Liam Byrne
MP for Birmingham Hodge Hill and Solihull North · Labour · United Kingdom
“The loss of 4,000 jobs at Jaguar Land Rover is a body blow for workers, families and communities across the west midlands, so I commend Richard Parker, the Mayor of the West Midlands, for moving quickly on Monday to put £500,000 on the table to help ensure that everybody gets back to work.”
“I wholeheartedly welcome this well-rounded statement from the Foreign Secretary, and put on record my thanks to the new Prime Minister for the hard yards that I know he has put in over recent days and weeks.”
“I am grateful to my hon. Friend for giving way, and I offer my warmest congratulations to her on her appointment to the role; she will be a brilliant Minister.”
“Let me start with a word of thanks to my hon. Friend the Member for Chester North and Neston (Samantha Dixon), who is not in her place, who said quite rightly that an awful lot has changed since the Bill was first introduced to this House. Indeed, a lot has been revealed over the course of the summer.”
“The effect of new clause 34 would be to ban off-ramping, ban new forms of digital currency transactions and ban memecoins, which are exactly the kind of measures that Ministers now need to bring forward. If we want to take the crypto system out of political finance, this is what we need to do.”
“No doubt we will learn that Mr Cottrell was in fact on the electoral register when that money was passed. No doubt we will discover that his mother, Fiona Cottrell, declared and did not disguise the fact that the money had ultimately come from her son.”
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“If we are relying not on swiping someone’s passport and getting a red flag on a watch list but on processing data coming in through CCTV and running it through facial recognition software, that is a powerful new tool in the hands of the intelligence agencies. Subsection (1)(b) will give one of my constituents the right to file a request with the data controller—presumably, the security services—and say, “Look, I think your records are wrong here. You have stopped me on the basis of facial recognition software at Birmingham airport; I want to know the reasoning behind the processing of the data.” If, as the Minister says, the response from the data controller is, “We can neither confirm nor deny what happened in this case,” then, frankly, the clause is pretty nugatory.”
“That is an example of where information is captured and processed, and action then results in an individual, in this case, being prevented from coming into the country. I have often had cases of constituents who have come back from Pakistan or who might have transitioned through the middle east, perhaps Dubai, and they have been stopped at Birmingham airport because special branch officers have said their name is on a watch list. Watch lists are imperfect—that is probably a fairly good description. They are not necessarily based on the most reliable and up-to-date information, but advances in technology allow a much broader and more wide-ranging kind of interception to take place at the border.”
“The clause is drafted in the opposite way. Subsection (1)(b) says that “the data subject is entitled to obtain from the controller, on request, knowledge of the reasoning underlying the processing.” In other words, the data subject—in this case, the individual under surveillance—has the right to obtain from the controller, in the hon. Lady’s example of the intelligence agencies, knowledge of the reasoning underlying the way their data was processed. Let us take, for example, a situation where CCTV footage was being captured at an airport or a border crossing and that footage was being run through facial recognition software, enabling special branch officers to intervene and intercept that individual before they crossed the border.”
“It could be that the Committee decides, for example, that the rights we are conferring on the data subject are too sweeping. We might be concerned that there are insufficient safeguards in place for the intelligence agencies to do their jobs. This is a specific question about how data subjects, under the clause, are going to exercise their power in a way that allows the security services to do their job. That is not a complicated request; it is a basic question.”
“I am not asking the Minister to dream up a scenario in Committee. All good Ministers understand every single dimension of a clause they are required to take through the House before they come anywhere near a Committee, because they are the Bill Minister. We are not debating here whether the security services have sufficient power; we had that debate earlier. We are talking about a power and a right that are conferred on data subjects under subsection (1)(b). I am slightly concerned that the Minister, who is responsible for this Bill and this matter of policy, has not been able to give us a well-rehearsed scenario, which presumably she and her officials will have considered before the Bill came anywhere near to being drafted. How will this right actually be exercised by our constituents?”
“However, Mr Hanson, I think we might have exhausted this debate. It is disappointing that the Minister has not been able to come up with a scenario. Perhaps she would like to intervene now to give me an example.”
“I am grateful, Mr Hanson, for that complete clarity. This is the debate that we are having today: how will clause 98(1)(b) become a reality? It creates quite powerful rights for a data subject to seek information from the intelligence agencies. I gave an example from my constituency experience of how the exercise of this right could run into problems. All I ask of the Minister responsible for the Bill and this area of policy, who has thought through the Bill with her officials and is asking the Committee to agree the power she is seeking to confer on our constituents, and who will have to operate the policy in the real world after the Bill receives Royal Assent, is that she give us a scenario of how the rights she is conferring on a data subject will function in the real world.”
