Tom Tugendhat
MP for Tonbridge · Conservative · United Kingdom
“Member for Birmingham Hodge Hill and Solihull North (Liam Byrne), rejecting this very policy as the economies of Palestine and Israel are too interconnected—innocent Palestinians and Israelis will suffer. Still this Government are pressing on in haste, despite warnings from the Labour Benches from the hon.”
“First, on the coherence of the policy, can he confirm that the advice from his Department on the practicality of sanctions has changed so dramatically that these sanctions will in reality be targeted, not area as previously stated?”
“Fifthly, what instructions has he given to the enforcement bodies to ensure that Parkinson’s, myeloma and multiple sclerosis patients will still get the drugs that keep them alive?”
“I place on record my and my party’s deep sadness at the violence we have seen in recent months and years, our commitment to the right of Palestinians and Israelis to live in dignity and peace, and our recognition of those who have been victims over generations.”
“In the week before Rosh Hashanah and the high holy days, the Government are acting without prudence, introducing sanctions that are both light and serious.”
“When they recognised the state of Palestine, only recently, they did so against the laws we ourselves have defended since 1933, in contravention of the Montevideo convention and of the principles we have set out.”
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“My hon. Friend, who has given this House and our country exceptional service over many years, and who will sadly be standing down at the next election, has again made some strong points. On the first, he knows the language that I use and he has heard the words I have said. The reality is that we face threats from around the world, and many of them sadly are emerging out of Beijing today. We know it, we have seen it, and many of us in this House feel it. It is not something we are shying away from. The reality, however, is that there are many different ways of answering it. He has raised an important aspect on FIRS, which of course is being looked at, but he will have heard the words of the Deputy Prime Minister in this Chamber only a few weeks ago and how clearly he made himself heard.”
“The hon. Member will well know that, when there is a reason to act quickly and draw something to the attention of the House, we do, as was the case with Christine Lee, which he will remember involved the payment of money to a certain Member of this House. The reason we took that action was because we needed to expose it fast.”
“My friend the hon. Member will know well that the work of Fraser Sampson before he retired or ended his mandate last year has been fantastically important to many of us in making sure “digital asbestos” —I approve of the term—is got out of our institutions. This is something that is ongoing. It has got out of the most secure sites already, but there are other areas where there is work to do, because an awful lot of sites bought technology that would now be problematic. It is not just static sites; there is potential that some electric vehicles could be easily turned into mobile intelligence-gathering platforms by hostile states, so it is about looking not simply at the past, but at the future.”
“Given that interest is about to switch in this House to a different matter, I will be brief. I promise to write to my hon. Friend on this, but she should know that this Government have already doubled spending on finding alternatives to animal testing. We will continue to make sure that the inspection regime is as strict as possible, to make sure that when animals need to be used, the conditions are as humane as possible.”
“Therefore, the best answer is to have a more iterative process, which I have no doubt the fantastic civil servants with whom I have the privilege to work will adapt. Whoever takes over from me in 20 or 30 years’ time will no doubt want to iterate that as well.”
“I thank the hon. Gentleman for the spirit in which he has addressed this issue, and he deserves a proper response. There is a valid concern that this is a process of engagement with tech companies, and there needs to be a partnership. I will be frank with him: I do not support new clause 2, for the very simple reason that the way in which this interaction takes place has evolved a lot, even in the two years that I have been in post. I suspect that during the four or five years that this House will supervise the Bill, under the next Government and in the five years beyond that, the interaction will evolve again. What concerns me is that we could write into law a system of oversight and regulation that does not properly address the way in which tech companies are involved in this area.”
“As always, the hon. Gentleman is quite right to highlight the areas I touched on. The important thing about the Panama papers was that they changed. They would have enjoyed a high level of privacy, but with republication they became “low/no”. It would not be right to say that any leaked document enjoys “low/no”, but the law should reflect the reality of the data that is currently being held. When data goes from being secret to being effectively public, it would be absurd to hold the intelligence services to a different standard from that which would apply to any of us, who would be able to access it on a website.”
“I very much hope the right hon. Gentleman has brought Lord West’s smelling salts with him, because I would like to clarify the concession that Lord West got in the Lords here in the Commons. I can happily commit to strengthening the language on notification requirements in the code of practice, when it is formally brought forward in due course, to require that the Prime Minister “will” be notified of any decisions under the alternative process, rather than “should” be.”
