Drones: International Law

Lord Janvrin Excerpts

Thursday 16th January 2020 Lords Chamber

[Lord Janvrin (CB)]

My Lords, I thank the noble Lord, Lord Hodgson, for introducing this timely short debate. I will speak briefly about the importance of Parliament being able to scrutinise government decisions on the use of drones. I do so as a member of the Intelligence and Security Committee in the last Parliament, and its predecessor, which issued the 2016 report entitled UK Lethal Drone Strikes in Syria.

The international political ramifications of the United States’ decision to kill Qasem Soleimani will continue to be debated for months, if not years. But, as the noble Lord, Lord Hodgson, made quite clear, his Question is about issues of legality and policy raised by the assassination. The 2016 ISC report into the targeted killing of Reyaad Khan, a British member of ISIL in Syria, is instructive in examining some of these issues.

That report drew attention to the Government’s position that, when it comes to international law, the policy on the use of remotely piloted aircraft is the same as that for manned aircraft; namely, that pilots operate under the same legal constraints and rules of engagement. In accordance with Article 51 of the UN charter, a Government have the right to use force in self-defence where an armed attack is under way or judged to be imminent and where the response is both necessary and proportionate.

Thus far we are on familiar ground, but with the recent use of drones we soon get into more challenging territory. I pay tribute to the work of the APPG on Drones in looking at some of these more difficult issues—around the interpretation of the right to self-defence, what constitutes an imminent attack, and the strain imposed on these legal concepts by technological change relating to the use of robotics, data analytics and information technology.

My point is altogether simpler; it concerns the importance of being able to assess the intelligence. The 2016 ISC report made it clear that, in order to examine the legality of a lethal drone attack, it is obviously necessary to assess the secret intelligence underlying the judgments on the severity of the threat, imminence, necessity and proportionality. In the case of the UK’s decision to kill Reyaad Khan in August 2015, the ISC was able to take evidence in secret and to publish an important, if limited, report commenting on the intelligence supporting the decision to go for a lethal drone attack.

The significant point here is that Parliament had the ability to scrutinise the legality of a lethal drone attack because the parliamentary Intelligence and Security Committee, under the Justice and Security Act 2013, can examine the secret intelligence. For me, this is a very significant implication of the US drone attack. It is a reminder to Parliament of the importance of the Intelligence and Security Committee in providing that scrutiny and oversight of the UK’s intelligence agencies. This scrutiny is part of the licence given to the agencies to go about their secret business in an open and democratic society. It is about ensuring public trust—so vital to the effectiveness of these services, which make such a key contribution to our security and well-being.

The Intelligence and Security Committee is not a conventional parliamentary Select Committee. Under the 2013 Act, members are nominated by the Prime Minister in consultation with the leader of the Opposition, then Parliament makes the appointments, with each House voting on the nominations of its own Members. After the 2017 election there was an unfortunate delay of some five months before the new committee was appointed. I realise that there are many competing priorities after the recent election, but it is surely in the interests of the public, Parliament and the intelligence community to have the new committee up and running sooner rather than later. There are a number of ISC reports waiting to be published, and major issues—such as Huawei and the 5G network—on which the ISC will have a unique oversight responsibility.

Does the Minister have any information on the nomination process for this committee in this new Parliament? I realise that this may be outside her direct ministerial responsibilities, but I hope that she will at least be able to pass on that there is parliamentary interest in the appointment of a new committee without undue delay.

D-day: 75th Anniversary

Lord Janvrin Excerpts

Tuesday 4th June 2019 Lords Chamber

[Lord Janvrin (CB)]

My Lords, I thank the Government for giving time for this debate and the Minister for introducing the subject with his customary touch and eloquence. I am also a member of the Normandy Memorial Trust, so ably led by my noble friends Lord Ricketts and Lord Dannatt. I will turn to the work of the trust in a moment, but first I will say a word about the importance of commemoration.

As someone who worked at Buckingham Palace for over 20 years, I have witnessed commemorative events large and small in every corner of the United Kingdom and in many countries overseas. I cannot recall a single one which did not strike a powerful chord of grief or loss, of loyalty or pride, of community heritage or a deep sense of national identity. These events honour historic occasions, places and people, but they do more. They set the present in the context of the past, to the benefit of us all: young and old, those with direct memories and others just trying to understand a little better the world about us. They teach and they explain a little more of what defines us.

