Investigatory Powers Bill

Debate between Earl Howe and Lord Janvrin

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

[Earl Howe]

My Lords, as we have discussed in previous debates in this House and in the other place, the use of thematic warrants is crucial to our law enforcement and security and intelligence agencies, but we welcome these amendments, which will provide reassurance that these warrants will be subject to specific scrutiny by the Investigatory Powers Commissioner and enhance transparency about their use.

The noble Lord, Lord Janvrin, invited me to comment on the degree of disclosure I would expect to see in the commissioner’s report. In my view—and I hope the noble Lord will understand this—it would not be appropriate for the Bill or indeed government to fetter the independence of the commissioner by specifying the detail of what he may choose to publish in relation to the use of thematic warrants. In due course the commissioner will wish to consider whether his duty to publish information about the use of these warrants is best satisfied by the publication of data such as the number of thematic warrants issued during a limited period or other information relating to the way in which thematic warrants are used in practice. These decisions will rightly rest with the Investigatory Powers Commissioner. However, I welcome the amendment which imposes a very clear duty on the commissioner to ensure that these warrants are subject to particularly robust scrutiny and that information is regularly put in the public domain about their use. Indeed, I would expect the commissioner to ensure that his report serves to illuminate any areas that cause him particular concern.

The process by which the Intelligence and Security Committee of Parliament can refer issues to the Investigatory Powers Commissioner was previously discussed in this House. It is right that the committee can bring issues that merit further investigation to the attention of the IPC, who may then decide whether to take further action. In addition, it is important that the right balance is struck between the independence of the IPC on the one hand and respecting the remit of the committee on the other hand. By requiring that the Prime Minister provides a copy of any IPC report that follows an investigation, inspection or audit carried out following a committee referral in cases where the report falls within the remit of the committee, this amendment finds that balance. Accordingly, I am happy to accept both these amendments.

[Lord Janvrin]

I thank the Minister for his helpful response. I take his point about the importance of the independence of the Investigatory Powers Commissioner.

Investigatory Powers Bill

Debate between Earl Howe and Lord Janvrin

Monday 5th September 2016 Lords Chamber

[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.

--- Later in debate ---

[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.