Investigatory Powers Bill (Thirteenth sitting)
Thursday 28th April 2016
(8 years, 6 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 April 2016 - (28 Apr 2016)
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Chair
Before we start our line-by-line scrutiny, I want to make a couple of announcements. First, I remind the Committee that for amendments to be eligible for consideration on Tuesday, they must be tabled in the Public Bill Office by the rise of the House today; I am not sure what time the House is rising. People should be aware of that. After the Committee adjourned on Tuesday, it became clear that the Question that clause 187 stand part of the Bill had not been put. I am sorry for that oversight. The appropriate course is for us to rectify the matter and to put the Question now.
Clause 187
Approval of major modifications made in urgent cases
Question put, That the clause stand part of the Bill.
Keir Starmer (Holborn and St Pancras) (Lab)
I beg to move amendment 741, in clause 194, page 148, line 36, at beginning insert—
“( ) There shall be a body corporate known as the Investigatory Powers Commission.
( ) The Investigatory Powers Commission shall have such powers and duties as shall be specified in this Act.”
The Chair
With this it will be convenient to discuss the following:
Amendment 742, in clause 194, page 148, line 40, at end insert—
“(1A) The Investigatory Powers Commissioner must appoint—
(a) the Chief Inspector, and
(b) such number of inspectors as the Investigatory Powers Commissioner considers necessary for the carrying out of the functions of the Investigatory Powers Commission.
(1B) In appointing investigators the Investigatory Powers Commissioner shall—
(a) appoint an individual only if the Investigatory Powers Commissioner thinks that the individual—
(i) has experience or knowledge relating to a relevant matter, and
(ii) is suitable for appointment,
(b) have regard to the desirability of the investigators together having experience and knowledge relating to the relevant matters.
(1C) For the purposes of sub-paragraph (1) of subsection (2B) the relevant matters are those matters in respect of which the Investigatory Powers Commission has functions including, in particular—
(a) national security;
(b) the prevention and detection of serious crime;
(c) the protection of privacy and the integrity of personal data;
(d) the security and integrity of computer systems and networks;
(e) the law, in particular, as it relates to the matters in subsections (2B)(a) and (b);
(f) human rights as defined in section 9(2) of the Equality Act 2006.”
Amendment 743, in clause 194, page 149, line 23, at end insert—
“(7A) The Chief Inspector is an Inspector and the Chief Inspector and the other Inspector are to be known, collectively, as the Inspectors.”
Amendment 744, in clause 194, page 149, line 31, at end insert—
“(c) to the Investigatory Powers Commission are to be read as appropriate to refer to the body corporate, the Investigatory Powers Commission, and in so far as it will refer to the conduct of powers, duties and functions, those shall be conducted by either the Judicial Commissioners or the Inspectors as determined by this Act or by the Investigatory Powers Commissioner, consistent with the provisions of this Act.”
Amendment 753, in clause 196, page 150, line 21, leave out “Commissioner” and insert “Commission”.
Amendment 754, in clause 196, page 150, line 38, leave out “Commissioner” and insert “Commission”.
Amendment 755, in clause 196, page 151, line 18, leave out “Commissioner” and insert “Commission”.
Amendment 756, in clause 196, page 151, line 41, at end insert—
“(4A) The powers and functions specified in this Part will be exercised by the Inspectors under the supervision of the Investigatory Powers Commissioner, except in so far as those powers are powers of the Judicial Commissioners specified in Parts 1 to 8 of this Act.”
Amendment 749, in clause 196, page 151, line 43, after “Commissioner”, insert “or Inspector”.
Amendment 757, in clause 197, page 152, line 28, leave out “Commissioner” and insert “Commission”.
Amendment 758, in clause 197, page 152, line 35, leave out “Commissioner” and insert “Commission”.
Amendment 789, in clause 199, page 154, line 11, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
Amendment 790, in clause 199, page 154, line 18, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
Amendment 794, in clause 200, page 154, line 34, leave out “Commissioner” and insert “Commission”.
Amendment 795, in clause 200, page 154, line 34, leave out “and the other” and insert “, the”.
Amendment 796, in clause 200, page 154, line 35, after “Commissioners”, insert “and Inspectors”.
Amendment 797, in clause 200, page 154, line 41, leave out “Commissioner” and insert “Commission”.
Amendment 798, in clause 201, page 156, line 38, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.
Amendment 799, in clause 201, page 156, line 41, leave out “Commissioner” and insert “Commission”.
Amendment 800, in clause 201, page 156, line 47, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.
Amendment 802, in clause 201, page 157, line 7, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.
Amendment 803, in clause 201, page 157, line 11, leave out “Judicial Commissioners” and insert “the Investigatory Powers Commission”.
Amendment 816, in clause 202, page 157, line 43, leave out “Judicial Commissioner” and insert “the Investigatory Powers Commission”.
Amendment 817, in clause 202, page 157, line 44, leave out “Commissioner” and insert “Commission”.
Amendment 818, in clause 202, page 157, line 45, leave out “Commissioner’s” and insert “Commission’s”.
Amendment 829, in clause 202, page 158, line 1, leave out “Judicial Commissioner” and insert “Investigatory Powers Commission”.
Amendment 819, in clause 202, page 158, line 1, after “Commissioner” insert “or Inspector”.
Amendment 820, in clause 202, page 158, line 4, after “Commissioner” insert “or Inspector”.
Amendment 821, in clause 202, page 158, line 8, after “Commissioner” insert “or Inspector”.
Amendment 822, in clause 202, page 158, line 10, leave out “Commissioner’s” and insert “Commission’s”.
Amendment 823, in clause 202, page 158, line 15, leave out “Commissioner” and insert “Commission”.
Amendment 825, in clause 204, page 158, line 39, leave out “Judicial Commissioners” and insert “Investigatory Powers Commission”.
Amendment 826, in clause 204, page 158, line 40, after “such”, insert “funds”.
Amendment 827, in clause 204, page 158, line 40, after “determine”, insert—
“necessary for the purposes of fulfilling the functions of the Investigatory Powers Commission under this Part”
Amendment 828, in clause 204, page 158, line 41, leave out subsection (2) and insert—
“(2) In determining the sums to be paid to the Investigatory Powers Commission pursuant to subsection (1), the Treasury shall consult the Investigatory Powers Commissioner.”
Amendment 830, in clause 204, page 158, line 42, leave out “Commissioner” and insert “Commission”.
Amendment 831, in clause 204, page 158, line 43, leave out “Judicial Commissioners” and insert “Investigatory Powers Commission”.
Amendment 832, in clause 204, page 159, line 3, leave out “Commissioners’” and insert “Commission’s”.
New clause 19—Funding, staff and facilities of Intelligence and Surveillance Commission—
“(1) The Treasury must, after consultation with the Intelligence and Surveillance Commission as to number of staff and in light of the extent of the statutory and other functions of the Commission, provide the Commission with funds to cover—
(a) such staff, and
(b) such accommodation, equipment and other facilities, as necessary for the carrying out of the Commissioners’ functions.
(2) The staff of the Intelligence and Surveillance Commission must include—
(a) independent technical experts, and
(b) independent legal experts.”
This new clause would require the Treasury to provide the ISC with funds to cover its staff, facilities and accommodation. It would also require that the ISC staff include technical and legal experts.
Keir Starmer
We come to part 8, “Oversight arrangements”. Clause 194 deals with the appointment of the Investigatory Powers Commissioner. The second set of amendments to the clause deal with appointments; I will deal with them when we come to that group.
There are numerous amendments in the first group, but they all relate to the structure of the oversight mechanism, because the structure set out in the clause is considerably different from that proposed by David Anderson in “A Question of Trust”. His recommendation 82 was that there should be a new independent surveillance and intelligence commission. In its scrutiny, the Joint Committee on the draft Bill asked why that had not been done, because, according to its recommendation 51,
“the work of the oversight body will be significantly enhanced by the creation of a Commission with a clear legal mandate.”
That was the clear view of David Anderson. The Joint Committee asked why that recommendation was not carried out. The Government response, as I understand it, was that it is too costly. At the moment, that is the only basis suggested for not acting on David Anderson’s recommendation, or that of the Joint Committee.
Our view is that such a commission, with a “clear legal mandate”, would be far better. Unless there is some significant difference in costs, there seems to be no good reason for not having it. Will the Minister tell us what calculations lie behind the suggestion that one model would be very costly and the other not so?
This issue was raised by the Interception of Communications Commissioner’s Office when it gave evidence on the structural divide that it thought there should be between the judicial function and the audit function. In its written and oral evidence, it said it would be more appropriate for those functions to be split, so that the same group of individuals did not look at both aspects. The amendment would create a commission with a clear legal mandate. It would split the functions in a way that those who exercise those functions at the moment think is appropriate. It also challenges the suggestion that the only reason not to implement the recommendation is that it is too costly.
I intend to press the matter to a vote. I will press amendment 741, and if I lose that vote, I will take a view on pressing the others, as there are so many of them, but for the record, I stand by all the amendments.
The Solicitor General (Robert Buckland)
I thank the hon. and learned Member for Holborn and St Pancras for setting out his case. He will be glad to know that there is more to this than mere cost. I say “mere”, but Ministers and parliamentarians have a duty to ensure we do not burden the Exchequer with unnecessary cost. My primary argument is focused on that. The amendments would only put us in the same position as we will be in under the Bill, but at greater cost.
The Home Office estimates that at least an extra £500,000 would be needed to staff and finance the proposed body. That is not an insignificant sum, which is why the Government are urging restraint when pursuing what might seem an entirely rational, reasonable and logical conclusion. I accept that a number of the bodies and individuals mentioned by the hon. and learned Gentleman would support the thrust of these amendments.
Keir Starmer
Is there a breakdown of the £500,000, given that this is, in broad terms, a structural proposal, rather than a numbers proposal ?
The Solicitor General
The impact assessment published alongside the Bill contains the figure. It is supported by that document, so there has been empirical research. I do not have the full figures, but I imagine that the research is based on estimates of staffing levels. The body would also have to deal with new corporate functions, such as human resources, IT, non-executive directors and procurement, as the hon. and learned Gentleman knows well from his experience as Director of Public Prosecutions. This would be a non-departmental public body similar to, say, the Crown Prosecution Service. As an independent body and a key part of our constitutional arrangements for the prosecution of crime, it would obviously need that structure to maintain its independent role.
The amount of money is not insignificant, and the question I must ask is: what would the measure achieve? I remain unconvinced that it would achieve anything more than the current proposal does, because the powers and duties of the proposed body would remain exactly the same as the commissioner’s responsibilities, and the number of inspectors, technical experts and judicial commissioners employed by the organisation would remain exactly the same.
Joanna Cherry
The Interception of Communications Commissioner’s Office said that a separate body would promote greater public confidence, because it would be independent, with an appropriate legal mandate, and would be public facing. Does the Solicitor General accept that the amendment would promote public confidence if the oversight function were separate from the judicial function?
The Solicitor General
I am grateful to the hon. and learned Lady for her intervention. I know the spirit in which she supports this amendment, because she genuinely and sincerely believes that more needs to be done to promote public confidence. My simple response to her is that the current proposals do promote public confidence in not only the organisation’s operational ability, but, importantly, its ability to deal with the role of inspection.
I respect those who believe that there should be an absolute and complete separation. I suppose it flows from the philosophical view that the desideratum of our constitution should be separation of powers in its pure form. I am afraid that I do not subscribe to that view, and never have done. I think that the British system of checks and balances, which this Bill epitomises, is the better way to achieve the balance between the need for Executive involvement and responsibility for important decisions—on warrantry, for example—on the one hand, and judicial involvement and input into the process on the other. We are achieving that balance in this Bill.
While I respect the philosophical intention behind this other approach, my worry is that we are pursuing too much of a rationalist, purist approach to separation of powers, rather than keeping to the spirit of what the Bill is all about. I am supported—perhaps not quite to the fullest philosophical extent, but certainly practically—by the comments we have heard from people with a strong interest in and knowledge of this area.
There is a value in having a relationship, even a distant one, between the two functions that I have talked about. Indeed, Lord Judge made that point in his evidence to this Committee, when he described how the Office of Surveillance Commissioners works. He said that he “strongly recommended” a model in which the inspectors act as a check on how an authorisation was implemented and then feed back, if necessary, that information to the authoriser, so that there is a full awareness of how warrants are to be put into practice.
There is a strong argument that there is stronger oversight from having one indivisible body that can scrutinise the full lifespan of a warrant, from initial request for authorisation through to implementation. David Anderson himself believes that:
“I have considered whether it would be difficult to combine the judicial authorisation function and the inspectorate in a single organisation, and concluded that it would not…Whilst the judicial function is obviously a distinct one, there is considerable benefit in dialogue: the Judicial Commissioners could advise the inspectorate on matters to look out for on their inspections, and the inspectors could in turn suggest that a warrant be referred back to the Judicial Commissioners if they formed the impression that it was not being implemented as it should be, and that the Judicial Commissioners might wish to consider modifying or cancelling it.”
I accept that the Bill does not prescribe the precise approach in practical terms, but the point is that we want the Investigatory Powers Commissioner to decide what the working relationship should be between the two functions of his or her office. The fact that the Bill is silent on that emphasises the point that we want the degree of operational independence and robustness that I believe the current framework provides.
Of course, there is nothing new about this, because the current oversight bodies—the offices of the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner—are provided for in statute in exactly the same way that it is proposed that this body be provided for in this Bill. I am sure that if the current commissioners—we heard them give evidence—felt that their independence was in any way being constrained, we would have heard about it by now. What we get is oversight, and the bodies responsible for oversight focusing on the core tasks of carrying out inspections and investigations, and avoiding the sort of administration, human resources and IT functions that I have mentioned.
Joanna Cherry
I hear what the Solicitor General says about the essential philosophical difference between those who believe in separating powers properly and those who do not, but does he accept that if the one body has judicial audit and inspection responsibilities, the judicial commissioners will effectively be checking their own homework? Does he really think that that will promote public confidence?
The Solicitor General
I respect the hon. and learned Lady’s point. I answer it by making the important point that we have stronger oversight if the body is able to look at everything from initial authorisation right through to implementation. The dialogue that can occur will therefore be much more immediate and focused, because the body will have a fuller and deeper understanding of the process. We end up with a body that is independent and flexible and will gain the public confidence that she and I want it to.
