My Lords, I have listened with interest to the points made in this debate. As noble Lords will be aware, we have considered carefully the amendments that have been debated. I place on record my thanks to the noble Lords, Lord West, Lord Coaker and Lord Fox, for their constructive engagement in the run-up to today’s debate on these issues and various others that will be debated later today.
I turn first to the topic of oversight of the new Part 7A regime containing bulk personal datasets, BPDs, where there is low or no expectation of privacy. Alongside the proportionate set of safeguards set out in Part 7A, the Bill currently provides for executive political oversight and accountability by requiring the heads of the intelligence services to provide an annual report to the Secretary of State about Part 7A datasets. The intention of the report is to ensure that there is a statutory mechanism for political oversight, given that the Secretary of State will not have a role in Part 7A authorisations. That is set out in new Section 226DA in Clause 2 of the Bill.
The Investigatory Powers Commissioner will continue to provide full, independent and robust oversight of the investigatory powers regime, including this new part. Nevertheless, the Government have listened to the points made by noble Lords and colleagues in the other place, and we understand their concerns about increasing parliamentary oversight. Government Amendment 4 therefore recognises the important role
of the ISC in providing parliamentary oversight of the intelligence services. It places a statutory obligation on the Secretary of State to provide the ISC with an annual report containing information about category authorisations granted under the Act during the year. The amendment will ensure that the ISC is proactively provided with information about the operation of Part 7A on an annual basis. That will support the ISC in continuing to fulfil its scrutiny role and will enhance the valuable parliamentary oversight the committee provides.
It is appropriate for the ISC to be privy to certain information relating to Part 7A in the exercise of its functions, and that a statutory obligation be placed on the Secretary of State to provide it. This obligation is intended to be consistent with the provisions set out in the Justice and Security Act, and due regard will be had to the memorandum of understanding between the Prime Minister and the ISC when meeting it. It is likely that Amendments 2 and 3, tabled by the noble Lord, Lord West of Spithead, which would require that the report provided to the Secretary of State be also shared with the ISC, would not be in step with that. The information required by the Secretary of State to fulfil their responsibilities in respect of the intelligence services will not necessarily be the same as that which would assist the ISC in performing its functions. The report will almost certainly contain information about live operations, which is outside the scope of the ISC’s remit, as well as other information that it may not be appropriate to share with the ISC and which the Secretary of State could properly withhold from the ISC were the ISC to request it.
For that reason, we think it more appropriate that a report be written to meet the ISC’s functions that the Secretary of State will send to the ISC. This will provide the additional parliamentary oversight the committee is seeking and would be akin to the existing arrangements in place for operational purposes.
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The noble Lord’s amendments would require the intelligence services to provide the same report to the Investigatory Powers Commissioner. There is no need for a requirement to share a report with the IPC. The IPC and anyone acting on his behalf already have access to all locations, documents and information necessary to carry out a thorough inspection regime.
The intelligence services are legally obliged to provide all necessary assistance to the IPC, who is required to report publicly on the findings of his inspections. It is my firm belief that the Government’s amendment offers the ISC an appropriate mechanism through which the committee will be able to understand how the regime is working, and that the insights garnered by this reporting will support the ISC in continuing to carry out its oversight functions. I hope this provides the assurance that the noble Lord, Lord West, and his fellow committee members are seeking and that they will feel able to support the Government’s alternative to his amendment.
Amendment 6, tabled by the noble Lord, Lord West, would require that the intelligence services notify the IPC that an individual dataset has been authorised in reliance on an existing category authorisation under
Part 7A. This obligation would be more onerous than the requirements under the existing BPD provisions. Not only is this unnecessary, but it would also impose additional burdens on the intelligence services and IPCO, while achieving only a negligible and unnecessary increase in oversight.
The IPC already has extensive oversight of Part 7A. His judicial commissioners have a role in the authorisation process and his inspectors will carry out regular inspections of the intelligence services’ use of it. Judicial commissioners will approve every category authorisation and the authorisation of every dataset that does not fall within an existing category authorisation. Category authorisations will expire at 12 months and will then need to be renewed. That decision will also require the approval of a judicial commissioner.
On inspection, IPCO will be entitled to see all authorisations granted under Part 7A and can review the datasets retained in reliance on a category authorisation. Any irregularities or errors may be reported by the IPC in his annual report. This is the approach taken in inspections of the existing Part 7, whereby datasets authorised under class warrants are reviewed by IPCO inspectors. We consider that the overall package of safeguards in Part 7A is appropriate and proportionate to the nature of the datasets with which it is concerned. We do not see the case for adding a new, more onerous, dataset by dataset requirement here, which would not meaningfully improve oversight. I therefore respectfully ask that the noble Lord does not move his amendment today.
Amendment 5, tabled by the noble Lord, Lord Coaker, would require the Secretary of State to publish a report on the Prime Minister’s engagement with the ISC relating to investigatory powers. As I said earlier, the ISC plays an important role and the Government value the independent and robust oversight of the intelligence services and the wider intelligence community that the committee provides. The amendment we have tabled today demonstrates that. The Government keep the formal working agreement with the ISC under review. Section 93 of the National Security Act 2023, which came into force on 20 December 2023, places a requirement on the Government to consider whether the ISC’s memorandum of understanding with the Prime Minister should be altered to reflect any changes arising out of that Act.
The Government welcome the ISC’s views on how the memorandum of understanding may be updated to reflect any changes arising from the National Security Act and will formally reach out in the coming weeks. The Government are clear that the MoU review is the correct forum to discuss relevant potential changes to the agreement between the Prime Minister and the ISC.