“Referrals by the Intelligence and Security Committee of Parliament
(1) Subsection (2) applies if the Intelligence and Security Committee of Parliament refers a matter to the Investigatory Powers Commissioner with a view to the Commissioner carrying out an investigation, inspection or audit into it.(2) The Investigatory Powers Commissioner must inform the Intelligence and Security Committee of Parliament of the Commissioner’s decision as to whether to carry out the investigation, inspection or audit.”
The Minister of State, Ministry of Defence (Earl Howe) (Con)
My Lords, in the House of Commons, in response to the chair of the Intelligence and Security Committee—my right honourable friend Dominic Grieve MP—the Government agreed that the ISC could refer matters to the Investigatory Powers Commissioner but that it would be entirely at the discretion of the IPC as to whether or not he or she undertook further investigation. On Report my right honourable friend suggested that this was unsatisfactory as previously he had written to the Interception of Communications Commissioner and had not received a response. Accordingly, we have now drafted government Amendment 193, which places a duty on the IPC to respond to the ISC with his or her decision on whether or not he or she is going to undertake any work on the issue that the ISC has referred. I hope that the Committee will welcome this proposed change. I beg to move.
Lord Janvrin (CB)
I rise to speak to Amendment 194 in my name. I remind the House of my membership of the Intelligence and Security Committee. Obviously, we support government Amendment 193. Our very small additional amendment suggests that there should be a further subsection which will ensure that the Intelligence and Security Committee has sight of the commissioner’s findings or report, subject to the rules governing the ISC’s access to information under the Justice and Security Act 2013, to which we make reference in the amendment. This seems to us a small but sensible addition to the Government’s amendment.
Lord Rosser (Lab)
As has been said, government Amendment 193 places a statutory duty on the Investigatory Powers Commissioner to inform the Intelligence and Security Committee of Parliament of his or her decision as to whether to carry out an investigation, inspection or audit in cases where the Intelligence and Security Committee has referred a matter to the Investigatory Powers Commissioner with a view to the commissioner carrying out such an investigation, inspection or audit. Amendment 194, in the name of the noble Lord, Lord Janvrin, is very similar to the government amendment, except it also requires the Investigatory Powers Commissioner to provide the Intelligence and Security Committee of Parliament with the outcome of any investigation, inspection or audit carried out under the terms of the government amendment. I do not know whether the Government are going to accept Amendment 194—we shall find out shortly—or, alternatively, give reasons why it is not acceptable. They may simply say that this will happen anyway and that the amendment is therefore unnecessary.
However, I have one other, I think very minor, point to raise. I accept before I start that it may display a degree of confusion about another part of the Bill. Clause 206(1) enables the Prime Minister to give direction to the Investigatory Powers Commissioner, provided that it,
“does not apply in relation to anything which is required to be kept under review by the Investigatory Powers Commissioner under section 205”.
Clause 206(3) states that:
“The Prime Minister may give a direction under this section at the request of the Investigatory Powers Commissioner or the Intelligence and Security Committee of Parliament”.
Where the direction under subsection (3) has been given by the Prime Minister to the Investigatory Powers Commissioner at the request of the Intelligence and Security Committee of Parliament, will the terms of government Amendment 193 and Amendment 194, if accepted, apply in respect of the commissioner informing the Intelligence and Security Committee of Parliament of his or her decision and the outcome of any investigation, inspection or audit? If not, why not?
Earl Howe
My Lords, let me start my response to the noble Lord, Lord Janvrin, by endorsing the point ably made by the noble Lord, Lord Murphy, and paying tribute to the work that the ISC does. Its members have proven themselves adept at holding the security and intelligence agencies to account and they are more than capable, I believe, of investigating any issue that falls within their remit.
It is conceivable, however, that the ISC may uncover an issue that merits further investigation but which is outside its remit to investigate. In those instances, it is right that the committee can refer the issue to the Investigatory Powers Commissioner, who can then decide whether to investigate further. It is also right that, having referred the issue, the ISC is then informed about the commissioner’s decision on whether to take further action. That is what the Government’s amendment seeks to achieve and I am glad that it has found favour with the committee.
The amendment put forward by the noble Lord, Lord Janvrin, would go further than that and mean that the commissioner must then report to the ISC the result of the investigation. I find that difficult to accept for two reasons. First, the IPC should report solely to the Prime Minister, who is ultimately responsible for our national security and therefore best placed to take any national security decisions that arise as a result of the reports. Secondly, if an issue has been referred to the IPC because it is outside the remit of the ISC, it does not necessarily follow that the ISC should see the result of that investigation.
It is worth focusing for a second on how things work in the real world. I am sure that, in practice, the IPC and the ISC will strike up a sensible and solid working relationship and keep each other informed of their work. But we do not have to provide for that in statute. On that basis, and in the light of the government amendment, which achieves almost all of what is intended by the ISC, I hope that the noble Lord, Lord Janvrin, will feel able not to press the amendment.
