recipients, there is no need to re-emphasise that in the Bill.
I turn to the amendments to Clause 17 concerning the notice review period. This clause is vital to ensure that operators do not make changes that would negatively impact existing lawful access while a notice is being comprehensively reviewed. Maintaining lawful access is critical to safeguard public safety, enabling law enforcement and the intelligence community to continue protecting citizens during the review period.
Let me be clear: operators will not be required to make changes during the review period to specifically comply with the notice. Rather, under Clause 17 they will be required to maintain the status quo so that law enforcement and intelligence agencies do not lose access to any data that they would have been able to access previously. The review process is an important safeguard, and that right of appeal will remain available to companies.
On Amendment 27, tabled by the noble Lord, Lord Fox, the Government have noted the strength of feeling from parliamentarians and industry regarding the current uncertainty over the timeframe for conducting a review of a notice. We have therefore tabled Amendments 26, 32 and 33 to Clause 17 to address that uncertainty and provide further clarity and assurances regarding the notice review process.
The existing powers within Sections 90 and 257 of the IPA do not give the Secretary of State the power to specify in regulations the time period within which a review of a notice must be completed. The Government are therefore introducing a new regulation-making power to enable the Secretary of State to specify in regulations the length of time the Secretary of State can take to reach a decision on the review of a notice upon receipt of the report by the judicial commissioner and the Technical Advisory Board, and the overall length of time that a review can take.
The amendments will also make provision for a judicial commissioner to issue directions to the Secretary of State and the person seeking the review, as they see fit, to ensure the effective management of the review process. That will give the judicial commissioner the power to issue directions to both parties, specifying the time period for providing their evidence or making representations, and the power to disregard any submissions outside those timelines. These amendments will provide operators the certainty they require regarding how long a review of a notice can last, and therefore how long the status quo must be maintained under Clause 17. They will also provide further clarity on the process and management of that review.
Specifying timelines will require an amendment to the existing regulations concerning the review of notices. The Government commit to holding a full public consultation before the amendment of those regulations and the laying of new regulations relating to Clause 20, which provides for the introduction of the notification notices. Representations received in response will be considered and used to inform both sets of regulations, which we have clarified in the Bill are subject to the affirmative procedure.
Amendment 35, tabled by the noble Lord, Lord Fox, seeks to specify in statute who the Secretary of State must consult before laying regulations relating to Clause 20 and the introduction of notification notices, and the factors that the Secretary of State must have regard to when making those regulations. I hope the commitment that I have just made to hold a full public consultation provides the necessary reassurance to the noble Lord that all relevant persons will be consulted before making the regulations, and that he will agree that is it unnecessarily prescriptive, and potentially restrictive, to put such details in the Bill.
Amendments 22, 25, 28 and 31, also tabled by the noble Lord, Lord Fox, seek to limit the extraterritoriality of Clause 17 and ensure that operators can make changes to their services and systems for users in other jurisdictions during a review. To be clear, the Bill as currently drafted means that companies can make changes to their services during a review. They could choose to roll out new technologies and services while the review is ongoing, including in other jurisdictions, so long as lawful access is built into them as required to maintain the status quo. Furthermore, the status quo will apply only to whichever of their systems and services are covered by the notice in question. Naturally, anything outside the scope of the notice is unaffected by the requirement. I also emphasise that the control of telecommunications systems used to provide telecommunications services in the UK does not stop at borders, and it is highly likely that any such arbitrary geographical limitations would in fact be unworkable in practice.
Amendments 23, 24 and 29 seek to raise the threshold with regard to relevant changes that an operator must not make during a review period to a change that would “substantially limit” their ability to maintain lawful access. This would not make the position any clearer as “substantially” is a subjective test. Moreover, it would constrain Clause 17 in a way that would fundamentally prevent it from achieving its objectives: to ensure that the same level of lawful access available before the notice was issued is maintained during a review period.
Lawful access provides critical data to law enforcement and intelligence agencies. Constraining access to data that was previously available, in a limited capacity or substantially, may seriously undermine investigations and the ability to protect our citizens. It is therefore vital that the status quo is maintained during the review period. It would also be difficult to define “substantially limit” without referring to a “negative effect on” a capability.
Amendments 36 to 38 to Clause 20, also spoken to by the noble Lord, Lord Fox, seek to raise the threshold and provide more proportionality. As I have emphasised on every occasion we have debated the Bill, necessity and proportionality constitute a critical safeguard that underpins the IPA. Authorisations are approved by an independent body and all warrants and notices must be approved by a judicial commissioner. There is considerable oversight of authorisations, meaning that the threshold is already high. Necessity and proportionality justifications are considered for every request for a notice, warrant or authorisation and, by extension, whether it is reasonable to issue that request to the operator. Once operators are in receipt of such a request, they are required to provide assistance. The proposed amendments are therefore not required.
Finally, government Amendment 34 is a consequential amendment necessitated by the introduction of Clause 19, which amends the functions of a judicial commissioner to include whether to approve the renewal of certain notices.
I am grateful to all noble Lords who have spoken in this debate—