“I thank the right hon. Member for giving way. I just want to assure him that I have taken on board his points. I went back to the agencies and assured myself of the challenge that he had raised and found what I think is a better answer than the one we looked at when we were chatting. I wrote to Sir Brian Leveson and I am delighted to say that he responded, confirming that he will pay specific oversight to this regime in the early years until he is content that it operates in the way that the ISC, the Government and the British public would expect. IPCO has taken on this responsibility, which, I think, answers the question more succinctly than it would be if it were included in the Bill.”
“The right hon. Member will understand that IPCO is operationally independent, so I will not instruct the office or speak for Sir Brian, who has been unbelievably rapid and helpful in his response today. I am sure that he will have heard the comments that the right hon. Member made and, no doubt, will want to draw attention to any areas where he has any doubts at all.”
“I will satisfy my right hon. Friend immediately and, I hope, save him time in his speech. Local authority trading standards teams are responsible for a range of legislation where enforcement requires investigation and may need to draw on communications data. The idea is that the powers in this Bill will be in keeping with those powers, not for them to be expansive, so my right hon. Friend is right: it is for serious crimes, as has already been set out.”
“On the grounds that it will save me time when I wrap up at the end of the debate, I will make it clear now. His Majesty’s Treasury is responsible for civil enforcement of financial sanctions regulations, and some information that is essential to carrying out its civil enforcement functions is now communications data, such as the timestamp on online banking transactions. His Majesty’s Treasury cannot currently use its information powers to compel that information to be provided by a telecoms operator, so to go back to the statement I made earlier, local authority trading standards teams are responsible for a range for legislation where enforcement requires investigation and may need to draw on communications data.”
“If my right hon. Friend will forgive me, I will use the words I am using. Those powers will be used as infrequently as we all hope they will be, but they will be used in keeping with the law as described. If the frequency increases, it will be because of the need to act; I am very cautious about saying that these crimes will disappear, and therefore the frequency will change. I am not willing to predict that criminality now.”
“I apologise to my right hon. Friend. These powers are not permissive in the sense that they are expansive: they are permissive only in the sense applied to them by this law, with the restriction of the powers that local authorities already have. They are not to be used in any way other than as set out very clearly in the Bill.”
“Again, just to clarify for my right hon. Friend, this Bill offers no greater expansion than his own Bill did in 2016. In the same way he ensured that Bill was no snoopers’ charter, I assure him that this one is not either.”
“Member for New Forest East (Sir Julian Lewis) in person, who is sadly at a funeral today. He has played an important role in contributing to and leading the engagement of which I have had the advantage in preparing this Bill. Let me quickly touch on one or two points. My right hon. and learned Friend the Member for Kenilworth and Southam (Sir Jeremy Wright) spoke about notices. It is important to note that the notices do not block innovation. They do not stop a technical patch or infringe on companies’ ability to update their systems. All they do is make sure that the existing level of access remains while that is being looked at. That is a reasonable element to ensure that the British people are kept safe by the British law enforcement authorities.”
“Right hon. and hon. Members will be delighted to hear that, having answered colleagues as we went along, I have only a few short words to conclude. [Hon. Members: “Hear, hear!”] I know how to keep them happy. Amendments 3 to 6 to clause 14 concern the restoration of specified public authorities’ general information powers to secure the disclosure of communications data from a telecommunications operator by compulsion. I pay tribute and thanks to my right hon. Friend the Member for South Holland and The Deepings (Sir John Hayes). I hope that Members will have noticed that I have listened carefully to Members across the House, and I believe that this Bill has been pulled together carefully alongside the Intelligence and Security Committee. It is a slight shame I cannot thank the right hon.”
“Given that we are about to have a new Government—I hope the new Conservative Government, but still a new one—it is entirely possible that there will be a new Cabinet and that the routine explanation will not be satisfactory. As routine duties do not have legal clarity, we will not use them.”
“If my right hon. and learned Friend will forgive me, I will be able discuss that in a more secure environment, but I can only say, “Not necessarily.” I will be able to describe why that is in a different environment, but I cannot do it here. The reason for not accepting amendments 22 and 23 —I understand the points made by right hon. and hon. Friends and Members across the House—is that we are talking about a very limited number of people. One Secretary of State is already used to do the initial request. The second person on the triple lock is a judicial commissioner—a judge. The third therefore has to be one of the four Secretaries of State left. Therefore, it is important that we make sure that it is somebody in whom the Prime Minister has confidence.”
“Removal would benefit only those who threaten our safety and serve to make the work of the intelligence services and the NCA significantly harder as they seek to protect us and bring paedophiles to justice. The Investigatory Powers Commissioner already has the necessary powers to inspect and report on all parts of the CD regime. If the Investigatory Powers Commissioner wishes is to focus attention on condition D of the internet connection record, they have the power to do so. With those clarifications, I commend the Bill to the House. Question put, That the clause be read a Second time.”