The worry is that if we pursue the attractive—seductive, almost—course proposed by the hon. and learned Lady and others and separate the powers, we will end up breaking the important links between the executive and judicial functions epitomised by the Bill. I say “links” in a neutral sense, and not in the sense that one can unduly influence the other—far from it. Rather, the Bill allows for the check-and-balance approach that epitomises the British constitution and its organic development over the centuries in a modern and relevant way. As a Tory, I am proud to stand here and argue for those values.
I want to deal with the Investigatory Powers Commissioner’s functions and the amendments seeking direct negotiation with the Treasury, rather than the Secretary of State, on the resources necessary for the commissioner to fulfil their functions. I think I am on safe ground in saying that my right hon. Friend the Home Secretary would warmly welcome not having to be involved in negotiations with the Treasury wherever possible, but I believe that removing his or her function from this negotiation would be an error.
There will be much more familiarity with the work of the IPC at the Home Office than at the Treasury, so the Home Office can make a far more accurate assessment of the resources that the IPC will need. That is important in ensuring that the IPC is properly resourced. Importantly, there can be meaningful challenge by the Home Secretary if they believe that the IPC is asking for too big a budget and is not providing proper value for money.
I do not think it is right or fair to say that the independence of the new IPC will be somehow compromised if it receives funding through a Secretary of State, because plenty of other non-departmental public bodies receive funding via that route, such as the Independent Police Complaints Commission and Her Majesty’s inspectorate of prisons. It is not an unusual or uncommon position, and we would have heard about it if there was an issue with the compromising of those bodies’ ability to act.
The Treasury has made clear in its guidance, “Managing public money”, that
“Functional independence is compatible with financial oversight”.
I am glad to say that the current oversight commissioners have repeatedly made clear in their annual reports that they have always been provided with enough money to undertake their functions. The same route of complaint will be available to the IPC, and I know that Parliament would take a keen interest if there was any suggestion by the new commissioner that the IPC was under-resourced. For those reasons, I respectfully ask Members to withdraw their amendments.
Keir Starmer
I intend to deal with funding under clause 208. I appreciate that new clause 19 is in this group, but that is probably only because it contains the word “commission”, so I will deal with it at a later stage. However, I have listened to what the Solicitor General said.
The amendments are supported by the Interception of Communications Commissioner, who was most concerned about the structural division of the two functions. The Solicitor General says that there are advantages in being able to do an end-to-end review, and that it brings focus; I can see that. If it were an end-to-end review of someone else’s work, that would be a good thing. The structural problem is that, within that end-to-end process, the same team takes the steps and does the overseeing. That is more than just a philosophical issue. It is a practical issue with how oversight works. I am therefore unpersuaded.
Joanna Cherry
The hon. and learned Gentleman will recall that Jo Cavan, the head of the Interception of Communications Commissioner’s Office, not only covered that in her written evidence, but was asked about it by me in her oral evidence to the Committee. She reiterated the position that we set out very strongly.
Keir Starmer
I know that the Interception of Communications Commissioner feels very strongly on this point. I think that he raised it in evidence, and he has certainly raised it with me. For that reason, I will press amendment 741 to a vote. I will review my position on the remaining amendments, depending on how that vote goes.
The Chair
For clarity, we will divide on amendment 741 now. We will then go on to amendments 735, 736, 740, 737, 738 and 739, which the hon. and learned Gentleman may wish to discuss. If he feels like moving the others, he may do so at that time.
Keir Starmer
I am happy to do it in whichever way suits the Committee and the Chair.
The Solicitor General
We have prayed in aid Jo Cavan’s comments quite a lot, and I think it is interesting that she said:
“It is really important for the commissioners to work very closely with the inspectors and technical engineers and so on who will carry out the post facto audits.”
I am arguing that this is supervision of the agencies’ work, and that the hon. and learned Gentleman’s point would be stronger if it were purely about the commission itself.
Keir Starmer
I am grateful to have been reminded of Jo Cavan’s evidence. The Solicitor General is right: there is a mixture of functions, and the oversight has to operate in quite a flexible way in relation to the different functions. However, this is a structural issue, and I therefore press amendment 741 to a vote.
Question put, That the amendment be made.
Keir Starmer
I beg to move amendment 735, in clause 194, page 148, line 36, leave out “Prime Minister” and insert “Lord Chancellor”.
Amendments 735 to 739 would require that Judicial Commissioners are appointed by the Lord Chancellor on the recommendation of the Judicial Appointments Commission under the Constitutional Reform Act 2003.
The Chair
With this it will be convenient to discuss the following:
Amendment 736, in clause 194, page 148, line 36, after “appoint”, insert
“in accordance with the procedure set out in the Constitutional Reform Act 2003”.
See the explanatory statement for amendment 735.
Amendment 740, in clause 194, page 149, line 4, at end insert—
“(2A) The Prime Minister may make an appointment under subsection (1) only following a recommendation by—
(a) the Judicial Appointments Commission;
(b) the Judicial Appointments Board of Scotland; or
(c) the Northern Ireland Judicial Appointments Commission.”
Amendment 737, in clause 194, page 149, line 5, leave out subsection (3).
See the explanatory statement for amendment 735.
Amendment 738, in clause 194, page 149, line 12, leave out subsection (4).
See the explanatory statement for amendment 735.
Amendment 739, in clause 194, page 149, line 14, leave out subsection (5).
See the explanatory statement for amendment 735.
Keir Starmer
The amendments are fundamental and important, because one of the main features of the Bill is the role of the judicial commissioners and the role, therefore, of judges in the double lock. The Home Secretary made a great deal of introducing that judicial element when the Bill was published in draft form, and again when it came back before the House in its current form. The Government have repeatedly and understandably emphasised that point throughout the scrutiny process. The amendments are focused on the appointment of the judicial commissioners. The way in which senior judges are appointed in this country has evolved over time, but we now have a clear and agreed way that has gone through numerous processes and consultations, with numerous recommendations on how it should properly be done.
We welcome the fact that, following the pre-legislative scrutiny, the provisions in clause 194 have been amended, but it remains the case that the Prime Minister will appoint the judicial commissioners, which is most unusual. The change from the draft Bill is that the Prime Minister must now consult the Lord Chief Justice. That is a step in the right direction, but it is fundamental, under our unwritten constitution, that judges are appointed independently of the Executive and those in political positions, and are not appointed by the Prime Minister.
The step of requiring the Lord Chief Justice to be consulted does not go as far as the Joint Committee on the draft Bill wanted. It recommended that the Lord Chief Justice be responsible for appointing the commissioners, to “ensure public confidence”. It was clear about how the separation of powers should operate in this important field. The Joint Committee also recommended:
“The Judicial Appointments Commission must also be consulted to ensure that the appointments procedure is fair and transparent.”
It wanted a move away from the Prime Minister making the appointments to the Lord Chief Justice doing so, drawing on the Judicial Appointments Commission, which was set up to ensure the transparency and independence of the appointments regime.
In short, the Prime Minister should not be involved. The Interception of Communications Commissioner’s Office agrees, stating in its evidence to the Joint Committee:
“It is inappropriate for the Judicial Commissioners to be appointed by the Prime Minister”.
It, too, said there should be a role for the Judicial Appointments Commission. As I said, the Judicial Appointments Commission has evolved over time. It was set up to ensure the independence of the judiciary, by requiring vacancies to be advertised and published, with the criteria for appointment and so on.
The changes proposed in the amendments are ones of principle that are rooted in the separation of powers and in line with the view of Lords Constitution Committee on judicial appointments. That Committee has affirmed that judicial independence is a basic constitutional principle, and it found wide agreement among those that gave evidence to it that the appointments process must be designed in such a way as to reinforce judicial independence and that judges should not be appointed through a political process.
The amendments are fundamental to the how the judicial commissioners are to be appointed. If there is to be public confidence in the double lock, judicial commissioners should be appointed independently, in accordance with the understanding and arrangements under our unwritten constitution.
The Minister for Security (Mr John Hayes)
It is a pleasure to serve under your chairmanship as ever, Mr Owen. It is important, as we consider this part of the Bill, that we test some of its provisions in the way the hon. and learned Gentleman has.
The Government take this part of the Bill very seriously. Along with the safeguards added earlier in the Bill, oversight plays an important part in making sure that we have the checks and balances that we all seek. In that respect, there is space for an informed debate about the balance that we are seeking to achieve, as the hon. and learned Gentleman suggests. The roles of the Executive and of the judiciary, which we have already begun to explore in the brief debate to which my hon. and learned Friend the Solicitor General contributed, are central to those considerations.
Keir Starmer
I take the point that there is no point in people who have gone through the Judicial Appointments Commission process once going through it again. In fairness, we have put forward several options for the appointment process and, to be clear, I prefer the one in which, having consulted the Judicial Appointments Commission, the Lord Chief Justice, rather than the Lord Chancellor, makes appointments.
Mr Hayes
That is helpful, because the hon. and learned Gentleman has qualified the point that I was going to come on to make. The amendments could take the Lord Chief Justice out of the process altogether, and I am sure that the hon. and learned Gentleman would not want that—indeed, he has confirmed as much. However, there is also a point to be made about the practicalities and effectiveness of the system, which Lord Judge commented on when I questioned him on 24 March. I asked,
“in terms of the appointment of the judicial commissioners, would the Judicial Appointments Commission be a better place to appoint them, or do you rather like the model we have come up with?”
He said that
“I much prefer the model you have come up with”,
and finished by saying:
“There is no point whatever in involving the Judicial Appointments Commission, ignoring the fact that it has got far too much to do anyway and not enough people to do the work.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 73, Q237.]
I will not comment on the arrangements or resources of that body, but on a different occasion, when speaking in particular about the Prime Minister’s role in the proposals, Lord Judge described that as a “perfectly sensible system.”
It is therefore clear that there is a view that the arrangements being put in place are a reasonable balance between the Executive and the judiciary, and that changing them would not necessarily lead to greater effectiveness or practicality. The people being appointed will already been through Judicial Appointments Commission process, as the hon. and learned Gentleman generously said. It is also important that we are clear about lines of accountability and the character of independence. To an extent, that reflects the broader debate that my hon. and learned Friend the Solicitor General stimulated. It is important that there is separation between the roles of the people involved to avoid any sense of patronage, and that the Prime Minister continues to play a role, to affirm the significance of the Executive’s engagement in everything that we are discussing in the Bill.
That is a much broader point. Although I do not want to go back into all of this, Committee members will be aware that the double lock that we have created is itself a compromise. On one hand, there is the position adopted by those who are sceptical about judicial involvement in the business of issuing warrants—the former Home Secretary Lord Reid, for example, and a number of Members of this House, including some from my own party. On the other, there are the recommendations of David Anderson, who is clear that in order to add more validation to the process and insulate it from challenge, it is important to create a role for the judiciary. Given that balance, which is a pretty finely tuned one, I am reluctant to take the Prime Minister out of the business of appointments.
Joanna Cherry
I hear what the Minister is saying about the Government’s keenness to retain the involvement of the Prime Minister. Could his concerns be met and a compromise reached via amendment 740, which the Scottish National party support? It would retain the Prime Minister’s involvement and provide that he or she would make an appointment only following a recommendation by either the Judicial Appointments Commission, the Judicial Appointments Board for Scotland or the Northern Ireland Judicial Appointments Commission. Of course, as the Minister has reminded us, those bodies would be appointing from an existing pool of appointed judges, so it would not take up too much of their time; they would be considering people with whom they were already familiar. Is that the way forward? It is important to ensure that the Judicial Appointments Board for Scotland is involved, if not the Scottish Ministers, given the Scottish Ministers’ current responsibility for appointments to the Office of Surveillance Commissioners.
Mr Hayes
The hon. and learned Lady is right to interpellate in that way. There is certainly a good argument to be made for what she has just described, and I am not insensitive to it. However, I challenge more fundamentally the suggestion that the Prime Minister’s engagement—and, further, the Prime Minister’s engagement in the way that we have set out, rather than in the way that she has just described—would in some way be injurious to the independence that is critical for those involved in the oversight process.
Joanna Cherry
It will not be, provided that he or she appoints on the recommendation of the independent bodies. That is what we do at the moment for judges, both north and south of the border. In Scotland, the First Minister appoints judges to the supreme courts of Scotland on the recommendation of the Judicial Appointments Board for Scotland. In England and Wales, as I understand it—I am willing to be corrected—the Prime Minister makes his appointments on the recommendation of the Judicial Appointments Commission and the Lord Chancellor, but presumably they have gone through an independent judicial scrutiny process. Amendment 740 would simply replicate those procedures for the judicial commissioners. I do not understand what possible objection there could be.
Mr Hayes
The hon. and learned Lady ascribes to me a lack of willingness to hear the argument, which I have made clear is not a feature of my approach to the provisions, and a certain stubbornness. Far be it from anyone to accuse me of that. I am not insensitive to that argument, as I have emphasised.
Mr Hayes
I will give way to the hon. and learned Gentleman in a second, but I draw attention again to the Joint Committee’s view on the matter, because he quoted it. I think that we are reaching a common view on this; we are certainly journeying towards accord. The Joint Committee said:
“We do not think that appointment by the Prime Minister would in reality have any impact on the independence of the Investigatory Powers Commissioner and Judicial Commissioners. In modern times, our senior judges have had an unimpeachable record of independence from the executive and we believe any senior judge appointed to these roles would make his or her decisions unaffected by the manner of appointment.”
In the witness sessions, former Home Secretaries made it clear that in their direct experience of similar matters, they had seen no sign of the judiciary being intimidated to the point of subservience when faced with the views of the Executive.
There is an argument for fine-tuning, and that is almost where the hon. and learned Member for Edinburgh South West is heading. There are a range of amendments in this group, and in a sense some are more radical than others, as the hon. and learned Member for Holborn and St Pancras has acknowledged. He and the hon. and learned Lady have placed some emphasis on, if I may put it this way, one or two of the more modest changes that have been suggested, and that is not falling on deaf ears on the Government Benches. However, I resist the fundamentalist view—not represented in this case, I think—that somehow the Prime Minister’s involvement is undesirable because it compromises judicial independence.
Christian Matheson
I will respond in a bipartisan way with an initial confession that I know little about judicial appointments. I wonder whether there are any others that have to go through the Prime Minister’s office. Perhaps the Minister can confirm that.
