Investigatory Powers Bill

Lord Rosser Excerpts

Tuesday 19th July 2016 Lords Chamber

[Lord Strasburger (LD)]

My Lords, my noble friend is quite right: I feel the need to intervene on Amendment 176A. There seems to be a strong consensus among the bodies that considered the Bill in its draft stages and beforehand that there should be a commission rather than commissioners. The Joint Committee made this very clear in its recommendation 114:

“It is unclear to us why the Home Office chose to create a group of Judicial Commissioners rather than creating an Independent Intelligence and Surveillance Commission as recommended by David Anderson QC, a recommendation endorsed by the … Interception of Communications Commissioner’s Office. The benefits of having a senior independent judicial figure in the Investigatory Powers Commissioner would not be lost by putting the IPC at the head of a Commission. The evidence we have heard is that the work of the oversight body will be significantly enhanced by the creation of a Commission with a clear legal mandate”.

The Interception of Communications Commissioner’s Office commented:

“The bulk of the oversight will actually be carried out by inspectors and staff within the Commission who need a clear legal mandate to require information from public authorities, to launch and undertake audits, inspections, inquiries, investigations and react in real time when noncompliance or contraventions of the legislation are discovered during an inspection. There are examples of oversight bodies created as separate ‘Commissions’, e.g. section 9 of the Police Reform Act 2002 created the Independent Police Complaints Commission as a body corporate. We believe this legal structure provides an appropriate model for the Investigatory Powers Commission, with statutory functions vested in the body corporate as well as the Judicial Commissioners”.

The Government have elected to ignore all those recommendations. The only reason I have heard to date is the estimated additional cost of £500,000 a year of a commission, as opposed to commissioners. I have heard no substantive arguments against the proposition, so I await the Minister’s response with interest.

[Lord Rosser (Lab)]

We have one amendment in this group, Amendment 194BA, and I have added my name to Amendment 194D. Most of the arguments have already been made but Amendment 194BA addresses a point raised in the report of the Select Committee on the Constitution and concerns the funding of the judicial commissioners. In its report the Select Committee points out that the Joint Committee on the Draft Investigatory Powers Bill concluded that it was,

“inappropriate for the Home Secretary alone to determine the budget of the public body which is monitoring the exercise of her surveillance powers”,

that body being the Investigatory Powers Commissioner.

The Select Committee went on to suggest that one way to,

“mitigate the risk of executive interference in the functions of the Judicial Commissioners would be conferring on the Investigatory Powers Commissioner the right to make written representations to Parliament”.

That is what Amendment 194BA seeks to achieve: it would implement the recommendation of the Select Committee on the Constitution. I am obviously interested to hear what the Government’s reaction is to that recommendation and whether they intend to take it up or not.

--- Later in debate ---

In response to the noble Lord, Lord Rosser, I hope he will allow me to respond in writing to his point on the Constitution Committee over the Summer Recess.

[Lord Rosser]

Will the noble Earl respond in writing on the point on the part of the report by the Select Committee on the Constitution which states:

“The House may wish to consider whether it would be appropriate for an independent court to be prevented from disclosing information if it considers it necessary in the interests of justice”?

Is that the issue on which the Government are going to respond?

[Earl Howe]

Yes, my Lords.

[Lord Rosser]

There is one more point. In response to Amendment 194BA on funding, the noble Earl said that Clause 210 already requires the Investigatory Powers Commissioner to make an annual report to the Prime Minister. The Select Committee on the Constitution was of course aware of that at the time when it made its report, since it comments:

“The Prime Minister is required to publish the report but has a power to order redactions”.

I wonder why the Government do not therefore feel able to go down the road of the Select Committee recommendation over the Investigatory Powers Commissioner having the right to make written representations to Parliament, because they argue it on the grounds of the requirements of judicial independence and the need for public trust and confidence in the system. They say, in suggesting that the Investigatory Powers Commissioner might have the right to make written representations to Parliament, that that is,

“akin to the right conferred on the Lord Chief Justice by section 5 of the Constitutional Reform Act 2005”.