So it is with D-day. Others in the Chamber today are more qualified than I am to remind us of how relevant the events of 75 years ago are to the world of today. I have appreciated the contributions so far and I look forward to those to come. We all need reminding, as RUSI’s recent YouGov survey of public awareness of D-day so dramatically showed. The epic story of that great military operation illuminates and explains so much of today’s world: the importance of the special relationship on show at Buckingham Palace last night; the importance of NATO; our endlessly difficult and complex relationship with the French and with Europe; and Putin’s ambitions for post-Cold War Russia. None of these can be properly understood without knowledge of this story. We are right to remember and to learn.

We are right also to honour the people who were there. The 75th anniversary is probably the last time that many Normandy veterans will make the pilgrimage to the beaches, honouring lost friends and recalling moments that defined their lives. It has been the ambition of many of those veterans, led by George Batts, the former secretary of the Normandy Veterans’ Association, to see a national memorial built to the memory of their fallen comrades. The Americans have a national memorial above Omaha beach. The Canadians have one above Juno beach. Although there are many regimental memorials in Normandy, there is no single place which commemorates all the British forces, and all those nationalities fighting under British command, who died in the D-day campaign.

The Normandy Memorial Trust was created in 2016 to realise the dreams of those veterans to build a British national memorial. Generous initial funding has been provided from the Government’s Libor fund. Help and support have been given by the Royal British Legion and the Commonwealth War Graves Commission. Land has been bought on the gently sloping hillside directly overlooking Gold beach, with the remains of the Mulberry harbour at Arromanches clearly visible on the horizon. A design for the memorial has been submitted to and approved by the French planning authorities. It will record in stone and in perpetuity the 22,442 names of all those under British command who lost their lives in the Normandy campaign. There will also be a memorial to honour the thousands of French citizens who lost their lives during the bitter fighting through the towns, villages and countryside of Normandy.

The start of the construction and the statue which will be the centrepiece of the memorial, as the Minister mentioned, will be inaugurated in a short ceremony on Thursday morning by the Prime Minister and President Macron. We hope that the memorial itself will be completed by the summer of next year, and there is then an ambition to raise funds for an education centre and other facilities. Of course, as the Prince of Wales, the trust’s patron put it, the memorial is long overdue, but it is not too late. We owe it to the remaining veterans and their families to realise their dream and to honour their comrades. We owe it also to future generations to remind them of the extraordinary contribution made by the United Kingdom in 1944 to the restoration of liberty, democracy and the rule of law to Europe. We owe it to ourselves to understand better today’s news agenda by learning from those momentous events of 75 years ago.

Investigatory Powers Bill

Lord Janvrin Excerpts

Report: 3rd sitting (Hansard): House of Lords
Wednesday 19th October 2016 Lords Chamber

Moved by

[Lord Janvrin]

195: After Clause 144, insert the following new Clause—
“Offence of breaching safeguards relating to examination of material under bulk interception warrants
(1) A person commits an offence if—(a) the person selects for examination any intercepted content or secondary data obtained under a bulk interception warrant,(b) the person knows or believes that the selection of that intercepted content or secondary data for examination does not comply with a requirement imposed by section 143 or 144, and(c) the person deliberately selects that intercepted content or secondary data for examination in breach of that requirement. (2) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or(ii) to a fine,or to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.(3) No proceedings for any offence which is an offence by virtue of this section may be instituted—(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”

--- Later in debate ---

Moved by

[Lord Janvrin]

241: After Clause 202, insert the following new Clause—
“Offence of breaching safeguards relating to examination of material
(1) A person commits an offence if—(a) the person selects for examination any data contained in a bulk personal dataset retained in reliance on a class BPD warrant or a specific BPD warrant, (b) the person knows or believes that the selection of that data is in breach of a requirement specified in subsection (2), and(c) the person deliberately selects that data in breach of that requirement.(2) The requirements specified in this subsection are that any selection for examination of the data—(a) is carried out only for the specified purposes (see subsection (3)),(b) is necessary and proportionate, and(c) if the data is protected data, satisfies any conditions imposed under section (Protected data: power to impose conditions).(3) The selection for examination of the data is carried out only for the specified purposes if the data is selected for examination only so far as is necessary for the operational purposes specified in the warrant in accordance with section 194.In this subsection, “specified in the warrant” means specified in the warrant at the time of the selection of the data for examination.(4) A person guilty of an offence under this section is liable—(a) on summary conviction in England and Wales—(i) to imprisonment for a term not exceeding 12 months (or 6 months, if the offence was committed before the commencement of section 154(1) of the Criminal Justice Act 2003), or(ii) to a fine,or to both;(b) on summary conviction in Scotland—(i) to imprisonment for a term not exceeding 12 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(c) on summary conviction in Northern Ireland—(i) to imprisonment for a term not exceeding 6 months, or(ii) to a fine not exceeding the statutory maximum,or to both;(d) on conviction on indictment, to imprisonment for a term not exceeding 2 years or to a fine, or to both.(5) No proceedings for any offence which is an offence by virtue of this section may be instituted—(a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;(b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.”