“That is probably about as much reassurance as the Committee is going to get this afternoon. It is not especially satisfactory or illuminating, but we will not stand in the way and we will leave the debate there, Mr Hanson.”
“I beg to move amendment 159, in clause 109, page 61, line 13, after “is” insert “provided by law and is”. This amendment would place meaningful safeguards on the sharing of data by the intelligence agencies.”
“The amendment would ensure that—where there was a collection, processing and transfer of information by the UK intelligence services to one of our allies, principally America, and they ran that information against what is widely reported as a kill list and ordered drone strikes without some of the safeguards operated by previous Administrations—first, the decision taken by the intelligence agency here to share that information was legal and, secondly, it would be undertaken in a way that ensured that our serving personnel were not subject to legal threats or concerns about legal threats.”
“We must ensure that the data sharing regime under which our intelligence agencies operate does not create a legal threat to them because of the way the rules of engagement of one of our allies have changed. The Joint Committee on Human Rights has talked about that, and it has been the subject of debates elsewhere in Parliament. The JCHR concluded in its 2016 report that “we owe it to all those involved in the chain of command for such uses of lethal force—intelligence personnel, armed services personnel, officials, Ministers and others—to provide them with absolute clarity about the circumstances in which they will have a defence against any possible future criminal prosecution, including those which might originate from outside the UK.” We need to reflect on some of those legal risks to individuals who are serving their country.”
“Therefore, even when the circumstances around particular individuals have changed—new intelligence may have come to light about them—the Trump Administration have basically removed the safeguards that President Obama had in place that require an individual to be a “continuing and imminent threat” before a strike is authorised. That safeguard has been lifted, so the target pool that American forces can take aim at and engage is now much larger, and operational commanders have a great deal more flexibility over when they can strike. We now see some of the consequences of that policy, with the most alarming statistics being on the number of civilians caught up in some of those strikes. That is true in Yemen and in the fight against al-Shabaab, and I suspect it is true in Syria, Afghanistan and, in some cases, Pakistan.”
“We are fighting against organisations such as Daesh, in a coalition with allies, but over the past year one of our allies has rather changed the rules of engagement, which allows it to take drone strikes with a different kind of flexibility from that under the Obama regime. The change in the American rules of engagement means that, on the one hand, the American Administration has dramatically increased the number of drone strikes—in Yemen, we have had an increase of about 288% in the past year—and, on the other, as we see in other theatres of conflict such as the war against al-Shabaab in Africa, repeated strikes are allowed for.”
“I rise to speak to amendments 159 and 160, which relate to two significant developments in defence policy that have unfolded over the past couple of years. Our intelligence agencies have acquired pretty substantial new capabilities through all kinds of technological advances, which allow them remotely to collect and process data in a completely new way. It is now possible, through satellite technology and drones, to collect video footage of battle zones and run the information collected through facial recognition software, which allows us to track much more forensically and accurately the movement, habits, working lives and leisure of bad people in bad places.”
“It is sad that we need such a measure, but it reflects two significant changes over the past year or two: first, the dramatic increase in our ability to capture and process information, and, secondly, the crucial change in the rules of engagement under the Trump Administration.”
“I am not sure that that would be the effect of the amendment. While I agree with the thrust of the hon. Gentleman’s argument, I am cognisant of the fact that in 2013 the Court of the Appeal said that it was “certainly not clear” that UK personnel would be immune from criminal liability for their involvement in a programme that entailed the transfer of information to America and a drone strike ordered using that information, without the same kinds of safeguard that the Obama Administration had. The amendment would ensure a measure—nothing stronger than that—of judicial oversight where such decisions were taken and where information was transferred. We must ensure a level of judicial oversight so that inappropriate decisions are not taken.”
“If there is a wiser way in which we can create the kinds of safeguard included in the amendment we will be all ears, but we in the House of Commons cannot allow the situation to go unchecked. It is too dangerous and too risky, and it poses too fundamental a challenge to the human rights that this place was set up to champion and protect.”
“I do not think any member of the Committee is confident that the care taken by David Cameron when he made that decision is replicated in President Trump’s White House. We must genuinely be concerned and cautious about our intelligence agencies transferring information that is then misused and results in drone strikes that kill individuals, without the safeguards we would expect. The last thing anyone would want is a blowback, in either an American or a British court, on serving officers in our military or intelligence services because the requisite safeguards simply were not in place. My appeal to the Committee is that this is a point of principle: enhanced power should bring with it enhanced oversight and surveillance, and the priority for that is the fact that the rules of engagement for the United States have changed.”
