Investigatory Powers Bill

Baroness Jones of Moulsecoomb Excerpts

Report: 1st sitting (Hansard): House of Lords
Tuesday 11th October 2016 Lords Chamber

Moved by

[Baroness Jones of Moulsecoomb]

20: Clause 20, page 16, line 11, at end insert—
“( ) A warrant may be considered necessary on the grounds falling within subsection (2)(b) only where there is a reasonable suspicion that a serious criminal offence has been or is likely to be committed and it is reasonably believed that the communications sought for interception will contain information relevant to the criminal investigation.”

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I rise to speak to Amendments 20 and 67, because they are very closely linked. They both, in essence, would require a reasonable suspicion of a serious crime. They would need the authorities to demonstrate a reasonable suspicion of a serious crime, and a nexus between the communications sought and the crime suspected, for a targeted surveillance warrant to be authorised. I see absolutely no reason not to make this clear. I hope very much that Government see sense on this.

One of the biggest problems in every single power the Bill gives and sometimes creates is the lack of a reasonable suspicion—lack of a threshold that is absolutely clear for surveillance powers to be authorised for the purpose of preventing and detecting crime. Intrusive powers can be authorised to prevent and detect serious crime, but this general purpose is left wide open to broad interpretation and abuse without requiring the authorising authority to verify the existence of that reasonable suspicion of criminality. A requirement of reasonable suspicion, when the purpose of preventing and detecting serious crime is invoked, would protect people and prevent the abusive surveillance of law-abiding citizens that we have seen in the past, without unduly limiting legitimate use of surveillance powers.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, as indicated by the noble Baroness, the amendments would provide that a targeted interception or equipment interference warrant could be issued in the interests of preventing or detecting serious crime only where there was a reasonable suspicion that a serious criminal offence had been or was likely to be committed.

The amendments are simply not necessary. I assure the House that for a warrant to be issued for the prevention or detection of serious crime, a sufficiently compelling case will always be required. A speculative warrant could never be approved, so these amendments address a concern that is fundamentally misplaced.

The Bill already provides strict and robust safeguards that ensure that a warrant may be issued only where it is necessary and proportionate. That is a well-established test. This decision must be approved by both the Secretary of State and a judicial commissioner. I pick up a point made by the noble Lords, Lord Paddick and Lord Rosser: in the case of a warrant for the prevention and detection of serious crime, the test of necessity and proportionality simply could not be met where there was not a reasonable suspicion that a serious crime had been or was likely to be committed. In these circumstances, I invite the noble Baroness to withdraw the amendment.

[Baroness Jones of Moulsecoomb]

I thank the noble and learned Lord for his answer. I never tire of telling this House that I was targeted by the Met police, monitored by them and put on to a domestic extremist database with, I would argue, absolutely no cause. Noble Lords will forgive me if I do not quite believe that there are enough safeguards. Quite honestly, I wonder if in five or 10 years I will have the opportunity to come to Ministers and say, “I told you so”. However many safeguards are put in, without strengthening them and making them absolutely clear you leave the door open for abuse. We have seen it in the past. We know very well that part of this Bill’s meaning is to cover abuses of previous legislation. I am deeply unconfident about the safeguards proposed, as are other organisations outside the House. I beg leave to withdraw the amendment.

Amendment 20 withdrawn.

Investigatory Powers Bill: Trade Union and Political Activities

Baroness Jones of Moulsecoomb Excerpts

Monday 10th October 2016 Lords Chamber

Asked by

[Baroness Jones of Moulsecoomb]

To ask Her Majesty’s Government what plans they have to strengthen provisions in the Investigatory Powers Bill to increase the protection of data relating to trade union and political activities.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, the Government have already strengthened the provisions in the Investigatory Powers Bill by accepting a Labour amendment to add protections for trade unions. It is already illegal for the security and intelligence agencies to further the interests of any political party. The Bill goes further by putting the Wilson doctrine on to a statutory footing, requiring the Prime Minister’s approval for the targeting of parliamentarians’ communications in addition to Secretary of State and judicial commissioner authorisation.