The appearance of things is perhaps a problem. If the Prime Minister is appointing the Secretary of State—let us say, for example, the Home Secretary—and the judges who comprise the second part of that double lock, it may appear that there is an apex, or apogee, leading to one place, rather than the two locks. It might be better for the process if there were an appearance of independence from those two sides.
Mr Hayes
Again, that is an argument about fine tuning. I do not say that with any pejorative implication. It is reasonable to say that the Prime Minister’s engagement has to be of a kind that does not either mean, or arguably, perhaps, give the appearance of, a lack of independence—I think that is what the hon. Gentleman is suggesting. Thus we end with the idea of the hon. and learned Member for Edinburgh South West about changing the chronology, or perhaps rather more than that, actually altering the process by which the Prime Minister is involved.
On the factual point that the hon. Gentleman raised about the Prime Minister’s engagement, of course the current commissioners are appointed on that basis, and there is no suggestion that their independence has been compromised.
Then we come to the issue of deployment, and I want to talk about the difference between deployment, in the way that the hon. and learned Lady is no doubt about to prompt me to.
Joanna Cherry
Does the Minister agree that, although there may be no suggestion that the current commissioners’ independence has been compromised, the appearance of independence is important for public confidence?
Mr Hayes
Imitation is the best form of flattery and I have already said that, so I take that contribution not as mere flattery but as a compliment. As the hon. and learned Lady will know, there is a big difference between being flattered and being complimented.
I do think that appearance matters. I do not want to go too far here, because the Solicitor General will have his views, and he is a man of fiercely independent mind on all these matters and speaks with great authority, which is why I am about to give way to him. However, I am not minded to be dogmatic, notwithstanding some of the fundamentals, which I think are important.
The Solicitor General
Having had experience of the JAC process myself, albeit for a junior judicial office, I think that the point is well made about the lack of necessity for renewal of approval by the JAC. However, this is not about that; it is about deployment of a judge to a particular office overseeing an Executive function. That is different from the appointment stage. This is deployment, which is why the Prime Minister should be involved.
Mr Hayes
Yes, and that is the point I was about to come on to: my hon. and learned Friend, with all his usual sharpness of mind, has anticipated what I was going to say about deployment being an organisational issue too, it being about the allocation of resource, and gauging such things as manpower and skills. Those are, in the terms he described, pretty important to the existing arrangements. One would hesitate to drive a coach and horses through that. I am not sure that that is intended, but there are risks associated with excessive radicalism as there are always risks associated with radicalism—I am just as Tory as my hon. and learned Friend.
Keir Starmer
The Solicitor General actually made a powerful case in favour of the amendments with his intervention, and I am reflecting on that. This is about choosing from a pool of judges who have all the necessary characteristics and competencies and deciding which of them will oversee the Secretary of State. That is a very powerful argument for saying that it should not be the Prime Minister for that deployment. I suppose what I am saying is this: what, over and above the other qualities that they have already proven, is needed in this case? There is the expertise; there is the knowledge of the area. Those are all matters that the Judicial Appointments Commission or the Lord Chief Justice would have strong views on, and probably better views than the Prime Minister, because they are closer to the judges on a day-to-day basis. What is special about this? It is a decision about which of these high-quality judges, with all the competencies, will oversee the Secretary of State. That is why the decision should not be with the Prime Minister.
Mr Hayes
I understand the point. The hon. and learned Gentleman will know that the Lord Chief Justice cannot appoint, because of creating what I described as patronage, but the Solicitor General’s point is that it is important that he can be involved, looking at deployment, for the reasons that we have both given.
In truth—I think it is fair to say this—the exact details of the appointment process, which the hon. and learned Gentleman seeks to explore further, are still under consideration. It is very important that all stakeholders are involved in designing an appropriate process. I am not sure that we would want to detail that in a Bill, as the hon. and learned Gentleman will understand, because this is a matter of judicial operational decisions as much as anything else.
I think we are getting to the place—perhaps in a slightly meandering way, but it is fairly late in our consideration of the Bill and a little opportunity to meander is always welcome, or perhaps not, as I can tell from your stern glance, Mr Owen—where we all agree that a balance needs to be struck between Executive involvement and judicial involvement. I think we are now getting to a place, notwithstanding that the amendments do not actually say this in the way they are grouped, where we agree that the Prime Minister needs to be involved to cement or secure that relationship between the Executive and the judiciary, and we are coming to a synthesis about the respective roles of some of the players.
At this juncture, having meandered, I can tell that you want me to draw my remarks to a swift conclusion, Mr Owen.
Lucy Frazer (South East Cambridgeshire) (Con)
Will my right hon. Friend the Minister give way?
Lucy Frazer
I have a residual concern, having been through a process, albeit not a judicial one, that was extremely lengthy and costly—appointment as a silk. I am aware of colleagues who are sometimes put off the judicial process for those two reasons, and I am slightly concerned, not necessarily about the appointer but about the process. Will members of the judiciary be willing to put themselves through a lengthy and costly process when they are already in that position?
Mr Hayes
My hon. and learned Friend makes a very good point and, at an earlier stage of consideration of the Bill, that issue was raised. Will there be enough of these people? Will they want to do the job? This is an important new responsibility. It can hardly be argued, as some outside this place and perhaps even some in this place have tried to do, that the Home Secretary cannot cope with the numbers of warrants, and then simultaneously say that these people will rush forward to consider these matters in the heat of the moment and the dead of night. My hon. and learned Friend is right to say that there is an issue about people being willing to play this part in the double lock, and I would not want in any way to be complacent about that. It is important that the system is sufficiently streamlined, but rigorous, to ensure that people can practically do what we ask of them—she is right to make that point.
The difference between us now seems to be probably a slightly more refined version of what the amendments suggest. The difference now boils down to when and how the Prime Minister is involved, and on what basis he is involved in respect to the advice that he is given. We have already amended the Bill to make it clear that the Lord Chief Justice of England and Wales, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland will be consulted, as the hon. and learned Member for Edinburgh South West said. Therefore, there has been some movement in the direction of those who felt that the measure needed to be more balanced; but, the hon. and learned Lady and, I think, the hon. and learned Member for Holborn and St Pancras are now saying that we need to recalibrate it one more time. We will not accept the amendments at this juncture, but I hope that both the content and the tone of what I have said will have suggested to all concerned that we are not unresponsive to these matters of detail and no doubt there will be further opportunity to discuss them.
Keir Starmer
I think this has been an occasion on which there has been a willingness on both sides to adapt, or look again at, their positions. Having listened to the debate, I think there is a powerful argument for saying that the Judicial Appointments Commission and its full process should not apply. One reason is that a judge has been through it and there is no need to retest their competencies. These are going to be very senior members of the judiciary and, almost certainly, from the smaller group within that who have experience handling the sort of material they need to handle to carry out the function of the judicial commissioner. That is going to be a small group of judges, and probably those who have sat on the Special Immigration Appeals Commission and dealt with other similar types of procedures. This is a question about which of those judges, who have all those competencies and experience, should oversee some of the functions of the Secretary of State. It is troubling, from an appearance point of view if nothing else, if the Prime Minister acts by consulting only the Lord Chief Justice.
Keir Starmer
In a moment I will, but I shall just finish my point. I know the Lord Chief Justice and I can imagine how that consultation would go. He would make a very powerful case and would not easily be dissuaded from his candidate.
I was going to press the amendment, but I am now not going to because of our discussion. On reflection, I wonder whether a possible approach would be for the Prime Minister to make an appointment only following a recommendation by those listed under subsection (3)(a) to (e). That would mean that the Lord Chief Justice would recommend the judge that they consider to have the skills and experience to do the particular job. The Lord Chief Justice would know about that and, with respect, the Prime Minister would not know about it in the same detail. The Prime Minister would, therefore, not be able to make an appointment that had not been recommended by the Lord Chief Justice and step outside that, but on the other hand, the Prime Minister would not be forced to make an appointment. That is because it is a recommendation, not a requirement, and so in a particularly contentious case the Prime Minister may say no.
There is an issue of appearance. These judges will have made decisions at the highest level, both for and against the Government. I can see how there would then be the temptation for some to look at the track record of a particular judge and say, “I can see why it is them.” Doing things in this way—I readily accept that this suggestion is not one of the amendments—would mean that the Lord Chief Justice had a more powerful role. In the end, it would be a recommendation role and there would be no appointment without a recommendation from the Lord Chief Justice, but they would not mandate the decision maker, which would remain the Prime Minister.
I simply put that idea forward. It is not one of the amendments. I will not press the amendments because at this stage further consideration probably needs to be given to exactly how the process will operate, if it is to be changed at all. I will now give way and I am sorry for not having done so sooner.
Mr Hayes
The difference between us is becoming even narrower. It seems that we are speaking about what the hon. and learned Gentleman has described as appearance. In saying that, I do not want to minimise the importance of this issue, but he will know that Lord Judge, when challenged on the issue of compromising independence, was clear. He said:
“There is no danger whatever.”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 74, Q236.]
The reality is that independence would not be compromised, but I understand the hon. and learned Gentleman’s point on how these things look, and I will consider that in the spirit he suggested it.
Keir Starmer
I am grateful to the Minister. In the circumstances, I will not press the amendments. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 194 ordered to stand part of the Bill.
Clause 195
Terms and conditions of appointment
Joanna Cherry
I beg to move amendment 745, in clause 195, page 149, line 34, leave out “three” and insert “six”.
The Chair
With this it will be convenient to discuss the following:
Amendment 746, in clause 195, page 149, line 36, after “may”, insert “not”.
Amendment 860, in clause 195, page 150, line 18, at end insert—
“(e) the Commissioner is unfit to hold out office by reason of inability, neglect of duty or misbehaviour.”
Amendment 861, in clause 195, page 150, line 18, at end insert—
“(6) Before removing a Judicial Commissioner the Prime Minister must consult—
(a) the Lord Chief Justice of England and Wales,
(b) the Lord President of the Court of Session,
(c) the Lord Chief Justice of Northern Ireland,
(d) the Scottish Ministers, and
(e) the First Minister and Deputy First Minister in Northern Ireland.”
Joanna Cherry
It is a pleasure to serve under your chairmanship, Mr Owen. Clause 195 deals with the terms and conditions of appointment for judicial commissioners, and amendments 745 and 746 address the term of the appointment. The Bill provides for the judicial commissioners to be appointed for short terms of three years, subject to a potential rolling renewal. The amendments would extend the length of term served to six years and remove the prospect of renewal. The thinking behind that is that secure judicial tenure is designed and recognised as one of the key safeguards of judicial independence.
The provision for the judicial commissioners to be appointed by the Prime Minister and for their terms to be short and subject to renewal only at the discretion of the Prime Minister could pose a significant barrier to the commissioners’ functional or apparent independence. Three years is a very short term, and a judicial commissioner wishing to extend his or her term may be influenced in their behaviour by a desire to please the current Administration. In saying that, I take fully on board the fact that an extremely distinguished English judge, Lord Judge, has said that that is unlikely to happen, but he cannot speak for other judges or the future, just as this Government cannot speak for future Governments. That is why judicial independence is so important.
We may feel complacent about judicial independence at present. I do not mean to be pejorative about the English system, but I like to think we have proper judicial independence in Scotland—as I said earlier, judges are appointed by Her Majesty the Queen on the recommendation of the First Minister after they have consulted the Lord President and after the Judicial Appointments Board for Scotland has made a recommendation. We have judicial independence under the current system in Scotland, but those judges are of course appointed for an indefinite term, until such time as they have to retire. Under the Bill, the plan is to have judges appointed by the Prime Minister. I have heard what the Government say, but without the further safeguards we have just been discussing, judges will be appointed for very short periods of three years, at which time their renewal will come up. If the amendments are made, the term of appointment will be six years, which is probably quite long enough to be doing this sort of important and taxing work, and there will be no renewal thereafter.
The six-year terms would allow the commissioners to develop their expertise and avoid any concerns about stagnation. Importantly, six-year terms would ensure that the judicial commissioners’ tenure does not undermine their crucial independence from the Government, and the perception of their independence from the Government and from the officers, agencies and public bodies they are monitoring.
Victoria Atkins (Louth and Horncastle) (Con)
It is a pleasure to serve under your chairmanship, Mr Owen.
The point of the three-year term is surely that the Government are hoping to recruit High Court judges at the very top of their game—High Court judges who have a long career behind them and ahead of them. The idea of the three years is to give them the choice to pop out of the High Court or the Court of Appeal and do their three years, and then if they wish to return to service in the courts, they have been out for only three years. It is an attempt to encourage judges to apply, rather than to count against it.
Joanna Cherry
I hear what the hon. Lady is saying. Initially, I thought she was going to suggest that it would be for judges who were at the end of their judicial careers and would be coming up against retirement anyway. Her point gives me a difficulty with the six-year amendment, but not with the non-renewal amendment. If judicial commissioners are appointed only for three years with a renewal at the end, my fear pertains in so far as they would be there for a very short period of time. They would probably be anxious to stay on for longer, and could well tailor their decision making to guarantee a longer stay. That may not be a concern at present, as I have taken trouble to say, but that does not mean that it could not be a concern for the future.
The oversight of some of the most intrusive and far-reaching powers of the state is important work. Therefore, in tailoring the provisions for the appointment of the judges, we should look not so much to what might be convenient for judges, but to what is necessary to secure proper independence in the eyes of the public. That is about as much as I can say about amendments 745 and 746.
I am pleased to say that amendments 860 and 861 were suggested to the Scottish National party by the Law Society of Scotland, and we have decided to table them because we think they would improve the Bill. They deal with the circumstances in which a judicial commissioner may be removed from office. At present, clause 195 allows for the removal of a judicial commissioner who is bankrupt, disqualified as a company director or convicted of an offence. The clause does not permit the removal of the commissioner for being unfit by reason of inability, neglect of duty or misbehaviour. It is important, in the eyes of the Law Society of Scotland—I endorse its views—that the possibilities of unfitness for office by reason of inability, neglect of duty or misbehaviour are provided for in the Bill.
Very regrettably, it sometimes happens in Scotland—this has happened in my lifetime—that a judge, albeit of the lower courts, has to be removed for reasons of inability, neglect of duty or misbehaviour. I realise that we are dealing with judges at the very senior end of the spectrum, and I very much hope that such steps would never be necessary, but there is no harm in providing for such steps to be taken. Would it not be a very serious matter if a judicial commissioner dealing with the oversight of such far-reaching and intrusive laws were unfit for office by reason of his or her inability, neglect of duty or misbehaviour? We would want to be rid of them, in the best interests of everybody. I commend that aspect of the Law Society of Scotland’s amendments.
