Investigatory Powers Bill

Debate between Lord Beith and Lord Paddick

Wednesday 13th July 2016 Lords Chamber

[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.

[Lord Paddick (LD)]

My Lords, my noble friend Lady Hamwee and I have Amendments 45, 85A and 85B in this group. While I share the concerns of the noble Baroness, Lady Jones of Moulsecoomb, regarding the potential for partisan action in these circumstances, I would have thought if there was ever a need for political accountability in terms of who is going to be targeted by a warrant of this kind, it is where a parliamentarian is being targeted. I can see the tension and the dilemma in that.

The Bill states in Clause 26(2) that additional safeguards for Members of Parliament include the fact that:

“The Secretary of State may not issue the warrant without the approval of the Prime Minister”.

Our Amendment 45 suggests that where the warrant relates to a Member of the Scottish Parliament, it should not be issued without the approval of the First Minister of Scotland, as the most appropriate person to give such approval. Perhaps the Minister can explain why it should be the Prime Minister in every case.