“The right hon. Member has made his point and I have made mine; I am afraid I will leave it there rather than continue. The ways in which we have been able to engage on the Bill has been incredibly supportive and helpful. The removal of clause 15 from the Bill would prevent the intelligence agencies and the National Crime Agency from detecting some national security and serious crime threats, and those intent on committing child sexual exportation and abuse. Given the robust oversight of the regime in general, and the internet connection records in particular, we simply do not believe that this is in the best interests of the British public.”
“I also say an enormous thanks to Phoebe, Fintan, Francesca, James, Emer, Lucy x 2, Megan, Sophie, and Tom Ball, whose exemplary work in the Bill Committee has been fantastic.”
“I beg to move, That the Bill be read the Third time. I pay huge tribute to all the contributions from across this House, and particularly to my hon. Friend the Member for North Cornwall (Scott Mann), who whipped this through in exemplary fashion and will be delighted that since my appointment he has not had to take a Minister’s place on a Bill. He will also be grateful, along with me, to Lord Sharpe in the other place who has led on this Bill brilliantly, and taken us through with exemplary speed. I thank the hon. Member for Barnsley Central (Dan Jarvis), who has been a great friend for many years. We have now completed a Bill together, which really does bring us that bit closer.”
“Clause 1 specifically provides a mechanism for the intelligence agencies to determine whether bulk personal datasets should be authorised under part 7 of the 2016 Act for sensitive datasets, or proposed new part 7A for low/no datasets.”
“It is a pleasure to be here under your chairship, Mrs Cummins. The exceptional growth in volume and types of data across society globally since 2016 has affected the intelligence services’ ability to work and collaborate at the necessary operational pace. The existing bulk personal dataset safeguards do not account for the way that data and its availability have evolved since the Investigatory Powers Act 2016 was passed. This creates a negative impact on operational agility, while making it increasingly difficult for the intelligence services to develop the necessary capabilities. Clauses 1 and 2 introduce an alternative regime for bulk personal datasets where there is low or no reasonable expectation of privacy—the so-called low/no regime.”
“It is not about anything other than ensuring that investigations can be properly targeted against those who threaten the interests of the British people, under various existing laws. This measure does not change those laws; it merely assists the targeting. Question put and agreed to. Clause 1 accordingly ordered to stand part of the Bill. Clause 2 Low or no reasonable expectation of privacy”
“He will remember that Lord Anderson noted in his independent review that MI5 and MI6 estimate that roughly 20% of their bulk personal data holdings would fall into the category of “low and no”; for GCHQ, the figure would be nearer to 8%. Clearly, these things will evolve. To answer the point made by the right hon. Member for North Durham, the simple fact is that our world is producing incomparably greater volumes of data than ever before. The need to understand, handle and triage that data is therefore essential. It is worth making the point, right at the beginning, that creating and storing huge volumes of data is to nobody’s advantage, and particularly not that of the intelligence services. The only purpose of having or examining data is to enable investigatory operations to get to targets of interest.”
“The type of data that may fall into part 7A is indeed covered—things like news articles, academic papers, public and official records, and the sort of bulk personal data that many people would have access to routinely. The changing nature of the need to hold data has meant that bulk personal data must be authorised in a different way than was previously thought. Paragraphs 4.14 and 4.20 of the draft code of practice set out further details of the datasets that would fall under the section 22A test, of which the hon. Member for Barnsley Central is no doubt aware. The hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East touched on various aspects of data that might fall within this approach.”
“What can I say? We have got a little further on clause 1 than I anticipated. I am grateful to my right hon. Friend the Member for South Holland and The Deepings, the right hon. Member for North Durham and other hon. Members who have spoken. Bulk personal dataset authorisation is clearly an important change, as my shadow, the hon. Member for Barnsley Central, has set out; I was interested to hear the suggestion from my right hon. Friend the Member for South Holland and The Deepings that this was the shadow Minister’s first step on the path to greatness and to leading the Opposition. I am grateful for the points that hon. Members have made.”
“Before I address those points, I want to address the shadow Minister’s somewhat contentious argument that learning French is not a security issue —that was a bold innovation from him. The points that have been raised are essential to understanding exactly why the Bill is so important. I will cover the “no” and “low” areas separately, for the reason that the hon. Member for Midlothian touched on. We all know what no expectation is; that has been largely covered, and the reality is that even the slightly more restricted version of the electoral register is shared with political parties, as the right hon. Member for North Durham knows.”