If amendment 861 were made, before removing a judicial commissioner the Prime Minister would be required to consult the Lord Chief Justice in England and Wales, the Lord President of the Court of Session in Scotland, the Lord Chief Justice of Northern Ireland, the Scottish Ministers and the First Minister and Deputy First Minister in Northern Ireland. That additional safeguard of consultation with the heads of the UK jurisdictional judiciaries and the devolved Administrations would provide a check on unjustified attempts to remove the judicial commissioner.
The purpose of the amendments is to prevent unjustified attempts to remove the judicial commissioners and to add grounds for their removal if they were unfit for office by reason of inability, neglect of duty or misbehaviour. I am interested to hear what the Solicitor General has to say about the amendments.
The Solicitor General
Once again, the hon and learned Lady puts her argument succinctly and clearly. I am sure she will forgive me for characterising her as a guardian of independence of the judiciary. Although that is an admirable position to take, I do not think it is necessary in this instance.
I will deal first with the length of appointment. My hon. Friend the Member for Louth and Horncastle put it very well and I do not need to improve upon the argument. We need a relatively significant term—three years—to attract serving High Court judges, but not a term of such length that it would be difficult for them to return to High Court work in the normal course of events. That is why we think three years is an appropriate period. For retired High Court judges, we have to remember the constraints that we are under. A three-year period, with that renewal term, strikes the correct balance. The renewal term is there because this will be technical role, and knowledge and expertise will be developed by the commissioners. Allowing a reappointment will retain that expertise in a balanced and fair way. A six-year period would just be too long, bearing in mind the quality that we want to attract to fill these important and sensitive posts.
I will deal with the question of unfitness. I am sympathetic to the intention behind the amendments, but it might be argued that the proposed wording gave too much discretion to the Prime Minister to remove a commissioner. The conditions listed in clause 195 for removal from office are precisely the same as those for which a High Court judge can be removed from post. Since having held the position of a High Court judge is the qualification for office as a judicial commissioner, the reasons for removal from the two posts should be precisely the same. If a commissioner is demonstrably unfit to perform the role, he or she can still be removed from post if the Prime Minister and, importantly, both Houses of Parliament agree to the removal. That is an admirable check and balance, which deals with the point of competence and fitness to which the hon. and learned Lady quite properly points us.
On the need to consult the judiciary and others concerned in the appointment of commissioners before removing them, I do not think that is necessary because there are only two ways in which a commissioner could be removed from office: first, because the individual had failed to meet the standards expected of a High Court judge; and secondly, via the mechanism of Prime Minister and Parliament agreeing that that person is no longer fit. Those are adequate safeguards that stop the mischief of a commissioner being removed from post on the whim of the Prime Minister alone. I strongly reassure the hon. and learned Lady that there is absolutely no power for the Government—any Government—to remove a judicial commissioner just because they disagree with that commissioner’s views. I can say a Government would not do that, but I am able to go further and say that, on the basis of this framework, the Government simply cannot do that. That is absolutely right and fulfils the objectives that the hon. and learned Lady wishes to achieve through her amendment. On that basis, I urge her to withdraw it.
Joanna Cherry
I have listed carefully to the Solicitor General and the hon. Member for Louth and Horncastle and I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 195 ordered to stand part of the Bill.
Clause 196
Main oversight functions
Joanna Cherry
I beg to move amendment 752, in clause 196, page 150, line 43, at end insert
“and under section 217 (technical capability notices)”
The Chair
With this it will be convenient to discuss amendment 747, in clause 196, page 151, line 19, leave out subsection (4)(a)
Joanna Cherry
The clause provides for oversight functions. The purpose of the amendments—amendment 752 in particular—is to provide for consistent oversight functions.
Under clause 218, obligations to remove electronic protections, which we will come to under part 9, or encryption can be issued either as a national security notice or, more likely, as a technical capability notice by the Secretary of State. As drafted, the Bill does not require judicial authorisation or a test of necessity or proportionality for either a national security notice or a technical capability notice. I argue that the powers are so far-ranging that they should be subject to oversight by the proposed new oversight body. Amendment 752 would make it clear that the commissioners have responsibility for oversight of national security notices and technical capability notices.
Amendment 747 would remove clause 196(4)(a). The Bill provides for the Secretary of State to modify the functions of the Investigatory Powers Commissioner and the judicial commissioners by secondary legislation subject to the affirmative procedure. The amendment would remove that power. I acknowledge that the Joint Committee had every confidence that such a power would only be exercised responsibly by the Secretary of State, but in the light of the commissioner’s important function holding Ministers and public agencies to account, I consider that granting Ministers a delegated power to alter the commissioner’s powers is inappropriate. One way of removing that power would be to leave out subsection (4)(a); another would be to take out clause 205 completely, but we will come to that later.
Suella Fernandes (Fareham) (Con)
I rise to speak in favour of clause 196 as drafted and against the amendments. It is an honour to serve under your chairmanship, Mr Owen.
Part 8 and clause 196 cover the oversight functions for the Investigatory Powers Commissioner and the judicial commissioners. Clause 196 sets out the functions of and legal basis for oversight relating to the interception of communications, the acquisition or retention of communications data and secondary data, and equipment interference. That review power includes audit, inspection and investigation of the exercise of the powers; it also relates to the use of data acquired, and taken with subsections (2) and (3) it extends to cover bulk personal datasets, section 216 notices and functions under section 80 of the Serious Crime Act 2015. That constitutes not only wide-ranging powers of oversight, but duties, which means there will be constant watch on how the powers are implemented on the ground, which is vital to ensuring public trust.
Mr Hayes
I can add little to the contribution of my hon. Friend, who has articulated these things better than I could. Nevertheless, I should emphasise two points. The hon. and learned Member for Edinburgh South West is right to say that the clause provides for IPC oversight of technical capability notices in subsection (1), and it lists the main oversight functions that should be undertaken. I accept that she is making quite a refined case, but my argument is that the clause already provides the oversight she seeks, because the notices are
“of statutory functions relating to”
the activities. That is a wide-ranging role for the commissioner, with absolutely proper capacity to probe, through oversight of public authorities, the necessary powers and an expansive remit to consider all such matters.
Amendment 747 would give the commissioner the function of keeping under review, including by way of audit, inspection and investigation, the exercise of the functions by Ministers. I am still less persuaded of that. It is a less refined and pretty basic argument about the relative functions of the Executive and the commissioner. I do not want to lecture the Committee on the importance of the separation of powers—we have already had an interesting discussion about that—but it is absolutely right that the process of scrutiny and review should be carried out by the legislature, as my hon. Friend the Member for Fareham implied. By the way, that includes the Scottish Parliament, which will of course have a role, alongside the Welsh and Northern Irish Assemblies. I consider that role to be of the utmost importance, and I would not want in any way to limit or inhibit the capacity for reflection and review with such an amendment.
As well as all that, we doubt that the amendment would provide for appropriate allocation of the skill and resources of the commissioner, whose key function is to provide oversight of the powers as defined in the Bill. I can see what the hon. and learned Lady is getting at—as I say, her amendments are at least in part an attempt to refine what is before us—but I do not feel that I am any more persuaded of their virtue than is my hon. Friend. On that basis, I invite her to withdraw the amendment.
Joanna Cherry
To clarify, we are currently dealing just with amendments 752 and 747; I have not yet made my submissions on the other amendments. I am not prepared to withdraw the amendments and would like to press them to a Division.
Question put, That the amendment be made.
Joanna Cherry
I beg to move amendment 748, in clause 196, page 151, line 42, leave out from “must” to end of line 44 and insert
“have due regard to the public interest in avoiding acts prejudicial to”.
The Chair
With this it will be convenient to discuss the following:
Amendment 750, in clause 196, page 151, line 47, leave out subsection (c) and insert—
“(c) privacy and the integrity of personal data; and
(d) the security and integrity of communications systems and networks.”
Amendment 751, in clause 196, page 151, line 48, leave out subsections (6) and (7).
Joanna Cherry
The hon. Member for Fareham and the Minister have already anticipated what I am going to say in support of the amendments, so I will try to be brief. The Bill requires the Investigatory Powers Commissioner and the other judicial commissioners to prioritise
“national security, the prevention or detection of serious crime…the economic well-being of the United Kingdom”
above all other considerations in the exercise of their functions. It also imposes a particular duty not to
“jeopardise the success of an intelligence or security operation or a law enforcement operation…or unduly impede the operational effectiveness of an intelligence service, a police force…or Her Majesty’s forces.”
The amendments would create a “due regard” duty for judicial commissioners to exercise their functions in a manner that considers the range of important public interests that their oversight function is designed to preserve, including the protection of individual privacy,
“the integrity of personal data; and the security and integrity of communications systems and networks.”
Amendment 750 is consistent with other amendments in that it would remove the reference to
“the economic well-being of the United Kingdom.”
Amendment 751 would remove the exceptionally broad particular duty to refrain from impeding the work of the agencies, the police or the armed forces.
We have already had lengthy submissions on the issue of the economic wellbeing of the United Kingdom. On the “due regard” issue, the response from the hon. Member for Fareham and the Minister was that clause 196 is adequate as it stands, because we have heard evidence from a number of people involved in the system that everything is done properly and above board.
In these Houses yesterday, as a result of the second inquest into the Hillsborough tragedy, we had a classic example of it coming to light that the establishment and the state had not performed their duties properly. Sometimes the state and the establishment do not perform their duties properly; sometimes things that are not specifically laid down are not done properly. To take the Hillsborough example, until we had article 2 of the European convention on human rights and the particular duty to involve the family and next of kin in inquests, we would not have had what the Home Secretary read out to us yesterday, the detailed questions for the jury and the detailed answers that the jury members had to give. They were the result of a specific requirement to involve and respect the wishes of the next of kin, and of duties under article 2.
Mr Hayes
Disraeli said that a precedent embalms a principle, and the amendment is certainly not unprecedented, since we are once again considering the issue of economic wellbeing, as we have done with some frequency. Familiarity is almost always desirable, but I am not sure that the same can be said of repetition, which can often lead to tedium, so I will not repeat the argument about that. Let me therefore deal with the other amendments.
Amendment 748 has a probably unintended consequence. At the moment, judicial commissioners must—I use that word advisedly—not act in a way that they consider prejudicial to the public interest. The amendment, perversely, reduces that, so that they should have “due regard” to the public interest. It is a weakening of the public interest. I am not sure that that was the intention, but it is certainly the consequence of the amendment, which can be dismissed accordingly.
That leaves me with the point that the hon. and learned Lady made about privacy and the integrity of personal data. Proust said—he was speaking of prejudices, but this could be applied here—that at their “moment of novelty…fashion” lends things a “fragile grace.” On first acquaintance the amendment has such grace, but on closer examination the fragility becomes evident, because this is not by any means the best place in the Bill to advance that defence of privacy. A better argument, championed by the hon. and learned Member for Holborn and St Pancras, but supported by the hon. and learned Lady, would be to consider privacy at the early part of the Bill, which might then have ramifications for the whole of the rest of the Bill if an appropriate clause were constructed.
I have argued that privacy runs through the Bill and that it is an intrinsic part of the connection—the harmonious union that we seek to create in this legislation—between defence of personal interest and the capabilities of those missioned to keep us safe. The hon. and learned Gentleman put the case, right at the outset, that there was an argument for something more fundamental, which explained that relationship more explicitly through some clause. I put it to the hon. and learned Lady that that would be a much better place.
Keir Starmer
I am grateful to the Minister for giving way. I remind the Committee that the way I saw it was that there should be some overarching clause that would apply throughout the Bill, and thus to this clause and all others.
Joanna Cherry
I can reassure the Minister that the SNP and the Labour party are jointly working at present to produce an amendment later today with an overarching privacy clause for the Bill, which would be a new clause to be debated next week. However, I have to say that, given the Government’s attitude to date in relation to most of the amendments that we have tabled, I have no confidence that that new clause will be accepted, so I intend to push press this amendment to a Division.
Mr Hayes
I am a little hurt, frankly. I regard the caricature that the hon. and learned Lady has painted of my approach to all of these considerations as—I would not say insulting—hurtful. Far from the stony-faced zealot that I think she seeks to portray me as, I am the very model of this listening Government.
Peter Kyle (Hove) (Lab)
The Minister demonstrates a listening Government in action by giving way to me and I am extremely grateful to him for doing so. With regard to clause 196(6), which would be removed by the amendment, Sir Stanley Burnton, the expert witness, said:
“We wonder what the function of clause 196(6) is. It is either telling a judge the obvious or it is a big stick to wave at the judge, to say, ‘You have to approve this because if you don’t, you’ll be jeopardising the success of an intelligence operation.’”––[Official Report, Investigatory Powers Public Bill Committee, 24 March 2016; c. 74.]
Would the Minister care to comment on that point?
Mr Hayes
Now the Committee is getting exciting; it often happens, as one gets deep into consideration. I must say that the hon. Gentleman—unsurprisingly, given his reputation, but in a most welcome way—has illustrated a diligence in the consideration of the detail of this measure, which does him great credit.
However, having been nice about the hon. Gentleman, now let me be less nice. The hon. and learned Lady wants to weaken public interest; he wants to take out a whole chunk of the Bill—
Mr Hayes
The hon. Gentleman wants to take out a part of the Bill that says that, in the exercise of their function, the judicial commissioner should not
“compromise the safety or security of those involved”.
Well, of course they should not “compromise the safety” of security personnel. The hon. Gentleman may say that that is self-evident, but, my goodness, if we took out everything that was self-evident we would have a Bill half as long as it is. The self-evident is sometimes an important part of guaranteeing all those things that we might, with good will, take for granted. That is the very nature of legislation, as the Solicitor General knows very well indeed.
The Solicitor General
I take on board what the hon. Member for Hove said, but we are talking about the oversight function. I reassure him that it is not about the exercise of the judicial discretion in approving warrants. It is about the oversight part, and I hope that reassures him.
Mr Hayes
I may have been judging the hon. Member for Hove harshly. If the Solicitor General is right that that is the misapprehension, I understand why the hon. Gentleman is making the case he is making. It is essential that we clearly set out the expectations for the exercise of the oversight function, as the Bill does.