Let me address the point raised by the noble Lord, Lord Rosser, which is not a trivial point. Prime ministerial direction would come into play in a scenario in which, upon request of the ISC, the IPC declined to investigate further in the area suggested. In that situation, the ISC could progress the matter by asking the Prime Minister to direct the commissioner to undertake an investigation. That is provided for by Clause 206(3).
I do not think it is appropriate for this Bill to provide a mechanism whereby the IPC has to report in a certain fashion. We have to be a little careful here to ensure that the IPC is not seen as an arm of the Intelligence and Security Committee—it is not. However, there is a memorandum of understanding between the Intelligence and Security Committee and the Prime Minister. I understand that that memorandum of understanding will come up for review in the reasonably near future. I suggest that, at that time, if it is thought appropriate, the MoU could provide a vehicle to offer some further reassurance in the area that the noble Lord, Lord Janvrin, is seeking.
I recognise the issue that has been raised by the noble Lord, Lord Janvrin. As I said, I think that in the real world it will be a non-issue. However, if there is concern in this area, perhaps I can send a signal to those involved that, when the MoU is further considered, this issue will also be factored in.
Lord Janvrin
I too share the view that the Minister has expressed: I can imagine, and I sincerely hope, that in the real world there will be the closest possible working relationship between the IPC and the ISC. I take entirely the point that the Investigatory Powers Commissioner reports to the Prime Minister. However, the point we are trying to make is that where the ISC is involved in looking at an issue and has seen an area that it thinks is for the Investigatory Powers Commissioner to look at, and that has been accepted as is provided for in Amendment 193, some kind of reference back seems common sense and what the committee needs. However, given the point made by the Minister about the MoU, I will not press this amendment.
Lord Beith (LD)
My Lords, it is quite important that we get this right. As I think the noble Lord, Lord Murphy, will remember, one of the commissioners under the previous arrangements was found by the ISC to have been hopelessly inadequately provided with staff, to such an extent that there was a huge build-up of correspondence. That was some years ago and it took some effort by Members of our party as well as of his to ensure that that was quickly remedied.
I also have experience as a constituency Member of Parliament in dealing with an employee issue, the merits of which I will certainly not go into but which was not helped by its being unclear who the employer was. I am talking about somebody who was engaged in the office of one of the commissioners. So I am grateful to my noble friend for trying to make sure that we get this bit right.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I turn first to Amendment 194ZA, regarding the provision of funds to the Investigatory Powers Commissioner, and I note that the noble Baroness, Lady Hamwee, has referred to this as a probing amendment.
I entirely agree with what this amendment seeks to achieve. The Investigatory Powers Commissioner must be free to appoint whomever he or she thinks is right and proper and to arrange their office as they see fit. It is certainly true with the current independent commissioners that, although they receive their funding from the Secretary of State, they are free to employ whomever they think best suited for any role they have to fill.
It has always been the intention under the Bill that the commissioner should appoint whom they wish. However, I would not want to accept this amendment as drafted since it may preclude the Secretary of State providing non-monetary assistance to the IPC. I will consider further whether anything more should be done to put beyond doubt that the commissioner will have autonomy over the appointment of staff, but I hope I have made the intention absolutely clear in response to the request from the noble Baroness. On that basis, I invite her to withdraw the amendment.
On Amendment 194DA, it is certainly the case in practice that the president of the Investigatory Powers Tribunal is consulted before the budget allocated to the tribunal is settled. The tribunal then has sole responsibility for paying the salaries and expenses of the tribunal. This is a sensible way of doing things and ensures that the tribunal has sufficient funds to conduct its business. I see no reason for changing this practice.
Earl Howe
My Lords, let me turn first to Amendments 194CA and 194CB in the names of the noble Lord, Lord Rosser, and the noble Baroness, Lady Hayter, which deal with Clause 214.
Clause 214 allows a Secretary of State to modify the functions of the Investigatory Powers Commissioner or other judicial commissioners. This will allow the functions of the judicial commissioners to be extended, but also to be changed to reflect any potential changes to the investigatory powers that the commissioners oversee. The judicial commissioners will oversee the use of a wide range of powers, including some in other enactments. Those powers may in due course be changed or updated, perhaps in the same way that this Bill is replacing parts of RIPA. In such a case, it is right that the functions of the judicial commissioners could be modified to reflect the changes. However, this may not mean an extension of the judicial commissioners’ oversight. The change may be entirely neutral—for example, a public authority changing its name or something of that sort. If these amendments were accepted, such a sensible change would not be possible.
I hope I can reassure noble Lords that this power will not be used to reduce the oversight provided by the commissioners. The Government have been very clear on this point. It is also worth reminding the Committee that this power is subject to the affirmative procedure and that Parliament will have to approve any regulations made under this clause. So any attempt to diminish the commissioner’s oversight responsibilities, were such an attempt to be made, would no doubt be scrutinised extremely carefully by each House of Parliament, particularly in the light of the assurance that I have just given.
The Committee will recall that the Delegated Powers and Regulatory Reform Committee expressed a concern about the breadth of the order-making power, as was made clear by noble Lords. It recommended that it should not extend to the IPC’s functions relating to the authorisation of warrants. The Government accepted this recommendation, and this clause has been amended accordingly.