[Baroness Jones of Moulsecoomb (GP)]

I thank the noble Earl for his Answer. He has opened up all sorts of trapdoors that I would like to go down, but has he met organisations such as the Blacklist Support Group, the NUJ and Liberty, which have documented evidence of police and security service wrongdoing and illegal activities, so that we can be sure that the safeguards are strong enough?

[Earl Howe]

My Lords, I have had round-table meetings with a number of organisations, including those representing the journalist profession and freedom of information bodies. The adherence of any public authority to existing legislation is an issue for the commissioners and the relevant courts or regulators, and any complaints can be followed up through those channels. The Bill we are debating provides for a whole range of safeguards in addition to those that currently exist: statutory oversight of the use of investigatory powers and greater powers for the Investigatory Powers Commissioner to carry out investigations. In addition, we are creating a number of offences. I hope the noble Baroness will see that we have done our best to strengthen the safeguards that exist under current legislation.

Investigatory Powers Bill

Baroness Jones of Moulsecoomb Excerpts

Monday 12th September 2016 Lords Chamber

Moved by

[Baroness Jones of Moulsecoomb]

236A: Clause 235, page 184, line 36, at end insert—
““national security” means the protection of the existence of the nation and its territorial integrity, or political independence against force or the threat of force,”

[Baroness Jones of Moulsecoomb (GP)]

My Lords, the amendment seeks to put right a government oversight: there is no definition of national security under general definitions throughout the Bill. A principal statutory ground for authorising surveillance is,

“in the interests of national security”.

Another is “economic well-being” as far as it relates to national security. Left undefined, national security is unnecessarily open, broad and vague and, I suggest, likely to be abused. As the decision will continue to lie with the Secretary of State, the test will be met by whatever she or he subjectively decides is in the interests of national security or the economic well-being of the UK, so that individuals cannot foresee when surveillance powers might be used, granting the Secretary of State a discretion so broad as to be arbitrary. In the past, domestic courts have responded with considerable deference to government claims of national security—and not just domestic courts but other political parties at times. They have viewed them not as a matter of law but as Executive-led policy judgments. National security as a legal test is absolutely meaningless if left without a statutory definition.

The Joint Committee on the draft Bill recommended that the Bill should include definitions of national security and economic well-being. It is confusing even to use the measure of economic well-being, which should be subsumed, as recommended by the ISC, which found it “unnecessarily confusing and complicated”, saying that the agencies and Home Office had not “provided any sensible explanation” for including the term. I look forward to the Minister supplying that sensible explanation. Therefore, the core purposes for which extraordinary powers may be used remain undefined and dangerously flexible. The undefined tests of national security and economic well-being risk interference with political and other lawful activity that ought to be unimpeded in a democratic society. In an era when parliamentarians from both Houses have been subjected to inappropriate surveillance by security services and the police, the continued undefined use of these terms in enabling legislation is not appropriate or sustainable. I beg to move.

--- Later in debate ---

[Earl Howe]

My Lords, the arguments for and against a definition of national security have been considered at length both here and in the other place over the years, including in the Bill’s Committee stage in the other place. Neither House has been persuaded of the necessity of such a definition.

If the Committee will forgive me, I do not intend to rehearse previous discussions in full, but suffice it to say that it has been the policy of successive Governments not to define national security in statute. National security is one of the statutory purposes of the security and intelligence agencies. Threats to national security are, as we have heard, constantly evolving and difficult to predict, and it is vital that legislation does not constrain the security and intelligence agencies in their ability to protect the public from new and emerging threats.

The noble Lord, Lord Lester, and the noble and learned Lord, Lord Brown of Eaton-under-Heywood, made a very important point about the European convention. However, I think the key point is that to define national security in statute could have the unintended effect of constraining the ability of the security and intelligence agencies to respond to new and emerging threats to our national security.

My noble friend Lord Swinfen made an important point which was echoed by the Solicitor-General in the other place. Who could have imagined a few years ago cyberattacks of the nature and scale that now threaten us?