Returning to the issue of common sense and what is self-evident, I say to the hon. Gentleman for at least the third time, and possibly the fourth, that there is always debate about how much is on the face of a Bill and how much is reserved either for the common sense of those who do what the Bill asks of them or for the supporting documentation, guidance and so on. We have had that debate a number of times. It is often important that what might appear as “self-evident” or common sense is placed on the face of the Bill, as the hon. and learned Member for Holborn and St Pancras has repeatedly asked me to do.
Keir Starmer
I simply remind the Committee that what my hon. Friend the Member for Hove said was, “This is what Sir Stanley said, would you care to comment on it?” In fairness, there is no criticism of the Minister in any of this. My hon. Friend is simply saying, “This is the witness’s evidence. What do you make of it?”
Joanna Cherry
The hon. Member for Hove quoted exactly what the witness said. The Solicitor General is trying to say that the witness was mistaken, because the clause pertains only to oversight functions and not judicial functions, but does that not illustrate the very difficulty of having the judicial and oversight functions mixed up together? Subsection (5) states:
“In exercising functions under this Act”.
It does not say, “In exercising oversight functions”.
Joanna Cherry
I wish to insist on the amendments.
Question put, That the amendment be made.
Investigatory Powers Bill (Fourteenth sitting)
Thursday 28th April 2016
(8 years, 6 months ago)
Public Bill CommitteesRead Full debate Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 28 April 2016 - (28 Apr 2016)
The Committee divided: - Ayes: 6 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 7 / Noes: 10 - Question accordingly negatived.
The Committee divided: - Ayes: 10 / Noes: 2 - Question accordingly agreed to.
Joanna Cherry (Edinburgh South West) (SNP)
I beg to move amendment 760, in clause 197, page 152, line 27, leave out “directed” and insert “requested”.
The Chair
With this it will be convenient to discuss the following:
Amendment 761, in clause 197, page 152, line 28, leave out “must” and insert “may”.
Amendment 762, in clause 197, page 152, line 39, leave out
“in a manner which the Prime Minister considers appropriate”.
Amendment 763, in clause 197, page 152, line 42, leave out
“contrary to the public interest or”
and insert “seriously”.
Amendment 764, in clause 197, page 152, line 45, leave out subsections (4)(c) and (4)(d).
Joanna Cherry
The clause deals with additional directed oversight functions. It binds the Investigatory Powers Commissioner to conducting reviews of the work of the intelligence services or the armed forces, subject to the direction of the Prime Minister. While the commissioner may request that the Prime Minister gives such a direction, the Prime Minister will only issue a direction at his or her discretion. The amendments to subsection (1) would make it read as follows: “So far as requested to do so by the Prime Minister and subject to subsection (2), the Investigatory Powers Commissioner may keep under review the carrying out of any aspects of the functions of” the intelligence services and so on.
The amendments to subsection (4) would make it read: “The Prime Minister must publish any direction under this section except so far as it appears to the Prime Minister that such publication would be seriously prejudicial to national security, or the prevention or detection of serious crime”.
The amendments would remove the power to direct that such reviews take place, and replace it with the power to request that the Investigatory Powers Commissioner undertake such a review. At present, the Bill provides that any direction made may be published only in such a form as is deemed appropriate by the Prime Minister, and may be redacted for a number of very broad reasons, including that it may be prejudicial to
“the continued discharge of the functions of any public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner.”
That could include, for example, the Food Standards Agency.
The amendments to subsection (4) would limit the power to keep any request or direction secret. That would increase the effectiveness of the mechanisms for transparency and accountability in public decision making, including in respect of the conduct of the intelligence agencies and the armed forces. The provision in the Bill for the Prime Minister to direct the commissioner to undertake work that is outside the ordinary scope of its statutory duties would undermine the perception that the commissioner is independent, whereas a power to request, with discretion, keeps the perception—and reality—of the independence of the commissioner. The alternative would be to remove the clause from the Bill completely. I hope that the amendments will be acceptable to the Government, and that there will be no need to vote the clause down.
The Minister for Security (Mr John Hayes)
As the hon. and learned Lady says, the clause makes provision for the Prime Minister to direct the Investigatory Powers Commissioner to undertake additional oversight of the security and intelligence agencies. I say “additional” with emphasis, because clause 196 creates a range of oversight functions that are supplemented by clause 197. I think there may be a misapprehension here that the oversight is exclusively at the diktat of the Prime Minister. That is certainly not the case.
The principal oversight functions are given legislative life in clause 196. Clause 197 provides a further opportunity for oversight through investigations, as a result of the direction that the hon. and learned Lady referred to. That has many virtues. It adds alacrity, because of course it would not always be appropriate to wait for the annual report of the commissioner. It means that where matters of imminent concern are drawn to the attention of the Executive through the Prime Minister, or indeed to the attention of the Prime Minister, he can exercise this function with speed and diligence. To take out the whole clause, which would be the effect of the amendment, would take out the additional directed oversight functions that supplement clause 196 in a beneficial way.
Of course, the Prime Minister’s ability to make such directions is subject to the public interest and defined by need. It is important to add that anything the Prime Minister does in this regard cannot be prejudicial to national security, the prevention or detection of serious crime or the economic wellbeing of the UK. Indeed, the opposite is true. He acts in defence and promotion of those things. Once again, I understand that the hon. and learned Lady is probing, and it is right that she does so. However, on careful reflection, she will come to the conclusion that rather than adding to the Bill, this literal subtraction would be unhelpful.
The Joint Committee said nothing about this matter. Although it looked at these things with impressive diligence, it came across no evidence of which I am aware that suggested that such a measure was imperative. The amendment certainly would not enhance oversight. Part of my job here is to protect the hon. and learned Lady. The amendments we debated immediately before our brief lunch would have had the effect of minimising consideration of public interest. In this case, she would be minimising the ability to exercise additional oversight. On that basis, and in defence of the existing provisions, of what is right, and—might I say mildly—of the hon. and learned Lady’s own interests, I invite her to withdraw her amendment.
Joanna Cherry
Well, Mr Owen, I am not going to fall into that trap, just as I did not before lunchtime. I am not sure whether it is flattery or compliment, but whichever it is, I will not fall for it. There is good reason for the amendment, as I have explained, and I wish to press it to a vote.
Question put, That the amendment be made.
Joanna Cherry
On reflection, Mr Owen, I do not think that there is much point in doing so; we all know which way this is going. I think that the marker has been laid down in relation to clause 197.
Question put, That the clause stand part of the Bill.
Keir Starmer (Holborn and St Pancras) (Lab)
I beg to move amendment 773, in clause 198, page 153, line 6, leave out from “aware” to the end of line 9.
The Chair
With this it will be convenient to discuss the following: Amendment 765, in clause 198, page 153, line 6, leave out
“if the Commissioner considers that—”.
Amendment 766, in clause 198, page 153, line 8, leave out subsection (1)(a).
Amendment 767, in clause 198, page 153, line 10, leave out subsection (2).
Amendment 774, in clause 198, page 153, line 10, leave out subsections (2) to (5) and insert—
‘(2) The Investigatory Powers Commissioner may decide not to inform a person of an error in exceptional circumstances.
(3) Exceptional circumstances under subsection (2) will arise if the public interest in disclosure is outweighed by a significant prejudice to—
(a) national security, or
(b) the prevention and detection of serious crime.”
Amendment 778, in clause 198, page 153, line 11, leave out “may not” and insert “must”.
Amendment 779, in clause 198, page 153, line 12, after “has”, insert “not”.
Amendment 780, in clause 198, page 153, line 12, leave out “significant”.
Amendment 768, in clause 198, page 153, line 14, leave out subsection (3).
Amendment 781, in clause 198, page 153, line 14, leave out “has” and insert “may have”.
Amendment 782, in clause 198, page 153, line 15, leave out “not”.
Amendment 769, in clause 198, page 153, line 19, leave out subsection (4)(a).
Amendment 783, in clause 198, page 153, line 19, leave out
“and its effect on the person concerned”.
Amendment 784, in clause 198, page 153, line 20, leave out
“contrary to the public interest or”
and insert “seriously”.
Amendment 770, in clause 198, page 153, line 24, leave out subsection (4)(b)(iii).
Amendment 771, in clause 198, page 153, line 25, leave out subsection (4)(b)(iv).
Amendment 785, in clause 198, page 153, line 26, at end insert—
‘(4A) In subsection (4) any publication will be considered “seriously prejudicial” where it would involve a significant risk to the life or of serious physical injury of any person.”
Amendment 788, in clause 198, page 153, line 39, leave out subsection (7).
Amendment 776, in clause 198, page 153, line 45, leave out paragraph (b).
Amendment 772, in clause 198, page 154, line 3, after “public authority”, insert
“or a telecommunications operator”.
Amendment 777, in clause 198, page 154, line 6, leave out paragraph (b).
Keir Starmer
We deal here with error reporting. The structure and arrangement of the clause distinguishes between serious and other errors. There is a definition of “serious” in subsection (2), and a provision in subsection (3) indicating that a breach of the European convention on human rights
“(within the meaning of the Human Rights Act 1998) is not sufficient by itself for an error to be a serious error.”
The Joint Committee considered the measures and recommended that the Government review the error reporting threshold. The Government said that they accepted that recommendation, but for my part, I have not seen anything further to that acceptance. In other words, I am not sure that anything about the review has been set out. If I am wrong, I will not pursue the point, but although the Government have accepted the principle of a review, I have not seen the outcome of that review.
In relation to the threshold, the amendments are intended to achieve a number of things. One is to make it clear that a breach of a convention right should be regarded as a serious error, irrespective of what follows from it. We obviously welcome the fact that in clause 198, the Government have responded to recommendation 57 by the Joint Committee, so that commissioners are now capable of exercising the function of error notification without the involvement of the Investigatory Powers Tribunal. That is a response to the Joint Committee, I think, and it is welcome.
However, the Joint Committee suggested that as well as informing those affected by the errors and providing them with adequate information, there should be an ability to refer matters directly to the IPT where unlawful conduct has been identified. In other words, there should also be a power to go to the IPT directly. That was recommendation 66, and it is not reflected in any revision to the clause. It would be an important means of pursuing and preventing further violations involving errors about which it was not in the public interest to inform individuals, but which none the less ought to be brought to the attention of the IPT. We notice that the Government have not made that change, and I would be interested to hear the reasons. David Anderson also supported the ability of an independent oversight body to refer cases to the Crown Prosecution Service or lodge a claim directly with the IPT, again as a way of ensuring an element of direct access. Those issues relate to the first few subsections of clause 198.
Mr Hayes
Let us think for a moment about reality. I have never regarded myself as a prisoner of reality, for to imagine is to be human, is it not? But every Member of this House is from time to time approached by members of the public and others whose imagination has got the better of them. Among the skills that one develops as a Member of Parliament is the ability to discern the occasions on which that could either become a matter of embarrassment or absorb undue resource.
These amendments, which would create an obligation to send notification to anyone who had a complaint, however realistic or imaginary it might be, would surely not be a helpful addition to the sense of the Bill. I am sure that this is not the hon. and leaned Gentleman’s intention, but if he thinks through the ramifications of shifting the threshold as the amendments would, and requiring individuals to be notified as a matter of course of any error, no matter how small, he will see that the burden placed on those who are determined to deal with significant errors would be significant, undesirable and, in my view, unacceptable.
Keir Starmer
I think the Minister is making two points. One is on the imagined wrongs of members of the public, and the other is on the burden created if notification is required for all errors. The second point is, of course, a powerful submission. On the first, the imagination of the affected person does not make a material difference. This pertains to errors found by the commissioner, so surely only the second point—that it is an undue burden—is relevant.
Mr Hayes
Yes indeed. I have not sought to patronise the hon. and leaned Gentleman during the Committee’s proceedings, but there is quite a difference between 19 years’ experience as an MP and rather fewer. If he thinks through what an error of transposition, the mistyping of a digit in a telephone number or a typographical error might lead to in misassumptions on the part of those with vivid imaginations, I think he will understand the point I am trying to make. Notification of those kinds of petty errors, as the amendment would require, is not only unnecessary but would lead to undesirable consequences.
Keir Starmer
The Minister really does have to give up the habit of suggesting that the way we probe and push the Government on, say, the threshold between serious and ordinary errors has to do with inexperience. Many of us have huge practical experience of the operation of the sorts of powers in the Bill. I dare say I have looked in greater detail at the provisions of the Acts that preceded this Bill than many people on this Committee. I do not say that in self-congratulation; it has been a burden. I have looked at these kinds of provisions in detail over very many years. Part of the purpose of this exercise is to push. The Minister makes a good point on the difference between the thresholds, but if we sit on our hands and never push, this process does not work. That has nothing to do with experience.
Mr Hayes
The hon. and learned Gentleman is being excessively sensitive. I was not commenting on his experience, expertise or diligence on these matters generally. I was drawing attention to the fact that those of us who have served as Members of Parliament and have dealt with the consequences of the misinterpretation that can unfortunately arise from the most minor of matters—we have all been there in our surgeries, and I think we all know what I mean—have learned that very well intentioned provisions can lead to misassumptions and even fuel vexatious complaint. I am not questioning the hon. and learned Gentleman’s right to probe—indeed, I welcome it, and he has exercised it with diligence and courtesy—but the amendment could have the unintended consequence of fuelling the kind of misassumptions and consequent vexatious complaints that we have to deal with by the nature of our job, and be quite discerning about, too.
Christian Matheson (City of Chester) (Lab)
I am sure that I do not need to remind the Minister that both my hon. and learned Friend the Member for Holborn and St Pancras and the hon. and learned Member for Edinburgh South West are skilled, high-level criminal prosecution advocates, so they will be well aware of the ability to find fault with legislation. We should be grateful that they will not be the defence barristers finding fault with the legislation.
Mr Hayes
I agree, and that is precisely why, when members of the Opposition probe, it is important that my hon. and learned Friend the Solicitor General and I explain where that probing leads. The interface between members of this Committee is designed for that exact purpose. It allows us to test the Government’s arguments, to examine the Bill with care and to identify where it can be strengthened, and as part of that to find out where the Opposition, having probed, will ultimately be satisfied that the Government got it right the first time round. I have been on both sides of this process over many years; I have been in the shoes of the hon. and learned Member for Holborn and St Pancras, so I know exactly what that is all about.