“As has been said, we are conscious of the difficulty and care with which our politicians have sometimes had to take such decisions. The former Prime Minister very sensibly came to the House to speak about his decision to authorise a drone strike to kill two British citizens whom he said were actively engaged in conspiring to commit mass murder in the United Kingdom. His judgment was that those individuals posed an imminent threat, but because they were not operating in a place where the rule of law was operational, there was no possibility to send in the cops, arrest them and bring them to trial. The Prime Minister was therefore out of options, but the care that he took when taking that decision and the level of legal advice that he relied on were extremely high.”
“The point for the Committee is that the thrust of the amendment is not unreasonable. Where there is a multiplication of the power of intelligence agencies to capture and process data, it is not unreasonable to ask for that greater power to bring with it greater scrutiny and safeguards. The case for this sensible and cautious amendment is sharpened because of the change in the rules of engagement operated by the United States. No member of the Committee wants a situation where information is transferred to an ally, and that ally takes a decision that dramatically affects the human rights of an individual—as in, it ends those rights by killing that person. That is not something that we necessarily want to facilitate.”
“Will the Minister tell us more about the oversight and scrutiny for the tests that she has just set out that the intelligence services operate? Perhaps she will come on to that.”
“Where the Bill changed the law to create a degree of flexibility, it would create a new risk, and that risk would be heightened by the change in the rules of engagement by one of our allies. The Minister may therefore want to reflect on a couple of points. First, what debate has there been about codes of practice? Have they changed given the increased surveillance capacity that we have because of the development of our capabilities? How have they changed in the light of the new rules of engagement issued by President Trump?”
“I am grateful to the Minister for that explanation and for setting out with such clarity the regime of oversight and scrutiny that is currently in place. However, I have a couple of challenges. I was slightly surprised that the Minister said nothing about the additional risks created by the change in rules of engagement by the United States. She rested some of her argument on the Security Services Act 1989 and the Intelligence Services Act 1994, which, as she said, require that any transfers of information are lawful and proportionate. That creates a complicated set of ambiguities for serving frontline intelligence officers, who have to make fine judgments and, in drafting codes of practice, often look at debates such as this one and at the law. However, the law is what we are debating.”
“The reason we would do that is that there has been an exponential increase in drone strikes by President Trump’s Administration and, as a result, a significant increase in civilian deaths in Pakistan, Afghanistan, Syria and Iraq, Yemen and east Africa. It would be pretty odd for us not to ensure that a piece of legislation had appropriate safeguards, given what we now know about the ambition of one of our most important allies to create flexibility in rules of engagement.”
“The change to the American rules of engagement, which allow a strike against someone who is no longer a “continuing and imminent threat”, means that one of our allies now operates under completely different rules of engagement to those set out before the House of Commons by Prime Minister David Cameron, which I think met with some degree of approval. If we are to continue to operate safely a policy of not defending from the goal line, if we are to protect our ability to work with allies and—where necessary and in accordance with international law—to take action abroad, and if we are to continue the vital business of safely sharing information with our allies in the Five Eyes network, a degree of extra reassurance should be built into legislation to ensure that it is fit for the future.”
“Those consequences create a heightened threat of legal challenge in foreign and indeed domestic courts to our serving personnel. For some time, our defence philosophy has been—very wisely—that we cannot keep our country safe by defending from the goal line, and on occasion we have to intervene abroad. That is why in my view Prime Minister Cameron took the right decision to authorise lethal strikes against two British citizens. He was concerned first that there was an imminent threat, and secondly that there was no other means of stopping them. Those important tests and safeguards are not operated by our allies.”
“The hon. Gentleman makes a good point, and he is right to say that our legislation has to stand on its own two feet. It absolutely has to, and what is more, it has to be fit for the world in which we live today, which I am afraid has two significant changes afoot. One is a transformation in the power of our intelligence agencies to collect and process data, and in my view that significant advance is enough to require a change in the level of oversight, and potentially a judicial test for the way we share information. As it happens—I was careful to say this—the risk and necessity of that change is merely heightened by the fact that the rules of engagement with one of our most important allies have changed, and that has had real-world consequences.”
“We owe it to our armed forces and intelligence agencies to ensure a regime in which they can take clear, unambiguous judgments where possible, and where they are, beyond doubt, safe from future legal challenge. It is not clear to me that the safeguards that the Minister has set out meet those tests. Perhaps the Minister will clarify one outstanding matter, about convention 108, on which she rested much of her argument. Convention 108 is important. It was written in 1981. The Minister told the Committee that it had been modernised, but also said that that was in draft. I should be grateful for clarification of whether the United Kingdom has signed and is therefore bound by a modernised convention that is currently draft.”
