Investigatory Powers Bill

Debate between Baroness Hamwee and Lord Beith

Report: 2nd sitting (Hansard - part one): House of Lords
Monday 17th October 2016 Lords Chamber

[Lord Beith (LD)]

My Lords, I applaud any attempt to make the definitions precise but there comes a point when there is a negative consequence. I am slightly worried that the wording of the amendment—certainly as drafted—could inhibit the activities of law enforcement in establishing a pattern in the development of criminal behaviour and activity, particularly in the area of organised crime, if it were to be interpreted as strictly as its wording invites. Although the intention of the amendment is good, I am not yet persuaded that it can safely be included without an undesirable inhibition of a particularly important area of activity at the moment—namely, establishing whether groups with well-suspected criminal intent might be planning something worse.

[Baroness Hamwee (LD)]

My Lords, the noble Lord, Lord Rosser, has set perhaps the hardest task for the Minister today in asking him to comment on what was perhaps not a coded speech but simply one inviting speculation.

Turning to the amendment itself, as on the first day of Report we are sympathetic to where the noble Baroness is coming from. Indeed, I think we had an amendment on “reasonable suspicion” at an earlier stage. However, perhaps again I should phrase what I have to say as a request for confirmation, as my noble friend Lord Paddick did last week. Reasonable suspicion is encompassed by the necessity and proportionality test. The way the noble Baroness has expressed it is that there is a moderate-sized hurdle to be got over and then a higher hurdle to be surmounted, by having “reasonable suspicion” and then the necessity and proportionality test. To keep up the athletic metaphor, you will not get over the higher hurdle even if you get over the lower one, so it seems to us that you might as well just have the higher hurdle. Perhaps we can be given some more assurances about how the different criteria will bite.

Investigatory Powers Bill

Debate between Baroness Hamwee and Lord Beith

Monday 5th September 2016 Lords Chamber

[Baroness Hamwee (LD)]

My Lords, on behalf of my noble friend Lord Paddick and myself, I shall speak to this amendment and to Amendment 194DA.

The first amendment provides that the Secretary of State should provide “funds to cover” the hiring of staff, the arrangement of facilities and so on for the judicial commissioners. The amendment simply probes whether the appointment of staff—indeed, the hiring and firing of staff—is a matter for the Secretary of State or for the IPC. I would be grateful if the Minister will help me on how—in the real world, which has just been referred to—that will be dealt with.

Amendment 194DA provides for a new clause—although it is not so very new—to create a role in this for the president of the Investigatory Powers Tribunal. RIPA provides for the Secretary of State to pay members and expenses—remuneration, allowances and so on—with the approval of the Treasury. I have not sought to delete the Treasury’s control—I am realistic to that extent—but wanted to add a role for the president. Should expenses, for example, be a matter for the Secretary of State? I beg to move.

[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.

Investigatory Powers Bill

Debate between Baroness Hamwee and Lord Beith

Tuesday 19th July 2016 Lords Chamber

[Lord Beith]

My Lords, I am very glad the noble Baroness has tabled this amendment because it enables us to clarify the extension of the things we were discussing on telephone interception into this area, which the Government are now seeking to ensure is covered in other respects and that the same principles should apply. Having said that, I am inclined to agree with the noble Lord, Lord Murphy, that what is now in the Bill is probably about the best set of safeguards that we could reasonably construct from the very important principle—I agree with the noble Baroness on this—that we should protect the ability of constituents and whistleblowers to contact elected Members to raise matters of concern. They may be matters which affect the very organisations, whether it is the intelligence services or the police, that might seek the power to initiate interception.

The noble Baroness mentioned the Wilson doctrine, which came up earlier. That adds no clarity whatever to the situation but simply obscures it. It is even further complicated now by the fact that the last Prime Minister to make a Statement on the subject is no longer the Prime Minister. It is not even clear that his successor will consider herself bound in any way by what Mr Cameron said on the subject. As I think we teased out in the previous discussion, the Wilson doctrine does not really mean anything now. There is now a statutory basis for considering how to deal with a situation where there are reasonable grounds to believe that a Member of a legislature is involved in very serious crime or associated with terrorism. That is the procedure set out in the clause that the amendment addresses.

That there should be a bizarre principle now that the Government generally have a policy of not using these sorts of powers but will come along to Parliament some day and say, “We’ve changed our minds and now we want to use these powers very widely indeed” just does not make any sense at all. Since no Prime Minister has ever come to the House to satisfy the requirements of the Wilson doctrine—that if government policy changes, you should make such a Statement—the whole thing has become absurd. We should give it a decent burial and satisfy ourselves that the provisions we put in place for governing interceptions of any kind of the communications of a legislator are satisfactory. I am of the view that the clause we have now, following the various interventions that the noble Lord, Lord Murphy, described, is a good basis for doing so.

[Baroness Hamwee (LD)]

My Lords, I do not know whether the noble Baroness, Lady Jones, feels that she got an adequate response to her equivalent amendment the other day. I had a look at the Official Report this morning and I thought that it was quite telegraphic—quite brief. So it is understandable that she would raise the matter again in this context. I see that she has expanded subsection (3)(d) with regard to the public interest. On the noble Baroness’s previous amendment on interception, my noble friend Lord Paddick made the point that if ever there was a need for political accountability regarding the target of a warrant, it is when that target is a parliamentarian. He acknowledged the tensions and dilemmas in all this.

I am a member of the Joint Committee on Human Rights, which, when it considered these issues before the Bill had its Report stage in the Commons, expressed concern about the separation of powers, which is what underlies this, at any rate as regards parliamentarians—the need to be able to communicate freely with constituents and others because of the distinction between the Executive and the legislature.

Perhaps I might say a word about government Amendment 173—although not to argue with it. It is about modifications and the Committee knows our concerns about those, but I accept the need to define “designated senior official”. But I wonder about the wording that this is for,

“the purposes of this section”.

Presumably it is also for the purposes of the modification and is case by case. I am not really sure about that but I can see the need for an audit trail. I think that the phrase “designated senior official” is used elsewhere, not only in this clause—I found it in Clause 112(7)—and not only as a senior official designated by a public authority. So I wonder whether there is a need to look at the definition throughout. Of course, the Bill is not really long enough as it is, so maybe we should have additional definitions collated in Clause 236. My principal point is whether there might be some confusion about using the phrase only for the one section.