In this case, drawing on my experience as a Member of Parliament, I can imagine where the amendment might lead. I do not think it is the intention, but it could well be the result. Furthermore, although certainly not intended, it is possible that the obligation under the amendment to notify a person of minor errors that did not cause significant harm to any individual would not only be burdensome—the hon. and learned Gentleman acknowledged that fact, which has to be taken into consideration—but might discourage the agencies and others from going about their work in the way that they do. If they felt that even the most minor accidental error would be notified to the individual concerned, it could inhibit or change the way that they went about their work.
Joanna Cherry
I can reassure the Minister. If he looks at subsection (9), he will see that “relevant error” in subsection (1) is defined as
“an error…by a public authority in complying with any requirements which are imposed on it by virtue of this Act or any other enactment and which are subject to review by a Judicial Commissioner, and…of a description identified for this purpose in a code of practice under Schedule 7, and the Investigatory Powers Commissioner must keep under review the definition of ‘relevant error’.”
Is he reassured that it is not just any old minor or accidental error, but a relevant error within the description of his own draftsman?
Mr Hayes
The hon. and learned Lady must recognise that the amendments would reduce the discretion that is already in the Bill. To that end, she is right that there is provision in the Bill for the information to enter the public domain via the report that the commissioner is bound to make on both the number of relevant errors and their seriousness, but the discretion that the Bill provides, which I am defending with some confidence, is important in excluding those purely technical, accidental, petty errors whose notification to those who choose not only to tilt at windmills but to invent the windmills they tilt at would be highly undesirable.
Joanna Cherry
Throughout our line-by-line consideration, the Minister has been very keen on referring us to the terms of the codes of practice. Perhaps the definition of “relevant error” in the codes of practice could be addressed to remove the need to include any “minor” or “accidental” error, depending on what one means by accidental. I suggest that the Minister’s concerns may be ill-placed when we have the definition of a relevant error and should perhaps be looking at that.
Mr Hayes
I did not expect such a full debate on this matter, but it seems we are going to have one, Mr Owen. Imagine that a minor or technical error was notified to the individual concerned during the course of an active investigation. That has the potential to compromise the way the investigation proceeds. Relevant errors can be minor—I accept the hon. and learned Lady’s point—but the real issue is that the commissioner will have the expertise and independence to assess the relevance of the facts and decide what is in the public interest. If we are to have an oversight arrangement that affords the commissioner that kind of authority, to oblige publication as the amendment proposes would add little and might do much worse, which would be undesirable.
The intention behind amendment 776 is unclear to me. Removing subsection (8)(b) would mean that, contrary to what I just said, the commissioner would not be obliged to publish the number of relevant errors. I think that subsection is important, because we want to know the number. We are all interested in the reporting regime’s transparency and we are having a very informed debate about this part of the Bill. I am sure that that was not the intention, but it might be the effect.
Keir Starmer
I confess that one reason why I decided not to press amendments 772 and 777 was that when I looked at this group of amendments late last night, I realised that some of them would not have the effect that I intended. This is not a criticism, but for the record and as the Minister knows, the resources and back-up we get our respective positions on the Committee differ markedly. The Opposition work at pace with the resources we have, and occasionally on returning to amendments I have realised that they should not have been proposed.
Mr Hayes
I can tell that I struck a raw nerve with the hon. and learned Gentleman earlier and I want to try to rebuild the bridge that leads us back to the warm relationship we enjoy. Notwithstanding all that I have said, the clause could be perfected and I would like to look at it in the round to see what more we can do. Both the hon. and learned Lady and hon. and learned Gentleman heard my reservations about the amendments as drafted—indeed, he generously acknowledged that there are some imperfections in the amendments, which is often the way when drawing them up as a shadow Minister, as I know only too well—but they are designed to probe and they have done that successfully.
Notwithstanding my certainty on the point I made about detail, we can look at the clause in the round and make improvements. On that basis—the Bill has a long way to go—I hope that the hon. and learned Gentleman will withdraw his amendment.
Keir Starmer
I am grateful to the Minister for the content and spirit of his remarks. I was intending to press at least one amendment in the group, but in the circumstances I will not do so. We can all reflect on the wording of the clause, so I beg to ask to leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 775, in clause 198, page 153, line 38, at end insert—
“(c) provide the person with such details of the submissions made by the public authority on the error and the matters concerned pursuant to subsection 198(5) as are necessary to inform a complaint to the Investigatory Powers Tribunal.”
The Chair
With this it will be convenient to discuss amendment 791, in clause 199, page 154, line 21, leave out subsections (3) and (4) and insert—
“(3) In any circumstances where the Commission has identified a relevant error pursuant to section 198, the Commission must give such documents, information or other material as may be relevant to the investigation of the error to the Tribunal.
(4) The duty in subsection (3) shall be exercised without request from the Tribunal.”
Keir Starmer
I can be brief. The short amendments would provide that when a person is notified so that they can pursue a remedy if so minded or advised, they are given sufficient detail to do so. I think they are self-explanatory.
The Solicitor General (Robert Buckland)
It is a pleasure to reply on these amendments. In the spirit of the hon. and learned Gentleman’s remarks, I will deal with them as quickly as I can.
The amendments are about a submission prepared by a public authority for the commissioner that relates to an error being shown to an individual affected. With respect, I do not think that is necessary or desirable and I will set out three reasons for that. First, the IPC is already required to provide to the person such details of the error as the commissioner considers necessary. If that test is met by any information provided to the IPC in the course of the submissions made pursuant to clause 198(5), the Bill already requires that the judicial commissioner provide those details to the person. The amendment is therefore unnecessary.
Secondly, I am concerned that the amendment might inhibit disclosure to the commissioner. The submission is intended to assist the commissioner in deciding the seriousness of the error and the impact of disclosure; as such, it will contain a full and frank admission of how the error occurred and what measures have been put in place to prevent it from happening again. If the public authority knows that any submission it makes will be provided to an individual, out of necessity, to preserve the secrecy of its operating systems and methods, it may need to be less candid in its submission to the commissioner. That will force the commissioner to take a decision on whether it is in the public interest for an individual to be informed without, regrettably, knowing the full facts behind the matter.
Finally, if a case is brought to the Investigatory Powers Tribunal, disclosure of the relevant material will occur during the proceedings in the normal way. If the IPT thinks that any part of the submission should have been disclosed, it can order that to be so disclosed. The tribunal is best placed to rule on what should or should not be disclosed as the case progresses, rather than what I would regard as inappropriate disclosure before the initiation of proceedings.
Amendment 791 would remove the requirement for judicial commissioners to consult the Secretary of State before releasing information to any public authority or other person. I have made the point before and make no apology for repeating it that, given the responsibility of the Executive for the protection of the public, it is right that the Executive be given the opportunity to express an opinion on where the public interest lies. For those reasons, I respectfully invite the hon. and learned Gentleman to withdraw the amendment.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 198 ordered to stand part of the Bill.
Clause 199
Additional functions under this Part
Joanna Cherry
I beg to move amendment 792, in clause 199, page 154, line 17, at end insert—
“(1A) A Judicial Commissioner may refer to the Investigatory Powers Tribunal any matter the Commissioner considers may have involved the unlawful use of investigatory powers.”.
This amendment would give the Judicial Commissioners power to refer issues of concern to the IPT without having to rely on a complaint being made.
The amendment, which would insert a new subsection in clause 199, was proposed by the Equality and Human Rights Commission and is jointly tabled by the Scottish National party and the Labour party. It would give the judicial commissioners power to refer issues of concern—matters that came to their notice and about which they were concerned—to the Investigatory Powers Tribunal without having to rely on a complaint being made.
Under the Bill as drafted the unlawful use of investigatory powers may not receive sufficient scrutiny, because often the subjects of surveillance will be unaware of it and so not in a position to make a complaint. The amendment would improve the safeguards in the Bill by addressing that problem so that where judicial commissioners are aware of a concern, they can refer it to the Investigatory Powers Tribunal. The judicial commissioners decide whether to approve the issue of warrants and are well placed to identify issues of systemic concern and of law requiring resolution by the tribunal. They are, in fact, much better placed to do so than those subject to surveillance, because they have an overview of the whole picture. It is therefore sensible to permit them to refer matters of concern to the tribunal.
The amendment is in line with a number of recommendations made during prelegislative scrutiny. Recommendation 66 of the Joint Committee on the Draft Investigatory Powers Bill was that
“The Judicial Commissioners should be able to make a direct reference to the Investigatory Powers Tribunal where they have identified unlawful conduct following an inspection, audit, investigation or complaint.”
Recommendation 16 of the Royal United Service Institute’s report, “A Democratic Licence to Operate”, says:
“The judicial commissioners should have a statutory right to refer cases to the IPT where they find a material error or arguable illegality or disproportionate conduct.”
The Interception of Communications Commissioner’s Office, in written evidence to the Draft Bill Committee, made similar recommendations.
In their response to prelegislative scrutiny, the Government did not accept those recommendations, but they appear to have agreed that judicial commissioners should have this power, as it is referred to in the draft codes of practice. For example, the draft code of practice on interception of communications states:
“The Commissioner may, if they believe it to be unlawful, refer any issue relating to the use of investigatory powers to the Investigatory Powers Tribunal”.
However, there is no express power to do this in the Bill. We argue that the referral power needs to be set out clearly in the Bill for two reasons.
First, such an important power should be in primary legislation, rather than in a draft code of practice that may be subject to revision after the passage of the Bill through Parliament. If it is in the Bill, any change to the power in future would be subject to greater parliamentary scrutiny, requiring the amendment of primary legislation rather than the mere revision of codes of practice. Secondly, providing for the power in codes of practice but not in the Bill creates uncertainty, which the amendment would resolve. Without the amendment, there may be a lack of certainty about whether the judicial commissioners have what would be a crucial power, and it could be argued that the codes of practice cannot create such a power without it being in the Bill.
The confusion over those issues could be resolved in a straightforward manner by the Government accepting the amendment. Their general response to prelegislative scrutiny referred to the fact that courts and tribunals do not usually have the power to carry out investigations on their own initiative, but the amendment would not give the tribunal that power; rather, it would give the judicial commissioners the power to refer an issue to the tribunal, which the tribunal would then investigate on the initiative of the judicial commissioners. In support of that approach, I note that the Investigatory Powers Tribunal explains on its website:
“The Tribunal adopts an inquisitorial process to investigate complaints to get to the truth of what has happened in a particular case, unlike the adversarial approach followed in ordinary court proceedings.”
I suggest that that approach is appropriate in situations such as those envisaged in the Bill, where the victims of the measures will not have knowledge of them but the judicial commissioners will. They may therefore refer to the IPT, and because the IPT is an inquisitorial rather than an adversarial body, it is well placed to investigate a referral from the judicial commissioners. I ask the Government to take on board the amendment in the spirit in which it is intended and indicate that they will agree to it.
The Solicitor General
I am grateful to the hon. and learned Lady for the way in which she has sought to persuade the Committee of her case. She is quite right that the IPT has an inquisitorial procedure rather than an adversarial one, but it still needs a claimant. It would be wholly inappropriate if the commissioner ended up being the complainant and therefore a party to the proceedings. With respect to her and those who proposed the amendment, although I appreciate their intentions, they mischaracterise the process. There will indeed be a claimant, but that will be the individual or body that is the subject of the error. Where the error is serious, the judicial commissioner will inform that person or body of their right to apply to the IPT for a remedy. As all authorities are already required to provide the IPT with all the information it needs in the course of its investigations, it is difficult to see the benefit of the amendment.
Suella Fernandes (Fareham) (Con)
Does my hon. and learned Friend agree that the heavy common law duty of candour on the authorities that will be the subject of such inquiries is applicable to these jurisdictions? Those authorities will have to disclose everything, even if that militates against the applicability of their evidence. That position was endorsed by the divisional court in the case of Chatwani.
The Solicitor General
I am grateful to my hon. Friend for reminding us about the duty of candour that applies to public bodies, which is of course material.
In addition, the clause has already been amended, pursuant to the Joint Committee’s recommendation 59, to make it clear that a commissioner does not need to consult the Secretary of State before sharing information with or providing assistance to the IPT. That is provided for in clause 199(4) and may well address many of the concerns raised by the hon. and learned Member for Edinburgh South West about the Secretary of State being some sort of bar to proper disclosure and sharing of information. That is not the case under the Bill as already amended. As for providing the IPT with all information relating to relevant errors, as I have said, courts and tribunals cannot and will not consider those issues without a party first having brought a claim.
Within the framework of the clause, we have the necessary structure for proper and frank disclosure to the IPT by the commissioners of relevant material that will assist any party in bringing an action where they have been subject to an error or some form of wrong. To conflate the two would lead to more confusion and would be unnecessary. With respect, I urge the hon. and learned Lady to withdraw the amendment.
Joanna Cherry
I hear what the Minister says. I wonder whether the amendment might benefit from tightening up, perhaps by making the referral body the Investigatory Powers Commissioner. I will give it further consideration, but for the time being I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 199 ordered to stand part of the Bill.
Clause 200 ordered to stand part of the Bill.
Clause 201
Annual and other reports
Keir Starmer
I beg to move amendment 808, in clause 201, page 156, line 37, leave out “the Prime Minister” and insert “Parliament”.
The Chair
With this it will be convenient to discuss the following:
Amendment 801, in clause 201, page 157, line 3, leave out subsection (3).
Amendment 809, in clause 201, page 157, line 6, leave out “the Prime Minister” and insert “Parliament”.
Amendment 810, in clause 201, page 157, line 13, leave out subsection (6) and insert—
“(6) The Investigatory Powers Commissioner must lay a copy of the report before Parliament together with a statement as to whether any part of the report has been excluded from publication under subsection (7).”
Amendment 811, in clause 201, page 157, line 19, leave out “The Prime Minister” and insert “The Investigatory Powers Commissioner”.
Amendment 812, in clause 201, page 157, line 19, leave out “Investigatory Powers Commissioner” and insert “The Prime Minister”.
Amendment 813, in clause 201, page 157, line 22, leave out “Prime Minister” and insert “Investigatory Powers Commissioner”.
Amendment 804, in clause 201, page 157, line 23, leave out
“contrary to the public interest or”
and insert “seriously”.
Amendment 805, in clause 201, page 157, line 27, leave out subsections (7)(c) and (7)(d).
Amendment 815, in clause 201, page 157, line 28, leave out subsection (7)(d).
