Investigatory Powers Bill

Baroness Jones of Moulsecoomb Excerpts

Tuesday 19th July 2016 Lords Chamber

Moved by

[Baroness Jones of Moulsecoomb]

176A: Clause 203, page 155, line 16, at end insert—
“( ) There shall be a body corporate known as the Investigatory Powers Commission, which shall have such powers and duties as are specified in this Act.”

[Baroness Jones of Moulsecoomb (GP)]

This amendment would replace a proposal to create an Investigatory Powers Commissioner with provisions to create a new investigatory powers commission. The investigatory powers commission would be a separate oversight body, as recommended by the Independent Reviewer of Terrorism Legislation, David Anderson QC, in his report A Question of Trust. The commission would have oversight functions that currently reside with judicial commissioners who authorise warrants.

The IP Bill proposes that the Investigatory Powers Commissioner will replace the Interception of Communications Commissioner’s Office, the Office of Surveillance Commissioners and the Intelligence Services Commissioner. That sort of reduction does sound sensible. Their roles would go to the new Investigatory Powers Commissioner and fellow judicial commissioners, who would therefore have dual responsibility for, first, reviewing surveillance warrants issued by the Secretary of State and law enforcement chiefs and, secondly, for post-facto oversight of the use of intrusive powers. Additionally, the investigatory powers commission would be required to keep under review any aspect of the functions of the agencies, as directed by the Prime Minister, and must make an annual report to her about the carrying out of the functions of the judicial commissioners.

The Home Office has so far refused to establish an independent investigatory powers commission as a statutory oversight body, in spite of recommendations based on extensive evidence. Instead, it has retained its own proposal for a team of judicial commissioners, appointed by the Prime Minister and funded by the Home Secretary, to both authorise and oversee the use of investigatory powers. This approach confuses and conflates the roles of authorisation and oversight. It is constitutionally inappropriate for those involved in decision-making to have responsibility for the oversight of those same decisions. Such conflation gives rise to a potential conflict of interest. I support the reduction of oversight to one consolidated body but urge the Government to make oversight more independent. I beg to move.

[Baroness Hamwee (LD)]

My Lords, my noble friend Lord Paddick and I have Amendments 194A, 194B and 194C to 194F in this group. Clause 213 deals with funding, the provision of staff, accommodation, equipment and facilities, and remuneration and allowances for the judicial commissioners. I read the “remuneration and allowances” as being personal to the judicial commissioners. Our amendments are all concerned with ensuring that the commissioners have the tools to do the job.

Amendment 194A would insert “support, assistance”. I do not think that I need to pray in aid the support and assistance only relatively recently acknowledged as being needed by the Independent Reviewer of Terrorism Legislation; of course, I had his situation a little in mind but it is not the only factor. I am not convinced that the term “facilities” extends, for instance, to legal or technical support. There is a reference to “staff” but that suggests permanent staff, not the ability to seek advice from people who are not on the payroll. I am sure that it is not intended that the commissioners should not be able to access such advice.

Amendment 194F deals with Clause 220, regarding the Technical Advisory Board. It would provide for the appointment of people whom the Investigatory Powers Commissioner considers should be appointed, as well as the Secretary of State. It is also intended to probe whether the board will be available to the Investigatory Powers Commissioner and the judicial commissioners.

Amendment 194E deals with the same clause, which says:

“There is to continue to be”,

a board. Our amendment provides that there “shall” be a board. We are perhaps not starting from here in the real world but, legislatively, we are. That there should “continue to be” a board—I know that RIPA provides for one—implies that something unstated is carried over to the new regime. If that is so, I would like to understand it.

Amendment 194B is still about support and would enable the Investigatory Powers Commissioner to share with Parliament representations about the adequacy of his or her support. This is about Parliament’s scrutiny role. If there are truly double locks, the IPC should be able to report on the issue and not be stifled by some Secretary of State in the future—I do not apply this to any previous or current Secretary of State. Clause 210 on the annual reporting provision does not, to my mind, cover the point—I think that the amendment of the noble Lord, Lord Rosser, makes a similar point.

Our other two amendments are about discrete points. Amendment 194C is to Clause 214, which would enable the Secretary of State to make regulations that “modify the functions” of the commissioners. We are concerned that this could be used to override or limit their functions. I can just about see an argument for extending functions through this mechanism but not for detracting from functions by means of secondary legislation. This amendment is to probe what is intended.

I may well be told that experience might demonstrate that changes are needed. While I can see that, there is always the issue of what is appropriate for secondary legislation and what really should go into primary. Also, if there is a concern to be able to respond fairly quickly to a need to modify, are we talking about modifying functions or modifying powers? Again, that should probably be by extension rather than reduction. The Constitution Committee made comments about this and, in the usual way that our committees report, said that the House may wish to consider the matter and ask the Government whether this is really appropriate.

Amendment 194D would provide for the rules under which the Investigatory Powers Tribunal operates to be made by the tribunal procedure committee rather than the Secretary of State, as is provided for now under Section 69 of RIPA. Again, the Constitution Committee raised this issue and, in its report on the Bill, said:

“The capacity of the Secretary of State to determine”,

the tribunal’s rules,

“could call into question the Tribunal’s actual and perceived independence. The introduction of a right of appeal would clearly elevate the IPT from a complaints body to an independent tribunal within the justice system”.

It then suggested that the House should consider the matter. The last subsection of my proposed new clause in Amendment 194D, which would omit Section 69(12) of RIPA, is consequential and refers to Scottish Ministers.

On Amendment 176A, we take very much the points made by the noble Baroness, Lady Jones, and no doubt expressed to us all very cogently by Liberty. There is clearly widespread concern about this issue and it is right that we should have an opportunity to bottom out here just why the Government are so focused on the structure that they propose in the Bill, rather than there being a new commission specifically tasked with oversight functions. I believe that my noble friend Lord Strasburger has some comments to make about this. He said at dinner that he would not do so but I think he has decided that he cannot resist. The noble Baroness is right to raise this point.

--- Later in debate ---

[Baroness Hamwee]

My Lords, I have been listening to what the Minister has been saying. It is not too much of a stretch to imagine an argument that goes, “We can’t publish comments about the funding available because that would give clues about the severity of the security system situation or about the effort that is or is not going into dealing with it”, so it is a serious point. Regarding the phraseology in Clause 220, I was never much of a dancer so I hope the Minister will forgive me. I accept that it is a continuation of an existing board, but that is not how it appears in the Bill. I think it would benefit from being anchored by a reference to the existing board. I do not want to bring back such a minor point on Report, so I thought I would make it now and see if it gained any traction.

[Baroness Jones of Moulsecoomb]

I thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Strasburger, for supporting the amendment. Needless to say, I am not convinced by the Minister’s response but I thank him for it.

I accept that the consolidation of all these offices—the IPC, the IOCCO, the OSC and the ISComm—is going to mean a magnificent saving, and I congratulate the Government on their thriftiness. However, my experience of consolidating power into one person is exemplified by the changes to police oversight—that is, the creation of police and crime commissioners. In my experience, the PCCs actually cost a lot more individually than the previous system did. I would argue that there is no guarantee that one body would not be a bargain just as much as a consolidated body could be.

I am also not convinced that there has been sufficient separation between authorisation and oversight, which is a very important issue that we have to keep in mind. However, bearing in mind that it has been hotter today in the UK than in Bangkok and Honolulu, and that at least this debate has kept us out of the heat, I thank everyone for this debate and beg leave to withdraw the amendment.

Amendment 176A withdrawn.