I am not sure why the Government are in effect rejecting the suggestion from the Select Committee on the Constitution, which knew at the time when it made that suggestion that Clause 210 required the commissioner to make that annual report but commented that although the Prime Minister is required to publish it, he has a power to order redactions. That is therefore slightly different from the Investigatory Powers Commissioner having the right to make written representations to Parliament directly, and it is a right that is akin only to that already conferred on the Lord Chief Justice under the Constitutional Reform Act 2005.

[Earl Howe]

I understand the point made by the noble Lord, but I think it would be unimaginable that Parliament would not protest if there were a redaction in the report around the commissioner’s funding. Redactions, in any case, are made only on national security grounds, not on matters of this nature. Nevertheless, I will consider carefully over the summer period what the noble Lord has said, and no doubt we can return to these matters at a later stage.

--- Later in debate ---

[Lord Strasburger]

My Lords, this debate on who should appoint the judicial commissioners was discussed at length in the Joint Committee, and we heard lots of evidence on it. The conclusion was that the commissioners might be a little more independent if they were appointed by the Lord Chief Justice rather than by the Prime Minister. Certainly, the perception of their independence would be greatly enhanced if it were that way round and the appointments were not made by the Prime Minister.

[Lord Rosser]

We have some amendments in this group which, again, relate to the report from the Constitution Committee. Like the noble Baroness, Lady Hamwee, I acknowledge the amendments that the Government have tabled. They have certainly gone down the road that was indicated during the discussion on this matter in the Commons.

I simply want to ask the Minister whether the Government have given any consideration to going down the road suggested by the Constitution Committee, as opposed to that put forward in the Government’s amendments. I accept that there is not a great deal of difference between the two, as the Government’s amendments say that a person is not to be appointed unless they have been recommended by the Lord Chancellor and the Lord Chief Justice.

Finally, do the Government’s amendments also apply to the reappointment of commissioners and to dismissal? The recommendation in the Constitution Committee’s report related to appointments, reappointments and dismissal, but I am not clear whether the Government’s amendments would also apply in those three circumstances.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, Clause 203 provides for the Prime Minister to appoint an Investigatory Powers Commissioner and as many judicial commissioners as they see fit to undertake the duties set out in the Bill. The Investigatory Powers Commissioner, assisted by the judicial commissioners, will then undertake the work of ensuring that there is robust and comprehensive oversight of the use of all investigatory powers. If a judicial commissioner becomes unfit to perform the role, Clause 204 provides that they can be removed either by a resolution of both Houses of Parliament or by the Prime Minister acting alone in a very limited set of circumstances.

Many of the amendments to Clauses 203 and 204 seek to alter the relationship between the Prime Minister and the judicial commissioners to an unacceptable extent. These roles have a vital influence on crucial national security decisions and, as the person ultimately responsible for national security, it is only right that the Prime Minister should make these appointments.

It has been suggested that having the Prime Minister involved in the appointments will somehow weaken the independence of the positions. I refute that in the strongest terms. The principle of judicial independence is so deeply ingrained and is upheld by the judiciary to such an extent that suggesting it will be abandoned because the Prime Minister makes the formal appointments is simply unfounded. My noble and learned friend Lord Judge was clear in his evidence to the Joint Committee that having the Prime Minister make the appointments is a practical matter that will not affect the independence of the commissioner in any way. Some of the amendments put forward to Clause 203 would give responsibility for appointments to the Lord Chief Justice of England and Wales. We have difficulty accepting these amendments for two main reasons. First, it would be inappropriate for the Lord Chief Justice of England and Wales to be able to make appointments of judges from Scotland or indeed Northern Ireland, even if there were a requirement to consult the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland.

Secondly, the amendments do not provide a role for the Lord Chancellor and, given her overall responsibility for judicial appointments, it is necessary that the Lord Chancellor should be involved in the process. Instead of accepting these amendments, we propose Amendments 179, 181 and 182. Under these amendments, both the Lord Chancellor, who is ultimately responsible for appointing judges, and the heads of the judiciary, with their responsibility for the deployment of judges, will be able to recommend a suitable candidate for the role of Investigatory Powers Commissioner. Additionally, the Investigatory Powers Commissioner will be involved in recommending candidates for appointment as judicial commissioners.