This amendment would delete “prejudicial to the continued discharge of the functions of any public authority whose activities include activities that are subject to review by the Investigatory Powers Commissioner” as grounds for excluding a part of a report issued under this Part from publication.
Amendment 806, in clause 201, page 157, line 30, at end insert—
“(7A) In subsection (7) any publication will be considered “seriously prejudicial” where it would involve a significant risk to the life or of serious physical injury of any person.”.
Amendment 807, in clause 201, page 157, line 40, leave out
“if requested to do so by the Prime Minister”.
Keir Starmer
It is welcome that the Government have accepted and implemented recommendation 67 of the Joint Committee on the draft Bill, which was for the annual report to include information on the use and oversight of investigatory powers. However, it is disappointing that there is no provision to require the number of errors to be included in the annual report. A moment ago, in resisting an amendment to a previous clause, the Minister said that the errors could be included in the report; perhaps that should be a requirement under the clause—just the number of errors, of course, not the details. Similarly, there is no requirement for the number of requested authorisations to be reported. That information is vital in gauging the proportion of requests that are granted; without it, the stringency of the double lock cannot realistically be assessed.
The amendments would require that the report be made directly to Parliament and would tighten up clause 201(7), which is very similar to the clause we were looking at a moment ago. Like previous amendments, amendment 804 would leave out the words
“contrary to the public interest or”
and would tighten the test by replacing “prejudicial” with “seriously prejudicial”. Amendment 805 is consistent with previous amendments in that it would remove our old friend “economic wellbeing” from the clause. Amendment 807 speaks for itself.
The annual reporting provisions are a step in the right direction; we acknowledge that the Government have taken action as a result of the Joint Committee’s recommendations. We have tabled these amendments to suggest that more could be included in the report, that the reporting should be directly to Parliament and that exclusion from publication should be subject to a stricter test than the one currently set out in clause 201.
Mr Hayes
Let me address a couple of factual issues. Clause 198(8)(a) refers to
“the number of relevant errors of which the Investigatory Powers Commissioner has become aware during the year to which the report relates”.
The number of errors must be published by dint of that requirement. That is what I was referring to.
Mr Hayes
It is reinforced, for the sake of accuracy, by clause 201(2)(a), which has further details on
“the number of warrants or authorisations issued, given, considered or approved during the year”.
I entirely agree that it is important that scale is dealt with in the way the hon. and learned Gentleman requests.
I am quite sympathetic to the amendment. This is one of those discussions in Committee that boils down to—I have used the phrase “boils down to” once, so for the sake of Hansard, I will change it, because I do not like to repeat myself. This discussion can be reduced to—boiling has the effect of reducing, as all those who are cooks will know—a debate about what it is in the codes and what is in the Bill. As the hon. and learned Gentleman rightly says, the Joint Committee looked at this. I have its recommendation before me. He is right to say that the Committee wanted more information about the records kept in this regard.
In essence, as the hon. and learned Gentleman generously suggested, the Government have responded by publishing the draft codes of practice, which address these matters. The amendment would put these matters in the Bill. My argument for rejecting the amendment is that it is adequate for them to be in the codes. We are back to the debate of what we put in the Bill and what we put in supplementary material.
I am not unsympathetic to the amendment. I have no doubt that the hon. and learned Gentleman will want to continue this discussion. I am not sure I want to vote in favour of the amendment today, but in the spirit that I have tried to adopt throughout the consideration of this part of the Bill, I reassure him that the Government remain open-minded to how we get this right.
This is new territory, but not in the sense that there has not previously been oversight. Rather, the reforms to oversight made by the Bill are of some significance. We are in the business, as a Committee and as a Parliament, of considering exactly how to construct that oversight in an effective way. On that basis, I am prepared to listen to argument. I will not accept the amendment, but I am open to further consideration. I hope, given the tone and content of what I said, that the hon. and learned Gentleman will see fit to withdraw his amendment.
Keir Starmer
Again, I am grateful to the Minister for his observations. I record my appreciation that on occasions when we have pressed matters, both the Minister for Security and the Solicitor General have indicated a willingness to look again at clauses or provisions with a view to changing or perfecting them. That is a useful part of the process. I gauge that my chances of success in improving the clause are greater through that process than by pressing the amendment to a vote.
Keir Starmer
Therefore, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I rise to speak to amendment 814, in clause 201, page 156, line 42, after “authorisations”, insert “requested and”
This amendment would require the Annual Report to include information on the number of requests for warrants or authorisations made.
I have spoken to this amendment in the round and therefore will not say anything more about it.
The Chair
The amendment is not moved.
Clause 201 ordered to stand part of the Bill.
Clause 202 ordered to stand part of the Bill.
Clause 203
Information gateway
Joanna Cherry
I beg to move amendment 824, in clause 203, page 158, line 33, at end insert—
‘(1A) A disclosure pursuant to subsection (1) will not constitute a criminal offence for any purposes in this Act or in any other enactment.
(1B) In subsection (1), a disclosure for the purposes of any function of the Commissioner may be made at the initiative of the person making the disclosure and without need for request by the Investigatory Powers Commissioner.”
We had our old friend economic wellbeing a moment ago, and now we have our old friends whistleblowing and the public interest. Clause 203 is, rather intriguingly, titled “Information gateway” and provides that a disclosure to a commissioner will not violate any duties of confidence or any other restriction on the disclosure of information. This amendment would put it beyond doubt that voluntary, unsolicited disclosures are protected and that a whistleblower is protected from criminal prosecution.
The amendment reflects a concern, which we have already heard in the Committee, that provisions in the Bill may inadvertently risk discouraging or preventing individuals within public authorities or agencies, or in communication services providers, from approaching the Investigatory Powers Commissioner with concerns or communicating with the commission frankly.
The Solicitor General
I am sure the hon. and learned Lady is going to outline her arguments with brevity, but may I assist her? I recognise the sentiment behind the amendment and am of a mind to give them further consideration. On that basis, I invite her to withdraw the amendment.
Joanna Cherry
I am grateful for that. We have had a lot of debate about these issues already, and I am very grateful to the Solicitor General for indicating that he is going to look at them seriously. On that basis, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 203 ordered to stand part of the Bill.
Clause 204
Funding, staff and facilities
Keir Starmer
I beg to move amendment 833, in clause 204, page 158, line 41, leave out
“The Secretary of State must”
and insert “The Treasury must”.
The Chair
With this it will be convenient to discuss the following:
Amendment 834, in clause 204, page 158, line 42, leave out
“and subject to the approval of the Treasury”.
Amendment 835, in clause 204, page 158, line 43, after “with”, insert “funds to cover”.
Amendment 836, in clause 204, page 159, line 3, leave out “Secretary of State considers”.
The amendments 833 to 836 would remove the role of the Secretary of State in determining the funding, staff and facilities to be afforded to the Judicial Commissioners, leaving this to the Treasury and the IPC.
New clause 17—Remuneration or allowances for additional directed oversight functions—
“The Treasury shall make available such remuneration or allowances as necessary to meet the requirements of section 197 (Additional directed oversight functions).”.
Keir Starmer
The provision deals with funding, staff and facilities. The Solicitor General has mentioned funding already. We agree with the Joint Committee on the Bill that it is wrong for the budget and resources available to the judicial commissioners to be set solely by the Secretary of State when the primary function of the commissioner is reviewing decisions taken by them. The Solicitor General mentioned other arrangements by which budgets are set for independent oversight bodies, but these particular commissioners oversee the Secretary of State’s decisions. That is the whole point of the double lock, and that compromises the situation. The Government’s response to this recommendation indicated that they might be willing to consider a role for the Investigatory Powers Commissioner in helping to set the budget. Will the Solicitor General update us on whether that response is now complete and rejected, or whether it is still a consideration that the Government are dealing with? The Opposition’s amendment is straightforward and would improve matters by putting them entirely in the hands of the Treasury, in consultation with the commissioner.
New clause 17 is the freestanding clause that says the Treasury
“shall make available such remuneration or allowances as necessary to meet the requirements of section 197.”.
It is an in-principle position because of the particular function of the judicial commissioners, which is unlike those of the other oversight bodies. The Government have indicated a willingness to look at a different arrangement involving the Investigatory Powers Commissioner. We think that would be the right way forward, and new clause 17 would provide for that to happen through the involvement of the Treasury.
Mr Hayes
Given the commitment I made earlier to consider closely the construction of these arrangements and, in particular, to the detailed consideration about the role of the new body and its independence, I fully understand why the hon. and learned Gentlemen has raised this issue. I hesitate to cite my experience again. Last time I did that, I fed the caricature that I have been desperately trying to persuade the hon. and learned Member for Edinburgh South West is just that—a parody—through all my kindness, generosity and sensitivity to her concerns. Notwithstanding that hesitation, I have to say that from all my experience as a Minister, the last people you want to involve in these things is the Treasury.
Keir Starmer
In my role as Director of Public Prosecutions, I had to engage with the Treasury. I, therefore, do have that experience, so I join the Minister in that sentiment.
Mr Hayes
I knew we would soon get on to common ground again. It took only a few minutes for the ship to go back on to an even keel. I worry that exposing the IPC to direct negotiation with the Treasury, when I suspect that the Home Office would have a closer relationship and understanding of the IPC and of the Treasury, would serve no good purpose. I can see why in theory it would reinforce independence, and I think that is what the hon. and learned Gentleman was getting at; that it is important that the IPC is not seen as merely the creature of the Home Office, and that funding reflects that independence.
I can see where the genesis of the argument springs from but, in practical terms, it would be much more straightforward for the Home Office to assist the IPC by taking the lead in the negotiations. Treasury involvement will ultimately be necessary in order to get sufficient funding for the IPC. Certainly, in terms of the assessment of resources and so on, the intimacy of the relationship between the Home Secretary, her officials and the IPC will be critical to ensuring that the budget is properly constructed and adequate for the job.
For that reason, and in the interests of brevity, I ask the hon. and learned Gentleman to withdraw his amendment.
Keir Starmer
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Keir Starmer
I beg to move amendment 837, in clause 204, page 159, line 4, at end insert—
‘(3) The staff of the Judicial Commissioners must include independent technical experts.
This amendment would ensure that judicial commissioners have access to technical experts.
The amendment speaks for itself. It is proposed to ensure that technical expertise is available to the judicial commissioners.
Mr Hayes
Here we can find common ground, in that we entirely agree that it is right that the IPC and the judicial commissioners have access to the right technical expertise. That is essential, certainly on an ongoing basis and, one might argue, particularly at the outset. This is going to be a new process and, while these will be very experienced judges, they will be dealing with matters that they have not had to deal with previously. However, I am not sure that the amendment is necessary to achieve that.
The hon. and learned Gentleman will know that clause 204 provides that the Secretary of State must consult the IPC about staffing, accommodation, equipment and other facilities that are necessary. Of course, that will mean a proper consideration of technical expertise, and I am happy to confirm that now. That process would provide the commissioner with the chance to make it clear if they believe there is a requirement for particular staff and how they want those staff to be employed. It may be that at different points in the work, different levels of technical expertise are necessary. Some of that might require full-time employment of technical experts. On other occasions, I suspect that they would want to consult technical experts on an ad hoc basis. That flexibility would not only add to the official use of resource but add to the effective completion of their functions.
To give one further assurance, I want to be very clear that, should such representations be made to the Secretary of State—we talked in the debate on the previous amendment about the Home Office being the point of contact with our paymasters, the Treasury—it is inconceivable that the Secretary of State would consider that the commissioner did not need the resources requested. While it would not be appropriate to create a statutory obligation in the Bill to provide detail of what staff should, or should not, be employed—because it is important that the commissioner makes that judgment on a discretionary basis—I can give an assurance that the commissioner will be equipped as they need to be.
The matter might also be one that changes over time. What the IPC considers necessary at a given point in time might reflect its caseload or even case history—it might feel that extra expertise needs to be taken on, depending how things change. We have all said that all such matters that we are considering are highly dynamic, so I want to allow that extra discretion, not least for that reason.
On that basis, I hope that the hon. and learned Gentleman will withdraw his amendments, because I think we are again on the same page.
Keir Starmer
I have listened carefully to what the Minister has said, and it is now on the record, so on that basis I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 204 ordered to stand part of the Bill.
Clause 205
Power to modify functions
Question proposed, That the clause stand part of the Bill.
Joanna Cherry
I wish to oppose the clause, in relation to submissions I made earlier about clause 196.
Question put, That the clause stand part of the Bill.
Joanna Cherry
I beg to move amendment 839, in schedule 7, page 216, line 17, at end insert—
“(5A) A statutory instrument for the purposes of paragraph (4) must be accompanied by a report by the Investigatory Powers Commissioner on the content of the draft code and his consultation response.”
The Chair
With this it will be convenient to discuss amendment 840, in schedule 7, page 216, line 34, at end insert—
“(5A) A statutory instrument for the purposes of paragraph (4) must be accompanied by a report by the Investigatory Powers Commissioner on the content of the draft code and his consultation response.”
Joanna Cherry
The amendments are self-explanatory. They require any code of practice, or any proposed revision to a code, to be accompanied by a report by the Investigatory Powers Commissioner. The report would be on the merits of the proposed revision and be required before any revision was laid before Parliament. The report would allow the commissioner to draw to the attention of Parliament any relevant information about the scope of the code or its potential impact, which to my mind is a sensible and reasonable amendment.
Mr Hayes
Here we are again debating the creative tension between obligation and discretion—how much we oblige bodies to do in the Bill, and how much discretion we afford to those we empower through the Bill. The hon. and learned Lady does the Committee a service in drawing attention to how far we go in that respect. My view is plainly that discretion matters; I am sure she agrees. I emphasise yet again that the published codes of practice are draft codes. We would hope that our work in the coming days and weeks will allow those codes to reflect much of what we have said during our consideration of the Bill.
I am not implying that changes cannot be made to the Bill, but I would hope that they would be considered in concert with changes to the codes. If the Bill becomes an Act, we will soon bring the codes of practice into force, but before doing so, the Secretary of State is required to undertake a consultation process. The Bill specifies that the Secretary of State must consult the Investigatory Powers Commissioner as part of that. The amendment would require the commissioner’s response to consultation on any draft codes of practice, and any views on the content of those codes, to be published alongside the statutory instrument that seeks to bring the codes into force. I recognise the intent; I assume the aim is to increase transparency.