As I understand it, the noble Baroness, Lady Jones, is concerned with the purpose of national security being subject to too broad an interpretation in the Bill. I hope, however, that she will be reassured by the role of the judicial commissioners. They will oversee the use of these powers and will ensure that they are used only when it is necessary and proportionate to do so. The commissioners are the ultimate check against abuse. We need to remember that all the most intrusive powers in this Bill that may be used for the purpose of national security are subject to the double lock. That means that the Secretary of State and a judicial commissioner must consider whether their use is necessary and proportionate. The activities of the security and intelligence agencies will be subject to retrospective oversight by the Investigatory Powers Commissioner and, of course, the Intelligence and Security Committee of Parliament. Should the Government ever treat national security as a kind of blank cheque, I have no doubt that the ISC and the IPC would make clear their position in their reports.

In view of the considerable time that Parliament has spent considering this question in the past, the conclusion it reached and the arguments advanced during this debate, I invite the noble Baroness to reconsider and not to press her amendment.

[Baroness Jones of Moulsecoomb]

Why was the phrase “economic well-being” included as a rather loose term?

[Earl Howe]

I do not think I would characterise it as a loose term. The meaning of “economic well-being” is well understood. Therefore, I am not sure what the noble Baroness’s worry is in this context.

--- Later in debate ---

[Lord Lester of Herne Hill]

I hope that I am not out of order in suggesting that the words “economic well-being” are in Article 8 of the convention. That is where they come from. They were put in by British negotiators. They are very wide and do not help very much, but that is where they come from.

[Baroness Jones of Moulsecoomb]

My point is simply that there was a recommendation that it was unnecessarily confusing. Therefore, there must be a reason for putting it in, and I would like to know the reason; that is all.

[Earl Howe]

It was to make it clear that economic well-being is a very distinct facet of national security.

[Baroness Jones of Moulsecoomb]

I thank the Minister very much for those answers. I also thank noble Lords, who obviously did not agree with me, for their comments. This definition was meant to be a prompt, guidance, not something to be set in stone. Without a definition, I find it difficult to understand how we can describe anything that is necessary for the future well-being of the country. The whole Bill is based on a definition. However, if you have not described it, how can you be sure that you are doing the right thing? Nevertheless, given the explanation provided, I beg leave to withdraw the amendment.

Amendment 236A withdrawn.

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.

Investigatory Powers Bill

Baroness Jones of Moulsecoomb Excerpts

Tuesday 19th July 2016 Lords Chamber

Moved by

[Baroness Jones of Moulsecoomb]

169AA: Clause 105, leave out Clause 105 and insert the following new Clause—
“Members of Parliament etc.
(1) This section applies where—(a) an application is made to the Judicial Commissioner for a targeted equipment interference warrant, or an application is made to the Judicial Commissioner for a targeted examination warrant, and(b) the warrant relates to—(i) communications sent by, or intended for, a person who is a member of a relevant legislature, or(ii) a member of a relevant legislature’s private information.(2) The application must contain a statement that the conduct sought under subsection (1)(a) will cover or is likely to cover material falling within subsection (1)(b).(3) Further to the requirements set out elsewhere in this Part, the Judicial Commissioner may only issue a warrant if—(a) there are reasonable grounds for believing that a serious criminal offence has been committed;(b) there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence described in paragraph (a);(c) other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail; and(d) it is in the public interest, having regard to—(i) the public interest in the protection of privacy and the integrity of personal data,(ii) the public interest in the integrity of communications systems and computer networks, and(iii) democratic interest in the confidentiality of correspondence with members of a relevant legislature.(4) In this section “member of a relevant legislature” means—(a) a member of either House of Parliament;(b) a member of the Scottish Parliament;(c) a member of the National Assembly for Wales;(d) a member of the Northern Ireland Assembly;(e) a member of the European Parliament elected for the United Kingdom.”

[Baroness Jones of Moulsecoomb (GP)]

My Amendment 169AA would ensure that applications for targeted equipment interference or targeted examination warrants were granted only on application to a judicial commissioner, removing the role of the Secretary of State. It also applies additional safeguards to the correspondence of parliamentarians when a warrant for hacking is sought. I have held my tongue this afternoon despite listening to some astonishing statements. I will keep my remarks now quite brief. This is not to say that I do not feel a lot of passion for this debate, because I do, but I value your Lordships’ time and so I will be brief.