“The Joint Committee on Human Rights reflected on that in 2016, and it concluded pretty much the same thing: “In our view, we owe it to all those involved in the chain of command for such uses of lethal force…to provide them with absolute clarity about the circumstances in which they will have a defence against any possible future criminal prosecution, including those which might originate from outside the UK.” This is not a theoretical legal threat to our armed forces and intelligence agencies; this is something that the Court of Appeal and the Joint Committee on Human Rights have expressed worries about. The new powers and capabilities of our intelligence agencies arguably create the need for greater levels of oversight. This is a pressing need because of the operational policy of one of our allies.”
“Yes, and it is not just me—the Court of Appeal is arguing that. The Court of Appeal’s summary in 2013 was that there was a risky legal ambiguity. Its conclusion that it is certainly not clear that UK personnel are immune from criminal liability for their involvement in these programmes is a concern for us all.”
“I am grateful. Some of us in this House have been making the argument about the risk from Russia for months, and the permissive environment that has allowed the threats to multiply is, I am afraid, the product of much of the inattention of the past seven years. On the specific point about convention 108, I am glad that the Minister has been able to clarify the fact that it is not operational.”
“I will give way to the Minister in a moment. The convention was written in 1981. Many people in the Government have argued in the past that we should withdraw not only from the European Union but from the European convention on human rights and therefore also the Council of Europe.”
“We hope that she will remain in her position, to ensure that that will continue to be Government policy; but the modernised version that has been drafted is not yet a convention.”
“I did not say it was Government policy. I said that there are people within the Administration, including the Secretary of State for Environment, Food and Rural Affairs, who have made the argument for a British Bill of Rights that would remove Britain from the European convention on human rights and, therefore, the Council of Europe. I very much hope that that ambiguity has been settled and that the policy of the current Government will remain that of the Conservative party from now until kingdom come; but the key point for the Committee is that convention 108 is in draft. The modernisation is in draft and is not yet signed. We have heard an express commitment from the Minister to the signing of the thing when it is finalised.”
“Some members of the Committee—I am one of them—have been members of the Parliamentary Assembly of the Council of Europe for some time. We know how the Council of Europe works. It is not rapid: it likes to take its time deliberating on things. The Minister may correct me, but I do not think that there is a deadline for the finalisation of the draft convention. So, to ensure that the Government remain absolutely focused on the subject, we will put the amendment to a vote. Question put, That the amendment be made.”
“There are still huge data pots locked up in Government which could do with releasing, but the way in which we release them has to have an eye on the way we create value for taxpayers more generally. Beyond doubt, the area of public policy and public operations where we have data that is of the most value is health. The way in which, in the United States, Apple and other companies have now moved into personal health technology in a substantial way betrays the reality that this is going to be a hugely valuable and important market in years to come. If we look at the US venture industry we can see significant investment now going into health technology companies.”
“While the strong advice inside the Treasury was that it was better to create public-private partnerships because that would release an equity yield up front, which could be used for debt reduction, it was also quite clear to officials in the Cabinet Office and those interested in public service reform more generally that the release of free data would be much more valuable. That is the side of the argument on which we came down. After the White Paper, “Smarter Government”, that I brought to the House, we began the release of very significant batches of data. We were guided by the arguments of Tim Berners-Lee and Professor Nigel Shadbolt, who were advising us at the time, that this was the right approach and it was very good to see the Government continue with that.”
“Some of the most successful American companies are based on Government data—for example, The Weather Channel is one of the most valuable and is based on data issued from, I think, the US meteorological survey. A number of Government agencies are sitting on very valuable pots of data. The debate that we began to rehearse nearly 10 years ago was whether the right strategy was to create public-private partnerships around those agencies, or whether more value would be created for the UK economy by simply releasing that data into the public domain. I had the great pleasure of being Chief Secretary to the Treasury and the Minister for public service reform.”
“I am grateful that the Minister made time to meet my former noble Friend Lord Mitchell. These are important amendments and it is worth setting out the background to why Lord Mitchell moved them and why we give such priority to them. In 2009-10, we began to have a debate in government about the right approach to those agencies which happen to sit on an enormous amount of important data. The Government operate about 200 to 250 agencies, and some are blessed with data assets that are more valuable than those of others—for example, the Land Registry or Companies House sit on vast quantities of incredibly valuable transactional data, whereas other agencies, such as the Meteorological Office, the Hydrographic Office and Ordnance Survey, sit on sometimes quite static data which is of value.”