Investigatory Powers Bill

Lord Janvrin Excerpts

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

Moved by

[Lord Janvrin]

142: Clause 212, page 169, line 33, at end insert—
“( ) information about the following kinds of warrants issued, considered or approved during the year— (i) targeted interception warrants or targeted examination warrants of the kind referred to in section 17(2), (ii) targeted equipment interference warrants relating to matters within paragraph (b), (c), (e), (f), (g) or (h) of section 96(1), and(iii) targeted examination warrants under Part 5 relating to matters within any of paragraphs (b) to (e) of section 96(2),”

[Lord Janvrin (CB)]

My Lords, I shall speak to Amendments 142 and 145 to Clause 212. These are in my name and I speak as a member of the Intelligence and Security Committee. This clause deals with the annual reports to be made by the Investigatory Powers Commissioner to the Prime Minister on the functions of the judicial commissioners.

The subject of Amendment 142 concerns those targeted warrants which relate to groups of people engaged in a common activity or sharing a purpose, commonly referred to as thematic warrants. The Intelligence and Security Committee has considered that thematic warrants have the theoretical potential to intrude upon the privacy of a great many people and there have been concerns as to the widespread intrusion they might theoretically be used to authorise. In the committee’s report on the draft Bill, we recommended that such warrants should be subject to greater constraints. In seeking to address this in the other place, the chairman of the ISC explored, first, whether the duration of these warrants could be limited or, secondly, whether the grounds on which they could be authorised could be drawn more narrowly.

In response, the Government presented the committee with convincing classified evidence regarding the use of these forms of warrants across a number of real operations, involving serious threats to our security. This evidence was reassuring in demonstrating that these operations, enabled by the so-called thematic warrants, intruded only on small and defined groups of people, not on the hundreds or even thousands of people that some perhaps feared might be the case. Nevertheless, the ISC believes that some form of additional constraint is justified and has therefore been exploring options with the Government over recent months. The conclusion is that we might best achieve this aim by strengthening the scrutiny given to these warrants. This is the aim of Amendment 142 to Clause 212.

The amendment places a specific requirement on the commissioner to report on thematic warrants, thereby exposing them to increased scrutiny by the commissioner, audit by the commissioner’s staff and, through the commissioner’s published reports, debate and scrutiny by Parliament, the media and public. I am most grateful for the Government’s co-operation in finding a solution to this issue relating to thematic warrants, and I hope the Minister will be able to support this amendment.

If that is the case, it would be helpful if it were possible for the Minister to outline in his comments the degree of disclosure about thematic warrants that he might expect to see in those reports. The ISC’s assumption is that it would include the number of thematic warrants applied for and issued, but it hopes that it might also include an indication of the number of people covered by the warrants. It would improve transparency and public reassurance if it can be demonstrated in this manner that these warrants are not as broad as some have feared.

Amendment 145 to Clause 212 relates to the referral of cases to the Investigatory Powers Commissioner. This is an issue I raised in Committee. In its report on the draft Bill, the Intelligence and Security Committee recommended that it should be able to refer matters to the IP Commissioner so that the commissioner can undertake detailed investigations or audits about concerns raised by the ISC. This enables the oversight mechanisms to complement one another, with the ISC considering the strategic issues and overall policies and the commissioner focused on specific authorisations and warrants for individual operations. Noble Lords will note that the power of referral from the ISC to the IP Commissioner has already been introduced into the Bill at Clause 214, and we are grateful for the Government’s assistance in its inclusion.

This further, very small, amendment now picks up the point I raised in Committee that any report the commissioner might make to the Prime Minister as a result of a referral from the ISC should also be shared, as appropriate, with the committee. This will strengthen the oversight community as a whole, and I hope the Government will feel able to support the amendment. I beg to move.

[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.

Amendment 142 agreed.

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Moved by

[Lord Janvrin]

145: Clause 212, page 170, line 33, at end insert—
“(11) Subsection (12) applies if the Prime Minister receives a report from the Investigatory Powers Commissioner under subsection (1) or (4) which relates to an investigation, inspection or audit carried out by the Commissioner following a decision to do so of which the Intelligence and Security Committee of Parliament was informed under section 214(2).(12) The Prime Minister must send to the Intelligence and Security Committee of Parliament a copy of the report so far as it relates to—(a) the investigation, inspection or audit concerned, and(b) the functions of the Committee falling within section 2 of the Justice and Security Act 2013.”