I feel very strongly that politicians and journalists are not above the law, but politicians have a unique constitutional role, not least in holding the Executive to account. There should be a strong legislative presumption against their surveillance, which should be rebutted only in clear and specific circumstances, overseen only by judicial commissioners, without political involvement, which could have bias. A single process of judicial authorisation ought to exist across the Bill, but in relation to politicians being under surveillance it is imperative to remove any political involvement.

It is illogical to suggest that an adequate replacement for an almost complete prohibition on surveillance of politicians—the Wilson doctrine—is to expressly allow it, needing only the Secretary of State to consult with the Prime Minister prior to authorising interception or hacking. In fact, instead of securing an independent authorisation process, involving two politicians rather than just one makes the process even more political, not less. It is inherent in our democracy that members of the public can correspond with their representatives in private. It is vital that anyone contacting their Member of Parliament and any material that they provide will be handled with confidentiality and sensitivity. This also applies to journalists, of course.

Keir Starmer MP QC raised the issue of communications sent by or intended for Members of Parliament and journalists in Committee in the Commons, saying that,

“the protection is not for the benefit of the journalist or the Member of Parliament but for the wider public good”—[Official Report, Commons, Investigatory Powers Bill Committee, 12/4/16; col. 191.]

People have to know that they have privacy and confidentiality. Of course, it is also essential that the protections granted to elected representatives are consistent across the different methods of surveillance. John Hayes, who was a Minister quite recently—I am not sure where he is now—said that the Government would consider the issue of consistency across the different methods of surveillance. I beg to move.

[Lord Murphy of Torfaen]

My Lords, I do not support the amendment, I fear. I entirely agree with the noble Baroness with regard to the correspondence of Members of Parliament. But the Joint Committee looked at whether Members of Parliament should be under surveillance and it agreed with the recommendations before it; that is, that there should be a double lock at that stage. That is consistent with the whole Bill: it should be not only the Secretary of State who signs a warrant but a judicial commissioner.

During the passage of the Bill in the House of Commons, that was made into a triple lock so that the Prime Minister, who originally was only to be informed of the warrant, now had to approve it as well. That seems to be an extremely wise thing to do. As a Member of Parliament—or a Member of this House or any of the devolved Parliaments and legislatures—who was going to have their communications intercepted, it would be important to know that it went as far as having the Prime Minister, the head of government, involved. Having just a judge doing it goes completely against the spirit of the Bill. The double-lock system is what everybody has said is absolutely the right thing to do. This is now a triple lock and I fear that I cannot support the amendment.

--- Later in debate ---

[Earl Howe]

My Lords, as I understand it, the Wilson doctrine committed the then Government to returning to Parliament if there was a change of policy. Clearly, now that we are enshrining what I think by common consent is a good formula for protecting parliamentarians, the need for a Government to come back to Parliament to announce a change in policy would have to be followed up, if it were done, by further primary legislation. I cannot envisage that and simply do not foresee that contingency. Through the Bill, we are now in a stronger and clearer position on the protection of parliamentarians and their communications with constituents than we were before.

[Baroness Jones of Moulsecoomb]

I thank the noble Lords who have made kind comments, even if they disagreed with me. We are not going to agree on the double or treble lock because, quite honestly, if you have two people from the same background or discipline agreeing with and corroborating each other—whether police chiefs or politicians—I think that there is the possibility of bias and that people outside this Chamber will see that as well.

I have heard several times in our debates the idea that we have to give the security or intelligence services the tools that they need to do the job. Personally, I heard that quite a lot with reference to the Met Police when I was on the Met Police Authority. In fact, while the Met and the intelligence services can be somewhat like a greedy child at Christmas, wanting more and more toys, it was the current Prime Minister who said “Enough” to the police. When the previous Mayor of London, Boris Johnson, wanted water cannon to be used on the streets of London, Theresa May MP said that, no, she would not authorise it. So sometimes you have to say no because it is not the right thing—the right powers or toys to give to a department.