Joanna Cherry
The Minister will have looked at written evidence and have received briefings from various organisations, as all Committee members have, and so will be aware that many bodies have grave concerns about the fact that so much relevant information will be in codes of practice. This minor amendment seeks to address that concern. When the codes of practice are crystallised, proposed revisions will be accompanied by a report from the Investigatory Powers Commissioner that will inform parliamentarians about the utility, and the pros and cons, of proposed revisions. That is the only purpose behind the amendment.
Mr Hayes
I said that I understood the intent, and I meant it. I do understand that the hon. and learned Lady’s intent is both to inform and to provide transparency, but there is another tension at the heart of our discussion about this part of the Bill, and perhaps more generally: the tension between the independence of the commissioner, and what we oblige him to do. It is not just about obligation and discretion; it is about independence and proper parliamentary engagement, involvement, scrutiny and the power of the Executive.
I suppose the point I am making is that the commissioner may well want to publish information in the way the hon. and learned Lady describes, and there is nothing in the Bill that prevents him from so doing. Indeed, the commissioner may take the view that he wants to publish all kinds of things with both surprising and interesting regularity, but that is very much a matter for the commissioner. Indeed, as the hon. and learned Lady knows, some existing oversight commissioners take that approach; they publish without a statutory requirement to take such action.
If the commissioner is, as we wish him or her to be, an independent assessor of those things, the more discretion we give them over such decisions the better, because that allows them to exercise their judgment and, by so doing, affirm their independence.
Joanna Cherry
I hear what the Minister says, but the commissioner will have many demands on his or her time and, as we know, may have a limited budget. The amendment would require the commissioner to furnish parliamentarians with the benefit of his or her expertise and experience when changes are proposed. Does the Minister not accept that such a requirement would be a good thing?
Mr Hayes
I accept that this is a matter for debate, and the way I have approached it reflects that, I hope. These tensions, as I have described them, although creative, are the subject of different opinions. As we have navigated our way through this part of the Bill, it has been clear in our discourse that we are all in the business of trying to perfect the legislation, in the words of the hon. and learned Member for Holborn and St Pancras. I do not think there is an open-and-shut case on very much of this, actually, and you will not often hear a Minister say that, Mr Owen. I hope that we can get to a place where we all feel that the Bill is better for the scrutiny.
Joanna Cherry
I would like to press it to a vote.
Question put, That the amendment be made.
Keir Starmer
I beg to move amendment 843, in clause 208, page 160, line 13, after “determination”, insert
“or ruling or decision, including relating to a procedural matter”
and leave out
“of a kind mentioned in section 68(4) or any decision of the tribunal or a kind mentioned in section 68(4C)”
This amendment makes clear that all decisions, determinations and rulings can be appealed on a point of law.
The Chair
With this it will be convenient to discuss amendment 841, in clause 208, page 160, line 31, leave out subsection (6).
The Bill provides that an appeal on an error of law will only lie when an appeal raises an important point of principle or practice or there is another compelling reason to grant leave. This amendment would remove this restriction and create a right of appeal against any error in law.
Keir Starmer
The amendments relate to the grounds for appeal. The Bill provides that appeal on an error of law will only lie when an appeal raises
“an important point of principle or practice, or…there is another compelling reason to grant leave.”
The two amendments would remove that restriction and create a right of appeal against an error in law.
The history and background of this is that David Anderson raised the issue in his report last year. He suggested that appeals be permitted on an error of law. When it scrutinised the Bill at the tail end of last year and the beginning of this year, the Joint Committee agreed that an appeal should be permitted on any error of law. It is right that appeals should be allowed on errors of law, so that they can be corrected, and so that the right decision is arrived at on the right legal analysis.
The Government have refused to amend the Bill in the light of those recommendations, maintaining that there needs to be an important point of principle or practice or another compelling reason for granting leave. That is unpersuasive. David Anderson and the Joint Committee were absolutely clear—they were right—that an appeal should lie where there is an error of law.
The Solicitor General
I am afraid that I am not persuaded by the amendments. I am concerned that within the Bill the IPT and the appellate court already have the significant discretion necessary when granting permission to appeal. I am worried that the amendments will have a detrimental effect. There is a risk that we will end up with appeals in cases where there is no significant point of law, and that is frankly a waste of everyone’s time and resources.
I want to deal with the background to clause 208. The Bill represents a significant step. The only route of appeal currently available to complainants from decisions of the Investigatory Powers Tribunal is by reference directly to the European Court of Human Rights. For the first time, we have established a domestic right of appeal, which will enable parties to seek redress here in the UK court system. That will also enable appeals to be heard more quickly. I think we would all agree that that is a massive step forward. Appeals will be heard by the Court of Appeal of England and Wales, or the Court of Session in Scotland or the Court of Appeal in Northern Ireland, and ultimately it will be possible for appellants to seek permission to appeal from the appellant court to the Supreme Court.
I understand the sentiment behind the amendments, but there has to be balance and I think our approach is right. The Investigatory Powers Tribunal or relevant appellant court will be able to grant permission to appeal if it considers that it would raise
“an important point of principle or practice”,
or additionally, if there are any other compelling reasons to grant leave. That gives the courts an appropriately wide discretion when deciding whether permission should be granted. That makes it possible for any case that raises a significant point of law to be dealt with at appellate level.
As hon. Members are no doubt aware, this type of restriction is not unusual. Our approach in the Bill is directly modelled on restrictions that apply to judicial reviews from decisions of an upper tribunal—that is civil procedure rule 54.7A. I consider that the same restrictions should apply to appeals from the IPT.
It would be helpful for me to take the opportunity to put on record the number of cases that were considered by the IPT in 2015. Two hundred and nineteen cases were considered, of which 47%—nearly half—were deemed to be frivolous or vexatious; 30% were given a “no determination”; 17% were out of the IPT’s jurisdiction, withdrawn or not valid; 3% were out of time; and only 4% were found to have any merit to them.
Therefore, although creating an appeal route is very important—I am proud that we are doing that—not having any limits on that route would mean, I am afraid, a considerable amount of taxpayer money and court and agency time and resources frankly being wasted on continuing to manage and defend cases that, sadly, have no grounding in fact or merit in law. That is why I think the appeal route as currently delineated will still allow important cases that need further judicial scrutiny to progress.
Therefore, to strike the right balance, having broken new ground with the domestic right of appeal, I commend the clauses unamended to the Committee and urge the hon. and learned Gentleman to withdraw the amendment.
Keir Starmer
The Solicitor General is right that this is an important step forward, but it also needs to be the right one. I am not convinced that the point about frivolous and vexatious applicants has any bearing or substance, because there has to be an appeal on a point of law and it can be allowed only on a point of law. Therefore, if it is on a point of law, it is difficult to argue that it is frivolous and vexatious. Of course, the amount of those should be reduced—they waste a great deal of time—but this amendment would not increase the number of frivolous and vexatious cases, nor would it give them any grounds for success.
This important point was pressed by David Anderson and the Joint Committee, and I wish to press this amendment to a vote.
Question put, That the amendment be made.
Keir Starmer
I beg to move amendment 842, in clause 208, page 162, line 22, at end insert—
“(6) After section 68(1) of the Regulation of Investigatory Powers Act 2000, insert—
(1A) Any hearing conducted by the Tribunal must be conducted in public, except where a special proceeding is justified in the public interest.
(1B) Any determination by the Tribunal must be made public, except where a special proceeding may be justified in the public interest.
(1C) A special proceeding will be in the public interest only where there is no alternative means to protect sensitive material from disclosure.
(1D) Material will be sensitive material for the purposes of this section if its disclosure would seriously prejudice—
(a) national security, or
(b) the prevention and detection of crime.
(1E) Publication for the purposes of this section will be seriously prejudicial if it would lead to a significant threat to life or of a serious physical injury to a person.
(1F) The Tribunal shall appoint a person to represent the interests of a party in any special proceedings from which the party (and any legal representative of the party) is excluded.
(1G) Such a person will be known as a Special Advocate.”’
The Chair
With this it will be convenient to discuss the following:
New clause 20—Power to make declaration of incompatibility with a Convention right—
“(1) Section 4 of the Human Rights Act 1998 is amended as follows.
(2) In subsection (5), after paragraph (f), insert—
‘(g) the Investigatory Powers Tribunal.’”
This new clause enables the IPT to make a declaration of incompatibility under the Human Rights Act.
New clause 21—Openness and the Investigatory Powers Tribunal—
“(1) Within 12 months of the coming into force of this Act, the Secretary of State must make arrangements for an independent review of the procedures of the Investigatory Powers Tribunal to be placed before Parliament.
(2) The Treasury will provide such funds, remuneration or allowances as necessary for the Independent Reviewer appointed to produce his report pursuant to section (1).
(3) The Independent Review in section (1) must consider—
(a) the capacity of the Tribunal to afford redress to individuals when compulsory powers are exercised unlawfully, including in a manner incompatible with Convention Rights protected by the Human Rights Act 1998, and
(b) the conduct of Tribunal hearings and the production of Tribunal decisions which are open, transparent and accessible, except in so far as can be justified in light of a serious risk to life or of physical injury of any person, seriously prejudicial to—
(i) national security, or
(ii) the prevention and detection of serious crime.”
Keir Starmer
We have a long-standing principle of openness and open justice in this country. Case law as long as my arm sets out the importance of open justice. I readily accept that that principle, which we all adhere to, is more difficult to achieve in this field than in other fields, but with these amendments we are really arguing about the default position, not the automatic position.
On page 240 of his report, David Anderson recommended that the IPT be changed—I recognise what the practice is—
“to make open hearings the default and disclose the fact that closed hearings have taken place”.
The Joint Committee on the Draft Investigatory Powers Bill recommendation 74 is that, when making a decision on whether part of a hearing should be open or not, the tribunal should apply a public interest test.
This amendment would make open hearings the default position, which was David Anderson’s preference, but to have a mechanism to change the default position to closed proceedings. It is important that we keep to the principle of open justice. People fought for it for many years, and it is one of the central planks of our justice system. A default position that proceedings are open is in keeping with that principle; the default position set out in the Bill is not. For those reasons, I will press this amendment.
New clause 20 deals with declarations of incompatibility, and speaks for itself. It would amend section 4 of the Human Rights Act 1998 to give the IPT the power to make a declaration of incompatibility. Where there is a problem with legislation and convention rights that cannot be resolved during interpretation, the IPT would have the power to make a declaration of incompatibility, which would then trigger a dialogue with Parliament about what, if any, modifications or alterations to legislation should follow. That has proved worthwhile and effective so far under the Human Rights Act 1998.
The Solicitor General
In prefacing my remarks on the hon. and leaned Gentleman’s arguments, I, too, pray in aid my strong and long-held commitment to open justice. Like him, I practiced it for many years, and I believe fundamentally in it. However, as a parliamentarian, I have come to accept that there are occasions, which need to be very carefully prescribed, when that principle has to be departed from, but that must only be in cases where there is a clear public interest and a necessity that everybody would understand. That is why every time these matters arise—whether it was when the Special Immigration Appeals Commission was created nearly 20 years ago, or when the Justice and Security Act 2013 created closed material proceedings three or four years ago—they are the subject of very intense debate and proper scrutiny. I therefore welcome the opportunity to look closely at the position with regard to the new provisions in the Bill.
The amendment seeks to amend section 68 of the Regulation of Investigatory Powers Act 2000 to provide that the Investigatory Powers Tribunal must hold its proceedings in public unless closed proceedings are in the public interest. As has been outlined, the amendment would restrict the circumstances in which that can take place and would require the appointment of special advocates.
First, on the necessity, we are in something of a transitional period, but I will give the Committee some reassurance. Rule 9 of the tribunal rules, pursuant to section 69 of RIPA, currently states that all proceedings, including oral hearings, should be held in private. The problem is that the rules have not been updated to take into account changes that were introduced by the tribunal many years ago. There was a ruling in the 2003 Kennedy case, which is reported at IPT/01/62 and IPT/01/77, that the tribunal has the discretion to order that hearings take place in public. Happily, since then, in practice the IPT has regularly held open hearings, and copies of its judgments delivered in open proceedings are publicly available on its website.
Keir Starmer
I am not sure that the Solicitor General is right about that. The declaration of incompatibility arises only where the primary legislation requires an outcome that is incompatible with the convention right. By definition, the legislation in place overrides the convention right, which is what bounces it back to Parliament. Technically, he is probably wrong about that. There cannot be a remedy; that is why the amendment is needed.
The Solicitor General
I am interested in that argument, although I am not entirely persuaded by it. I am afraid that the amendment would be a problem across the piece. If courts of lower record could issue declarations, obviously I would not be arguing the point. It would be unusual for us to single out the Investigatory Powers Tribunal as sui generis in this instance.
To return to the point that I was developing, under section 68(5) of the Regulation of Investigatory Powers Act 2000, the IPT is required to make a report to the Prime Minister in the event that it makes a determination in favour of a person that arises from any act or omission made by or on behalf of the Secretary of State. In such circumstances—this may be a helpful and practical point—the Government would of course be required to consider whether legislative change was needed. De facto, our position would be very similar to the result of the declaration of incompatibility.
For example, the IPT recently decided in the Belhaj and Saadi cases, both public judgments, that the regime for certain intrusive surveillance of legally privileged material contravened article 8. I know that this is a slightly different point from declarations of incompatibility pursuant to section 19, I think—I am sure Hansard will help me—of the Human Rights Act 1998. The tribunal is already making findings on the compatibility with rights under the convention.
Finally, I will deal with the question of review of the tribunal. As Committee members will know, the use of investigatory powers has been the subject of extensive reviews, to which we have referred repeatedly in this Committee’s deliberations. None of those reports recommended the wholesale change to how the IPT operates that the amendment suggests. Bearing in mind that we have ongoing and detailed scrutiny and important and recent reviews, I do not believe that we will get added value from a further review. The new clause would also require that any independent review must consider two issues.
The IPT can of course make clear any concerns that it might have about the operation of the tribunal. The tribunal published a report only recently, and it did not express any concerns about its effective operation, so I do not think that a further review will add anything. I believe that the key concerns identified in the amended clause have been and are being addressed. On reasons of lack of necessity, I therefore submit that the new clause would not take us any further. On that basis, I invite the hon. and learned Gentleman to withdraw the amendments and new clauses.
Keir Starmer
I will not press new clauses 20 and 21, but I will press amendment 842 to a vote on the open justice principle.
Question put, That the amendment be made.