Investigatory Powers Bill

Earl Howe Excerpts

Tuesday 19th July 2016 Lords Chamber

There is no amendment tabled relating to that issue, but I invite the noble Earl to indicate the Government’s response to the view expressed by the Constitution Committee.

[The Minister of State, Ministry of Defence (Earl Howe) (Con)]

My Lords, Amendment 176A seeks to replace the statutory appointment of an Investigatory Powers Commissioner with the creation of an investigatory powers commission. This topic was discussed in detail, and voted on, in the other place, which agreed with the government position that establishing a commission was not necessary.

I am afraid I remain unconvinced of what practical good this amendment would do. The powers and duties on the proposed body would remain exactly the same as the responsibilities of a commissioner. The number of inspectors, technical experts and judicial commissioners employed by the organisation would remain exactly the same. In fact, as the noble Lord, Lord Strasburger, indicated, the only things that would increase would be the expense of the body to the taxpayer and the bureaucracy that it would be faced with. The body would need to be provided with a range of staff to perform corporate functions on its behalf, including its own IT people for when the printers break, its own procurement people to buy the stationery and so on.

[Lord Strasburger]

I just wonder whether all the expenditure that the Minister is listing does not apply just as much to the commissioners as to any commission.

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[Earl Howe]

No, I do not believe it does. A lot of these overheads, such as those relating to back-office functions, can be shared with other arms of the executive, so my advice is that these would be extra costs that would have to be paid for by the new body.

The new commission will also have to appoint a board and at least three non-executive directors. That would certainly add significantly to the expense of creating a new oversight body with, I contend, very little benefit in the quality of the oversight that it provides. Creating a commission would not serve to advance independence, which was one argument put forward by the noble Baroness. The current oversight bodies, the Intelligence Services Commissioner, the Interception of Communications Commissioner and the Chief Surveillance Commissioner, are provided for in statute in the same way as we propose to provide for the Investigatory Powers Commissioner. The model we propose will allow the oversight bodies to focus on their core tasks of inspections and investigations without tying them up in too much administration; that is a sensible approach. I hope that the noble Baroness will feel able to reflect on that between now and Report.

As for the comment that the model we propose does not respond to the recommendations about separating powers, it will be for the Investigatory Powers Commissioner to decide how to arrange and run their office. The commissioner will have responsibility for two distinct functions and will have sufficient staff to undertake them independently of each other. However, as David Anderson recognised, there are distinct advantages in having that relationship, even if it is an arm’s-length one, between the two functions. An example of where David Anderson felt that the relationship will be useful is when the judicial commissioners could specifically advise the inspectorate on matters to look out for on their inspections. The dialogue would be lost if the two functions were kept completely distinct.

[Baroness Hamwee]

Before the noble Earl moves on, 20 minutes ago I was not hugely enthusiastic about a single body; I have become a little more so as the debate has gone on. I have one question and another point. Have the current commissioners been consulted about the Bill’s proposals for the structure? What is their view about a single body as distinct from the parallel arrangements? Secondly, I absolutely understand that if you create a new body you create the need for some administrative—bureaucratic, if you like—arrangements, but for the argument to hinge too much on savings really worries me. As my noble friend says, surely, from paperclips onwards, the needs will be identical. If savings are expected from this, there must be concern that the functions will be affected.

[Earl Howe]

I understand the noble Baroness’s strength of feeling on this. Part of the purpose of our debates in Committee is to enable all of us to reflect on the points that have been made between now and Report, and I will certainly go away and do that. The answer to her first question is yes, the current commissioners were consulted about bringing the functions together into a new commissioner, and they approve of creating that single function.

Amendment 194A would require the Secretary of State to provide the judicial commissioners with support and assistance. While I agree with the intention behind the amendment, it is unnecessary. In terms of support, Clause 213 already places a duty on the Secretary of State to provide the IPC with staff, accommodation, equipment and other facilities. As regards assistance, Clause 211 requires the Secretary of State to provide the IPC with any access and assistance as necessary to fulfil its functions. Amendments 194B and 194BA are more specifically about the funding and resources that the IPC receives from the Secretary of State.

I fully support the principle that the IPC should be both well resourced and well supported. The impact assessment the Government have published makes it clear that the predicted future funding of the IPC is £7.4 million per annum. That is an increase of 131%—well over double—when compared to the combined funding that the existing commissioners received before the Bill was introduced. I also appreciate that the needs of the commissioner may change over time. Therefore, Clause 210(2)(d) makes it clear that the annual report of the IPC must contain information about,

“funding, staffing and other resources”.

I am certain that the IPC would use this opportunity to alert the Prime Minister if it felt that it was under-resourced in any fashion. The Prime Minister must then lay this report before Parliament, so Parliament could then take up the cause of the IPC if we ever reached that state of affairs. Therefore, I do not believe that Amendments 194B and 194BA are necessary.

Amendments 194E and 194F propose changes to Clause 220 of the Bill. This clause provides for the continued existence of a technical advisory board, currently provided for in Section 13 of RIPA. It also provides for the make-up of the technical advisory board to be prescribed by the Secretary of State in regulations. Amendment 194E would make a minor change to this clause. From what the noble Baroness said, I do not think that the purpose of the amendment is to ensure that the membership of the existing board is replaced in its entirety—that we should scrap the existing board and start from scratch. If I am wrong about that, perhaps she could indicate as much, but I did not gather that from her comments. But it might be helpful for me to provide some additional information about the make-up of the current board.

Current board members were appointed from the very small pool of people who have knowledge of the cost and technical feasibility of developing the technical capabilities used to give effect to warrants. In line with RIPA and the provisions in this clause, there is a balance of representation from the telecommunications industry and from the agencies entitled to apply for warrants or authorisations under the Bill. The role of these experts is to advise the Secretary of State on cost and technical grounds if an interception notice given under RIPA is referred for review.

The Investigatory Powers Bill extends this important safeguard to data retention notices, national security notices and all technical capability notices. It is of course right that board members must be able to meet the requirements of this new role. So, in response to the recommendations of the House of Commons Science and Technology Committee on the draft Investigatory Powers Bill, the Government committed to audit the membership of the current board to identify any gaps in knowledge; those will be addressed as a priority through the recruitment of new members.

It may be helpful for me to make the Committee aware that the board’s independent chair may, if required, call on external expertise to assist the group in deciding reasonable costs and the technical feasibility of an obligation. Furthermore, regulations under Clause 220 may also provide for other persons to be appointed to the board as the Secretary of State considers appropriate. This ensures that the technical advisory board is sufficiently flexible to be able to seek particular expertise as required.

I note that the noble Baroness feels that the word “continue” is inappropriate in this context, but I argue the opposite. If the board exists at the moment, it is perhaps not the right thing implicitly to deny its existence by failing to include a word that acknowledges the fact. I hope that we are not dancing too much on the head of a pin there, and that she will not insist on the change that she has proposed.

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[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.

[Baroness Hamwee]

My Lords, I have been listening to what the Minister has been saying. It is not too much of a stretch to imagine an argument that goes, “We can’t publish comments about the funding available because that would give clues about the severity of the security system situation or about the effort that is or is not going into dealing with it”, so it is a serious point. Regarding the phraseology in Clause 220, I was never much of a dancer so I hope the Minister will forgive me. I accept that it is a continuation of an existing board, but that is not how it appears in the Bill. I think it would benefit from being anchored by a reference to the existing board. I do not want to bring back such a minor point on Report, so I thought I would make it now and see if it gained any traction.