This is a monstrous Bill which, in essence, means the end of privacy for us all. It is very important that we get these things right, so I welcome all the debate that we are having. I beg leave to withdraw the amendment.

Amendment 169AA withdrawn.

Investigatory Powers Bill

Baroness Jones of Moulsecoomb Excerpts

Wednesday 13th July 2016 Lords Chamber

Moved by

[Baroness Jones of Moulsecoomb]

43A: Clause 26, page 20, line 23, leave out “Secretary of State” and insert “Judicial Commissioner”

[Baroness Jones of Moulsecoomb (GP)]

The amendment is about applications to intercept being made by a judicial commissioner, not the Secretary of State via the Prime Minister. Amendment 43B sets out some additional requirements to be taken into account.

The debate has been fascinating because there has been a lot of use of words such as “reasonable”, “proportionate” and even “democratic accountability”. We all probably draw the lines on those matters at different places, and I certainly do so. My amendments speak to the area that has been covered by the Wilson doctrine of 1966 on parliamentarians’ correspondence and communications. The doctrine was explored by the two Green parliamentarians, Caroline Lucas in the other place and myself in your Lordships’ House, at the Investigatory Powers Tribunal. After successive Prime Ministers—even recently—have declared that the Wilson doctrine was still in force, we in fact found at the IPT that it applied only to targeted, not incidental, interceptions. The doctrine therefore has proved to be fairly worthless.

For me, the surveillance of parliamentarians is a constitutional issue, because it is our job to hold the Executive to account, without interference and without inhibition. In addition, of course, constituents have a right to privacy, which is not acknowledged enough at times. It goes without saying that criminals have to be caught. People always raise the issue of what happens if we have a parliamentarian who is a paedophile; of course, I would seek to see that criminal found and removed. The Joint Committee on Human Rights said that the current drafting,

“does not eliminate the risk of a partisan motivation, whether real or apparent”—

that is if a Government Member does it—and it fails to supply,

“a safeguard commensurate with the importance of the public interest at stake”.

As I have explained in your Lordships’ House several times, I was targeted by the police and put on their domestic extremist database. I feel that, if somebody like me can be targeted as a domestic extremist—I was an elected politician at the time and was actually sitting on the Metropolitan Police Authority, overseeing the police—then I am very nervous about where such authorisation comes from. I would argue that there are simply not enough safeguards for unhindered scrutiny of the Executive by parliamentarians, which is obviously vital for any democracy.

We heard today the Prime Minster—now the previous Prime Minister—saying in his valedictory speech that he saluted the robustness of our challenging of our leaders here in Britain. This whole Bill puts that at risk; it does not allow us to do our job properly without the risk of interference. I hope that the Minister will not try to reassure me by telling me that the Government are in listening mode, because that is exactly what I am frightened of. I beg to move.

[Lord Beith (LD)]

My Lords, my Amendment 44 in this group might appear to want to resurrect the Wilson doctrine but it is really only to give it a decent burial. The Constitution Committee, of which I am a member, said in its report published on Monday that,

“the surveillance of parliamentarians is a significant constitutional issue”,

and that the committee,

“would welcome clarification from the Government of its current understanding of the Wilson Doctrine”.

The amendment allows for that and allows us to consider whether the procedures in the Bill make a better job of dealing with the difficult issue of whether communications of an elected member of a legislature should be intercepted and, if so, on what authority.

While it existed, the Wilson doctrine had merit in that it produced a higher threshold, mainly the involvement of the Prime Minister, and that in so far as it was observed—I have reason to believe that it often was observed in practice and that this was recognised to be a different situation to other interceptions—it played that useful role. However, it was riddled with failings. All it did, if your Lordships read it, was to set out the policy of a particular Government at a particular time. What it of course set out was not that the communications of parliamentarians would never be intercepted but that the Government’s policy at the time was not to do so and the Prime Minister would come before the House at a time of his choosing—presumably at a time when it would no longer be damaging to the investigation—and advise the House that the policy had been changed. It was a very odd doctrine; the Prime Minister could come to the House and say, “We’ve changed the policy but we’re going to change it back now because that inquiry has been dealt with”. It is one of the inherent inconsistencies in the doctrine.

