Investigatory Powers Bill

Baroness Jones of Moulsecoomb Excerpts

Tuesday 19th July 2016 Lords Chamber

Moved by

[Baroness Jones of Moulsecoomb]

169AA: Clause 105, leave out Clause 105 and insert the following new Clause—
“Members of Parliament etc.
(1) This section applies where—(a) an application is made to the Judicial Commissioner for a targeted equipment interference warrant, or an application is made to the Judicial Commissioner for a targeted examination warrant, and(b) the warrant relates to—(i) communications sent by, or intended for, a person who is a member of a relevant legislature, or(ii) a member of a relevant legislature’s private information.(2) The application must contain a statement that the conduct sought under subsection (1)(a) will cover or is likely to cover material falling within subsection (1)(b).(3) Further to the requirements set out elsewhere in this Part, the Judicial Commissioner may only issue a warrant if—(a) there are reasonable grounds for believing that a serious criminal offence has been committed;(b) there are reasonable grounds for believing that the material is likely to be of substantial value to the investigation in connection to the offence described in paragraph (a);(c) other proportionate methods of obtaining the material have been tried without success or have not been tried because they were assessed to be bound to fail; and(d) it is in the public interest, having regard to—(i) the public interest in the protection of privacy and the integrity of personal data,(ii) the public interest in the integrity of communications systems and computer networks, and(iii) democratic interest in the confidentiality of correspondence with members of a relevant legislature.(4) In this section “member of a relevant legislature” means—(a) a member of either House of Parliament;(b) a member of the Scottish Parliament;(c) a member of the National Assembly for Wales;(d) a member of the Northern Ireland Assembly;(e) a member of the European Parliament elected for the United Kingdom.”

[Baroness Jones of Moulsecoomb (GP)]

My Amendment 169AA would ensure that applications for targeted equipment interference or targeted examination warrants were granted only on application to a judicial commissioner, removing the role of the Secretary of State. It also applies additional safeguards to the correspondence of parliamentarians when a warrant for hacking is sought. I have held my tongue this afternoon despite listening to some astonishing statements. I will keep my remarks now quite brief. This is not to say that I do not feel a lot of passion for this debate, because I do, but I value your Lordships’ time and so I will be brief.

I feel very strongly that politicians and journalists are not above the law, but politicians have a unique constitutional role, not least in holding the Executive to account. There should be a strong legislative presumption against their surveillance, which should be rebutted only in clear and specific circumstances, overseen only by judicial commissioners, without political involvement, which could have bias. A single process of judicial authorisation ought to exist across the Bill, but in relation to politicians being under surveillance it is imperative to remove any political involvement.

It is illogical to suggest that an adequate replacement for an almost complete prohibition on surveillance of politicians—the Wilson doctrine—is to expressly allow it, needing only the Secretary of State to consult with the Prime Minister prior to authorising interception or hacking. In fact, instead of securing an independent authorisation process, involving two politicians rather than just one makes the process even more political, not less. It is inherent in our democracy that members of the public can correspond with their representatives in private. It is vital that anyone contacting their Member of Parliament and any material that they provide will be handled with confidentiality and sensitivity. This also applies to journalists, of course.

Keir Starmer MP QC raised the issue of communications sent by or intended for Members of Parliament and journalists in Committee in the Commons, saying that,

“the protection is not for the benefit of the journalist or the Member of Parliament but for the wider public good”—[Official Report, Commons, Investigatory Powers Bill Committee, 12/4/16; col. 191.]

People have to know that they have privacy and confidentiality. Of course, it is also essential that the protections granted to elected representatives are consistent across the different methods of surveillance. John Hayes, who was a Minister quite recently—I am not sure where he is now—said that the Government would consider the issue of consistency across the different methods of surveillance. I beg to move.

[Lord Murphy of Torfaen]

My Lords, I do not support the amendment, I fear. I entirely agree with the noble Baroness with regard to the correspondence of Members of Parliament. But the Joint Committee looked at whether Members of Parliament should be under surveillance and it agreed with the recommendations before it; that is, that there should be a double lock at that stage. That is consistent with the whole Bill: it should be not only the Secretary of State who signs a warrant but a judicial commissioner.

During the passage of the Bill in the House of Commons, that was made into a triple lock so that the Prime Minister, who originally was only to be informed of the warrant, now had to approve it as well. That seems to be an extremely wise thing to do. As a Member of Parliament—or a Member of this House or any of the devolved Parliaments and legislatures—who was going to have their communications intercepted, it would be important to know that it went as far as having the Prime Minister, the head of government, involved. Having just a judge doing it goes completely against the spirit of the Bill. The double-lock system is what everybody has said is absolutely the right thing to do. This is now a triple lock and I fear that I cannot support the amendment.

--- Later in debate ---

[Earl Howe]

My Lords, as I understand it, the Wilson doctrine committed the then Government to returning to Parliament if there was a change of policy. Clearly, now that we are enshrining what I think by common consent is a good formula for protecting parliamentarians, the need for a Government to come back to Parliament to announce a change in policy would have to be followed up, if it were done, by further primary legislation. I cannot envisage that and simply do not foresee that contingency. Through the Bill, we are now in a stronger and clearer position on the protection of parliamentarians and their communications with constituents than we were before.

[Baroness Jones of Moulsecoomb]

I thank the noble Lords who have made kind comments, even if they disagreed with me. We are not going to agree on the double or treble lock because, quite honestly, if you have two people from the same background or discipline agreeing with and corroborating each other—whether police chiefs or politicians—I think that there is the possibility of bias and that people outside this Chamber will see that as well.

I have heard several times in our debates the idea that we have to give the security or intelligence services the tools that they need to do the job. Personally, I heard that quite a lot with reference to the Met Police when I was on the Met Police Authority. In fact, while the Met and the intelligence services can be somewhat like a greedy child at Christmas, wanting more and more toys, it was the current Prime Minister who said “Enough” to the police. When the previous Mayor of London, Boris Johnson, wanted water cannon to be used on the streets of London, Theresa May MP said that, no, she would not authorise it. So sometimes you have to say no because it is not the right thing—the right powers or toys to give to a department.

This is a monstrous Bill which, in essence, means the end of privacy for us all. It is very important that we get these things right, so I welcome all the debate that we are having. I beg leave to withdraw the amendment.

Amendment 169AA withdrawn.