“In the absence of a better, more concrete, lower risk approach from the Government, we will have to defend Lord Mitchell’s wise clause in order to encourage the Government to come back with a better solution than the one set out for us this morning.”
“Secondly, they should take some decisions about whether the organisations responsible for those data assets are destined for some kind of public-private partnership, as they were debating in relation to Companies House and other agencies a couple of years ago, or whether—more wisely—we take the approach of creating a sovereign wealth fund to govern public data in this country, where we maximise the upside for taxpayers and the opportunities for good public service reform. The example of Hinkley Point and the unfortunate example of the Google partnership with DeepMind, which ran into all kinds of problems, are not good precedents.”
“So how do we ensure that, for example, in our neck of the woods, Queen Elizabeth Hospital Birmingham does not strike its own data sharing agreement with Google or DeepMind? How do we ensure that the NHS in Wales does not go in a particular direction? How do we ensure that the trust across the river does not go in a particular direction? We need to bring order to what is potentially an enormous missed opportunity over the years to come. The starting point is for the Government, first, to ensure we have assembled a good catalogue of data assets.”
“Perhaps the Information Commissioner is not the best guardian of that particular task, but I am frustrated and slightly disappointed that the Minister has not set out a better approach to achieving the sensible and wise proposals that Lord Mitchell has offered the Government. The reason why it is so important in the context of the NHS is that the NHS is obviously a complicated place. It is an economy the size of Argentina’s. The last time I looked, if the NHS were a country, it would be the 13th biggest economy on earth. It is a pretty complicated place and there are many different decision makers. Indeed, there are so many decision makers now that it is impossible to get anything done within the NHS, as any constituency MP knows.”
“The Minister is very generous. From that vantage point in the City, I was able to watch the level of ingenuity, creativity and innovation that was unlocked simply by the Government telling the world, “Here are the assets that are in public hands.” All sorts of ideas were floated for using those assets in a way that was better for taxpayers and public service delivery. To the best of my knowledge, we do not have a similar data catalogue today. What Lord Mitchell is asking is for Ministers to do some work and create one. They can outsource that task to the Information Commissioner.”
“Happily, what sits within the scope of a Bill is not a matter for Ministers to decide. First, we rely on the advice of parliamentary counsel, which, along with the Clerks, was clear that this amendment is well within the scope. Secondly, if the Information Commissioner is not the right individual to organise this task—heaven knows, she has her hands full this week—we would have been looking for a Government amendment proposing a better organisation, a better Ministry and a better Minister for the work.”
“We are pleased that the Government accepted our amendment, and we would all be grateful if the Minister told us a little more about how she plans to operationalise it.”
“We would also like to hear what steps she will take to consult widely on the code, what work she will do with her colleagues in the Department for Education to ensure that the code includes some kind of ventilation and education in schools so that children actually know what their rights are and know about the aspects of the code that are relevant to them, and, crucially, what steps she plans to take to include children in her consultation when she draws up the code. This is an important step forward, and we were happy to support it in the other place. We think the Government should be a little more ambitious, which is why we suggest that the rights set out by the 5Rights movement should become part of a much broader and more ambitious digital Bill of Rights for the 21st century, but a start is a start.”
“It would be useful to hear from the Minister of State, who—let me put this beyond doubt—is an excellent Minister, what steps she plans to take to ensure that the age-appropriate design code is set out pretty quickly. We do not want the clause to be passed but then find ourselves in a situation akin to the one we are in with section 40 of the Crime and Courts Act 2013 where, five years down the line, a misguided Secretary of State decides that the world has changed completely and that this bit of legislation should not be commenced. We would like the Minister to provide a hard timetable— she may want to write to me if she cannot do so today—setting out when we will see an age-appropriate design code.”
“One of the most interesting aspects of the debate in the public domain in the past few months has been the revelation that many of the world’s leading social media entrepreneurs do not allow their children to use social media apps, because they know exactly how risky, dangerous and manipulative they can be. We have also heard revelations from software engineers who used to work for social media companies about the way they deliberately set out to exploit brain chemistry to create features of their apps that fostered a degree of addiction. The right to know is therefore very powerful, as is the right to digital literacy, which is another important part of the 5Rights movement.”
“With Baroness Kidron, we were keen to enshrine in legislation a step towards putting into operation the objectives of the 5Rights movement. Those objectives, which Baroness Kidron has driven forward over the past few years, are important, but the rights therein are also important. They include not only rights that are enshrined in other parts of the Bill—the right to remove, for example—but important rights such as the right to know. That means that someone has the right to know whether they are being manipulated in some way, shape or form by social media technologies.”