It was never clear whether the doctrine bound any subsequent Government either not to intercept MPs’ communication or to come to the House at a time of their choosing to reveal that the policy had been changed. It raises a fascinating issue since, so far as I can see, no Prime Minister has ever come to the House and said what situation we were in—or are in, until this legislation is passed—under that doctrine. It clearly was not fit for purpose. We therefore have to ask ourselves whether the procedures in the Bill that essentially try to do the same thing—that is, to involve the Prime Minister and raise it to a higher level within the Executive—are a sufficient extra safeguard for the constituents and whistleblowers who will communicate with their MPs or with legislators. They may be doing so because they are aware of some evil going on within the very organisation that might seek to intercept their communications. We have to have some regard to this.

The Joint Committee on Human Rights recommended that the Speaker of the House of Commons and, by analogy, Speakers of other legislatures should have a role in this. Although I am attracted by the intention, I find it slightly difficult because of the position it would put the Speaker in. The analogy is drawn with the procedures which were recommended following the serving of a search warrant in the House of Commons in the Damian Green case. It was felt that if in future the Speaker was consulted before a search warrant would be executed on parliamentary premises, then it was an appropriate precedent.

There is trouble with that precedent. If a search takes place on the premises it does not remain secret for very long. It becomes pretty obvious that it has taken place. If an interception was taking place, then the Speaker might be in possession of the knowledge that MP X’s communications are being intercepted for a considerable period, during which he has to have normal dealings with that Member of Parliament, call that Member of Parliament in debate and so on. That strikes me as a rather difficult position in which to put the Speaker of the House of Commons, the Lord Speaker in this House or a Speaker in any other legislature.

Incidentally, the involvement of other legislatures in the provisions in the Bill is an advance on the Wilson doctrine which applied only, as far as I am aware, to the House of Commons. I find myself before this House having to rely on the Bill as it stands and the prime ministerial involvement as being a significantly higher threshold. As one has always been worried about the supremacy of the Executive in this activity, I cannot be entirely content with that except for the fact that we are building in a process of judicial oversight, which I have advocated for many years and I am delighted to find in the Bill, and have been discussing what the conditions for that oversight are.

I would not want us to get into the position which, as I understand it, would arise from the amendment moved by the noble Baroness because I do not want a judicial authority appearing to be the initiator of an interception. That seems to me to get the role completely wrong. A law and order organisation or national security organisation has to be the initiator and the Secretary of State one of the routes through which it goes on its way to be authorised. The procedure under the Bill would also involve the Prime Minister in this process. I probably have to be content with that unless someone comes up with something better or someone convinces me that the Joint Committee’s recommendation does not have the disadvantage that I mentioned. Of course, I do not have the slightest intention of pursuing Amendment 44 and attempting to write into the Bill the provisions of the obsolete Wilson doctrine but it is perhaps worth reminding ourselves of it.

--- Later in debate ---

[Lord Keen of Elie]

I concur with the observation of the noble Lord. It would have to be a change to the general policy that prompted a Statement to Parliament. It is not the use of the statutory powers that will ever prompt a Statement to Parliament. Indeed, if a parliamentary Statement were required in those circumstances, it would essentially undermine the purpose of these investigatory powers.

[Baroness Jones of Moulsecoomb]

Still on the Wilson doctrine, we heard from the Investigatory Powers Tribunal that the Government could not guarantee that parliamentarians’ communications would not be intercepted. They simply could not do it, because the intelligence services cannot remove our addresses and phone numbers from their bulk interception. So it is quite possible that parliamentarians’ communications are intercepted on a regular basis by accident. It is only when they are targeted that the process with the warrants kicks in. That was the ruling from the tribunal.