This amendment significantly strengthens the role of the heads of the judiciary and the Lord Chancellor in appointments. It will mean that the Prime Minister can only appoint an individual who has been recommended and will help to ensure that the very best candidates are selected to perform these crucial roles. It will also ensure that the running of Her Majesty’s Courts & Tribunals Service is not unduly affected by these appointments.

The Lord Chancellor already has the power to recommend that Her Majesty increase, by Order in Council, the maximum number of judges of the High Court and Court of Appeal. Amendment 187 would place the Lord Chancellor under a duty to make such a recommendation if the Lord Chancellor considers it necessary in order for judges to be appointed as judicial commissioners without adversely impacting the operation of the courts. We do not consider that this is necessary. The Lord Chancellor will, by virtue of the amendments that we have proposed, be involved in the appointments process and already has the power to make such recommendations.

Clause 203(7) is entirely practical in its nature. It gives the Investigatory Powers Commissioner discretion to delegate his or her functions to another judicial commissioner. This is to ensure that the range of important functions the Bill will provide to the Investigatory Powers Commissioner can always be carried out—and at very short notice. It is appropriate that the Investigatory Powers Commissioner, who will be a senior member of the judiciary, is, as far as possible, given the freedom to operate in a way the commissioner thinks appropriate. That is why the clause offers discretion as to how functions should be delegated and to what extent.

If the Investigatory Powers Commissioner thought it appropriate to delegate their duties to a single judicial commissioner and create a de facto deputy, there is nothing to prevent them from doing so. Alternatively, they may think it appropriate to delegate certain duties to more than one judicial commissioner. This leaves the choice with the Investigatory Powers Commissioner, who we consider to be best placed to decide how to run their office. I hope that that provides some reassurance to noble Lords and I therefore invite them not to press their amendments.

In relation to government Amendment 190, I reconfirm that the Investigatory Powers Commissioner will have all the powers and access that the commissioner needs in order to carry out effective scrutiny. This is vital to the public’s confidence in the use of these powers and is central to the Bill. But it is also vital that the public servants who work to keep us safe are able to get on with their jobs and can do so safely. That is why the commissioner will be under certain duties, including a duty not to act in a way contrary to the public interest or to jeopardise the success of an operation.

But we do not think it is appropriate that those duties should apply to the judicial commissioners when they are exercising their judicial functions. Amendment 190 will ensure that this is the case. It makes changes to ensure that all of the decisions of a judicial commissioner following a refusal to approve an urgent warrant are caught. It also makes changes consequential on extending the double lock to national security and technical capability notices.

A number of the amendments proposed by noble Lords concern the means through which judicial commissioners may be removed from office. We are sympathetic to the concern behind these amendments. It is clear that a delicate balance needs to be struck. There needs to be some means to remove a commissioner, in the very unlikely event that they prove unfit to carry out the role. But the independence of the judicial commissioners demands that removal from office is treated with the utmost seriousness.

The Bill allows for the removal of commissioners in two ways. The first is by the Prime Minister in a very narrow set of circumstances, such as where the commissioner receives a sentence of imprisonment; and secondly, by the Prime Minister with the approval of both this House and the other place. We cannot accept amendments that would allow the Prime Minister to remove a commissioner on the grounds of inability, neglect of duty or misbehaviour—which are somewhat subjective terms—without Parliament acting as a check. I hope that the Government’s unwillingness to give the Prime Minister such unfettered powers demonstrates our commitment to striking the right balance in the appointment and dismissal procedures.

Conversely, I do not see the need to consult the judiciary and others concerned in the appointment of the commissioners before removing them from office. As I say, it will be possible to remove judicial commissioners from office only in very narrow circumstances or with the approval of both this House and the other place. I hope that noble Lords will agree that these are adequate safeguards to ensure that a commissioner cannot be removed from their post on the whim of the Prime Minister.

With respect to the question asked by the noble Lord, Lord Rosser, the government amendments will apply to reappointments but not to dismissal.

I hope that my response has reassured noble Lords and I invite the noble Baroness to withdraw her amendment.