Investigatory Powers Bill

Debate between Lord Carlile of Berriew and Lord King of Bridgwater

Wednesday 7th September 2016 Lords Chamber

[Lord Carlile of Berriew (LD)]

My Lords, other noble Lords have taken the opportunity in addressing this amendment to make some general comments about David Anderson’s excellent report on bulk powers, so I shall do the same in what I hope will be just a few words. In my view, Mr Anderson has made a powerful case for the need for the bulk powers that he describes. They are very much a part of the fight against terrorism. Similar powers have been used well by the security services and authorities in this country and—touching wood and crossing fingers—that is the reason why we have not experienced, for example, what happened in Nice. I agree entirely with what has just been said by the noble Lord, Lord Murphy, who as we know has considerable experience in dealing with and judging these matters, and I share his view that the safeguards should be as strong in every way as has been recommended by Mr Anderson.

Turning to the question of the technology advisory panel, I have complete sympathy with Mr Anderson’s menu but not necessarily with the recipe. With respect to him, I think that we might do rather better than his suggestion of the way in which a technology advisory panel is established. I suspect that he would be the first to agree that what he is concerned with is not the form of the panel, nor to whom it is accountable, but the substance: what it does and what it sets out to achieve.

My suggestion to the Government is that we could broaden the technology advisory panel’s scope and make it more acceptably accountable. The suggestion by Mr Anderson is an unusual one, in that the panel should be appointed by, and be accountable and report directly to, the Investigatory Powers Commissioner. That suggests that it has a pretty narrow scope. In my view—obviously, I use my now rather historical experience as the previous Independent Reviewer of Terrorism Legislation—a technology advisory panel would indeed be valuable, but not just to the Investigatory Powers Commissioner. My suggestion is therefore that this panel should exist but that it should be appointed by the Secretary of State and, through them, should be accountable to Parliament, at least in a general sense.

The advice given by the technology advisory panel would of course be available to the Investigatory Powers Commissioner, but he is not the only commissioner. It would also be available, if appointed by the Secretary of State and accountable in that normal way, to parliamentary committees and other commissioners, to which it could give advice. Indeed, my hope is that a technology advisory panel, or something with a similar name and that intent, should, like the Independent Reviewer of Terrorism Legislation, publish not only annual reports but tasked reports on specific issues raised —of which the Anderson report we are discussing is a very good example.

The technology advisory panel, if appointed on a broader basis with that greater accountability, would help considerably without placing undue burdens on the security services, the police or GCHQ. Indeed, they, too, would be able to turn to it if they wished to; it would be a matter for their chiefs. We have some experience present in this House as we speak.

I hope that we can adopt the spirit of this part of Mr Anderson’s remarkable report, but perhaps look at ways of making it even more useful than he had in mind, and with forms of accountability that we in this House and the other place understand more readily.

[Lord King of Bridgwater (Con)]

This is a very limited amendment in one sense, but this has become something of a Second Reading debate on the Anderson report, and I congratulate the noble Lord, Lord Rosser, on the way he introduced it. He made it clear that there is a considerable degree of common ground on the importance of these powers, which have been so carefully scrutinised by Mr Anderson. The whole House will recognise the great debt that we owe him. People not just in this country but in many others will read this report with great interest. As we have said before, there is no doubt that the threat is severe and very real, and we need to ensure that we have all reasonable methods of combating it. We will go further into this issue. I listened with great interest to the comments of the noble Lord, Lord Carlile. I will also be interested to hear what my noble friend the Minister has to say about the panel and the noble Lord’s recommendation. Even if it is not identical to what he recommends, something along these lines may well have considerable merit.

Justice and Security Bill [HL]

Debate between Lord Carlile of Berriew and Lord King of Bridgwater

Monday 9th July 2012 Lords Chamber

[Lord Carlile of Berriew]

My Lords, I welcome the opportunity to say a few words on this amendment, mainly because I always listen with great respect to the noble Lord, Lord Campbell-Savours. His knowledge of parliamentary procedure is second to none and he is probably the most skilful of anyone I have observed in what one might call the parliamentary maze. However, I disagree with his proposal that there should be a Select Committee for the following and other reasons.