[Lord Keen of Elie]

I concur that there may be instances in which parliamentarians’ communications are not targeted but where a parliamentary communication is disclosed incidentally to investigations of third parties. However, one cannot plan for that or provide for a warrant for that in advance. It is a consequence, sometimes, of actions against third parties.

May I move on to Schedule 8 and the subject of combined warrants, which I touched on before? I confirm what I said at the outset: that this issue is still under consideration. I hope that, taking that into account, the noble Lord will consider it appropriate not to press his amendments.

--- Later in debate ---

[Lord Keen of Elie]

I note the noble Lord’s observations. I cannot elaborate on the observations made by the noble Earl in response to his question, nor can I necessarily meet the manner in which he responded to him.

[Baroness Jones of Moulsecoomb]

I thank all noble Lords who have commented on my amendments, and the Minister for his answers. When we debate here, we often forget what it looks like to outsiders. I am naturally extremely law-abiding—I stop at red lights, I do not drop litter—but I am also highly suspicious of authority. As far as I can represent a constituency outside, I represent people who are suspicious of politicians. They are probably also suspicious of lawyers, but possibly not quite as much. When we have politicians signing off on other politicians, we must accept that it will not look that good to some people. You might argue that those highly suspicious people are not the people who put us here, which is of course quite right, but at the same time, we must be aware of what it looks like for our reputation. I accept that the amendment is not particularly popular, so I beg leave to withdraw it.

Amendment 43A withdrawn.

Investigatory Powers Bill

Baroness Jones of Moulsecoomb Excerpts

Monday 11th July 2016 Lords Chamber

[Lord Paddick]

My Lords, my name is to this amendment and I very much support it. As a former police officer, I feel I have to speak on both aspects of this. The noble Lord, Lord Black, spoke clearly and in detail about the need for very specific safeguards because of the experience that we have had with the Regulation of Investigatory Powers Act. Police have clearly not used legislation in the way that Parliament intended it to be used—that is, to establish who confidential journalistic sources are. I also support what the noble Viscount, Lord Colville of Culross, said about the danger to journalists, particularly camera operators in serious, spontaneous public order situations. This is an area where I have some expertise. At the moment there is a balance as experience has shown that media footage has, in certain circumstances, been useful to demonstrators in terms of misuse or excess use of force by police officers. If this were to change, and the demonstrators felt that material gathered by media operators was under the control only of the police, because of inadequate provisions in the Bill, it could tip the balance and journalists would become a target for violence in such situations.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I support Amendment 25 and declare an interest as the mother of a journalist. I also apologise for not having spoken at Second Reading; I was not able to be here. My only concern with Amendment 25 is that it does not go far enough and there is no “reasonable suspicion” test. We must remember that journalists often uncover some pretty heinous crimes and pretty awful stories. While we often talk about the damage they do and the crimes they commit, they also do some incredibly valuable work for our society, so I think this an extremely important amendment.

[Lord Strasburger]

My Lords, my name is also to this amendment. I shall not detain the House for very long. There is one aspect of this that I do not think has been mentioned: without protection for the anonymity of whistleblowers, far fewer will come forward and expose themselves to the revenge of their employers or others in powerful positions. There is ample evidence of whistleblowers being severely victimised, so anonymity is essential. Without whistleblowers, wrongdoing and cover-ups in the private and public sectors will go unreported and uncorrected, and that outcome is to the detriment to all of society, particularly those who lack a loud enough voice to be heard when things go wrong.

In recent years we have seen many cases of legislative arbitrage by the police in order to use powers that were never intended for the purpose of discovering journalists’ sources, finding ways to do so with the fewest protections. The “plebgate” scandal was a particularly graphic example, where RIPA was misused to find the source of a story in the Sun. Journalist’s phones on the Sun’s newsdesk were investigated by the police and their communications data were obtained. Under RIPA this was, of course, completely self-authorised; there were no external checks on what they were doing.

I believe that the Bill actually reduces the protection for journalists’ sources in the case of interception of communications and communications data. It provides no protection at all against the use of other surveillance powers, especially equipment interference. Amendment 25 seeks to rectify these shortfalls; I do not believe it is perfect yet, but it is a good start.