“However, after those papers had been published and republished over many years, at what stage do we really think the expectation of privacy is maintained? That is where the dataset becomes low expectation. We have set out the oversight regime in another area of the Bill, but I will touch on it. The Investigatory Powers Commissioner has a range of responsibilities, the judicial commissioners have other responsibilities for approving warrants and IPCO has responsibility for overseeing the regime. That is where that is addressed—in slightly ways at each moment of influence and each moment of power, but everything is covered.”
“That is what I was going to say. Although the register is not publicly available and therefore would not fit in this category, that is where we get to the line. The “no” is for publicly available data, and that is relatively clear. The “low” comes in areas such as the idea of leaked papers, which somebody raised—forgive me, I cannot remember who. That is where the Bill sets out terms under which datasets should be considered, because of course it is impossible for me to give an answer that applies to every single dataset into the future. One example that came up recently, as right hon. and hon. Members will remember, is the Panama papers. One would not argue for a second that the people listed in those papers had an expectation of openness initially.”
“My hon. Friend is absolutely right. The reality is that once papers are effectively public, the argument for privacy somewhat falls away. That is exactly where we are getting to in this area, which is why we have looked at how to oversee it and the different elements within it. Part 7A explains the oversight regime clearly and section 226A really gets to the nub of it. It is important that we focus there, where the argument comes back to the essential element: when considering whether intelligence services have applied the test correctly, the judicial commissioner will apply the same principles that a court would apply on application for judicial review. We therefore have an internal legal process overseeing this before it would even get to any legal challenge.”
“Those are covered under sensitive data areas; they would not be covered under bulk personal data. The hon. Gentleman also mentioned health data, and he is absolutely right that I did not answer that. I should be absolutely clear: it is hard to envision a case in which health data would be considered “low or no”, unless it was of very ancient historical standing, or there were other exceptional reasons.”
“I will just answer that directly, as the hon. Gentleman seems to be running away with this issue slightly. The test set out in proposed new section 226A still applies to all datasets. It is not removed; it goes through the whole thing.”
“The reality is that that must be done on a case-by-case basis, but under the watchful eye of not just the unit within the intelligence service that requests it, but a senior officer in that service and a judicial commissioner. That oversight means that we have an effective way of ensuring that we are able to use bulk personal data as categorised in different areas in a speedy fashion to enable the detection and prevention of harm, but with the oversight regime that the hon. Gentleman quite rightly expects of any apparatus of the state. The intelligence services in particular, for reasons of operational necessity, operate in the shadows, and therefore require an extra guarantee of reliance.”
“The normal rule is that each individual authorisation must be approved in advance by a traditional commissioner, as my right hon. Friend the Member for South Holland and The Deepings quite rightly addressed. A category authorisation does not itself authorise the retention or retention and examination of a dataset; rather, the category itself is the means by which the normal rule of prior judicial approval may be disapplied in respect of the individual authorisation of datasets that fall within the description approved by the category authorisation. As the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East knows, that allows for the internal authorisation of an individual dataset that falls within an existing category. By definition, those categories are narrow enough to be identifiable but large enough to be useful.”
“I welcome the spirit in which the hon. Gentleman approaches this issue. He is asking important questions, and I do not challenge at all the validity of the way he has approached the issue; in fact, I should put on record that I am grateful for the way the whole House, and this Committee in particular, have approached it. It is important that any questions that any Member has, particularly the questions honourably and reasonably raised by the hon. Gentleman, are addressed. The hon. Gentleman’s question on category authorisation is important, because the individual authorisation authorises the retention or retention and examination of a bulk personal dataset, to which part 7A applies. In other words, for every individual dataset there will be an individual authorisation.”
“May I come back straightaway on that? To be clear, category authorisations are reviewed by IPCO at the very latest a year—12 months—after the authorisation, but they could actually be reviewed at any point. I am afraid the idea that a category authorisation stands forever just because it has been allowed is not accurate—I know that is not what the hon. Gentleman is suggesting. The judicial commissioner would have oversight of the wider category authorisation, and the IPCO review means that the whole thing is checked at the very latest every 12 months, and probably more frequently than that.”
“Therefore, if we ask for a legal requirement on the services, that would force an extra legal duty into the various elements and it will be an extra change.”
