My Lords, this is the first of three amendments I have tabled in relation to Clause 21 and the so-called triple lock for targeted interception and targeted examination of communications relating to Members of relevant legislatures—that is, people like us and MPs et cetera. These changes are replicated in the three amendments I have tabled to
Clause 22, which we shall come to later, which relate to the triple lock for targeted equipment interference warrants.
Noble Lords will, I am sure, agree that the communications of Members of relevant legislatures 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 the approval of any such warrant in the IPA. This ensures that these warrants would 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 essential that any changes as a result of this Bill do not undermine these three layers.
The ISC recognises that, on occasion, the requirement that a warrant be approved by the Prime Minister personally may affect the operations of the intelligence agencies where they are seeking a targeted interference warrant that is very time sensitive, and the Prime Minister is unavailable. We therefore support the intention to provide an element of resilience whereby, in truly exceptional circumstances, it may be appropriate for a Secretary of State to temporarily deputise for the Prime Minister on these matters. However, the clauses as drafted go too far.
My three amendments are designed to ensure that decisions are delegated only in the most exceptional circumstances; that the decision may be designated only to the limited number of Secretaries of State who are already responsible for authorising relevant warrants; and that the Prime Minister retains sight of all warrants relating to Members of a relevant legislature. The first of the three amendments relates to the circumstances in which a decision may be delegated by the Prime Minister to a Secretary of State. These circumstances must be very clearly specified—there can be no ambiguity —and they should be limited to situations in which the Prime Minister is genuinely unable to take a decision.
My amendment specifies that the Prime Minister must be “unable” to decide whether to give the necessary approvals, rather than simply “unavailable”, which is rather a subjective test. It then very clearly sets out those circumstances, which are “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. The draft codes of practice published by the Government give these two scenarios as examples of the circumstances in which the Prime Minister might use this designation power. This is a step in the right direction. But the first problem is that they give them only as examples, which means that there could be any number of other unspecified circumstances about which Parliament would be kept in the dark. That cannot be acceptable.
There should be no question of the delegation of this power becoming routine, so there must be absolute clarity as to the exact scenarios when the power can be used. If, in future, other scenarios arise in which the Government seek to use this designation power— I note that they are currently unable to conceive of what they might be, as they have never arisen before—they must return to Parliament to make the case for it.
The second problem is that to which I referred in my opening remarks: matters as important as this must be in the Bill, where they cannot be amended or diluted by Administrations present or future without first returning to Parliament. This amendment provides what the agencies require but, when combined with the requirement
“that there is an urgent need for the decision”,
it also provides the necessary assurance to Parliament that the Prime Minister’s responsibility will be deputised only in specified exceptional circumstances.
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Finally, I note that my amendment does not include the third circumstance—a conflict of interest—that the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Hope, included in their amendment. The ISC is very grateful to them and is particularly grateful to the noble Lord, Lord Anderson, for the light his excellent report has shed on the reforms included in the Bill.
The ISC has, very unusually, departed from the position of the noble Lord, Lord Anderson, on this point, because it is concerned that the inclusion of a “conflict of interest” scenario may create uncertainty and an element of subjectivity in the process. For example, what is the threshold, and who within the Government would be responsible for escalating such an incident? Our aim was to limit the scenarios in question to the minimum number and to ensure that they did not allow for any subjectivity. I therefore urge noble Lords to support my Amendment 39.
My second amendment to Clause 21 would specify the Secretaries of State who can act as a designate for the Prime Minister in these circumstances. As drafted, the Bill includes all Secretaries of State as potential designates for the Prime Minister in relation to triple-lock warrants. However, only a limited number of Secretaries of State have any statutory responsibility for warrants 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 the seriousness of intercepting the communications of a Member of a relevant legislature, 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.
On this point, the Government appear to be in agreement with the ISC. The published draft code of practice states that
“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”.
However, again, it is not sufficient to rely on codes of practice. These are serious matters, so the amendment limits the Prime Minister to a specified number of Secretaries of State and clarifies that these should be those who are already
“required in their routine duties to issue warrants under section 19 or section 102”
of the IPA.
I am grateful to the Minister for his engagement on the wording of this part of the Bill, although it is a shame that the Government did not bring forward their own amendments on Report to address our concerns. Nevertheless, the ISC has listened to the points put forward by the Government. We have therefore changed the specified number of Secretaries of State from two, as we proposed in Committee, to five, to address concerns about the resilience of the system if multiple suitable Secretaries of State happen to be unavailable at the time. I therefore hope that the Government, along with noble Lords, will now see no reason not to support the amendment.
My third amendment to Clause 21 seeks to ensure that the Prime Minister retains sight of every targeted interception and targeted examination warrant which involves communications to or from Members of the relevant legislature. As I outlined earlier, the Intelligence and Security Committee considers it essential that the three existing planks of the triple lock are not weakened by any changes the Bill makes. That means that we must ensure that the Prime Minister’s overall oversight of these warrants is retained, even if in designated cases it would be retrospective. I have therefore tabled this amendment to require that the Prime Minister be notified or informed of any decision taken by a designated Secretary of State on their behalf as soon as the circumstances have passed which prevented the Prime Minister from approving that warrant in the first place.
This is a less onerous amendment than that which I put forward in Committee, which sought to ensure that the Prime Minister substantively review any delegated triple-lock warrants. While that may have been preferable, I have noted the Minister’s concern that the Bill provide for the Secretary of State to act as the Prime Minister, and that to insert a review power would therefore require wholesale changes. This amendment requires only notification, not reconsideration, but that will at least ensure that the Prime Minister is aware of every instance in which the communications of elected representatives are being intercepted. I suggest to noble Lords that this is an absolute red line.