First, intelligence is not created in a vacuum but for a reason. Sometimes it is found to be created for a reason that proves to be suspect but not necessarily to be followed. It is not completely free of scrutiny; far from it. A little later in the Bill there are references to the Intelligence Services Commissioner. I am bound to say—I said this before when I was independent reviewer of terrorism legislation—that the Government and the security services could give a more coherent and fuller narrative of what they do. I pay tribute to the noble Baroness, Lady Manningham-Buller. She started the process in a convincing way of giving at least some narrative that enabled not only the public but, perhaps more importantly, parliamentarians in the first instance to understand why certain things were being done and certain actions taken. It is subject to oversight and it is necessarily subject to confidentiality. Accountability is very important but we have to face up to the fact that full transparency can never be achieved, and indeed should never be achieved for it runs the risk of exposing those who do very difficult tasks for our intelligence service to risks to which we would not wish them to be exposed.

Furthermore, a Select Committee of either the other place or both Houses involves the normal Select Committee procedures. It is very difficult to limit those procedures because Parliament makes its own rules. Those of us such as the noble Lord, Lord Campbell-Savours, a number of others present and me—derided as we are by some for having been in the House of Commons before coming here—know something that possibly not everyone else knows, which is that Erskine May is not like a legal textbook. The rules of parliamentary procedure are often made up as you go along and one cannot anticipate clearly what they will be. Sometimes the mood of the nation changes those rules. Think back to what happened in London on 7 July 2005 to see the emotion that followed those events and how easy it would have been for parliamentary procedure to have been changed, either to make a Select Committee much more secretive in its approach— inappropriately so perhaps—or to go the other way and open up everything to public scrutiny.

If Members of this House or another place are appointed to Select Committees by the normal route, it exposes much of what is given to them to their staff. The Government should be entitled to look at the ability of the proposed members of a committee to retain and hold to confidential material and the reliability of their staff. The one thing one cannot afford in this area is inadvertent leaks or the innocently meant, but foolish, acts of the unwise.

What the Government propose in this Bill is, in my judgment, appropriate. We have a committee that is accountable but not wholly transparent for perfectly good reasons. It has the capacity to look at secrets in detail but within an appropriate context—as limited, for example, by Clause 2(3), which means that the Prime Minister and the ISC must be satisfied as to the part that anything that might be inquired into plays in any ongoing national security operation.

My judgment, for what it is worth, is that what the Government propose in this Bill creates a prudent and carefully thought-out structure for the proper and rigorous scrutiny of how secret material is dealt with by Her Majesty’s Government. There is a danger that we play into the hands of those who believe that because something is secret there is some kind of ghastly Executive conspiracy going on. That is completely untrue. Of course, mistakes are made; there are people in the secret services who have to delve into the most difficult things that face our society, and they are bound to make mistakes. I hope that occasionally they do make the odd mistake in the protection of the public, because overcaution is not a bad thing if it saves lives—sometimes large numbers of lives. But the menu provided in this Bill allows the proper balance, and I shall, if necessary, not support the noble Lord’s amendment.

[Lord King of Bridgwater]

The noble Lord has great experience in these areas, and I take it from the tenor of his argument that he is not advocating a Select Committee approach. He said that he was in favour of what the Government have in the Bill, but since then the noble Lord, Lord Butler, and the noble Marquess, Lord Lothian, have produced amendments. What is his view on those?

[Lord Carlile of Berriew]

At the moment I am dealing with the amendment proposed by the noble Lord, Lord Campbell-Savours. I listened with great care to my noble friend Lord Henley from the Front Bench, and I am very content with the approach that he has taken. We should wait and see what the Government come up with in answer to the noble Lord, Lord Butler, who has great wisdom and experience in these things—I am completely open-minded about that. But I am not happy with the idea that we should have a conventional Select Committee or, even worse, a Select Committee whose rules have been fiddled with for this purpose.