“Their input has been exceptionally important to me and has been included in many areas of drafting on this. Turning to amendment 15, the right hon. Member for North Durham and the hon. Member for Barnsley Central, in many ways, have both been the Occam’s razor of the Bill process, not just here, but in other areas. They have been rightly keen that we should not include powers or requirements that would otherwise constrain or block processes or confuse the law. I understand the argument that hon. Members are making about a one-line email, but the reason that I am not convinced—though I am very happy to have the conversation suggested—is that the reality is that it is possible for IPCO to investigate at any point, and it must investigate at 12 months.”
“If I may, I will come to the last point first. The information going to the ISC on this basis would be, as far as possible, the same as that going to the Secretary of State. Obviously, the operational data may not be included, depending on the relevant operational case. I hope that will reassure this Committee and, indeed, the ISC that the intention is to make sure that the ISC is as fully informed as possible. On the point made by the right hon. Member for North Durham, he will know that the Bill, in many ways, has been a joint project between the Government and the ISC. I have spent many hours with members of the ISC, including the Chair, my right hon. Friend the Member for New Forest East (Sir Julian Lewis), and with various members of the Committee.”
“In the spirit with which the right hon. Gentleman has approached this, may I commit to meeting him and the hon. Member for Barnsley Central to discuss this?”
“Well, the right hon. Gentleman could make a virtue of a necessity if he wishes. I certainly will. I shall enjoy meeting him to discuss this, and I hope that he will take that commitment in the spirit with which it is made.”
“The point about these powers is indeed to make better use of resources. One challenge is that many intelligence officers are tied up doing things that are no longer genuinely necessary for the protection of personal privacy, but they are following processes that, were they to be working for a private organisation —a company or whatever—would no longer be necessary because bulk personal data could simply be bought. Therefore, what we are actually looking at doing is using resources much more efficiently and therefore helping the protection of the British people, from a better financial position. However, the point made by the hon. Member for Bootle on resources is always one that I welcome.”
“I thank my right hon. Friend. Clause 3 amends the duration of bulk personal dataset warrants under section 213 of the IPA from six to 12 months. BPDs tend to be used to support long-term strategic intelligence activities, and a longer warrant duration will enable the value of the BPD to be better demonstrated, which will provide the relevant Secretary of State with a more accurate picture of the necessity and proportionality when an application for renewal is made. The existing part 7 safeguards will remain in place, including the double lock by the judicial commissioner. Question put and agreed to. Clause 3 accordingly ordered to stand part of the Bill. Clause 4 ordered to stand part of the Bill. Clause 5 Third party bulk personal datasets”
“What we are aiming to do is ensure the proportionality requirement is the test applied by both judicial commissioners and the Investigatory Powers Commissioner. The Secretary of State may issue a warrant authorising the examination of a third-party dataset only where it is necessary and proportionate—that is going to be quite a high bar in some of the areas asked about—for the intelligence service to examine the dataset to which the warrant relates. That decision will be double-locked by an independent judicial commissioner who, among other things, is required expressly to review the Secretary of State’s conclusions in respect of necessity and proportionality when deciding whether to approve the decision to issue a warrant. That is already in the Bill.”
“The Investigatory Powers Commissioner and his office will oversee the regime to ensure the intelligence services’ examination of third-party datasets is both necessary and proportionate. That relates to the point made by the hon. Member for Cumbernauld, Kilsyth and Kirkintilloch East about proportionality and need. To answer the point made by the hon. Member for Barnsley Central, we do not consider it appropriate to exclude specific types of dataset from those for which a third-party dataset warrant can be sought. The reason is, as he knows, that we can begin to go down very tricky routes on this area, as the intelligence services have a requirement to keep safe not just our democracy but our wider nation. Therefore, limiting those different arguments can be problematic.”
“I thank hon. Members for their points. The examination of third-party bulk personal datasets by the intelligence services is vital to their role of protecting the national security and economic wellbeing of the United Kingdom and preventing and detecting serious crime. Clause 5 places an explicit statutory regime around the intelligence services’ examination, in situ, of bulk datasets held by third parties. The regime would apply only to the intelligence services, in line with the wider part 7 BPD powers in the IPA. The clause puts in place robust oversight and safeguards. For example, third-part dataset warrants are to be subject to a double lock, and the decision to authorise the warrant will need to be approved by both the Secretary of State and an independent judicial commissioner.”
“Clause 6 makes minor amendments to the 2016 Act to reflect the introduction of parts 7A and 7B, including making it clear that the Investigatory Powers Commissioner is responsible for oversight of the part 7B regime. Question put and agreed to. Clause 6 accordingly ordered to stand part of the Bill. Ordered , That further consideration be now adjourned. —(Scott Mann.)”