Investigatory Powers Bill

Lord Janvrin Excerpts

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

Moved by

[Lord Janvrin]

1: Clause 1, page 1, line 5, at beginning insert—
“( ) This Act sets out the extent to which certain investigatory powers may be used to interfere with privacy.”

[Lord Janvrin (CB)]

My Lords, I rise briefly to speak to Amendment 1, tabled in my name. I declare an interest as a member of the Intelligence and Security Committee. When the ISC reported on the draft Bill, we recommended that privacy protection should form the backbone of the legislation, around which the exceptional, intrusive powers would then be built. This recommendation was to underline at the very outset of the Bill that a delicate balance must be struck between an individual’s right to privacy and the exceptional powers needed by the intelligence agencies to ensure our safety and security.

The Bill has seen substantial changes in the other place and at earlier stages in this House, and those changes have introduced significant improvements in the protection afforded to privacy. Very important in this process was the introduction by the Government at the overview of the Bill of the clause on general duties in relation to privacy. This amendment seeks simply to reinforce the Government’s approach. The Intelligence and Security Committee still feels that there is merit in placing a simple statement right at the forefront of the legislation to provide additional clarity that there should be no doubt that privacy protection remains a fundamental priority. I hope that, on this occasion, the Minister may feel able to support this very brief amendment, and I look forward to hearing his response. I beg to move.

[Baroness Hamwee (LD)]

My Lords, I hesitated because I thought the Minister might wish to introduce the government amendments before I spoke to mine, as I think one of mine may be an amendment to one of his. We on these Benches support the noble Lord, Lord Janvrin, on Amendment 1. It would provide a very clear statement of purpose for the Bill, and one which would be very useful. The Lord Advocate said in Committee that an amendment similar to this would not add value. On the contrary, it would add value by giving that statement of purpose. The first clause is badged as an overview of the Act. In fact, what it does is to list the different parts of the Act and give an overview of each of them. The clause does not give an overview of the Act; the noble Lord’s amendment would do so, and the clause would live up to its name.

We have Amendments 8, 9 and 12 in this group. Amendment 8 would provide that the powers should not be used if the objectives could be achieved by other, less intrusive means. This, too, was an amendment that we debated in Committee. The Bill provides that regard must be had to the possibility of achievement by other, less intrusive means. My noble friend Lord Lester of Herne Hill apologises that he cannot be here today—although I am not sure whether one should apologise for an illness. He has kept me up to date with his position. He talked about the “rubbery” quality of the term “have regard to”. This amendment would make the obligation an absolute one—but not an unreasonable one, because the term “reasonably”, as in,

“could reasonably be achieved by other less intrusive means”,

is included. My noble friend Lord Lester referred to this as,

“classic principle of proportionality language”.—[Official Report, 11/7/16; col. 53.]

I was pleased that, on that occasion, we had the support of my noble friend Lord Carlile of Berriew, who said that the wording,

“would be more useful and more certain”,

than that with which he was comparing it, and that, above all, it would,

“avoid unnecessary disputes about the meaning of and compliance with Article 8”—

that is, Article 8 of the convention—

“in the courts”.—[Official Report, 11/7/16; col. 54.]

My noble friend Lord Lester had painted a rather gloomy picture of the problems that could arise if the legislation was not absolutely clear.

The noble Earl agreed to consider the proposition. He referred to the use of the wording in codes of practice. My noble friend Lord Carlile, who was more polite than I was about problems with codes of practice, said that he supported the amendment because it would be preferable to have the words in the Bill,

“rather than face the inevitable consequences of legal discussions in the courts as to the role of codes of practice and their enforceability? Putting the words in the Bill at least provides certainty”.—[Official Report, 11/7/16; col. 56.]

Both my noble friends have very considerable experience of arguing the case—no doubt both ways—in the courts. I am not sure whether the Government’s Amendments 10 and 11 are intended to address the point that we were debating. I am sure I will be told.

Our other amendment, which I will have to speak to now because we are on Report, is an amendment to government Amendment 11. I welcome government Amendments 10 and 11, but I am a bit uneasy about intrusiveness being gauged against the sensitivity of the information. My point is a wider one: everyone in every case should expect the least intrusive means to be tried first. Amendment 12 to government Amendment 11 is tabled to understand whether everything in Amendment 11 falls within Amendment 10. We have wording in Amendment 10 about the “particular sensitivity” of information. Amendment 11 gives examples of “sensitive” information. Are there, therefore, two hurdles to be crossed: “sensitive” and “particular sensitivity”? Amendment 12 seeks to understand how the two amendments relate to one another.

