Investigatory Powers Bill

Baroness Hayter of Kentish Town Excerpts

Monday 12th September 2016 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

The purpose of the Liberal Democrats’ amendment seems to be that there is a speedier review of the legislation than was agreed in the passage of the Bill in the other place and was actually in the Bill. During the proceedings of the Joint Committee, a number of witnesses, including the Information Commissioner, argued for a sunset clause to be put into the Bill. The committee considered that; it did not agree, but at the end of the day believed that there should be,

“some form of review after five years”,

and that it should be “detailed post-legislative scrutiny”. The proposal that the Joint Committee came up with, to which I believe the Government have agreed, is that a Joint Committee of both Houses should be established within six months of the end of the fifth year after the Bill is enacted.

The difficulty with the amendment is that it refers specifically to the Secretary of State reviewing the Bill, whereas the Joint Committee was arguing that both Houses of Parliament should review it. The argument that technological change can be swifter than was thought by those of us who believe that five years was the answer is what lies behind the amendment. However, this is not simply about technology; it is also about the impact of the Act, as it will then be, upon the liberties of the people and about the nature of the various powers that we are enacting in the course of our proceedings. We therefore need some clarification: is it about the Government reviewing, or is it about Parliament reviewing? What precisely are we reviewing? I think everyone agrees with the principle, but we have to look carefully at the way in which Parliament reviews. If the amendment is eventually accepted then, frankly, it has to be secondary to parliamentary scrutiny.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, the questions that have been asked are interesting. Times are changing, as is the nature of the threats. Who would have thought 30 years ago that we would be sitting here worrying about online grooming, ISIS terrorism and kidnapping or sophisticated cybercrime and money laundering? Who would have known that they were the challenges that would face us? Who would have talked 30 years ago about apps, internal emails—which we can get on our phones, according to some of my friends—and similar matters?

We will come back to issues of encryption. Technology is changing all the time, as is the modus operandi of those who wish us harm. Added to that, as I think my noble friend was alluding to, are the new powers in the Bill and the very welcome safeguards—the privacy measures and the double lock. These are new measures and we will want to see whether they achieve what the Government hope for them.

There are therefore two issues: first, how are the Government themselves going to monitor whether the Bill is achieving what they want; and, secondly, as alluded to by my noble friend, how will we then have formal post-legislative scrutiny to see whether they are what Parliament wants, and what is the correct time for that? The issues raised about reviewing these important powers and about the rapid change both in the technology and in the threats are ones that we want to be assured will be monitored and reported back on.

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, I am not sure how useful this intervention will be, but it occurs to me that when the Government consider the amendment and the proposed reduction of the period allowed for a review, they should also bear in mind the sole recommendation made by David Anderson in his review published in August, which we were all discussing last week, the Report of the Bulk Powers Review. I know that his amendment was not accepted then, but consideration will be given to it and I would expect amendment to the Bill along the lines that David Anderson recommended:

“The Bill should be amended to provide for a Technology Advisory Panel, appointed by and reporting to the IPC”—

that is, the commissioner,

“to advise the IPC and the Secretary of State on the impact of changing technology on the exercise of investigatory powers and on the availability and development of techniques to use those powers while minimising interference with privacy”.

Assuming that some effect is given to that and some such advisory panel—an altogether more elaborate advisory panel was canvassed during the debate last week by the noble Lord, Lord Carlile—that will surely bear on the appropriate period within which an overall review should take place.

--- Later in debate ---

[Baroness Butler-Sloss (CB)]

My Lords, I have not spoken often on this Bill but felt impelled to say that what the noble Lord, Lord Lester, and the noble and learned Lord, Lord Brown, have said is extremely good sense and the Government should follow it.

[Baroness Hayter of Kentish Town (Lab)]

My Lords, given what has been said, I have little to add. I was born in Germany after the war, when it was so easy to define national security. It was about people coming over our border. Today, it is about our streets and about keeping people safe at home and abroad. I look forward to the noble Earl’s response. I do not think it is wise to try to define national security in the Bill, not simply because of the complications but because the definition changes. I know that it is a long time since I was born, but even over the next five years the definition will change again. We look forward to hearing the Government’s comments.