Amendments 194CC, 194CD and 194CE deal with changes to Schedule 7. Amendment 194CC would require the Secretary of State to consult persons interested in a code of practice before issuing such a code. This amendment is unnecessary as the clause as drafted provides for the publication of codes in draft and for the Secretary of State to consider representations on the draft codes. In order for the Secretary of State to hear representations on the code, the Bill requires a consultation to be conducted.
I understand that Amendments 194CD and 194CE are intended to probe whether the use of “have regard to” or “take into account” strengthens or weakens the effect of the consideration of a failure to comply with a code conducted by a supervisory authority or a court or tribunal. Having taken advice on the matter, I can assure your Lordships that the choice of language is based on the context and it is appropriate to refer to a court or an oversight body taking matters into account. However, that form of words does not provide any greater or lesser degree of consideration.
Amendments 238A, 238B, 240A, 240B and 242A I believe respond to the recommendations made by the Delegated Powers and Regulatory Reform Committee in its report on this Bill of 8 July 2016. These amendments relate to the parliamentary procedure used where primary legislation is modified and to the power to make consequential amendments not being time-limited in relation to Clause 242(2) and Clause 242(3).
The proposed amendments to Clause 238 seek to ensure that whenever a delegated legislative power is used to modify primary legislation the affirmative procedure should apply. This is a point which has been raised by the committee in the context of a number of Bills, and I am afraid that it is one that the Government cannot accept. Where secondary legislation amends the text of primary legislation, the Government agree that such legislation should be subject to the affirmative procedure. The Government have committed that, wherever possible, changes to primary legislation will be made by textual amendment rather than by modifying the primary legislation. There are likely to be relatively few occasions when the powers to otherwise modify primary legislation need to be exercised—I apologise for the split infinitive which the noble Baroness pointed out. However, it remains the Government’s position that there are some cases where it is necessary to modify primary legislation and that it is not possible to specify which kinds of modification of primary legislation should attract the negative procedure and which the affirmative procedure without creating legal uncertainty.
The Government have set out their position in the Delegated Powers Committee memorandum on this Bill, and in relation to a number of different Bills, and remain of the view that the position is justified and that the powers in the Bill are subject to the appropriate level of parliamentary scrutiny. I have in fact today written to my noble friend Lady Fookes, the chair of the Delegated Powers and Regulatory Reform Committee, setting out the Government’s position and the reasons for it in response to the committee’s view on this issue and on the point raised by the committee on the power to amend Schedule 8. I will, of course, place a copy of that letter in the Library of the House. I therefore ask that these amendments be withdrawn.
The proposed amendment to Clause 242 seeks to constrain the power to make consequential amendments so that it could not be used to amend legislation passed after this Bill receives Royal Assent. Clause 242 contains the usual power to make amendments to other legislation consequential on the provisions in the Bill. However, as currently drafted, the power would permit the amendment of legislation passed at any time in the future. Amendment 242A would in fact go further than the committee’s recommendation, which recognised the necessity of amending of enactments passed or made during the current Session. I can confirm that the Government will bring forward amendments on Report which would restrict the powers conferred by Clause 242 and the similar power in Schedule 8 to the Bill in response to the committee’s recommendation.
The power to make consequential amendments to enactments passed in the same Session is necessary because other Bills before Parliament at the same time as this Bill touch upon the powers and public authorities covered by this Bill, such as, for example, the Policing and Crime Bill. Since it is impossible to predict how those Bills or the Investigatory Powers Bill may be amended during their parliamentary passage, and which Bill may achieve Royal Assent first, it is necessary to allow for the possibility of consequential amendment of future enactments.
I have just been handed a note to amplify what I said on Amendment 194CC in relation to consultation on codes of practice, and will just add that consultation comprises publication of a draft and consideration of any representations made. I suggest to the noble Baroness that publication, by its nature, is conspicuous and is the means by which government consultations are established. I hope she is satisfied on that point.
Finally, government Amendment 241, which is in this group, makes it clear that a statutory instrument containing regulations made under Clause 50(3)—the designation of relevant international agreements under which interception may be carried out—is subject to the negative parliamentary procedure. This amendment is consequential on the amendment to Part 2 which was considered in July. I hope that the House will agree to that amendment when I come to move it.
Baroness Hamwee
My Lords, I apologise for the rather cheap gibe about the split infinitive. I recognise that I am old-fashioned, and styles have moved on. It would obviously be inappropriate to pursue the points made by the Delegated Powers and Regulatory Reform Committee at this point, given that the Minister has written to it, and we will wait to see if anything more happens on that. However, I will just say, on the question of consultation, that the Government are often very good at being proactive in consulting and at contacting organisations which they know have an interest. That is something that should be encouraged. To my mind, consultation which simply involves publication on a website—or perhaps in common parlance, “slipping something out”—the day before a recess and waiting to see whether there are any comments is not good practice. That was why I was concerned to spell this out. I am not of course suggesting that anyone on the Front Bench at the moment would indulge in such a practice, but it has been known to happen. This is not an unnecessary point, but I will not pursue it this evening.