Investigatory Powers Bill

Lord Janvrin Excerpts

Wednesday 7th September 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I should like to add just a few words in support of the amendment proposed by the noble Lord, Lord Butler of Brockwell, drawing attention to the phrase “knowingly or recklessly”, which he emphasised in his short speech.

One should perhaps bear in mind that the prosecutor has to prove the case to the criminal standard—that is, to the standard of “beyond reasonable doubt”. At one time in my career, I was a prosecutor and I am aware of the significance of the burden of proof on the prosecutor in proving the offence to that standard. So the words “knowingly and recklessly” set a very significant standard that requires looking into the mind of the alleged offender. It would surely be unthinkable for a prosecutor to bring a case before a single judge or a jury without convincing evidence that the standard could be met.

As for the very interesting question of who decides, I believe—the Minister will correct me if I am wrong—that the decision is made by the prosecutor, having regard to the anticipated length of sentence and the gravity of the offence. I would have thought that the structure of the proposed amendment is right: that there ought to be a choice between the two, because some offences could justify only a minor penalty, in which case the summary process would be appropriate, but there could be other, very serious ones where prosecution on indictment would be appropriate. However, the judgment would be that of the prosecutor, having regard to what the sentence would be likely to be at the end of the day.

[Lord Janvrin (CB)]

I, too, rise to support the three amendments tabled by my noble friend Lord Butler. The point here is that he has drawn attention to this gap in offences for the misuse of bulk powers. I moved Amendment 15 earlier in Committee to take account of the fact that there was a gap, suggesting that there was a case for tidying up the misuse of these powers and the offences relating to them in one bundle. However, a better approach may well be to look at my noble friend Lord Butler’s suggestion regarding the specific area of bulk powers.

I echo the points made about the nature of these amendments. They are not about an inadvertent mistake in the heat of a fast-moving situation; they refer to someone who, without lawful authority,

“knowingly or recklessly fails to comply with the safeguards”.

The argument has been used that we should beware the chilling effect, but I am not sure that I can understand that in the context of the words “knowingly or recklessly”.

Secondly, on bulk powers, throughout the Bill we have considered the balance of trust—between the need to reassure the public about the work of our intelligence agencies, and the need to enable the agencies to use investigatory powers with confidence and at pace. It is part of that delicate balance to reassure the public that there is effective deterrence against a rogue operator, a cowboy—someone who misuses these powers “knowingly or recklessly”. That is why the Intelligence and Security Committee has been keen to debate this issue and the nature of the criminal offences, and why I welcome these three amendments as perhaps a compromise between the catch-all offence and doing nothing. Far from inducing a chilling effect, in my view, the public reassurance given by these amendments would strengthen the hand of the intelligence agencies, which are entitled to the public support they so richly deserve.

[Lord Rosser]

We are rather assuming that the Government will oppose the amendments, just as we— wrongly—assumed they would oppose the previous group. If they oppose them, we will certainly want to listen to the strength, or otherwise, of their argument, unless they are going to indicate that, in view of the pressure from around the Committee, they will take this issue away and reflect further on it.

A fairly strong argument has been made for being able to take the kind of action envisaged in the amendments. I do not know whether the Government want to argue that getting a conviction might well have to involve the disclosure of, or some information about, sensitive material that is not in the public domain. However, we certainly wish to hear the strength or otherwise of the Government’s objection to these amendments.

Investigatory Powers Bill

Lord Janvrin Excerpts

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.

[The Marquess of Lothian (Con)]

My Lords, I welcome the government amendment and support Amendment 194. I, too, am a member of the Intelligence and Security Committee. Indeed, I have to admit to having been a member of that committee for more than 10 years now.

The Government have tabled a very sensible amendment. There have been times during our investigations when we have come across issues which were really not for the committee to look at in detail but much more for the commissioners. This power for us to refer to the commissioners is a very valuable addition to the way in which we can make sure that the scrutiny of how this legislation works is done fairly and on a broad basis.

I support Amendment 194 because it is the additional element to what the Government are proposing, and makes total sense. For the committee to refer something to the commissioner yet not be able to hear the result of that investigation after it has been carried out does not seem very sensible. Indeed, as many of these issues will arise in the process of the committee investigating rather broader, more strategic interests, while needing to know the result of the commissioner’s investigation, it really would make logical sense to accept the addition made by Amendment 194.

--- 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.

Amendment 193 agreed.